Nina Rose Gliozzo

Volume 70, Issue 5, 1331-1387

This Note seeks to explore the way courts engage with claims of racial gerrymandering. The Supreme Court has described judicial oversight of redistricting as an “unwelcome obligation.” These complex cases are both highly politicized and often require the Court to engage with the mathematical analysis underscoring arguments about the traditional districting criteria of compactness—an area where the courts lack expertise. Do these two factors influence courts to avoid deciding gerrymandering cases on the merits? Two recent Supreme Court decisions removed previously erected barriers to plaintiffs bringing gerrymandering claims, arguably inviting increased judicial oversight of redistricting. Moreover, a survey of 141 post-2010 redistricting lawsuit decisions revealed none of the expected judicial aversion to grappling with racial gerrymandering claims. In line with recent decisions of the Supreme Court, lower courts resolved the majority of the redistricting litigation brought since the 2010 census on the merits, rather than on procedural grounds.

Each of the two factors for avoidance was counterbalanced by other pressures on the courts. First, compactness is of decreasing importance in the Court’s analysis, thus the factor of “lack of expertise” exerts less influence. Second, democratic ideas about protecting the right to vote seem to counterbalance worries about tarnishing the court’s legitimacy by engaging in these highly political cases. Many of the decisions surveyed expressed a cognizance of the duty of the courts to safeguard voting equality. As a result, courts do not shy away from the merits of racial gerrymandering cases—they embrace them.