Gerrymandering, Supreme Court Inaction, and Legislative Failures: Why Legislative Action on Political Gerrymandering will Never Be Adequate

I. Introduction

The Supreme Court has stated that political gerrymandering claims “rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence.”^[1] However, the Court has incorrectly understood the claims, because political gerrymandering is an issue that simply seeks to resolve claims, allowing all voters their duly earned stake in the democratic process. While the Supreme Court has heard many cases on political gerrymandering, they have been hesitant to articulate constitutional standards for redistricting.

Instead, the Supreme Court has deemed partisan gerrymandering a political question, which must be decided by each state’s legislature. The problem in this decision is that the legislative branches of each state are the perpetrators of the offense through creation of these gerrymandered districts, meaning the problem of political gerrymandering is one with no relief if left to legislators. These state legislatures largely redraw the maps, following each census, with favor to the party in majority for future elections. Because of this, the Supreme Court is the only group that could solve the problem of political gerrymandering. In fact, because the Supreme Court is the only body that could create true change, the Supreme Court should take action to resolve political gerrymandering, allowing every vote to be fairly heard in each district across the United States.

II. Background

Gerrymandering occurs when the division of an area into political districts gives special advantages in elections to one group.^[2] Political gerrymandering claims occurs when a political party seeks to divide these districts so that their candidates will be favored in elections.^[3] One bringing these cases before the court believe that each political party should have a “fair” opportunity to elect its candidates in the state.^[4]

Upon reading about political gerrymandering, one would likely assume that it is a valid claim; however, courts have ruled that state legislatures have much leeway when drawing the districts for elections.^[5] Typically, courts will look for contiguity and compactness when deciding if the state has violated its wide discretion in district division.^[6] Contiguous and compact districts are ones where the district’s borders allow residents to travel throughout their district without entering another district.^[7]

Generally, the Supreme Court has ruled against redistricting decisions by states only when they impede a racial group’s impact on elections within the state.^[8] According to the Court’s decisions, racial gerrymandering occurs when a racial minority’s vote has been diluted through the drawing of political districts.^[9] With racial gerrymandering, for a claimant to have an apportionment plan overturned, he must show an actual discriminatory effect on an identifiable political group.^[10] In the inquiry, the key examination is not whether the minority is represented in the legislature, but rather whether the racial minority has been hindered from participating in the political process at all.^[11] Under the racial gerrymandering standard, there must be clear and demonstrable evidence that the minority has been obstructed from participation in the political process, meaning that the discrimination of redistricting must be presently occurring rather than potential future harm.^[12]

However, when looking at political gerrymandering, the Supreme Court has ruled this a non-justiciable political question.^[13] The Court has ruled this way because it argues it’s impossible to articulate a management standard through which to decide such challenges.^[14] Thus, the Supreme Court has articulated a standard for determining whether districts are racially gerrymandered but has not yet determined a standard for determining whether a district is politically gerrymandered.

III. Supreme Court Decisions

As previously stated, the Supreme Court has largely avoided ruling against the decision of the legislative branch in redistricting decisions as it pertains to political gerrymandering. However, the holding itself is not the most important thing to examine when looking at these cases from the Supreme Court. Instead, the rationale behind these holdings is essential. The rationale in these cases has allowed the legislative branches in all fifty states to continue politically gerrymandering the districts of their states.

A. Baker v. Carr

One of the earliest cases on political gerrymandering, and perhaps the only exception to the Court’s inaction on political gerrymandering, Baker v. Carr was brought before the Court in 1962 by residents of Tennessee.^[15] Baker, the appellant, brought the suit because he claimed that, because Tennessee had not redistricted since 1901, he and others similarly situated were denied equal protection because their votes in populated, urban areas were being devalued.^[16] At the time, Tennessee’s standard for allocating legislators among the counties was largely based on individual county populations.^[17] The problem brought to the courts, however, was that because of a significant rise in Tennessee’s population and the state’s arbitrary method of allocation, the 1901 Allocation Act, which the state had used for redistricting, was unconstitutionally violating the rights of citizens.^[18] The District Court dismissed the case, granting Carr’s motion to dismiss, arguing it did not have jurisdiction over the subject matter and that there was no justiciable claim in the case.^[19] The District Court reached this decision after a review of Supreme Court opinions led them to the conclusion that federal courts would not intervene in cases to compel legislative reapportionment.^[20] In the decision, the District Court did not outright go against the claim that plaintiffs’ claimed constitutional rights violation, writing that:

