It is no exaggeration to say that the U.S. Supreme Court’s recently concluded term was one of the most consequential for our democracy and the rule of law. The 14th Amendment’s birthright citizenship guarantee survived a narrow 5-4 ruling, and the Court preserved the authority of states, granted by the Constitution, to set the rules for voting by mail.
On the negative side of the ledger, the Court opened the floodgates even wider to big money in politics, neutered Congress’ ability to insulate federal agencies from political influence and, infamously, in Louisiana v. Callais, eviscerated a portion of the federal Voting Rights Act that outlawed using redistricting as a tool for racial discrimination.
Less noticed, but extremely important, is the fact that Callais completes the Court’s U-turn on the issue of partisan gerrymandering. Although once viewed by the Court as contrary to basic tenets of democracy, partisan gerrymandering is now deemed in Callais to be a legitimate government purpose, even if it is used as an acceptable cover for creating maps that dilute the voting power of Black Americans, Latinos, and other groups of voters who face discrimination.
The Callais ruling says plaintiffs who challenge discriminatory voting maps must prove that there is a way to avoid the discriminatory result while still perfectly achieving the state’s purported partisan gerrymandering goals. The Court in essence granted states a constitutional right to engage in partisan gerrymandering — one that supersedes the Voting Rights Act’s prohibition on racial discrimination.
As Justice Samuel Alito put it in a particularly dystopian part of his majority opinion, to make a successful Section 2 challenge using illustrative maps, among other criteria, plaintiffs’ maps “must meet all the State’s legitimate districting objectives” to include “a target partisan distribution of voters, a specific margin of victory for certain incumbents, or any other goal not prohibited by the Constitution …”
This determination mirrors the ruling in Abbott v. LULAC from December of last year. There, a concurrence written again by Justice Alito faults the lower court panel for not granting the Texas Legislature a safe harbor because, according to Justice Alito, “the impetus for the adoption of the Texas map … was partisan advantage pure and simple.”
Both Callais and Abbott mark an outrageous turnabout by the Court. In Rucho v. Common Cause (2019), the justices decried the evils of partisan gerrymandering and discussed many ways in which it could be combated, but the Court majority declared that there could not be a federal constitutional cause of action to bar gerrymandering because it was too difficult to say when partisanship had gone too far. Now, however, the Court declares that maps are protected precisely because courts can see that they were drawn for overtly partisan reasons.
As a result, a partisan gerrymandered map can now serve as cover for districts drawn with an adverse racial impact. District maps are protected from federal judicial review under the Voting Rights Act by the very partisanship the Court stated only recently that federal courts were not competent to identify.
So, there you have it: Partisan gerrymandering is now a legitimate state goal in the eyes of the current Supreme Court, and states can publicly declare their partisan purposes as a sort of magic wand to ward off enforcement of the Voting Rights Act. As Justice Alito explains in Callais, “[f]ailing to account for political considerations in redistricting … can allow plaintiffs to undo a State’s legitimate, nonracial decisions under the banner of [Section] 2 [of the Voting Rights Act].” Consequently, partisan effects must be affirmatively protected by federal courts if new lines are drawn to correct any racial discrimination (in the unlikely event that courts find any discrimination given this requirement).
What makes this result particularly illegitimate is that the Court has made this jurisprudential transformation without acknowledging it was doing so, and without explaining why. To understand the distance the Court has traveled, it is important to understand the Court’s past redistricting rulings.
Tracing the Court’s Dark Turn on Partisan Gerrymandering
Reynolds v. Sims (1964) and Wesberry v. Sanders (1964) established the legal principle of “one person, one vote.” The rulings effectively ended severe malapportionment across numerous states, where districts contained vastly different populations and thus gave certain voters disproportionate political power. These were usually rural voters, as farm populations had shrunk and cities had grown, with no change in district lines.
While these cases did not deal directly with the issue of partisan gerrymandering, they were fundamentally about ensuring fairness in representation in the political process. The Reynolds majority opinion includes a striking passage about our democracy which can be readily applied to the effects of partisan gerrymandering:
The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.
During the decades that followed, the dispute on the Court was simply over how our system of government could best combat gerrymandering: Could the federal courts find a principled way to do that, with clear standards to identify partisan maps that were unconstitutional, or should the task be left to Congress or the states? Crucially, the Court’s opinions continued to acknowledge the undesirability of this undemocratic practice:
- 1986: In Davis v. Bandemer, the Court was urged to overturn Indiana’s legislative district map as an illegal partisan gerrymander. It declined to do so, but the majority opinion explicitly said that the decision did not disqualify the Court from settling future disputes.
- 2004: Justice Antonin Scalia, writing in Vieth v. Jubelirer for a plurality that declared it could not settle a partisan gerrymandering dispute, also wrote the following in response to a dissent from Justice John Paul Stevens: “Much of his dissent is addressed to the incompatibility of severe partisan gerrymanders with democratic principles. We do not disagree with that judgment …” Justice Anthony Kennedy, the deciding vote in Vieth, declared that denying “fair and effective representation” through partisan gerrymandering would “surely” be unconstitutional.
