Blockbuster Review No. 7: Rucho v. Common Cause

Partisan gerrymandering refers to the redrawing of a state’s congressional districts with the objective of catering to the interests of one political party over another. Often, the party doing the redistricting purposefully redraws the districts in such a way as to ensure that more of their members get elected to Congress than in an otherwise fairly-drawn map. The result is either a “cracked” district—a bizarre, jagged-looking district in which the other party’s members are divided among multiple other districts, so that they do not constitute a majority in any—or a “packed” district—a small, normally urban district in which the opposing party’s members are crammed so that they win by a landslide and “waste” many votes that could have been useful elsewhere. A number of these districts have been the subject of lawsuits, which have percolated their way through the federal courts. After punting on several such cases in recent years, the Supreme Court on Thursday finally answered the question of whether federal courts can strike down partisan gerrymandering—and gave what many might say is a profoundly surprising answer.


The Court knocks out two birds with one stone, deciding both Rucho v. Common Cause from North Carolina and Lamone v. Benisek from Maryland in one fell swoop. In the former, North Carolina’s Republican-controlled General Assembly approved a redistricting plan in 2016. Republican legislators who headed the redistricting committee sought to fashion a state districting map that would yield a congressional delegation of ten Republicans and three Democrats. When asked why, one of the Republican committee chairs said, “I think electing Republicans is better than Democrats. So I drew this map to help foster what I think is better for the country.” He further explained that the reason for the 10–3 split was because he did “not believe it [would be] possible to draw a map with 11 Republicans and 2 Democrats.” The 10–3 redistricting plan was enacted in 2016 and was used for the state congressional elections in 2016 and 2018. In both elections, Republican candidates did indeed win ten of the thirteen districts (although the State Board of Elections called a new election in a Republican-won district in 2018 after allegations of voter fraud). The 2016 and 2018 North Carolina congressional district map looked like this: 

Attribution: Steven Wolf, Daily Kos

In the Maryland case, the Democratic-controlled Maryland Legislature approved a similar redistricting plan in 2011. Then-Governor Martin O’Malley (D) formed a redistricting committee and later testified that his objective was to “use the redistricting process to change the overall composition of Maryland’s congressional delegation to 7 Democrats and 1 Republican by flipping” one district. The committee targeted the Sixth District, and in the 2012 congressional election, the Sixth District seat flipped from Republican to Democrat, where it has remained since. The 2012 Maryland congressional district map looked like this:

Attribution: Stephen Wolf, Daily Kos

Both redistricting maps were challenged under a number of Constitutional provisions. Plaintiffs in both cases cited the First Amendment; the Elections Clause of Article I, Section 4, clause 1; and Article I, Section 2. Plaintiffs in the North Carolina case also tacked on an Equal Protection Clause claim under the Fourteenth Amendment. The district courts in both cases sided with the plaintiffs, ruling that the redistricting maps in both North Carolina and Maryland violated the plaintiffs’ First Amendment rights by undercutting their “ability to elect their candidate of choice” because of their political speech and party affiliation. The North Carolina district court further held that the state map violated the Elections Clause and Article I, Section 2. The district courts invalidated both states’ maps, enjoined the states from using them, and ordered the states to redraw them. The defendants in both cases (collectively, the “Petitioners”) appealed to the Supreme Court.

Chief Justice Roberts’ Majority Opinion

Chief Justice Roberts, writing for a 5:4 majority with Justices Thomas, Alito, Gorsuch, and Kavanaugh, sides with Petitioners and vacates the district courts’ rulings. Roberts holds that partisan gerrymandering claims present inherently political questions which the federal courts cannot review.

Roberts first addresses whether the Court has jurisdiction over the case. Normally, this is but one of many stops at which the Court arrives when it decides a case. But here in Common Cause, jurisdiction is the end of the line; there is no station past it.