With the plaintiffs’ argument that the legislature of Tennessee is guilty of a clear violation of the state constitution and of the rights of the plaintiffs the Court entirely agrees. It also agrees that the evil is a serious one which should be corrected without further delay. But even so the remedy in this situation clearly does not lie with the courts. It has long been recognized and is accepted doctrine that there are indeed some rights guaranteed by the Constitution for the violation of which the courts cannot give redress.^[21]

Thus, though the District Court felt that Baker and the plaintiffs had their rights constitutionally violated, it felt that the Supreme Court had not given any ruling against a state’s legislative apportionment system.

Beginning their inquiry, the Supreme Court quickly ruled that the appellants had standing for their claim in the District Court.^[22] The Supreme Court understood that the appellants wanted to protect their interests and voting rights because the apportionment standard resulted in grossly disproportional representation for certain counties.^[23] Because a citizen’s right to vote is secured by the Constitution, impairment of that right to vote is something that can be remedied by the courts.^[24] While the Supreme Court did not state that the appellants had experienced an injury the court can remedy, it ruled that there was standing for the District Court to examine the case.^[25]

The Supreme Court then turned to the justiciability of the appellant’s claims. It states that, generally, justiciability claims “can involve no federal constitutional right except one resting on the guaranty of a republican form of government, and that complaints based on that clause have been held to present political questions which are nonjusticiable.”^[26] However, the Court rules that the claims, in this case, do not involve or implicate the Guaranty Clause.^[27] Instead, the appellant’s claims involve equal protection and their right to vote.^[28] The Supreme Court held that, because equal protection does not pose a political question, the matter was justiciable.^[29] Because the claim was justiciable, the Court deemed that it was entitled to a trial, though the Court did not state a position on what the District Court should hold after viewing the appellant’s evidence.^[30] Upon return to the Tennessee District Court, the Tennessee legislature had passed a 1962 apportionment statute, and thus, the Court decided to allow the 1962 statutes to be tested before ruling anything unconstitutional.^[31]

Here, the opinion of the District Court is important because it shows a workable standard is achievable by the courts when it comes to political gerrymandering. The District Court was able to quickly discern that a constitutional wrong is made against the citizens of a state when their vote’s value is diminished based on political redistricting. However, the District Court was unable to simply create a standard, without any guidance from the Supreme Court. Thus, the District Court’s decision here showed the Supreme Court that there is a constitutional wrong in political gerrymandering that can be rectified through the Supreme Court.

Baker v. Carr is one of the earliest cases on political gerrymandering and also one of few cases where the Supreme Court ruled that there could be a justiciable claim for an appellant. While this was not tested, because of the enacting of new legislature in Tennessee, this case shows that the Supreme Court does have the ability to rule on cases that involve reapportionment. However, Baker v. Carr seems to be the exception to the rule of law that the Supreme Court has crafted as it pertains to political gerrymandering.

B. Vieth v. Jubelirer

Continuing on, the Supreme Court in Vieth v. Jubelirer ruled that political gerrymandering claims are nonjusticiable.^[32] In Vieth, the plaintiff-appellants were challenging a redistricting map drawn by the Pennsylvania General Assembly creating congressional representative districts.^[33] Here, the 2000 census showed that Pennsylvania was entitled to two fewer Representatives in Congress, and the General Assembly, controlled by the Republican Party, was tasked with drawing a new district map.^[34] Upon pressure from national figures in the Republican Party, a partisan redistricting plan was put into place and passed by the General Assembly and Governor in 2002.^[35]

At that point, the appellants sued claiming that the redistricting legislature violated their rights through the Equal Protection Clause, by making irregular districts that are solely for partisan advantage.^[36] A three-judge panel granted the Commonwealth of Pennsylvania’s motion to dismiss as to the political gerrymandering, but did not dismiss apportionment claims.^[37] As a result, the Governor signed a remedial plan into law; however, the appellants did not feel that the new plan protected their rights any more than the predecessor legislation.^[38] As a result, the appellants appealed the decision as it pertained to the political gerrymandering.^[39] Thus, the Supreme Court granted certiorari to hear the case and rule.

