Free and Equal Elections: A New State Constitutionalism for Partisan Gerrymandering

Abstract

Increased partisanship, single-party control of state governments, and the rise of technology and “Big Data” have allowed mapmakers to draw legislative district maps—both congressional and for state legislatures—that are uncompetitive and skewed in favor of one party.^[2] The resulting “extreme partisan gerrymandering” has left states like North Carolina, a traditionally purple state with contested statewide elections, with lasting effects on the partisan composition of its elected officials.^[3]

On June 27, 2019, the Supreme Court handed down its opinion in Rucho v. Common Cause, a set of consolidated cases arising out of partisan gerrymandering claims in North Carolina and Maryland.^[4] The Court held that partisan gerrymandering claims are nonjusticiable in federal court because they present a “political question” beyond judicial competences, deciding there is no “limited and precise standard” for evaluating such claims that is “judicially discernible and manageable.”^[5] The decision effectively shut the door on the justiciability of partisan gerrymandering in federal courts, leaving advocates to search for alternative judicial paths.^[6]

In the wake of Rucho, state courts may be the most viable path forward in partisan gerrymandering litigation. Several state courts have already seen successful challenges to partisan gerrymanders. In North Carolina^[7] and Pennsylvania,^[8] state courts struck down gerrymandered state maps under the state constitutions’ Free Elections Clauses. These clauses, found within many state constitutions, generally require that elections be “free,” “equal,” or “open.”^[9]

This Note argues that following Rucho, challengers to partisan gerrymanders should bring claims in state court under explicit prohibitions on partisan gerrymandering where they are available, and where not, under state constitutions’ Free Elections Clauses. Part I describes the phenomenon of “extreme partisan gerrymandering” and its consequences. Part II discusses the Supreme Court’s ruling in Rucho v. Common Cause, and how it has left redistricting litigants without legal recourse in federal courts. Part III argues that the solution to the problem wrought by Rucho is for voting rights advocates to bring claims in state court, particularly under state constitutions’ Free Elections Clauses.