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How to ban gerrymandering when the Supreme Court is stacked against you

What kind of redistricting reforms could actually survive contact with the Roberts Court?

American elections aren’t what they used to be: Thanks to relentless, politically driven gerrymandering, fewer and fewer congressional seats are truly competitive. Millions of Americans are locked into districts where their vote will never elect the party of their choice.

But gerrymandering is also notoriously hard to fix. Many sitting lawmakers owe their seats to districts that have been wildly contorted to create secure seats. So asking legislators to ban gerrymandering often means asking them to endanger their own jobs.

Get the latest developments on the US Supreme Court from senior correspondent Ian Millhiser.

Nevertheless, the stars may soon align for opponents of partisan electoral maps. Last time Democrats controlled the US House, they passed a bill that sought to eliminate gerrymandering. That bill died in the Senate. But, if the polls are correct, Democrats are poised to take both houses of Congress in November. If President Donald Trump remains an albatross around Republicans’ necks through 2028, Democrats could soon control both elected branches of government.

That’s good news for opponents of gerrymandered maps, because, as recent developments show, any viable solution to congressional gerrymandering will have to come from Congress and not the states. Some blue states, such as California and Virginia, had previously enacted constitutional amendments intended to halt gerrymandering in those states. But Democrats are now trying to bypass those bans because they prevent blue states from countering Republican gerrymanders in red states.

Democrats may soon have the votes in Congress to ban gerrymandering, but they still must overcome a hostile Supreme Court.

Some of Democrats’ top priorities, such as fixing the Supreme Court’s decisions enabling racial gerrymandering, are almost certainly off the table. Others, like independent redistricting commissions, could run into trouble.

Still, the Constitution should give Congress broad authority to tell states how they must draw maps to make them fair and nonpartisan.

Still, even if Democrats win the next two federal elections in historic landslides, they then must overcome the final boss monster standing between the United States and fair elections: the Supreme Court.

And unless the Court’s membership changes dramatically, that will be no easy task. Until fairly recently, the Supreme Court often blocked racial gerrymanders — those intended to lock voters of a particular race out of power — and it at least held open the possibility that a state’s maps could be struck down because of excessive partisanship.

Now, by contrast, many of the Court’s redistricting decisions read like a love letter to partisan maps. The Court’s Republican majority held in Rucho v. Common Cause (2019) that federal courts are forbidden from hearing cases alleging that a particular legislative map was drawn to benefit one political party. More recently, in Louisiana v. Callais (2026), the Court’s Republicans abolished longstanding safeguards against racial gerrymandering, ushering in a new wave of maps that favor white Republicans in the South.

There’s no way to guarantee that a Republican Supreme Court won’t simply make up a reason to toss out a Democratic voting rights law, no matter what that law says. Still, there are strategic ways to mitigate that risk. Opponents of gerrymandering can maximize the likelihood that redistricting reforms will survive judicial review by paying close attention to what the Supreme Court has already said about race, election law, and other related topics. Many of the Court’s recent cases suggest that Democrats may want to tweak their approach to a federal redistricting law — and the Court’s opinions give clues into how.

Don’t even think about passing a law that mentions race

The most obvious trap that Democrats could fall into when drafting an anti-gerrymandering bill is to mention race, or otherwise draw racial distinctions of any kind.

Until just a few months ago, the federal Voting Rights Act offered some of America’s strongest protections against gerrymandering. A 1982 amendment to that law prevented many racially polarized states — often states where white people vote Republican and Black people vote for Democrats — from drawing maps that maximized white power. This had the side effect of limiting partisan gerrymandering in that space, because requiring these red states to draw more Black-majority districts meant electing more Democrats.

But the Republican justices effectively repealed this amendment, which was signed into law by President Ronald Reagan, in Callais. That’s because all six of the Court’s Republicans swear fealty to an idea known as “colorblindness” — the idea that any law that draws racial distinctions, no matter the purpose, is equally repugnant. Under this theory, laws that aim to lift up historically disadvantaged racial groups are legally indistinguishable from the laws that codified Jim Crow. So, if a new act of Congress requires states to consider race when they draw legislative maps, that new law will almost certainly be struck down by this Court.

Congress takes an extraordinary risk, moreover, if it inserts a race-based provision into a broader law governing redistricting, even if the vast bulk of that law does not concern race at all. NFIB v. Sebelius (2012) is one big example of how that could go wrong: In that case, four of the Republican justices claimed that the entire Affordable Care Act must be struck down because those four concluded that just two provisions of the law are unconstitutional.

How a fringe idea about race took over the Supreme Court

The Voting Rights Act is all but dead. Prepare for maximum gerrymandering.

The current Court is both much more conservative and much more Republican than the one that heard NFIB — and probably will be just as motivated on the issue of gerrymandering as they were on Obamacare — so a majority of its members could potentially order an entire act of Congress repealed if they deem one provision in that law unconstitutional. And, even if they do not go that far, they........

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