The appellant argued for the creation of a standard in deciding if political gerrymandering was constitutional.^[40] To satisfy the appellants’ intent standard, the makers of the districting map must have acted with a predominant intent to achieve a partisan advantage.^[41] At the time, the only standard in play for gerrymandering was the one that addressed racial gerrymandering, which required a minority group to be hindered from a role in the political process because of their district.^[42]

However, while the Supreme Court found this to be a stricter standard than previously set, it also found the standard more difficult to use in each case.^[43] Even though this standard was crafted from the Court’s racial gerrymandering case law, the Court ruled that the predominant intent standard would be too hard to decipher when looking at political gerrymandering.^[44] In explaining why it was difficult to come up with a definitive standard for evaluating political gerrymandering, Justice Scalia wrote:

Determining whether the shape of a particular district is so substantially affected by the presence of a rare and constitutionally suspect motive as to invalidate…is quite different from determining whether it is so substantially affected by the excess of an ordinary and lawful motive as to invalidate it. Moreover, the fact that partisan districting is a lawful and common practice means that there is almost always room for an election-impeding lawsuit contending that partisan advantage was the predominant motivation; [which is not the case for] claims of racial gerrymandering.^[45]

With his majority opinion, Justice Scalia clearly writes that political gerrymandering is something that is accepted in our system of government and argues that the Supreme Court is unable to craft a standard that would cleanly resolve political gerrymandering claims.

Thus, Justice Scalia ruled that there were no equal protection claims that could be resolved in this case, because political gerrymandering is a political question that cannot be evaluated because of the complexity of the issue. The Supreme Court held that there are political considerations that can be taken into account when districting, and these considerations are not something that the Court can rule on.^[46] Throughout the opinion, Justice Scalia travels through the history of the United States, holding that across U.S. history, there has been evidence of political gerrymandering.^[47] Scalia points to a particular section of the Constitution where Congress has the authorization to make or alter districts made by the state legislature as evidence that the issue of political gerrymandering is one to be ruled by the legislative branches.^[48]

While political gerrymandering was not regulated by the Supreme Court in this case, this case highlights that the Court, on political questions, tend to favor the historical approach in making a decision. Justices in political gerrymandering cases show their desire to follow the Constitution. However, this rationale fails to take into account the growth of the United States as a nation. Many portions of the Constitution have been reinterpreted to help American progress. However, sadly, the Supreme Court’s interpretation of political gerrymandering in the law has not evolved beyond the decision made in Vieth, and decisions like the one made in Vieth continue to be crafted as the Court’s response to these claims.

C. Rucho v. Common Clause

Turning to the most recent case on political gerrymandering, Rucho v. Common Clause was heard in 2019 and had plaintiffs from both Maryland and North Carolina.^[49] The plaintiffs in these cases were suing both political parties for gerrymandering districts in their respective states.^[50] In North Carolina, Republicans controlled the General Assembly and told mapmakers in 2016 that they were to craft the map so that there was a congressional delegation of ten Republicans and three Democrats.^[51] As a result, the elections in 2016 saw ten Republicans elected and three Democrats, as Republican legislators had desired.^[52] In District Court, judges ruled that the North Carolina General Assembly’s map was unconstitutionally discriminatory.^[53] In Maryland, Democratic Governor Martin O’Malley and the Democratic Legislature led the redistricting and instructed the committee drawing the lines to create seven Democrat and one Republican district.^[54] As a result, through using the new map, Maryland Democrats were able to flip a district, resulting in the seven Democrats and one Republican winning Congressional races.^[55] Maryland Republicans sued, and the District Court ruled that the State was permanently enjoined from using the new map.^[56]

On appeal, the Supreme Court’s majority once again examines the history of political gerrymandering, arguing that the issue has existed since the United States were simply colonies.^[57] Because the Court followed the history of political gerrymandering, they also analyzed if there was a potential standard that could be applied in political gerrymandering cases, noting that any standard that could be applied must be limited, precise, manageable, and politically neutral.^[58] However, in looking for a standard, the Court ruled that:

The Founders certainly did not think proportional representation was required. For more than 50 years after ratification of the Constitution, many States elected their congressional representatives through at-large or “general ticket” elections. Such States typically sent single-party delegations to Congress. That meant that a party could garner nearly half of the vote statewide and wind up without any seats in the congressional delegation.^[59]

Through this, the Court states that they believe that political gerrymandering is so entwined in our society that it is impossible to say it is unfair.^[60] However, while the Justice may wish to refer back to the Founders, this is not possible when looking at political parties, because they were not present when the Founders drafted the Constitution.^[61] In fact, the Founders feared what would happen if political factions, or parties, caused a great divide among the citizens of the country.^[62] Thus, while political parties had inevitably formed by 1796, they were not present at the time that the Founders drafted the Constitution.^[63] Because there were no political parties, the Founders did no need to ponder political gerrymandering issues that could arise.

