Why Rucho Was Right to Keep Federal Judges Out of Partisan Map Fights

Every ten years, politicians who want to keep their jobs sit down with a map and choose their voters. Then they act shocked when somebody calls it unfair. It is among the oldest comedies in American politics, and it has been running since before there was a Constitution to amend.

Now comes the serious question. When the lines are drawn for partisan advantage, who has the power to say no? A great many good people answer, "the federal courts, obviously." In Rucho v. Common Cause (2019), the Supreme Court answered, "not under this Constitution." I think the Court was right, and I want to show you why, starting with the text and working up to the policy.

How a map gets made

Begin with the machinery, because the fight makes no sense without it.

Article I, Section 2 requires an "actual Enumeration" of the people every ten years, which is the census. The census counts everyone, and the count decides apportionment: how many of the House's seats each state receives. Congress fixed the House at 435 seats, a number set in 1911 and made permanent by the Apportionment Act of 1929, which also made the process automatic after each census. After apportionment, each state with more than one seat must redistrict, drawing the boundaries of its congressional districts so that each holds roughly the same number of people. State legislatures draw state legislative districts the same way.

Who draws? The Elections Clause, Article I, Section 4, answers in a sentence worth reading in full:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Two actors appear in that sentence, and the federal courts are not one of them. The first is the state legislature, which has the primary power. The second is Congress, which has a veto-and-override power over the states' rules. The Framers gave Congress that backstop on purpose. Alexander Hamilton defended it in Federalist 59, arguing that a government must hold the means of its own preservation, so that no state could use its control over elections to starve the national legislature.

That is the design. The people elect legislatures, legislatures draw maps, and if they abuse the power, the remedy is that the same people elect different legislatures, or Congress steps in. Whatever you think of the result, notice what the text did not do. It did not hand the job of policing map-drawing to unelected federal judges.

The cases that did enter the courts

You may object that federal judges have been involved in redistricting for sixty years. They have, and it is worth being precise about when and why.

For most of American history courts stayed out. In Colegrove v. Green (1946), Justice Frankfurter wrote that the courts ought not to enter what he called the "political thicket" of districting. That began to change with Baker v. Carr (1962), which held that a challenge to a state legislature's malapportionment could be heard by the federal courts. Then came the two decisions of 1964. In Wesberry v. Sanders, the Court held that Article I's command that House members be chosen "by the People of the several States" means that congressional districts within a state must have roughly equal populations. In Reynolds v. Sims, the Court applied equal population to both chambers of state legislatures, under the Equal Protection Clause of the Fourteenth Amendment. That is the famous principle of "one person, one vote."

Whatever one thinks of the reasoning in those cases, they share a feature that matters for everything that follows: they came with a standard a judge could apply. Equal population is a number. A district has 760,000 people or it has 900,000. A court can measure the difference, declare a line unconstitutional, and order a fix, and everyone can check the arithmetic. Judges are good at that kind of problem.

What Rucho held

Rucho combined challenges to North Carolina's congressional map, drawn by a Republican-controlled legislature, and to Maryland's sixth district, drawn by Democrats. The case is a reminder that the abuse is bipartisan. The legislators who drew North Carolina's map spoke openly about their purpose: they wanted to maximize their party's advantage. The lower courts struck down both maps.

The Supreme Court, in a 5-4 decision written by Chief Justice Roberts and joined by Justices Thomas, Alito, Gorsuch and Kavanaugh, reversed. The holding was that claims of partisan gerrymandering present political questions beyond the reach of the federal courts. The Chief Justice did not defend the practice. He wrote that excessive partisanship in districting leads to results that reasonably seem unjust, and then added the sentence that carries the opinion: the fact that such gerrymandering is incompatible with democratic principles "does not mean that the solution lies with the federal judiciary."

The reasoning has three steps.

