Gerrymandering is legal, at least the partisan kind, because in 2019 the U.S. Supreme Court held that federal courts have no authority to police it. In Rucho v. Common Cause, the Court ruled 5–4 that partisan gerrymandering claims are “political questions” the Constitution assigns to legislatures, state courts, and Congress rather than to federal judges.1Justia. Rucho v Common Cause, 588 US (2019) The ruling did not call the practice fair or constitutional on the merits. It said federal judges lack a workable standard for drawing the line between hard-nosed politics and unconstitutional manipulation, so they will not draw one at all. That gap between unfair and unconstitutional is why the practice continues.
What Partisan Gerrymandering Actually Does
A gerrymander works because whoever controls the district lines can decide most election outcomes before any votes are cast. Two techniques do the work. Cracking splits the other party’s voters across several districts so they fall short of a majority in each. Packing crams them into a few districts they win by enormous margins, wasting their numerical strength everywhere else. A map that uses both can let a party win 55% of the statewide vote and 70% or more of the seats, and it can lock in that advantage for the full decade until the next census.
Who Draws the Lines, and Why That Matters
The Constitution’s Elections Clause assigns the job of drawing congressional districts to state legislatures, with Congress retaining the power to override them.2Constitution Annotated. Article I Section 4 That means elected politicians directly control the maps that determine their own reelection odds. The federal courts have added one meaningful constraint over the years: districts must contain roughly equal populations under the “one person, one vote” principle. But equal population says nothing about shape, competitiveness, or whether a map is engineered to entrench one party. The structural answer to why gerrymandering is legal starts here. The people with the strongest incentive to manipulate the maps are the people the Constitution hands the pen to.
Rucho v. Common Cause and the Closing of Federal Courts
Voters in North Carolina and Maryland challenged their congressional maps as unconstitutional partisan gerrymanders. In 2019 the Supreme Court held their claims were not justiciable in federal court because judges lack “judicially discoverable and manageable standards” for resolving them.1Justia. Rucho v Common Cause, 588 US (2019) Chief Justice Roberts wrote that the Constitution “does not require proportional representation” and that federal courts are “neither equipped nor authorized to apportion political power as a matter of fairness.” Any judicial standard for measuring excessive partisanship, the majority reasoned, would be arbitrary.3Constitution Annotated. Nonjusticiability of Partisan Gerrymandering Claims
Rucho did not declare partisan gerrymandering constitutional or desirable. It declared it off-limits for federal courts. The majority pointed to state courts, state legislatures, and Congress as the bodies that retain authority to address the problem. Something can be legal, in practice, simply because no federal court has the power to stop it.
The One Line Federal Courts Will Still Enforce: Race
Federal courts stay out of partisan map disputes, but they will intervene when race is the predominant factor driving how lines are drawn. Two bodies of law create this exception.
Section 2 of the Voting Rights Act prohibits any voting practice, including redistricting, that denies or abridges the right to vote on account of race. A violation exists when, based on the totality of circumstances, a state’s political processes are not equally open to minority voters and those voters have less opportunity to elect representatives of their choice.4Office of the Law Revision Counsel. 52 USC 10301 – Denial or Abridgement of Right to Vote on Account of Race or Color The Department of Justice enforces this against redistricting plans that discriminate on the basis of race, color, or membership in a language minority group.5U.S. Department of Justice. Redistricting Information
Separately, the Supreme Court’s 1993 decision in Shaw v. Reno established that bizarrely shaped districts can be challenged under the Equal Protection Clause when they can only be explained as an effort to separate voters by race. When race is shown to be the predominant factor, the map is subjected to strict scrutiny, and the state must prove the racial classification was narrowly tailored to serve a compelling government interest.6Justia. Shaw v Reno, 509 US 630 In 2023, the Court reaffirmed that Section 2 applies to single-member congressional districts, upholding a lower court finding that Alabama’s congressional map likely diluted Black voters’ ability to elect a second representative.
The legal line, then, comes down to motive. Drawing lines to help your party win is a political question federal courts will not review. Drawing lines to dilute the voting power of a racial group violates federal law.
Why Racial Claims Have Gotten Harder to Win
The racial exception is real, but recent rulings have narrowed it. In 2013, Shelby County v. Holder struck down the coverage formula that forced certain jurisdictions to obtain federal approval before changing voting rules. That preclearance system under Section 5 of the Voting Rights Act had been one of the strongest tools for catching discriminatory maps before they took effect. Section 2’s nationwide ban on racial discrimination survived, but the advance-approval mechanism did not.7Justia. Shelby County v Holder, 570 US 529 (2013) Without preclearance, a discriminatory map can govern an entire election cycle while litigation plays out.
Then in 2024, Alexander v. South Carolina State Conference of the NAACP held that challengers “must disentangle race and politics” and show that race, not partisanship, was the predominant factor in drawing the lines. The Court also reinforced a presumption that legislatures acted in good faith.8Supreme Court of the United States. Alexander v South Carolina State Conference of the NAACP (2024) In states where racial demographics and partisan preferences overlap heavily, this gives legislatures a usable defense. A map that systematically disadvantages minority voters can be recharacterized as mere partisan strategy, and partisan strategy is what Rucho placed beyond federal review. The burden falls on challengers to prove race rather than party drove the lines, even when the effect on minority voters looks the same either way.
Where the Fight Has Moved
With federal courts out of the picture for partisan claims, the pressure has shifted elsewhere.
State Courts
State constitutions often contain redistricting requirements that go beyond the federal Constitution, and state courts can read those provisions to limit partisan manipulation. Supreme courts in Ohio, New York, Maryland, Alaska, and Wisconsin have struck down maps as excessively partisan or in violation of state criteria like compactness, contiguity, and respect for political subdivisions. North Carolina’s supreme court invalidated partisan maps in 2022 and then reversed itself in 2023 after its composition changed. State-court protection is real but fragile, and it tracks whichever way a particular court happens to lean when the challenge arrives.
Independent Redistricting Commissions
The more structural reform is to take the pen away from legislators. Roughly a dozen states use some form of commission for congressional maps, and about sixteen use commissions for state legislative maps, with widely varying levels of independence. Many of these bodies were created by voter-approved ballot initiatives in states such as Arizona, California, Colorado, Michigan, Ohio, Utah, and Virginia. Ballot initiatives have been one of the few routes around legislatures that have no incentive to disarm themselves. The limitation is familiar: not every state allows ballot initiatives, and the states with the most entrenched gerrymanders are often the ones where reform is hardest to pass or hardest to make stick. Ohio voters approved redistricting reforms twice, and the state supreme court still found the resulting maps violated the state constitution.
Congress
The Elections Clause lets Congress override state rules for federal elections, which means a federal statute banning partisan gerrymandering in congressional redistricting is constitutionally permissible.2Constitution Annotated. Article I Section 4 The Rucho majority itself identified Congress as one of the bodies that could address the problem. Bills like the Redistricting Reform Act of 2025 have proposed exactly that.9Congress.gov. HR 5449 – Redistricting Reform Act of 2025 None have become law. The political arithmetic is predictable: whichever party benefits from the existing maps in enough states to control a chamber has little reason to vote for change.
Partisan gerrymandering remains legal, then, not because any institution has decided it should be, but because every institution with the power to stop it has so far declined. The Supreme Court said the question belongs to someone else. The someones else have not answered.