Turning back to Rucho, the Court continues by showing that “fair” in these situations could be different depending on who wants the fairness.^[64] The rationale of the Court highlights their feeling that any map that could be created would be considered unfair by certain members of any given state.^[65] Because of this, the Court feels that any test would be unable to prove political gerrymandering as unconstitutional. Thus, the Supreme Court ruled that “[f]ederal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”^[66] Instead, the Supreme Court believes that the role of Congress should be to regulate partisan gerrymandering if it is to be resolved.^[67]

While this case reaches the same conclusion as a majority of cases on political gerrymandering, it does so by drawing from the past as Vieth did. The majority here held that the maps drawn by North Carolina and Maryland were not unconstitutional.^[68] However, the dissent makes the point that maps should be drawn looking for a median map that is close to an equal representation to the vote share both parties have statewide.^[69] Making the point of this argument, Justice Kagan writes that:

By drawing districts to maximize the power of some voters and minimize the power of others, a party in office at the right time can entrench itself there for a decade or more, no matter what the voters would prefer…By that mechanism, politicians can cherry-pick voters to ensure their reelection.^[70]

Throughout the dissent, Kagan makes it clear that this is an issue that the Supreme Court must create a standard because, without the checks of the Court, people are held captive by their state government when maps are redrawn to guarantee victory. Legislative attempts are insufficient to resolve gerrymandering claims, and because of this, Kagan’s dissent correctly highlights the issues with partisan gerrymandering. Though it may have been present since the colonial era of the United States, this does not mean that the Court should not resolve these claims.

D. Supreme Court Impact on Political Gerrymandering

As can be seen throughout these three Supreme Court opinions, the Court has taken a completely hands-off approach when looking at political gerrymandering. While understanding that districts should not be racially segregated, the Court fails to see the dangers that are posed to all voters when political gerrymandering is allowed. Though this is something that has occurred across the history of the United States, that should not mean that voters are bound to the will of those they elect following every map being redrawn. However, the Supreme Court seems unwilling to shift its stance on partisan gerrymandering because of the precedent for its acceptance. The Court favors history and precedent rather than the right of the citizens to an equal stake vote in their state.

However, the Court is misguided in looking to history and the Founders’ intent on political gerrymandering, because the Founders had no reason to discuss political gerrymandering, due to their lack of political parties. Political parties began to form after the Constitution was drafted, but could not have been pondered by the Founders. The lack of mention in the Constitution should not stop the current Justices from acting on political gerrymandering, nor should its absence be seen as a deferral to the legislature on the issue.

While the Supreme Court seems confident that the legislators are the branch that is tasked with resolving issues on political gerrymandering, the legislative branches are partisan bodies. Because of this, their judgment is largely clouded by the needs of their party, as well as the desire to protect their political longevity. Thus, legislative branches will do redistricting looking to protect their parties and themselves with the approval of the Supreme Court, and as a result, the voters in these states are forced to accept the maps. This problem plagues the American democratic system, and the only branch capable of resolving this is the Supreme Court, which is unwilling to go against its precedential stance on political gerrymandering.

IV. Legislative “Solutions”

The Supreme Court has, up to now, made it clear that the job of resolving political gerrymandering claims lies with the legislative branches. However, the legislative branches of the states have a stake in the fight. Desiring to win their elections at any cost, allowing legislators to use their roles to draw maps as they see fit, they are capable of ensuring their success for another ten years unchecked. When looking at redistricting legislation, it is important to look beyond the words of the text. Instead, the focus of analysis should be the elections that followed the legislation. By looking at the election outcomes that follow, one can accurately determine if the measures are effective at avoiding political gerrymandering. While one would hope that legislation on redistricting would stop partisan gerrymandering, more often than not, the legislatures of the states use this legislation to continue their grip on power.

