Status of Partisan Gerrymandering Litigation in State Courts

In Rucho v. Common Cause, the Supreme Court put partisan gerrymandering claims brought under the U.S. Constitution squarely beyond the reach of federal courts. Since the Court’s ruling in 2019, voters challenging gerrymandered maps have increasingly turned to state constitutions and state courts. Claims raising issues of partisan fairness have been filed in 18 states since states adopted new congressional and state legislative maps as part of the redistricting cycle that began in 2021.

The past few months have seen a flurry of activity. Since this summer, the Wisconsin Supreme Court agreed to hear a lawsuit challenging its legislative maps, the New Mexico Supreme Court and Kentucky Supreme Court held partisan gerrymandering justiciable but did not strike down their states’ respective maps, and the New Hampshire Supreme Court ruled that partisan gerrymandering claims are not justiciable under its state constitution. Major cases are also pending before state high courts in Florida and Utah.

Here is the status of every partisan gerrymandering lawsuit filed in state court since the start of the redistricting cycle.

State Where Partisan Gerrymandering Claims Were Found Nonjusticiable

Courts in Kansas, Nevada, New Hampshire, 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, New Hampshire, and North Carolina, these rulings came from the 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 in 2023 the new Republican majority overruled its prior decisions and vacated its remedial order, giving the legislature an opportunity to draw new maps with no safeguards against extreme partisan discrimination.

States Where Maps Have Been Struck Down

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, the high court ruled on December 12 that New York’s redistricting commission and legislature will get another opportunity to produce compliant maps.

A lawsuit in Tennessee challenged the state house map for splitting more counties than permissible and misnumbering the districts (numbering determines whether the seat is elected in a presidential or midterm year) in the state senate map to maximize partisan advantage for Republicans. In November, a three-judge trial panel rejected plaintiffs’ arguments with respect to the house districts but struck down the state senate map for numbering districts in Davidson County (home to Nashville) so that most state senate seats in Davidson County would be elected in lower-turnout midterm years that tend to skew conservative. Although the case did not challenge maps as impermissible partisan gerrymanders and the court did not examine the partisan dimensions of the claims, the plaintiffs nonetheless presented their technical mapping violations as having partisan motives.

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 statewide partisan 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 maps the Ohio Supreme Court determined to be unconstitutional. After the 2022 election, the composition of the Ohio Supreme Court changed, and both cases have since been dismissed.

The challenge to the congressional map was voluntarily dismissed by the litigants. The Ohio Supreme Court dismissed the challenge to the legislative maps after remedial maps were adopted in September with bipartisan support, rendering the complaint inoperative. While these cases were dismissed, the court did not alter its prior precedents and partisan gerrymandering claims continue to be justiciable in Ohio.

As noted above, in North Carolina the state supreme court struck down state legislative and congressional maps in 2022, but in 2023 it overturned its prior rulings and held that partisan gerrymandering claims are nonjusticiable after the court’s membership changed.

Pending Lawsuits

In Wisconsin, voters filed two cases in the state supreme court in August 2023 that challenged the state house and senate maps as unconstitutional partisan gerrymanders. One of these lawsuits also alleged that the state legislative districts were impermissibly noncontiguous and that the adoption of the maps violated separation of powers principles. On October 6, 2023, the Wisconsin Supreme Court declined to take up the partisan gerrymandering allegations but granted review on the contiguity and separation of powers claims. Oral argument took place on November 21, 2023.

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, 2023.

Voters in Florida challenged the state’s congressional map as racially discriminatory and an illegal partisan gerrymander in violation of the Florida Constitution. Specifically, plaintiffs argued that the map eliminated three Democratic seats and transformed two competitive districts into ones that favor Republicans. The lawsuit also alleged that the new districts split Black voters in North Florida across four districts, thereby diminishing their electoral opportunities.

Plaintiffs dismissed the partisan gerrymandering allegations, but the lawsuit is proceeding on the racial discrimination claim. In September, a trial judge ruled in plaintiffs’ favor. A state intermediate court sitting en banc reversed earlier this month. Plaintiffs have asked the Florida Supreme Court to take jurisdiction and review the case.

Cases Dismissed on Procedural or Factual Grounds

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. Last week, the state supreme court affirmed. It held that partisan gerrymandering claims were justiciable and that “there are limits” under Kentucky’s constitution, but that the maps were not unconstitutional. 

The New Mexico Supreme Court recently held 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. On remand, the trial court determined that the congressional map did not constitute an “egregious” and therefore impermissible gerrymander. In November 2023, the state’s high court upheld the lower court’s ruling.

State supreme courts in Michigan and Pennsylvania considered challenges to maps in their respective states as part of their redistricting processes, which includes judicial review. 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.

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 ruled that its review of maps as part of the state’s 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.

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As redistricting litigation winds down across the country, voters in an increasing number of states can turn to their state judiciary to challenge extreme partisan gerrymandering. Eight state high courts have found such claims to be justiciable while only three have put them beyond the reach of state court jurisdiction.

The Brennan Center served as merits counsel in 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.