Article III of the Constitution gives federal courts the power to hear and decide genuine “Cases” and “Controversies.” For a case to qualify as such, one of the standards it must meet is that the questions it presents must be “historically viewed as capable of resolution through the judicial process” (quoting Flast v. Cohen (1968)). Cases that do not meet this standard—ones that lack “judicially discoverable and manageable standards for resolving [them]”—are “said to present a ‘political question’ and to be nonjusticiable,” Roberts says (quoting Baker v. Carr (1962)). In these “political question” cases, oftentimes “the judicial department has no business entertaining the claim of unlawfulness—because the question is entrusted to one of the political branches or involves no judicially enforceable rights” (quoting Vieth v. Jubelirer (2004) (plurality op.)). It is these kinds of cases that do not qualify as genuine “Cases” and “Controversies” subject to review in the federal courts under Article III. Thus, the question here in Common Cause, Roberts explains, is whether partisan gerrymandering cases present this kind of “political question”: “[I]s [there] an appropriate role for the Federal Judiciary in remedying the problem of partisan gerrymandering,” he asks? Put differently, “[are] such claims . . . claims of legal right, resolvable according to legal principles, or political questions that must find their resolution elsewhere” (emphasis in original)?

Before answering that question directly, Roberts gives a history of partisan gerrymandering—a history that stretches back even before Independence. Roberts notes that the colonists, the Founding Fathers, and the first Congress all were familiar with partisan gerrymandering. “[F]rustration” with the practice, he adds, is “nothing new” too. The Framers spelled out the provisions for electing Representatives to Congress in the Elections Clause: “The times, places and manner of holding elections for . . . Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations . . . .” With this virtually unfettered discretion, Roberts continues, “Congress has regularly exercised its Elections Clause power, including to address partisan gerrymandering.”

Roberts now addresses Petitioners’ first claim: that under the Elections Clause, all electoral issues stemming from redistricting are issues only Congress may resolve. Roberts does not agree—to an extent. There are two types of electoral issues the Court can address (and has addressed): “one-person, one-vote” issues under the Equal Protection Clause and racial gerrymandering. Those issues, naturally, focus on race. “Laws that explicitly discriminate on the basis of race,” Roberts notes, “are of course presumptively invalid,” and the Court has applied this principle to congressional districting.

But “[p]artisan gerrymandering claims have proved far more difficult to adjudicate,” Roberts admits (emphasis added). The “basic reason,” Roberts explains, “is that, while it is illegal for a jurisdiction to depart from the one-person, one-vote rule, or to engage in racial discrimination in districting, ‘a jurisdiction may engage in constitutional political gerrymandering'” (quoting Hunt v. Cromartie (1999)). In other words, all types of racial gerrymandering are hands down unconstitutional, but not all types of partisan gerrymandering are.

Roberts’ fundamental concern with addressing claims of unconstitutional partisan gerrymandering is an intrusion of the Judiciary into matters the Constitution inherently prescribes to the Legislature. “To hold that legislators cannot take partisan interests into account when drawing district lines,” Roberts declares, “would essentially countermand the Framers’ decision to entrust districting to political entities.” The “central problem,” Roberts says, “is not determining whether a jurisdiction has engaged in partisan gerrymandering.” Rather, “[i]t is ‘determining when political gerrymandering has gone too far'” (quoting Vieth). The Court has attempted to determine when partisan gerrymandering has crossed a line in four separate cases: Gaffney v. Cummings (1973); Davis v. Bandemer (1986) (plurality opinion); Vieth v. Jubelirer (2004) (plurality opinion); and LULAC v. Perry (2006). The end result? An empty treasure chest. As the Court put it in Gill v. Whitford (2018), its “considerable efforts in GaffneyBandemerVieth, and LULAC leave unresolved whether . . . claims [of legal right] may be brought in cases involving allegations of partisan gerrymandering” (emphasis added).

That empty treasure chest signals more trouble when examined closely. To determine when partisan gerrymandering goes too far, the Court would need a standard by which it can “decid[e] how much partisan dominance is too much” (quoting LULAC). Such a standard, Roberts says, is “vital”: “If federal courts are to ‘inject [themselves] into the most heated partisan issues’ by adjudicating partisan gerrymandering claims . . . they must be armed with a standard that can reliably differentiate unconstitutional from ‘constitutional political gerrymandering'” (quoting Bandemer and Cromartie).