A. Pennsylvania Legislation

In Vieth v. Jubelirer, the Supreme Court held that the Pennsylvania legislature redistricting plan did not violate the Constitution. Currently, the Pennsylvania Constitution shows how the legislature will go about their redistricting.^[71] In large part, this section states:

(a) In each year following the year of the Federal decennial census, a Legislative Reapportionment Commission shall be constituted for the purpose of reapportioning the Commonwealth. The commission shall act by a majority of its entire membership.

(b) The commission shall consist of five members: four of whom shall be the majority and minority leaders of both the Senate and the House of Representatives, or deputies appointed by each of them, and a chairman selected as hereinafter provided…. The four members within 45 days after their certification shall select the fifth member, who shall serve as chairman of the commission, and shall immediately certify his name to such elections officer….

(c) No later than ninety days after either the commission has been duly certified or the population data for the Commonwealth as determined by the Federal decennial census are available, whichever is later in time, the commission shall file a preliminary reapportionment plan with such elections officer….

(i) Any reapportionment plan filed by the commission, or ordered or prepared by the Supreme Court upon the failure of the commission to act, shall be published by the elections officer once in at least one newspaper of general circulation in each senatorial and representative district. The publication shall contain a map of the Commonwealth showing the complete reapportionment of the General Assembly by districts, and a map showing the reapportionment districts in the area normally served by the newspaper in which the publication is made.^[72]

Pennsylvania’s unique rules regarding redistricting allow the two parties an “equal” voice while still allowing a regular citizen to be seated on the panel. Seemingly, this addition would help to allow the voices of Pennsylvania citizens to be heard. Further, at first glance, the allowance of both majority and minority leaders to be a part of the map-drawing would seem to create a bipartisan environment where maps could be drawn fairly. Additionally, these maps are shared among the general public before the official signing of these maps into authority. According to the Pennsylvania Constitution, this allows any “aggrieved” persons to file suit to stop the maps from taking effect.^[73] Overall, at first glance, the Pennsylvania format of redistricting would allow equality in the process, with equal legislators from both parties and public opportunity to change the maps if aggrieved.

Turning to the makeup of the Pennsylvania government in 2011, Republican Tom Corbett was elected governor in the 2010 election.^[74] Beyond that, Republicans were able to obtain a Pennsylvania House of Representatives majority of one hundred and twelve members over Democrat’s ninety-one representatives.^[75] Finally, looking at the state Senate, Republicans also held a majority of thirty members over Democrats, who had twenty members.^[76] Though Pennsylvania’s process is intended to be fair, by creating a commission, the redistricting is still clouded by leadership in both the executive and legislative branches being of the same party.

Looking next to the election results following that redistricting map, beginning in 2012, Barack Obama defeated Mitt Romney by a margin of 52% of votes to 47%.^[77] Turning to the other key federal election, the House of Representatives, the Republican candidates won thirteen of the seats available.^[78] Meanwhile, the Democratic candidates won five of the possible eighteen seats.^[79] Looking at that margin, that means that Republican candidates won 72% of the House of Representatives races in Pennsylvania in 2012. This is a gross disparity in comparison to the presidential election result. While split-ticket voting does occur, it is unlikely that split-ticket voting could increase in such enormous inflation from the presidential to the representative level.

Next, turning to the results in the 2016 election, Republican Donald Trump beat Democrat Hillary Clinton by a margin of 49% to 48%.^[80] Once again, however, in the House of Representative races, Republicans had a crushing victory, winning thirteen seats.^[81] Meanwhile, though the Democratic presidential candidate won 48% of the vote, the party won only five House seats, which is 28% of available seats for the state.^[82] Yet again, this drastic change in vote share for each party points to the fact that these districts were drawn in a partisan manner. While the presidential elections of 2012 and 2016 are closely contested, the House of Representative races show that the map is drawn with favoritism towards the Republicans, who controlled the legislature and the executive branches when redistricting occurred.

Finally, looking at the results of Pennsylvania in the 2020 election, Joe Biden beat Donald Trump, with Biden obtaining 50% of the vote to Trump’s 49%.^[83] Meanwhile, in the House of Representatives races during the 2020 election, Democrats won nine seats and Republicans also won nine seats.^[84] Simply looking at these results, it would appear that the districts are fairly divided to represent the interests of voters from both parties. However, this is not because of the districts drawn and passed into law by the Pennsylvania Republican majority of 2011.

