Enough gerrymandering — the people must take back power from two-party rule

The Supreme Court’s recent decision allowing California to proceed with a politically gerrymandered map favoring Democrats may be, as the headlines proclaimed, a victory for Democrats, just as the Texas map gerrymandered in favor of Republicans was considered a victory for Republicans. 

Taken together, however, they undermine the foundations of American republican democracy.

Both decisions follow directly from the court’s conclusion in Rucho v. Common Cause, that “partisan gerrymandering claims present political questions beyond the reach of the federal courts.  Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution.” 

Let’s pause here for a moment and consider the assumption laid bare in the court’s language:  that the Constitution somehow accepts that there are “two major political parties,” and gives “no plausible grant of authority” to the Court “to limit and direct their decisions.”   

That vision is impossible to square with the views of founders like John Adams, who stated, “There is nothing which I dread so much as a division of the republic into two great parties, each … concerting measures in opposition to each other.” Or George Washington, who paused at the end of his farewell address to “warn you in the most solemn manner against the baneful effects of the spirit of party generally. … The alternate domination of one faction over another, sharpened by the spirit of revenge … is itself a frightful despotism.”

This “frightful despotism” is precisely what the Supreme Court has endorsed by concluding that the Constitution has no role to play when a state controlled by one party draws districts that perpetuate and expand its marginal advantage.

They may be ignored by the court, but founders’ warnings are not lost on the American electorate, for the “two major parties” have been losing popular support for a generation or more. Over the past 35 years, coincident with rising partisanship, the voting public has been leaving the two major parties in the millions.

According to Gallup, the percentage of the electorate that identifies with neither of the two major parties has grown from just over 30 percent in 1990 to 45 percent as of January 2026; voters identifying as either Democrat or Republican are roughly equal at 27 percent, a decrease of more than 35 percent for the Democrats since 1990 and  of 30 percent for Republicans.

The court has thus chosen to allow Democrats and Republicans, representing historically low levels of support, to engage in partisan gerrymandering at the precise moment that nearly half of the voting public chooses affiliation with neither. It is hard to imagine a more extreme potential disenfranchisement of the electorate.

Sincere efforts to reach the unrepresented plurality of voters are hamstrung by barriers to entry erected by the entrenched ruling parties in every state. Those parties are now given license not just to marginalize the rival party but also to disenfranchise the roughly half of the electorate represented by neither “major” party.   

One-party dominance state by state assures that the primaries of the controlling party in each state become the new battleground elections. That, in turn, means that the extreme elements of both parties will become dominant, driving red and blue states ever further apart, and completing the disenfranchisement of the nearly half of American voters who, like the founders, reject the notion of two-party rule.   

What’s the remedy? As constitutional law expert Edward Foley has argued, the court need not strain to discover an objective measure of political gerrymandering under the Equal Protection Clause; that exercise has proven futile. Instead, the court should invoke the Due Process Clause of the 14th Amendment to require the states to adopt structures for apportionment and redistricting that resist one- or two-party hegemony in drawing districts.   

The solution need not be one-size-fits-all. A range of workable options exists, from New Jersey’s system, in which a nonpartisan chair — I served in that role in 2011 — balances the partisan interests of the other commissioners, to California’s expressly nonpartisan commission, adopted by the voters, which was considered a model until it was abandoned this year to gerrymander California for the Democrats in response to Texas’s Republican gerrymander.   

The court may simply require, as a matter of “fair play” under the Due Process Clause, that the entities established under state law to draw congressional and legislative districts not be so empowered as to disenfranchise the overwhelming majority of independent and opposition party voters in a given state.   

The Supreme Court should revisit its decision in Rucho at the earliest opportunity and require indicia of due process and enfranchisement of the entire electorate in the composition of state panels charged with drawing our legislative and congressional maps. Otherwise, the country is saddled with a Supreme Court decision that the Constitution leaves it powerless to address the very evil the Constitution was intended to prevent.      

John Farmer is dean and university professor emeritus at Rutgers Law School. He served as chair of New Jersey’s Redistricting Commission and counsel to its Reapportionment Commission. 

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