1. Article III gives courts the "judicial Power" over "Cases" and "Controversies," which means law to apply to facts. It does not make them roving referees of politics. Under the political question doctrine, drawn from Baker v. Carr itself, a court should decline a case when the Constitution commits the issue to another branch or when there is a lack of "judicially discoverable and manageable standards" for resolving it.
2. No such standard exists for partisan advantage. The plaintiffs offered several tests, measuring partisan asymmetry, running computer simulations, and asking how much partisanship is too much. The Court noted that none of them answered the threshold question: how much political considerations in drawing lines is too much? Everyone concedes that some partisanship is tolerated. States have always considered politics in districting, and the Constitution does not forbid it. A court has to pick a number, such as 55 percent or 60 percent, and nothing in the text, history or precedent tells it which.
3. The Constitution points elsewhere. The Elections Clause assigns the first move to state legislatures and the second to Congress. And the Court noted that states and Congress have the tools: independent commissions, state constitutional limits on districting, and federal legislation.

Justice Kagan's dissent, joined by Justices Ginsburg, Breyer and Sotomayor, was forceful, and a fair reader will not wave it away. She argued that the Constitution's protection of free speech, association and equal protection is violated when a party entrenches itself against the voters' will, and that courts could and did find workable standards in the lower-court records. She closed with a line that has stuck: "Of all times to abandon the Court's duty to declare the law, this was not the one."

The strongest objection, stated fairly

I want to give that dissent its best form. It goes like this. Modern technology has made gerrymandering more precise than the Framers could have imagined. Map-drawers can predict voting behavior down to the city block. A legislature that drew lines to ensure it could never lose is, in effect, picking its voters, and a legislature that cannot be removed will not reform the system that protects it. The foxes are guarding the henhouse, and the people cannot vote the foxes out because the foxes drew the districts. If courts will not intervene, who will?

It is an excellent question. I think it has five answers.

One: courts are not the only referee, and they are not the best one. The question "who watches the legislature" has a lot of answers in our system: the voters, state courts applying state constitutions, ballot initiatives, independent commissions and Congress. Florida's voters adopted anti-gerrymandering amendments to the state constitution in 2010. California, Colorado and Michigan have turned redistricting over to commissions by popular vote. Several state supreme courts have ruled against maps under state law. The idea that the federal courts are the last line of defense ignores that the line is long.

Two: the standards problem is not a technicality, it is the heart of the matter. A court that strikes a map must say what a fair map is. Is it one where seats match statewide vote share? Then you have adopted proportional representation, a system the Constitution does not contain, and one that American single-member districts were never built to deliver. Is it one that follows compactness and county lines? Then you must decide how much compactness and how many county lines, and the answers will favor one party or the other depending on where its voters live. Whatever number a federal judge picks, he picks it on his own authority, and the decision is political whatever robe it comes in.

Three: nationalizing the fight makes courts the prize. If every map is reviewable under a vague federal standard, every redistricting cycle becomes a contest to capture the right judge. Courts that decide the shape of Congress become the most valuable offices in politics, and the fight over who sits on them gets uglier. I'd rather see the fight where the voters can see it.

Four: Rucho did not leave citizens without a remedy. It left them with the harder, slower, more democratic ones. And it kept the federal courts open for the claims that do have standards: equal population under Wesberry and Reynolds, racial gerrymandering under the Fourteenth Amendment, and the Voting Rights Act.

Five: the political process works more often than its critics admit. Redistricting changes after every census, and voters have a habit of punishing maps that overreach. Maps that are drawn too cleverly can crack in a wave election, a point every map-drawer knows. A seat drawn to hold with 52 percent can fall at 49. That is why even careful gerrymanderers leave a margin, and why politicians who play with fire eventually find the matches.

The Voting Rights Act is separate, and still there

A common confusion deserves a direct correction. Rucho did not touch the Voting Rights Act. Section 2 of that statute, enacted in 1965 and amended in 1982, bars election practices that result in the denial or abridgment of the right to vote on account of race or color. The Supreme Court's decision in Thornburg v. Gingles (1986) built the framework for challenging districts that dilute minority voting strength. Racial gerrymandering claims, in which race predominated in drawing a line, remain justiciable under the Equal Protection Clause. Those claims have a standard, because the Constitution speaks to race directly in the Fourteenth and Fifteenth Amendments. For the story of that statute's coverage formula, see Shelby County v. Holder Asked Whether Old Data Could Still Govern the States.

