By Wendy Underhill
Today, the U.S. Supreme Court ruled on what were expected to be a pair of blockbuster redistricting cases—Gill v. Whitford and Benisek v. Lamone. The end result: the status quo has not changed.
Both cases dealt with gerrymandering in map drawing: how much party-favoring is too much, given that redistricting is an inherently political activity?
The court did not decide on the merits of gerrymandering in either case; rather, they sent both cases back to lower courts for continued litigation.
Gill v. Whitford had the potential to be a historic ruling on the legality of gerrymandering, a tradition that dates to the founding of the United States. The court’s decision leaves the legal framework of redistricting untouched. This was also true of the lesser-known Maryland case, Benisek v. Lamone. In Benisek, the Court failed to dive into the constitutionality of gerrymandering, and sent the case back to the district court after deciding a procedural question.
This is not the first time the Supreme Court has addressed gerrymandering. In Davis v. Bandemer, in 1986, the court ruled that partisan gerrymandering claims may indeed be brought in federal courts under the Equal Protection clause, yet set a high bar for proving unconstitutional partisan mapdrawing. The court looked again at gerrymandering in 2004 in Vieth v. Jubelirer, concluding that it might be unconstitutional to draw maps that favored one party over the other, but that case offered no standards for how to determine an illegal map. These cases essentially paved the way for the 2018 cases decided on Monday.
With the 2018 rulings, there may still be a limit to partisanship in map drawing; however, the Supreme Court did not deem these cases to be appropriate for tackling the BIG question of what constitutes an impermissible partisan plan.
With or without these rulings, states will again undertake the extraordinarily complex job of redistricting in 2021 and beyond—and they must do so in accordance with voluminous federal law. Mapmakers also must comply with state laws and guidelines. While the principles, or criteria, used by each state vary greatly, they can include: compactness, contiguity, preservation of political subdivisions, preservation of communities of interest, preservation of cores of previous districts and several others.
In recent years, a small handful of states have adopted additional state criteria that are aimed at partisanship in one way or another. For instance, “competitiveness” as a criterion seeks to create districts where both major parties have a shot—which in essence means avoiding the creation of safe districts. Arizona’s constitution includes this criterion: “To the extent practicable, competitive districts should be favored where to do so would create no significant detriment to the other goals.” (Ariz. Const. Art. 4, pt. 2. Sec.1 (14)(F).
Ohio has taken a different approach to dealing with partisanship in its newly adopted redistricting principles for legislative maps. Based on a constitutional amendment passed in 2015, the Buckeye State will require future statewide legislative maps to correspond closely to the statewide party preferences of voters, as measured by past election results: “Statewide proportions of districts whose voters, based on statewide and federal partisan general election results during the last ten years, favor each political party shall correspond closely to the statewide preferences of the voters of Ohio.” (Ohio Const. Art. XI sec. 6 (B)).
See NCSL’s Redistricting Criteria webpage for details.
Wendy Underhill is NCSL’s director for elections and redistricting. Matthew Catron, NCSL’s legal intern, contributed.