Now Roberts goes to the heart of partisan gerrymandering claims. He says that they “invariably sound in a desire for proportional representation.” But “[o]ur cases . . . clearly foreclose any claim that the Constitution requires proportional representation.” Nor does it demand state legislatures draw district borders such that they “come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be” (quoting Bandemer). Further afield still is the idea that the “Founders . . . [thought] proportional representation was required.” With this in mind, Roberts disposes of Respondents’ argument that the Constitution mandates proportional representation.

He next surveys Respondents’ second plea: to have federal courts “make their own political judgment about how much representation particular political parties deserve . . . and to rearrange the challenged districts to achieve that end.” If you can’t tell from the way in which Roberts phrased their claim just now—it doesn’t go well.

“[F]ederal courts are not equipped to apportion political power as a matter of fairness,” Roberts asserts. “[N]or is there any basis for concluding that they were authorized to do so” in the first place. He quotes the late Justice Antonin Scalia in his plurality opinion in Vieth, in which Scalia wrote that “‘[f]airness’ does not seem to us a judicially manageable standard,” and that for a court to undertake such an apportionment of political power, there must be “[s]ome criterion more solid and more demonstrably met than that.”

For one, what exactly would be a “fair” solution for a court to make for a partisan gerrymandering claim? Roberts throws out a few offered suggestions. First, what about a “greater number of competitive districts?” In other words, get rid of packing and cracking so that affiliates of the minority party have a better chance of electing their party’s candidates. But simply making a greater number of districts more competitive, Roberts says, “could be a recipe for disaster” for the minority party. Quoting Justice Byron White in Bandemer, “[i]f all or most of the districts are competitive . . . even a narrow statewide preference for either party would produce an overwhelming majority for the winning party in the state legislature.” Second, how about going so overboard with cracking and packing as to ensure each party obtains its “appropriate share of ‘safe’ seats?” This, however, is simply the opposite of the first: this approach “comes at the expense of competitive districts and of individuals in districts allocated to the opposing party.”

Irrespective of which version of fairness seems appealing (“you can imagine many others,” Roberts notes), “[d]eciding among [them] . . . poses basic questions that are political, not legal” (emphasis added). “There are no legal standards discernible in the Constitution for making such judgments,” Roberts emphasizes, “let alone limited and precise standards that are clear, manageable, and politically neutral.” If a court were to determine what does and does not constitute a “fair” solution to political apportionment, it would be an “unmoored determination” flowing from a political spring, not a legal one (quoting Zivotofsky v. Clinton (2012)).

Roberts also casts aside Respondents’ attempt to equate acute partisan gerrymandering to a violation of the “one-person, one-vote” rule:

[T]he one-person, one-vote rule is relatively easy to administer as a matter of math. The same cannot be said of partisan gerrymandering claims, because the Constitution supplies no objective measure for assessing whether a districting map treats a political party fairly. It hardly follows from the principle that each person must have an equal say in the election of representatives that a person is entitled to have his political party achieve representation in some way commensurate to its share of statewide support.

Finally, Roberts declines to endorse a number of proffered “tests” by which to evaluate partisan gerrymandering claims. The first is the North Carolina district court’s test, which rests on the Equal Protection Clause, whose first prong went something like this: A plaintiff must prove that a mapdrawer’s “predominant purpose in drawing the lines of a particular district was to subordinate adherents of one political party and entrench a rival party in power” (internal quotation marks and citation omitted).

But this test errs from the get-go. This “predominant purpose” language is borrowed from the “predominant intent” prong of the Supreme Court’s racial gerrymandering test. Under that test, Roberts explains, “[i]f district lines were drawn for the purpose of separating racial groups, then they are subject to strict scrutiny because ‘race-based decisionmaking is inherently suspect'” (quoting Miller v. Johnson (1995)). But “determining that lines were drawn on the basis of partisanship does not indicate that the districting was improper,” Roberts counters (emphasis added). Obtaining an advantage for a political party (which the Constitution permits) “does not become constitutionally impermissible” when that intent “predominates”, as is the opposite in the context of racial gerrymandering.