- 2015: The Court again reiterated that partisan gerrymandering violates democratic principles in Arizona State Legislature v. Arizona Independent Redistricting Commission. The ruling in this case upheld the state’s independent redistricting commission, which was tasked with ending partisan gerrymandering and used to draw congressional districts.
- 2019: Chief Justice John Roberts, writing a majority opinion in Rucho, contradicted the Court’s 1986 ruling by asserting that partisan gerrymandering claims cannot be heard in federal court. However, he also wrote that “[e]xcessive partisanship in districting leads to results that reasonably seem unjust … such gerrymandering is ‘incompatible with democratic principles.’” In doing so, the Court expressly noted that it “does not condone excessive partisan gerrymandering” and that its decision did not “condemn complaints about districting to echo into a void.”
The assurance in Rucho has proven hollow. The Court that in 2019 declined to remedy partisan gerrymandering while condemning it, now, in 2026, elevates the practice to constitutionally protected status — one that supersedes the Voting Rights Act’s prohibition on racial discrimination in voting. The distance between those two positions is the distance between a court washing its hands and a court lending them.
The Court has thus completed a circle it never acknowledged drawing: from implying that partisan gerrymandering is unjust but not our problem to partisan gerrymandering is entirely legitimate and may be used to defeat civil rights claims. No majority opinion explains what changed. No justice in the majority accounts for the reversal. It simply arrived.
This arc of injustice makes the Court a legitimate target for criticism.
The Urgent Case for Gerrymandering Reform
The Supreme Court’s newfound acceptance of redistricting for partisan advantage is just one of several factors that make a strong case for legislation that bans partisan gerrymandering of congressional maps.
Redistricting in our nation has been abused for centuries, even predating the voting map signed into law by Massachusetts Governor Elbridge Gerry in 1812, a map so reviled at the time that the practice still bears his name. The weaponization of this process today, however, involves an unprecedented level of sophistication that ruthlessly divides communities and undermines our democracy.
Today, ultra-precise software and computing power create an irresistible allure for partisan actors who would rather maximize seats for their party and manipulate voting maps than face even mildly competitive races for elected office. The result is an increasingly large number of maps where the political party in power has drawn them to ensure continued legislative control even if a majority of voters prefer another party, and where the opposition party is given few if any congressional districts in states where they constitute very significant percentages of the population.
One can only imagine what some of the Constitution’s Framers like John Adams would think of modern partisan gerrymandering. In a pamphlet titled “Thoughts on Government,” published in 1776, Adams declared that the body we know as the House of Representatives should be “an exact portrait of the people at large.”
The norm of redistricting following the U.S. Census has been completely upended, a process that began last summer with the Trump administration pressuring the Texas legislature to gerrymander its congressional map. California followed with citizens voting in favor of a Democratic gerrymander. Like dominoes, Virginia then produced another Democratic gerrymander (since overturned by the Supreme Court of Virginia because it said it did not follow state constitutional procedures) while North Carolina, Florida, and Missouri produced lopsided Republican gerrymanders.
Callais has made matters worse by prompting a number of Southern states to impose new congressional maps with racially discriminatory results before this year’s midterms to improve Republican electoral chances. Louisiana, Alabama, and Tennessee have opportunistically accelerated this race to the bottom, increasing the incentive for blue states to redistrict to improve Democratic chances before 2028.
The public, to their credit, disapprove of partisan gerrymandering. In May, POLITICO released a survey which found that strong majorities of both Trump and Harris 2024 voters think partisan gerrymandering is a “way to steal elections.” Furthermore, a YouGov survey conducted in April found strong disapproval for partisan gerrymandering among Democratic, Republican and independent voters.
What do the politicians controlling this process get for their efforts? A state of constant partisan warfare, a huge swath of disillusioned and angry constituents, and a political environment where failure to do the bidding of the most ideologically extreme voters in a district can end a political career. There is also the reality that whichever party is in power will draw districts to disadvantage the other.
The best way to end an arms race is for both sides to agree to lay down their weapons and come to an agreement. The current redistricting battle tells us that states are unlikely to do so unilaterally. Indeed, Democratic leadership in states with independent redistricting commissions are now thinking of undoing the commissions, saying that the commissions’ independence forces them to fight the partisan battle with one arm tied behind their back.
So, the answer is congressional legislation establishing a national standard for nonpartisan, fair maps. The Supreme Court acknowledged in Rucho that Congress has the power to do this through the Constitution’s Elections Clause. Maps or districts enacted with the purpose or undue effect of advantaging or disadvantaging a political party or incumbent should be explicitly prohibited.
We are not naive about the prospects of Congress taking action today, but that day is coming. The downsides of this race to the bottom — partisan warfare, disillusioned constituents, and electoral volatility — should be more obvious to lawmakers of both parties with each passing day. Certainly, it has already become clear to the public. And things will only get worse if we maintain our current course.
A partisan gerrymandering ban may not end every redistricting dispute. But it would restore a principle the Supreme Court itself once embraced and has now abandoned: that voters should choose their representatives, not the other way around. A Court that called partisan gerrymandering incompatible with democracy in 2019, and in 2026, a legitimate exercise of state power and safe harbor for racial discrimination, has necessitated congressional action.
