In 2019, the U.S. Supreme Court closed the federal courthouse doors to claims of partisan gerrymandering, effectively permitting states to engage in what it called “constitutional political gerrymandering.” A few years later, several states embraced this invitation, redrawing maps mid-decade for openly partisan ends. State courts must now confront a different and more basic question than in a typical partisan gerrymandering case: When a state engages in re-redistricting, is pure partisanship allowable under the state constitution?
This Essay argues that, in these situations, state courts should adopt a presumption of unlawful partisanship under state constitutions. Virtually all state constitutions say that power is inherent in the people or that the people are sovereign. In addition, some state constitutions tie redistricting to the decennial census. Under these provisions, courts should deem partisan-based re-redistricting unconstitutional. Rather than evaluating the projected partisan performance of a new map and debating how much distortion is “too much,” courts should simply ask whether the state can identify a valid, non-political reason for redrawing the lines before the next census. Absent a compelling neutral justification, legislatures or other map-drawing bodies should have at most one chance to draw a map each decade.
State courts that wish to meaningfully vindicate the protections of their state constitutions should adopt standards that protect democracy without falling victim to concerns of seeming too political. As this Essay shows, a presumption of unlawful partisan ship under state constitutions offers an administrable path.