Instead, this is because the Pennsylvania Supreme Court ruled the districts drawn by Republicans as unconstitutional, partisan gerrymandering.^[85] The Court here found that the drawing of the map was against the traditional criteria of redistricting, instead favoring partisan advantage.^[86] After examining the evidence, the Court found that the redistricting plan that became law did not meet standards because of the odd shapes of districts, population inequality, and generally, because the districts were not compact and contiguous.^[87] Importantly, this decision by the Pennsylvania Supreme Court highlights the fact that even if a redistricting plan from the legislature, on its face, appears to be neutral rather than political, the total majority by one political party will result in partisan gerrymandering.

B. North Carolina Legislation

In Rucho v. Common Clause, the Supreme Court ruled that North Carolina’s legislature was entitled to redistrict as they saw fit. The current legislation used by North Carolina can be found in their state constitution. The section reads:

The Representatives shall be elected from districts. The General Assembly, at the first regular session convening after the return of every decennial census of population taken by order of Congress, shall revise the representative districts and the apportionment of Representatives among those districts, subject to the following requirements:

(1) Each Representative shall represent, as nearly as may be, an equal number of inhabitants, the number of inhabitants that each Representative represents being determined for this purpose by dividing the population of the district that he represents by the number of Representatives apportioned to that district;

(2) Each representative district shall at all times consist of contiguous territory;

(3) No county shall be divided in the formation of a representative district;

(4) When established, the representative districts and the apportionment of Representatives shall remain unaltered until the return of another decennial census of population taken by order of Congress.^[88]

As can be seen in this section, North Carolina allows its legislators to draw the district maps every ten years, following the return of another census of the population. Further, each representative represents an equal part of the population, in a contiguous territory. Additionally, this section states that these maps will only be drawn every ten years, meaning that the districts will remain the same until the next census is conducted. Under this method of redistricting, the party that controls the General Assembly and Governorship has the power to affect the changes that they wish in the district maps.

Looking at the makeup of the North Carolina General Assembly in 2011, following the 2010 census, will create understanding as to who was in power when looking to the most recent redistricting to occur in the state. In the North Carolina House of Representatives for 2011, there were sixty-eight Republicans and fifty-two Democrats.^[89] The North Carolina Senate, on the other hand, had thirty-one Republicans and nineteen Democrats.^[90] In North Carolina, the redistricting is determined by the General Assembly, which in 2011 had Republican majorities for both branches. From these facts, it is clear that Republicans had the power to coordinate the political map as they saw fit. As a result of the redistricting law of North Carolina, there was no safeguard in place that could potentially stop any Republican gerrymandering, if it were to occur as some would suggest. However, also important in analyzing this data, it is important to look at raw election votes, to see if a bias towards Republican officeholders exists in the district map.

Beginning in 2012, Republican Mitt Romney beat Barack Obama with 50% of the vote compared to 48%.^[91] Looking next to the House of Representative races, Republicans won nine of the thirteen races, compared to the Democrats who won four seats.^[92] This shows an increase in winning races by roughly 19%, winning 69% of House races while winning only half of the state’s popular vote. While this comparison is less sharp than that of Pennsylvania, there is still a likely explanation that political gerrymandering is the cause of this bias towards Republican House candidates.

Turning next to 2016, Republican Donald Trump defeated Hillary Clinton by a margin of 50% to 46%.^[93] Meanwhile, in similar results to 2012, the Republican candidates for House races won ten seats, while the Democratic candidates won only three.^[94] This is a Republican win rate of 77% for House of Representative seats, a stark contrast from Trump’s 50% of the statewide vote. With this data, it is clear that individual districts favored the candidates of the Republican party while creating a strong disadvantage for the Democratic candidates. While Democrat Hillary Clinton was a strong contender for the statewide race, Democrats down-ticket had a much more difficult path to victory.

Finally, the North Carolina 2020 election votes can be examined. For president, Donald Trump narrowly defeated Joe Biden, by a margin of 50% to 49%.^[95] This shows a roughly equal support for both parties by voters. Turning to the districts of North Carolina, however, Republicans won eight seats for the House of Representatives, while Democrats won only 5.^[96] With this number of wins, Republicans won roughly 61% of the seats for the House of Representatives. Beyond federal races, Republicans maintained a twenty-nine to twenty-one advantage in their state senate, as well as a sixty-five to a fifty-five-person majority in their state House of Representatives chamber.^[97] From this, we can see that the Republicans have a slight advantage on the district map because while Trump narrowly won the Presidential race, Republicans have a sweeping advantage in House elections because of the makeup of the districts. These districts were crafted in 2011, by a Republican-controlled General Assembly.

