Rucho v. Common Cause Closed the Federal Courts to Partisan Gerrymandering Claims

On the last day of its term in June 2019, the Supreme Court handed down two decisions that would shape American elections for years. One, about whether the census could ask people if they were citizens, got most of the headlines that afternoon. The other was decided in a single combined opinion covering two maps, one drawn by Republicans in North Carolina and one drawn by Democrats in Maryland, and it was the one that lasted. Chief Justice John Roberts wrote for five justices that the federal courts would no longer hear claims that a map was too partisan. Justice Elena Kagan read her dissent aloud from the bench, a step justices reserve for disagreements they consider grave. The date was June 27, 2019. Nearly every redistricting fight since, from the courtroom in Raleigh to the special election in California, has been shaped by the door that closed that day.

In short: In Rucho v. Common Cause, the Supreme Court ruled 5-4 that partisan gerrymandering claims are "political questions" federal courts cannot decide, because no judicially manageable standard exists for how much partisanship is too much. The ruling left racial gerrymandering claims, state courts, state constitutions, independent commissions and Congress as the remaining avenues, and each has been tested since.

Two maps, two parties, one question

The North Carolina case grew out of a court order. In 2016 a federal court had struck down two of the state's congressional districts as racial gerrymanders, and the legislature had to redraw quickly. The Republican co-chair of the redistricting committee, state Representative David Lewis, was unusually frank about the goal. He told colleagues the new plan was meant to preserve a 10-3 Republican edge, saying he thought an 11-2 map was simply not possible to draw. The committee adopted "partisan advantage" as an explicit criterion. In the 2016 elections the plan did what it was built to do: Republicans took ten of the thirteen seats with only a little more than half of the statewide vote.

The Maryland case was the mirror image. After the 2010 census, Democratic leaders in Annapolis redrew the state's Sixth District, in the western part of the state, moving tens of thousands of Republican voters out and Democratic voters in. Former Governor Martin O'Malley later said in a deposition that he had wanted to create a district that would elect a Democrat. It did: a Republican who had held the seat for two decades lost in 2012.

Putting the two cases together was deliberate. Whatever the Court did, it would apply to both parties. That made it harder to read the outcome as a partisan favour, and it made the question plainer: if a legislature openly draws lines to entrench its own party, does a voter whose ballot has been diluted have any claim a federal judge can hear?

The long search for a test

The Court had been circling that question for more than thirty years. In Davis v. Bandemer in 1986, a majority said partisan gerrymandering claims could in principle be heard, but the justices could not agree on a standard, and in practice no plaintiff won. In Vieth v. Jubelirer in 2004, a plurality of four justices said such claims should be thrown out altogether. Justice Anthony Kennedy provided the fifth vote to dismiss the case in front of them but refused to close the door; he wrote that a workable standard might yet emerge.

Reformers spent the next fifteen years trying to give him one. Political scientists and lawyers developed measures like the efficiency gap, which counts "wasted" votes for each party, and computer methods that generate thousands of neutral maps to see where a real map falls among them. In 2018, in Gill v. Whitford, a Wisconsin case, the Court sent the challenge back on a question of standing without reaching the merits. Kennedy retired weeks later. By the time Rucho arrived, the justice who had kept the question alive was gone.

What the majority said

Roberts's opinion did not say partisan gerrymandering was fine. He acknowledged that excessive partisanship in districting can produce results that seem unjust, and he did not dispute the evidence of what North Carolina and Maryland had done. His argument was about what judges can do.

The Constitution, he reasoned, gives the job of drawing districts to state legislatures and gives Congress power to override them. Some partisanship has been part of that process since the founding; the framers knew about it. So the question for a court could never be whether politics played a role, but how much is too much. And on that, he concluded, there is no neutral, legal answer. A standard based on proportional representation would impose a rule the Constitution does not contain. Measures of symmetry or wasted votes, or comparisons to computer-drawn maps, each rest on a choice about what fairness means, and choosing among them is a political judgment, not a legal one. Matters like that are "political questions," and federal courts must leave them alone.

The majority also pointed somewhere else. Roberts noted that states were acting on their own: commissions created by voter initiatives, state constitutional provisions and state court rulings. Congress could pass laws on the subject. The Court's decision, he wrote in substance, did not condone excessive partisan gerrymandering or leave it beyond remedy; it said the remedy was not in the federal courts.

The dissent, and why it mattered

Kagan, joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, answered point by point. Her core argument was that the majority had confused difficulty with impossibility. Lower courts in several states had in fact applied workable tests, she wrote, and had done it using the same tools the mapmakers themselves used. A legislature that uses sophisticated software to find the map that maximizes its seats leaves a measurable trail, and a court can compare its map to the range of maps a neutral process would produce. If the enacted plan is an extreme outlier, and the state cannot explain it with anything but party, that is a violation of the right to equal protection and of the freedom to associate with a party.

She also stressed what was at stake. Gerrymanders, in her account, debase the core idea that power flows from the people; they let politicians pick their voters. And she rejected the comfort the majority offered: the remedies it pointed to depended on the very legislators who benefit from gerrymanders choosing to give them up, or on voters in states that allow initiatives, which many states do not.

The dissent did not change the outcome, but it became the blueprint for what came next. Challengers took its reasoning, and its methods, to state courts.

