Three Ways to End Gerrymanders After Justices Gut Voting Rights

The US Supreme Court has taken a wrecking ball to a vital pillar of constitutional government: the right of every individual voter to have an equal voice in electing the state legislature and Congress. The Louisiana v. Callais decision’s damage to our democracy isn’t theoretical.

The underlying premise of a democracy is that citizens who disagree with the actions of the political party controlling the government can rely on the electoral process to vote that party out of power. This ability is what provides legitimacy to government.

In 2019, the Roberts court showed that it doesn’t understand this principle when it decided that federal courts can have no role in remedying partisan redistricting. And in its recent decision gutting the Voting Rights Act’s protection of the rights of minorities to select a representative in the electoral process, the Supreme Court made it far more difficult to remedy even racially discriminatory redistricting.

The current redistricting scramble by various states will only further undermine public confidence in our government. It began with Texas using an unprecedented mid-decade redistricting to try to add five Republicans to its congressional delegation. And in direct response to the Supreme Court’s Voting Rights Act decision, we now see Tennessee using redistricting to dilute the power of Black voters.

It didn’t have to be this way. For decades, various courts have recognized that the judiciary could deal with partisan redistricting and require that legislative district boundaries ensure each voter’s voice had equal weight—regardless of party affiliation—in determining the composition of their legislatures and Congress.

In the 1960s, in Baker v. Carr and later decisions, the Supreme Court recognized that the way states created congressional and state legislative districts could run afoul of the 14th Amendment’s Equal Protection Clause, requiring the federal courts to remedy them. In later years, various state courts—including in Michigan, Pennsylvania, New York, and Florida—relied on state constitution anti-gerrymandering provisions to rule in favor of challenges to state legislature and congressional redistricting. Then, generally with the help of special masters, they approved maps that remedied the gerrymandering.

The Roberts court ignored this history in its 2019 Rucho v. Common Cause decision. Despite that state courts had been able to do so, and that the dissenting opinion provided approaches for a workable test, Chief Justice John Roberts said challenges to partisan redistricting are a political question beyond the capacity of courts to address. His remedy: Leave it to state legislatures to fix.

However, Roberts’ remedy is most often going to be illusory. Where one party controls both the legislature and the governor’s office, the expedient remedy of continually redrawing district boundary lines allows that party to spread the voters of the opposite party among enough districts to perpetuate the party’s control of the legislature and maintain more congressional seats than would be justified.

The recent Callais decision eviscerating the Voting Rights Act aggravates the problem. There, the Supreme Court chose to override Congress’ determination, acting under the 14th and 15th Amendments, that challenges to electoral maps don’t require proof of intent to discriminate, but merely an effect that dilutes the voice of Black voters. If the “impact” and “effect” of legislative action was to prejudice minority voters, then courts could intervene.

While the electoral process can’t be relied on to remedy partisan and racially discriminatory redistricting, there are three things that can be done.

First, we shouldn’t give up on the ability to convince federal judges that some redistricting is a race-based effort to dilute the voting power of minority voters. While Justice Elena Kagan in her recent dissent bemoaned the difficulty of proving discriminatory intent, the Supreme Court had to keep open this line of attack.

The Tennessee legislature’s action is a good example where discriminatory intent could be found. That state hadn’t been involved in this year’s redistricting scramble. But in the immediate aftermath of the Supreme Court’s decision gutting the Voting Rights Act protections, the legislature decided to enter the redistricting fray. It carved up the district encompassing Memphis so that parts of the city would now be assigned to three Republican-leaning congressional districts.

Because Memphis’ population is over 60% Black, this chronology, coupled with a blatant allocation of Black voters, provides strong evidence that the intent of the legislature was to dilute the Black vote, and that any claim that this was just “partisan redistricting” is bogus. Similar attacks may be possible if other states now try to take advantage of the Supreme Court’s recent decision.

Second, state courts need to continue enforcing state constitutional protections against gerrymandering. A coming test involves Florida. In response to gerrymandering after the 2010 census, its courts forced compliance with the Florida Constitution. The question now is whether the state courts will fulfill their obligations in response to the current blatant, unconstitutional gerrymandering by the Florida Legislature.

Third, while undoubtedly requiring a different Congress and president, Congress does have the power to regulate how congressional districts are drawn. For example, it could require that all congressional districts meet certain non-partisan criteria, and end the unseemly and anti-constitutional kind of tit-for-tat redistricting that we are now seeing.

Chief Justice Earl Warren considered Baker v. Carr to be one of the most important decisions of his tenure. He was right; it provided a path to ensure that all votes are meaningful in our democracy.

Unfortunately, the Roberts court’s decisions on partisan redistricting and the Voting Rights Act may be among its most important, but for the opposite reason: They undermined the role of voting in our democracy.

The case is Louisiana v. Callais, U.S., No. 24-109 and 24-110, decided 4/29/26.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Richard J. Davis is a former Assistant Watergate Special Prosecutor and Assistant Secretary of the Treasury in the Carter Administration.

Philip Allen Lacovara is the former deputy solicitor general of the US, was counsel to the Watergate special prosecutor, and president of the District of Columbia Bar.

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