As a direct result of the party controlling the General Assembly in 2011, following the census, Republicans have been able to obtain an advantage in federal House elections. While the Supreme Court may have ruled this district map was constitutional, one must question that when looking at the tight race statewide and comparing it to the majorities that these maps created in favor of Republican candidates, especially because the General Assembly was controlled by Republicans when the map was drawn.

C. Maryland Redistricting Legislation

Like North Carolina, Rucho v. Common Clause stated that the Maryland format of redistricting was permissible. As with many states, Maryland’s constitution enumerates how district maps are to be redrawn following each census. In the Constitution, it states:

[T]he Governor shall prepare a plan setting forth the boundaries of the legislative districts for electing of the members of the Senate and the House of Delegates. The Governor shall present the plan to the President of the Senate and Speaker of the House of Delegates who shall introduce the Governor’s plan as a joint resolution to the General Assembly…. The plan shall conform to Sections 2, 3 and 4 of this Article. Following each decennial census the General Assembly may by joint resolution adopt a plan setting forth the boundaries of the legislative districts for the election of members of the Senate and the House of Delegates…. If a plan has been adopted by the General Assembly by the 45th day after the opening of the regular session of the General Assembly in the second year following every census, the plan adopted by the General Assembly shall become law. If no plan has been adopted by the General Assembly…the Governor’s plan presented to the General Assembly shall become law.^[98]

Under this plan, Maryland’s governor holds the most power in creating the new maps used in elections. Beyond that, the governor’s plan becomes law if no plan has been approved by the General Assembly. Thus, while the General Assembly is allowed a say in the redistricting of the state, if they are unable to reach an agreement on the terms of a map, then the Governor’s plan becomes law regardless. This structure makes the governor the ultimate actor in any redistricting plan introduced in Maryland.

Looking to state government make up for the 2011-2012 legislative session in Maryland, to begin, Democrat Martin O’Malley was elected to serve as Governor.^[99] In the General Assembly, Democrats had a thirty-five-person majority compared to twelve Republicans.^[100] Turning to the House of Delegates, Democrats had ninety-eight members while Republicans had only forty-three.^[101] Thus, Democrats held all power in the redistricting process in Maryland for the past decade. Per the Maryland Constitution, Governor O’Malley had two years to submit a plan for approval, and the Democratic chambers of the General Assembly had a certain amount of time to vote on it, otherwise, it was approved regardless. In the state, the way that maps were drawn was determined entirely by Democrats.

Starting with the 2012 federal election, Democrat Barack Obama beat Mitt Romney by a margin of 62% to 36% of the vote.^[102] Then, in turning to the House of Representatives races, Democrats continued their success, winning seven of the eight available seats.^[103] Thus, despite winning only 62% of the statewide vote, Democrats won 87.5% of all House races for that year. While Republicans accounted for thirty-six percent of all voters in the state, their success in the House races was significantly lower than that rate. While split-ticket voting could be a cause, there is also an additional cause, which is that the Democratic party controlled all chambers responsible for the redistricting process. As a result, when left to their own devices, the party was able to create a district map that gave them the edge when it came to down-ticket elections.

Turning to the 2016 election, Democrat Hillary Clinton won with 60% of the statewide vote, while Republican Donald Trump won 34% of the vote.^[104] Next, looking at the House races, the results were the same as in 2012, with Democrats winning seven of the eight seats in the House of Representatives.^[105] As a result, Republicans again won one seat, despite having obtained a third of the statewide vote.^[106]

Finally, examining the results of an election under the district map, Joe Biden won the state over Donald Trump, obtaining 65% of the vote compared to Trump’s 32.2%.^[107] House of Representative elections during 2020 for Maryland show Democrats winning seven seats, while Republicans won only one seat.^[108] At that margin, Democrats won 87.5% of House of Representative races for the 2020 federal election, just like in 2012 and 2016. The rise in seats earned as compared to statewide party voting shows the role that the redistricting of 2011 played in the disproportionate increase of seats won by Democrats.

