Since the U.S. Supreme Court decided Davis v. Bandemer in 1986, courts have recognized partisan gerrymandering as an issue within their power to decide. But in the three decades since, they have struggled mightily to agree on a manageable standard to determine when a district plan crosses the line between permissible line drawing and unconstitutional gerrymandering.
The struggle was especially pronounced when the Supreme Court last took up the issue in the mid-2000s. In Vieth v. Jubelirer in 2004, four of the justices, in a characteristically vigorous plurality decision by Justice Antonin Scalia, pushed back against Bandemer, saying the issue should be off limits to the courts because there were still no “judicially discernible and manageable standards” for gauging when mapdrawers went too far. Another four justices remained steadfast that the issue was proper one for the courts and proposed various tests for evaluating partisan gerrymander claims. Meanwhile, Justice Anthony Kennedy found himself in the familiar role of the middleman, neither prepared to embrace the tests offered by the other justices nor prepared to join Justice Scalia in saying the issue should be forever banished from the courts. Partisan gerrymandering returned to the high court two years later in LULAC v. Perry. Again, the Court was unable to agree on a standard, leaving the status quo in place.
In the decade since, the issue of partisan gerrymandering has remained largely dormant. But as several cases work through the lower courts, it is an opportune time to revisit the issue and the cases that led to this point.
Davis v. Bandemer, 478 US 109 (1986)
Democrats in Indiana challenged the constitutionality of the state’s 1981 legislative apportionment plan, claiming that it diluted the votes of Indiana Democrats and therefore violated the Equal Protection Clause of the Fourteenth Amendment. A three-judge panel of the United States District Court for the Southern District of Indiana struck down the maps as an unconstitutional gerrymandering. The defendants then appealed to the Supreme Court.
Writing for the Supreme Court, Justice Byron White held that “political gerrymandering cases are properly justiciable under the Equal Protection Clause,” but that the Indiana Democrats had failed to show the district plan was “sufficiently adverse” to constitute a constitutional violation. This decision is significant because it answered the question of justiciability, placing partisan gerrymandering claims squarely within the judiciary’s purview. However, the Court was unable to agree on a standard for reviewing such cases.
U.S. Supreme Court Documents
Opinions
Merits Briefs
Prior to Consideration of Jurisdiction
- Brief for Appellees
- Appellees’ Motion to Strike the Amicus Curiae Brief of the Members of the California Democratic Congressional Delegation
At the Merits Stage
Amicus Briefs
In Support of Appellees
- Republican National Committee in Support of Appellees
- American Civil Liberties Union and Indiana Civil Liberties Union in Support of Appellees
- Common Cause in Support of Appellees
In Support of Appellants
Prior to Consideration of Jurisdiction
- Assembly of the State of California in Support of Appellants
- Members of the California Democratic Congressional Delegation in Support of Appellants
At the Merits Stage
- Assembly of the State of California in Support of Appellants
- Senate of the State of California in Support of Appellants
- Mexican American Legal Defense and Educational Fund in Support of Appellants
Vieth v. Jubelirer, 541 U.S. 267 (2004)
Following the 2000 census, which resulted in Pennsylvania losing two congressional seats, the Republican-controlled state legislature enacted a redistricting plan that benefited Republican candidates at the expense of Democrats. Members of the Democratic Party challenged the district plan as a violation of the one person, one vote principle of Article I of the Constitution, the Equal Protection clause of the Fourteenth Amendment, the Privileges and Immunities clause of Article IV of the Constitution, and the freedom of association guaranteed by the First Amendment.
A three-judge panel of the United States District Court for the Middle District of Pennsylvania threw out the district plan because it had districts of unequal population, thereby violating the one person, one vote principle. The district court dismissed each of the other claims.
The state legislature corrected the population disparities and the Democrats challenged the new district plan. Finding no violation of the one person, one vote principle and again dismissing the other claims, the district court this time upheld the redistricting plan. The Democrats then appealed to the Supreme Court.
The high court split badly in Vieth. In Justice Antonin Scalia’s plurality opinion, the four conservative justices held that partisan gerrymandering was a political question that was off limits to the courts because there are no “judicially discernible and manageable standards” for gauging when mapdrawers went too far. Four other justices disagreed. They said it was proper for courts to intervene in partisan gerrymandering cases and proposed various tests for determining when a partisan gerrymander had occurred. Falling between the two camps, Justice Anthony Kennedy affirmed that partisan gerrymandering is an issue courts can decide, but said none of the proposed standards were sufficient.