The roads that stayed open

Rucho closed one door. Here is what remained, and what has happened on each road.

Racial gerrymandering and the Voting Rights Act. Federal courts still hear claims that a map sorts voters by race or dilutes the voting strength of minority communities. In Allen v. Milligan in 2023, the Court ruled 5-4 that Alabama's congressional map likely violated Section 2 of the Voting Rights Act, and the state had to draw a second district where Black voters could elect a candidate of their choice. But party and race are often tangled together, and states defending a map now routinely argue that they were sorting by party, which Rucho made unreviewable, rather than by race.

State courts and state constitutions. Many state constitutions contain language the federal one does not, such as guarantees of "free and equal" elections. In 2018 the Pennsylvania Supreme Court struck down that state's congressional map under its own constitution and adopted a new one. In 2019, months after Rucho, a North Carolina state court panel struck the legislative maps there. But state courts are elected or appointed in very different ways, and their membership changes. In North Carolina, the state supreme court struck the congressional map in 2022, then, after the 2022 elections gave Republicans a majority on the court, reheard the case in 2023 and reversed itself, holding that partisan gerrymandering claims could not be heard under the state constitution either.

The legislature's own boundaries. North Carolina's lawmakers also tried to argue that state courts had no power to review congressional maps at all, under a reading called the independent state legislature theory. In Moore v. Harper in 2023, the Supreme Court rejected that theory 6-3. State courts may apply state constitutions to federal election rules, within limits. That kept the state-court road open.

Commissions and initiatives. In states that allow ballot initiatives, voters have created independent or citizen commissions: Michigan and Colorado in 2018, among others. In Utah, voters approved a commission in 2018; the legislature later weakened it, and the resulting legal fight produced a court-ordered congressional map in 2025.

Congress. The Elections Clause lets Congress set rules for congressional districts. Bills to ban partisan gerrymandering and require independent commissions have passed the House before and died in the Senate.

The Maryland postscript

The Democratic half of Rucho had its own sequel, and it is worth telling because it shows the state-court road working in both directions.

The Maryland district at issue in the case was not touched by the Supreme Court's ruling and stayed in place through the 2020 election. After the 2020 census, the Democratic legislature drew a new congressional map, overriding the Republican governor's veto. Republican voters challenged it in state court, and in March 2022 a Maryland judge struck the map down as an extreme partisan gerrymander under the state constitution. The legislature drew a replacement that made one district noticeably more competitive. The reasoning Kagan had urged on federal courts was applied by a state judge to a Democratic map.

That outcome matters for an argument progressives sometimes avoid. If the goal is fair maps rather than more Democratic seats, the remedy has to bind Democrats too. Maryland shows that it can.

Weighing the Court's argument fairly

There is a respectable case for the Rucho majority, and progressives should take it seriously rather than dismiss it. Courts that decide which party "deserves" how many seats would be drawn into the most partisan questions in politics, and they could lose public trust doing it. A standard that looks neutral today might be used in ways its designers did not expect. And the Constitution does give the job to elected bodies, which is a democratic argument, not merely a convenient one.

The answer, I would argue, is that the majority's logic treats the gerrymander as a fair fight between two parties when it is often a fight between legislators and voters. When a map is built to make elections uncompetitive, the political process the Court sends challengers back to is the process the map has disabled. Courts already police district population to the person and draw lines when legislatures fail; asking them to identify the most extreme outliers is not a leap into the unknown. That is an argument, and you can disagree with it. But the predictions in Kagan's dissent about where the field would go have been borne out by what happened next, including a season of mid-decade redraws in 2025 that no federal court could stop on partisan grounds.

One more point belongs here. Rucho left the Constitution's population rules fully in force: federal courts still require congressional districts to be nearly equal in population, and they still hear racial claims. What the decision removed was the one claim that went to the heart of a partisan map, the charge that it was built to make some votes count less because of how those voters had voted before. Everything else in a map can still be challenged in federal court. That one thing cannot.

What happens to people when no court will listen

It is easy to talk about this as a matter of seats. Think of it instead as a matter of whose phone call gets returned. A voter in a district drawn to be safe, for either party, has less leverage with the person who represents them. A city split three ways to dilute its vote finds that no member of Congress sees it as home. Rural counties get grouped with suburbs they have nothing in common with. These costs fall on people in red and blue states alike, and voters of both parties consistently tell pollsters they want maps drawn by someone other than the politicians who benefit.

That shared instinct is the most hopeful fact in this story. Citizen commissions passed in Michigan, a swing state, and in Utah, a deeply Republican one. In a field where the courts have stepped back, voters have been the ones stepping forward.

What you can do

• Learn how your state draws its maps. Our voting rights and redistricting topic page tracks commissions, court cases and redraws by state.
• Follow the Court. The court watch page lists this term's Supreme Court opinions with the Court's own summaries, the emergency docket and Senate votes on judges. Voting cases often move on the emergency docket first.
• Pay attention to your state supreme court. After Rucho, state justices often have the final word on maps. Our coverage of the courts follows those races and rulings.
• Ask Congress for a national standard. Find your representatives and ask whether they support a federal law requiring independent commissions in every state.
• Make sure your own registration is current. Maps change; your right to vote should not lapse because of it. The voting page lists registration deadlines and rules for every state.