As alleged in Rucho v. Common Clause, the evidence shows that political gerrymandering occurred against Republicans in Maryland. By controlling the position of Governor, as well as both chambers of the General Assembly, Democrats were able to redraw the lines to ensure that their party remained in power across state elections. While Democrats did win statewide, the margins do not equate to the number of seats earned in the House of Representatives. These maps clearly show an inequity towards Republicans across the state, and this is because of Democratic control over the redistricting process.

D. Outcome of Legislative Actions on Political Gerrymandering

Throughout these three states’ redistricting experiences in the past decade, there is a clear theme that when a party controls a state’s government fully when redrawing these district maps, there will be partisan gerrymandering, unless a Court takes action against the plan. In each of these states, one party controlled the redistricting following the 2010 census, and as a result, there was a partisan advantage in the maps for the controlling party. This proves that, without Court guidance, partisan gerrymandering will continue indefinitely. Legislative action alone on political gerrymandering, results in a bias in district maps for a decade. At the present, with legislative actions having nearly absolute control of redistricting, political gerrymandering will remain in our electoral system.

While some of these disparities could be the result of split-ticket voting, the margins of difference are almost 20% shifts in support of a given party throughout these three states. Because of the stark difference between the statewide and district races in terms of party support, this shows that political gerrymandering occurred across these districts in all three states examined. Across each of these three states, one political party had control of the redistricting, and across the states, there was a bias in favor of that party’s down-ticket candidates. The legislative control of redistricting creates a system where, if one party is in complete power at the time of redistricting, that party can maintain their political advantages in the state for a decade, at the minimum. Thus, while the courts feel that the job of redistricting was left to only the legislative branch, it is clear that the legislature is unable to fairly perform the task unless the Supreme Court offers them guidelines to follow when drawing maps. Without guidelines, the Court is allowing legislative bias control district maps across the country.

IV. Conclusion

When looking at the state of political gerrymandering, one would see the Supreme Court unwilling to act and state legislatures taking advantage of majorities by drawing districts to suit partisan interests. The actions of state legislatures on redistricting are often unconstitutional, and the Supreme Court must act if there will be a resolution to this problem. In relying on history and precedent, the Supreme Court refuses to solve this problem, and thus, denies citizens across this country of having their vote equally to every other voter in their state. This reliance on history is even misguided, with no political parties being present when the Founders drafted the Constitution, which means that it would have been beyond their thinking at the time. Meanwhile, state legislators continue to take advantage of their redistricting processes, instead choosing to focus on longevity for both themselves and their parties. The Supreme Court must come up with a constitutional standard to stop state legislatures from politically gerrymandering because the branch that the Court wants to solve the problem is the perpetrator.

In the three states critically examined in this note, all appellants lost their cases to the Supreme Court even though there is clear evidence that political gerrymandering existed in gross proportions. As a result of the Supreme Court’s refusal to create a constitutional standard, in the last decade alone, these three states and countless others have experienced political gerrymandering. If the Supreme Court does not step in to resolve this problem, the problem will only grow more severe with parties drawing even more skewed districts, and voters’ votes will become even less equal. Because legislative action has proven not to remedy the problem of political gerrymandering, the Supreme Court must step in with a constitutional standard that will allow every vote in all fifty states to be equal.

The Supreme Court must create a standard for the states to follow when redistricting otherwise political gerrymandering will continue to be the norm in United States politics. While this issue has rarely been resolved against those who gerrymander, the best standard available for the Court’s use is that found in League of Women Voters v. Commonwealth.^[109] In the case, the Pennsylvania Supreme Court established that maps could be overturned when the districts are not composed of compact and contiguous territory, roughly equal in population, and cities, towns, and counties are not split.^[110] Under the standard, it is sufficient to establish a violation by showing that these traditional criteria were overlooked to use other factors.^[111] Thus, under the standard, if the districts are not made using basic, neutral standards, then, the courts would be able to act to ensure that the districts will meet those criteria. The standard created by the Pennsylvania court is simple and could be uniformly applied, so courts across the country could utilize it.

The Supreme Court must enact a standard like this before another redistricting cycle allows state governments across the country to place bias in the district maps. Without a standard from the Supreme Court, political gerrymandering claims will continue forever. The application of the standard allows the Supreme Court to ensure that every voter across this country has an equal vote in their elections. The Supreme Court must act on this issue to ensure democracy in this country is fair and represents every American; without such action, so many votes across the United States will be drown out by political gerrymandering.