U.S. Supreme Court Documents
Opinions
Merits Briefs
- Brief for Appellants
- Brief for Appellees
- Brief for Appellees Cortes and Accurti
- Reply Brief for Appellants
Amicus Briefs
In Support of Appellants
- American Civil Liberties Union and Brennan Center for Justice in Support of Appellants
- Center for Research into Governmental Processes, Inc. in Support of Appellants
- DKT Liberty Project in Support of Appellants
- Jack N. Rakove, Alexander Keyssar, Peter S. Onuf and Rosemarie Zagarri in Support of Appellants
- Pennsylvania Voters Joann Erfer and Jeffrey B. Albert in Support of Appellants
- The Reform Institute, Thomas Mann, and Norman Ornstein in Support of Appellants
- Texas House Democratic Caucus and U.S. Representatives in Support of Appellants
- Public Citizen, Common Cause, Democracy 21 and Center for Voting and Democracy in Support of Appellants
- Democratic Leader of the Senate of Pennsylvania in Support of Appellants
In Support of Neither Party
In Support of Appellees
League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006)
Several plaintiff groups filed lawsuits challenging the redistricting plan passed by the Texas legislature in 2003 to replace the existing map, which had been drawn by a federal court following the 2000 census. The plaintiffs charged that the new district plan was an unconstitutional partisan gerrymander and that it violated section 2 the Voting Rights Act because it diluted racial minority voting strength. A three-judge district court panel rejected these claims and upheld the legislature’s district plan.
Plaintiffs appealed to the Supreme Court, but while the appeal was pending the Court decided Vieth v. Jubelirer, which affirmed that courts could hear partisan gerrymandering claims, but left open the question of what standards courts should use when evaluating those claims.
The three-judge panel reconsidered its decision in light of the Supreme Court’s ruling in Vieth, but ultimately affirmed its earlier decision dismissing the plaintiffs’ challenges. The plaintiffs then appealed to the Supreme Court.
Writing for the majority in LULAC, Justice Anthony Kennedy said that Texas’ decision to redistrict mid-decade was not “sufficiently suspect to give shape to a reliable standard for identifying unconstitutional political gerrymanders.” But while the Court ruled that the state’s timing did not violate the constitution, it held that Texas’ 23rd Congressional District was redrawn such that Latino voters were denied the opportunity to elect a candidate of their choosing, thereby violating the Voting Rights Act.
U.S. Supreme Court Documents
Opinions
Merits Briefs
- Brief for Appellants LULAC et al.
- Brief for Appellants Travis County et al.
- Brief for Appellants Jackson et al.
- Brief for Appellants GI Forum et al.
- Brief for Appellee Charles Soechting in Support of Appellants
- Brief for Texas State-Area Conference of the NAACP in Support of Appellants
- Brief for Appellees Tina Benkiser and John DeNoyelles
- Brief for State Appellees
- Reply Brief for Appellants LULAC et al.
- Reply brief for Travis County Appellants
- Reply brief for Appellants Jackson et al.
- Reply brief of the Texas State-Area Conference of the NAACP
- Reply brief for Appellants GI Forum et al.
- Reply brief of Appellee Frenchie Henderson in Support of Appellants
Amicus Briefs
In Support of Appellants
- Brennan Center for Justice in Support of Appellants
- Samuel Issacharoff, Burt Neuborne, and Richard H. Pildes in Support of Appellants
- Center for American Progress in Support of Appellants
- North Carolina State Conference of the NAACP in Support of Appellants
- Reform Institute, Thomas Mann, and Norman Ornstein in Support of Appellants
- Fort Worth-Tarrant County Branch NAACP in Support of Appellants
- Neil H. Cogan in Support of Appellants
- University Professors Concerned About Equal Representation for Equal Numbers of People in Support of Appellants
- League of Women Voters of the United States and League of Women Voters of Texas in Support of Reversal
- NAACP Legal Defense and Educational Fund, Inc. in Support of Appellants
In Support of Neither Party
In Support of Appellees
- Speaker of the Georgia House of Representatives Glenn Richardson et al. in Support of Appellees
- Republican National Committee in Support of Appellees
- Senator Robert C. Jubelirer in Support of Appellees
- American Legislative Exchange Council and Free Enterprise Coalition in Support of Appellees
- Alan Heslop et al. in Support of Appellees
- States of Utah, Nevada, and Ohio in Support of Appellees
- Congressman Henry Bonilla in Support of Appellees
- United States in Support of Appellees
- Edward Blum and Roger Clegg in Opposition to Appellants
- Ron Wilson in Support of Appellees
