An End to Partisan Gerrymanders? The Way Forward Post-Rucho

Gerrymander by judy_and_ed is licensed under CC BY-NC 2.0.

Kyle Roat, Blog Editor, University of Cincinnati Law Review

The Elections Clause is fundamentally flawed.[1] It vests the power of managing elections in the state legislatures and gives responsibility for supervising those legislatures to Congress.[2] Although the Framers were not unaware of the danger posed by this arrangement, it could not have been apparent to them the danger that partisan control of elections would pose in the future.[3] The advent of instant communication and computer software capable of devising electoral maps to consistently produce a desired result has given partisan groups powerful new tools to preserve legislative power in the face of popular opposition.[4] Now, with the 5-4 decision finding partisan gerrymandering claims to be unreachable political questions in Rucho v. Common Cause, the door is closed on federal judicial intervention in electoral mapmaking for the foreseeable future.[5]

Along the way, the majority was sure to mention the numerous ways states have taken the matter into their own hands.[6] Florida amended its constitution to require fair districts, and in 2015 the Supreme Court of Florida struck down the State’s map.[7] Both Colorado and Michigan have amended their constitutions to create commissions responsible for redistricting.[8] But in this direction lies a trap the Court does not mention in its Ruchoopinion. 

The Elections Clause explicitly vests the power to set the manner of elections in the state legislatures and gives Congress the power to overturn those regulations.[9] By amending their respective constitutions to allow parties other than the legislature to draw their electoral maps, these states are inviting challenges that will ask federal courts to determine whether the responsibility of determining the place and size of districts must be solely within the power of the state legislature, which the Court so far seems to have assumed is the case.

If the Court eventually decides that only the state legislature may determine how to set the electoral map for its respective state (with the ghost of congressional oversight), then the popular efforts that have so far sought to restrain the evil of partisanship in shaping who we are permitted to vote for will have been for naught, as state legislatures will once again have the ability to draw maps that nakedly favor one party at the expense of the other.

The solution to this problem is simple, if formidable. The United States Constitution must be amended to permit the States themselves, rather than the state legislatures, to determine how elections are to be held. If the Constitution is not amended, the efforts of the states to ensure the effective function of democratic government may be overturned yet again by the Supreme Court, and elections will continue to be determined by the cleverness of partisan computers. In spite of the high bar to amending the Constitution, it is critical that an amendment be passed to ensure measures can be put in place to prevent the open and flagrant subversion of the popular will of the electorate.


[1]U.S. Const. art. I, §4, cl. 1.

[2]Id.

[3]Rucho v. Common Cause, 139 S.Ct. 2484, 2494-2495 (2019).

[4]Vann R. Newkirk II, How Redistricting Became A Technological Arms Race, The Atlantic (July 11, 2019 5:41 PM), https://www.theatlantic.com/politics/archive/2017/10/gerrymandering-technology-redmap-2020/543888/.

[5]See Rucho, 139 S.Ct. 2484 (2019).

[6]Id. at 2507-2508.

[7]Id. at 2507.

[8]Id. at 2507.

[9]U.S. Const. art. I, §4, cl 1.