gerrymandering

In Gill v. Whitford the Supreme Court has agreed to decide whether and when it is possible to bring a claim that partisan gerrymandering is unconstitutional.  

While the Court has repeatedly struck down district maps that rely on racial gerrymandering, it has never ruled that maps drawn to secure partisan advantage are unconstitutional. In 2004, Justice Anthony M. Kennedy – who may be the deciding vote in Whitford – wrote a concurring opinion indicating that partisan gerrymandering could be unconstitutional.

Cooper v. Harris raises an issue litigated over and over since the 2010 census. Challengers claim the North Carolina legislature unconstitutionally packed minority voters into a few legislative districts to lessen their ability to influence races in other districts. The Supreme Court agreed holding 5-3 that a North Carolina District Court correctly ruled that North Carolina relied too heavily on race in designing two majority-minority congressional districts.

The Supreme Court has held that per the Equal Protection Clause if the use of race predominates in redistricting the district’s design must be “narrowly tailored” to serve a “compelling interest.” Complying with Section 2 of the Voting Rights Act (VRA), which prohibits vote dilution— “dispersal of [a group’s members] into districts in which they constitute an ineffective minority of voters”—is a compelling interest. A “strong basis in evidence” is needed to show the VRA requires race-based districting.  

In November 2016, a panel of federal district judges struck down Wisconsin’s 2011 state legislative district maps as an unconstitutional gerrymander. “It is clear that the drafters got what they intended to get,” Judge Kenneth Ripple wrote in the 2-1 decision. “There is no question that Act 43 was designed to make it more difficult for Democrats, compared with Republicans, to translate their votes into seats.”

In 5-4 decision in Arizona State Legislature v. Arizona Independent Redistricting Commission the Court held that the Constitution’s Elections Clause permits voters to vest congressional redistricting authority entirely in an independent commission.   

In 2000 Arizona voters adopted Proposition 106 which places all federal redistricting authority in an independent commission. The Elections Clause states:  "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . .”