Status of Partisan Gerrymandering Litigation in State Courts
Ahead of 2024, voters have increasingly turned to state courts to challenge gerrymandered districts.
In 2019, the Supreme Court put partisan gerrymandering claims brought under the U.S. Constitution squarely beyond the reach of federal courts in Rucho v. Common Cause. Since then, voters challenging gerrymandered maps have increasingly turned to state constitutions and state courts to challenge gerrymandered districts. Such claims have been filed in 17 states since states adopted new congressional and state legislative maps as part of the redistricting cycle that began in 2021.
So far, courts in four states (Alaska, Maryland, New York, and Ohio) have struck down maps as unconstitutional partisan gerrymanders. In North Carolina, the high court struck down maps but later overruled that decision after a change in the court’s membership. Litigation over maps continues in New York and Ohio. Cases are also pending a final ruling on the constitutionality of challenged maps in six additional states, while in four states, plaintiffs have lost partisan gerrymandering cases on procedural or factual grounds. In three states, including North Carolina, courts adopted Rucho’s logic that partisan gerrymandering claims are nonjusticiable.
In Alaska, litigants sued in trial court, alleging that the state’s legislative maps violated equal protection under the state constitution, among other claims. On appeal, the Alaska Supreme Court recognized unequivocally that intentional partisan gerrymandering violates the Alaska Constitution and struck down two senate districts that were drawn to guarantee Republican voters an advantage. A remedial map has been adopted, and no other disputes are currently pending.
Like in Alaska, the challenge to Maryland’s Democratic-drawn congressional districts claimed that the map violated the state’s Equal Protection Clause. The trial court sustained the challenge, finding that the map was an extreme outlier that “subordinate[d] constitutional criteria to political considerations.” The court ordered the legislature to adopt a new map, which it did, resolving the dispute.
Litigation over New York’s congressional and state legislative maps relied on the state constitution’s prohibition against “favoring or disfavoring incumbents or other particular candidates or political parties.” A New York trial court struck down the maps, finding they were unconstitutionally biased against Republicans. This decision was upheld on appeal to the state’s highest court. Though New York used remedial maps drawn by a special master ahead of the 2022 election, an intermediate appellate court ruled earlier this month that New York’s redistricting commission and legislature will get another opportunity to produce compliant maps. This decision has been appealed to the state’s high court.
In Ohio, voters challenged state legislative maps, including in a lawsuit where the Brennan Center appeared as counsel, for violating the constitution’s partisan fairness rules, which require that legislative districts be drawn to correspond closely to the preferences of Ohio voters and to neither favor nor disfavor a political party. A separate case was filed challenging the state’s congressional map for violating a constitutional prohibition against partisan favoritism. The Ohio Supreme Court struck down both the legislative and congressional maps. But because of a protracted remedial process and Ohio map drawers’ refusal to comply with court orders, the 2022 election took place under one-time maps previously struck down by the Ohio Supreme Court. This means that Ohio does not have maps for 2024, and litigation is ongoing.
The New Mexico Supreme Court recently issued an order holding that a partisan gerrymandering challenge to the Democratic-drawn congressional map is justiciable under the state constitution. In a first, the court adopted the framework laid out in Justice Elena Kagan’s dissent in Rucho. A full opinion is forthcoming, and the case has been remanded for further proceedings in the trial court applying the adopted legal standard.
In New Hampshire, a partisan gerrymandering lawsuit is awaiting a decision from the state supreme court about whether such claims are justiciable under the state’s constitution. The case challenges the Republican-drawn maps for the New Hampshire senate and executive council as unconstitutional gerrymanders that discriminate against Democratic voters. Oral argument took place on May 11.
The Utah Supreme Court is set to weigh in on the justiciability of partisan gerrymandering claims under the state constitution. Utah voters filed the case challenging the congressional map, which split Salt Lake City across all four of the state’s congressional districts, as an impermissible partisan gerrymander. The trial court agreed with the plaintiffs that such claims were cognizable, and the legislators appealed to the Utah Supreme Court. Oral argument took place on July 11.
In Kentucky, a trial court rejected a challenge to the state’s legislative and congressional maps. The judge found that the legislature had gerrymandered the districts but that the Kentucky Constitution does not expressly prohibit partisan gerrymandering. Plaintiffs appealed the case to the state supreme court, and oral argument will take place on September 19.
At the trial level, voters in Florida are challenging the state’s congressional map as racially discriminatory and an illegal partisan gerrymander violating the Florida Constitution. Specifically, the lawsuit alleges that the new districts split Black voters in North Florida across four districts, depriving them of an electoral opportunity. Plaintiffs also argue that the map eliminates three Democratic seats and transforms two competitive districts into ones that favor Republicans.
These claims have been brought in a state trial court under Florida’s redistricting-specific constitutional provisions, which prohibit drawing district lines that diminish the ability of minority voters to elect preferred candidates or that favor or disfavor a political party. Last decade, the Florida Supreme Court enforced these protections and forced the legislature to redraw maps. But prospects for similar success this decade are diminished given changes in the Florida Supreme Court’s composition and the bench’s increased politicization. All seven justices currently serving were appointed by Republicans, including five by Gov. Ron DeSantis. The current lawsuit also took a concerning turn when the trial judge allowed legislators to raise a counterargument that challenges the racial fairness provision as a violation of the U.S. Constitution.
In Tennessee, a lawsuit challenges the state’s legislative maps as an extreme partisan gerrymander that violates the Tennessee Constitution. The claim focuses on the legislature splitting more counties than permissible in pursuit of partisan ends. In late March, a three-judge trial panel ruled that plaintiffs can proceed to trial.
In Arkansas, a court dismissed a partisan gerrymandering lawsuit because plaintiffs did not file their suit in the Arkansas Supreme Court. In New Jersey, the state supreme court found that its review of maps as part of the redistricting-specific judicial review process is limited and that plaintiffs’ claims went beyond the scope of the court’s review powers. The court left open that plaintiffs could file a separate constitutional challenge to the maps at a later date.
State supreme courts in Michigan and Pennsylvania considered challenges to maps in their respective states as part of their redistricting-specific judicial review processes. Both courts determined that the claims brought by challengers lacked factual foundation and dismissed the claims. Last decade, the Pennsylvania high court struck down the state’s gerrymandered congressional map under the state constitution.
Courts in Kansas, Nevada, and North Carolina adopted the U.S. Supreme Court’s reasoning from Rucho v. Common Cause and found partisan gerrymandering claims to be political questions not suited for judicial resolution. In Nevada, a trial court reached this conclusion, so the decision lacks precedential value. However, in Kansas and North Carolina, these rulings came from each state’s supreme court.
The North Carolina decision was particularly notable given that the court had previously struck down maps as violating the state constitution. But the composition of the North Carolina Supreme Court shifted after the 2022 election, and the new Republican majority vacated its prior rulings against partisan gerrymandering.
As litigation continues across the country, we can soon expect a clearer picture of which voters will have recourse against partisan abuses in redistricting and whether anti-gerrymandering becomes the dominant rule under state constitutions.
The Brennan Center serves as merits counsel in the ongoing litigation over legislative maps in Ohio and submitted amicus briefs in the North Carolina and Utah lawsuits.
Yurij Rudensky is a senior counsel at the Brennan Center for Justice.
The new court majority reversed itself and found the state constitution powerless to confront partisan gerrymandering.