The distinction is clean. When the Constitution gives a judge a rule, the judge applies it. When the claim is that politicians were too political, the Constitution gives the judge nothing to apply. That is not evasion. That is the separation of powers working the way Montesquieu intended.

What the founding generation understood

Gerrymandering is not a modern invention. The word comes from Massachusetts in 1812, when Governor Elbridge Gerry signed a district map whose salamander-shaped district gave the cartoonists a name for the practice. Even before that, in 1788, Patrick Henry and his allies in the Virginia legislature drew a congressional district meant to keep James Madison out of the first House. Madison campaigned, won anyway, and went on to introduce the Bill of Rights in the first House. Here, in miniature, is how the system is supposed to work. A bad map was drawn. The voters, not a court, were the remedy.

That history fits the theory Madison laid out in Federalist 10 and Federalist 51: factions are a permanent feature of free government, and the answer is not a perfect referee but a structure of competing powers. A judge with a free hand to decide what is "too partisan" is a faction's dream. Every party will argue that its opponents' maps are the unfair ones. Without a rule, the court's discretion becomes the entire game. The Founders knew what unchecked discretion looks like, and they spent a summer in Philadelphia designing around it.

I do not say this is comfortable. A republic is not meant to be comfortable. It is meant to leave decisions in the hands of the people who must live with them. Read The Elections Clause Lets States Run Elections and Lets Congress Step In for the clause that gives the system its shape, and Federalist 78 Called Courts the Least Dangerous Branch. Was Hamilton Right? for Hamilton's warning that the judiciary has neither the sword nor the purse and ought to keep to its proper lane.

North Carolina after Rucho

North Carolina offers an instructive epilogue, since its map was one of the two in the case. After 2019, challenges moved to state court. In 2022, the state supreme court, then with a Democratic majority, struck down the legislature's congressional map under the state constitution. After the court's membership changed, the new majority reconsidered the matter in 2023 and held that partisan gerrymandering claims were not justiciable under the state constitution either.

You can read that two ways, and I think both are instructive. One reading is that the process is unstable and depends on who holds the seats. The other is that it proves the point: the state's own voters decide the state's own court, and a state's constitution is the instrument that voters can amend. If North Carolinians want a different rule, they have ways to get it, among them a constitutional amendment or a commission. That is where the argument belongs, and it explains why State Supreme Courts Decide More of Your Life Than the Nine in Washington matters so much more than most voters realize.

The same logic scales up. If the people of a state believe that politicians should not draw their own lines, the people of that state can say so. That is self-government. A federal court imposing a national rule on fifty different political cultures would be a smaller thing, not a larger one.

A word on the "democracy" objection

Someone will say that Rucho is anti-democratic. That has it backwards. The decision declined to let nine unelected lawyers decide, by a standard they would have to invent, which political arrangements are acceptable. The question stayed with the elected branches and the voters. A republic is, among other things, a system that knows the difference between a bad result and an unconstitutional one. A map that looks unjust to half the electorate is a bad result. The remedy is to win elections, change laws, draft constitutions and organize. The remedy is not to ask a court to find, in a text that does not contain it, a right to proportional outcomes.

The case in brief

1. The Elections Clause of Article I, Section 4 gives the first power over districting to state legislatures and the backstop to Congress, not to the federal courts.
2. Wesberry and Reynolds (1964) were administrable because equal population is a number; partisan fairness has no comparable number, and the plaintiffs in Rucho could not supply a standard the Court found manageable.
3. Rucho (2019), 5-4 with Chief Justice Roberts writing, held partisan gerrymandering claims to be political questions, over a strong dissent by Justice Kagan, while leaving the equal-population rule, racial gerrymandering claims and the Voting Rights Act in place.
4. The remedy is political: state constitutional amendments, independent commissions, state courts applying state law, congressional legislation and, above all, voters who punish overreach.
5. Giving federal judges the power to decide how much partisanship is too much would make the courts the prize in every redistricting fight and would put a political choice in judicial robes.

What you can do: look up your own state's redistricting process on your state legislature's website, find out who draws the maps and whether any commission is involved, and attend or submit written comments to the next public hearing.