The second test Roberts discharges rests on the First Amendment and was used by both district courts. It is a three-pronged test Roberts lays out as follows:

  1. “[P]roof of intent to burden individuals based on their voting history or party affiliation”;
  2. “[A]n actual burden on political speech or associational rights”;
  3. “[A]nd a causal link between the invidious intent” (prong 1) “and actual burden” (prong 2).

But each prong has serious shortcomings. Prong 1, which attempts to identify impermissible partisan activity, “provides no standard for determining when partisan activity goes too far.” Prong 2, meanwhile, “is not a serious standard for separating constitutional from unconstitutional partisan gerrymandering.” Simply put, Roberts asks the following, damning questions: “How much of a decline in voter engagement is enough to constitute a First Amendment burden? How many door knocks must go unanswered? How many petitions unsigned? How many calls for volunteers unheeded?” Prong 2, in other words, offers no basis by which to determine when a “burden on political speech or association rights” crosses the threshold into unconstitutionality. Finally, if Prongs 1 and 2 are the sides of the arch, Prong 3 is the keystone. But if the two sides of the arch have been deconstructed, the keystone necessarily falls and crumbles to dust too.

The third and final test is submitted by Respondents. It would consult a state’s own standards for drawing congressional districts. In short, the test would work like this: You would first fashion all the possible maps under the state’s criteria. Then, you would line them up with the most severely gerrymandered map for party A on one side, an utterly neutral, “baseline” map as the median, and the most severely gerrymandered map for party B on the other side. At some point, when a map gets too far away from the median, it becomes an unconstitutional partisan gerrymander.

But this test brings Roberts back to the “original unanswerable question”: “How much political motivation and effect is too much” (quoting Vieth)? And here comes Roberts’ rhetoricals: “Would twenty percent away from the median map be okay? Forty percent? Sixty percent? Why or why not?” And while Roberts “appreciate[s] that [Kagan’s] dissent finds all the[se] unanswerable questions annoying,” he says “it seems a useful way to make the point.” Besides, Roberts says Kagan’s dissent makes his point for him; she says, simply, that “[t]his much is too much.” But to Roberts, “[t]hat is not even trying to articulate a standard or rule.”

Roberts begins his conclusion with the following:

Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is incompatible with democratic principles . . . does not mean that the solution lies with the federal judiciary. We conclude 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, and no legal standards to limit and direct their decisions. Judicial action must be governed by standard, by rule, and must be principled, rational, and based upon reasoned distinctions found in the Constitution or laws. . . . Judicial review of partisan gerrymandering does not meet those basic requirements (internal quotation marks and citations omitted).

Roberts, however, makes clear that judicial review is not the only solution to people who feel wronged by a partisanly-gerrymandered map. “Our conclusion,” he notes, “does not condone excessive partisan gerrymandering.” Nor does it “condemn complaints about districting to echo into a void.” States can address and are “actively addressing” issues of partisan gerrymandering “on a number of fronts.” So can the United States Congress. Roberts’ decision here in Common Cause simply removes the federal courts from the picture. By all accounts, as the Court held in its long-hallowed decision in Marbury v. Madison (1803),  “[i]t is emphatically the province and duty of the judicial department to say what the law is.” But “in this rare circumstance,” Roberts admits, “that means our duty is to say ‘this is not law.'”

Justice Kagan’s Dissent

“With respect but deep sadness, I dissent.”

That is the closing line from Justice Kagan’s dissenting opinion, which was joined by her three more-liberal colleagues, Justices Ginsburg, Breyer, and Sotomayor. And if her dissent ends with an eye-catcher, it certainly opens with one too: “For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.”

To Kagan, partisan gerrymandering launches a parasitic infection on a number of our constitutionally-grounded political rights: “the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives.” And while the majority thinks partisan gerrymandering beyond the scope of the federal courts, Kagan emphatically rejects that idea.

After recounting—in much greater detail than the majority—her own background of the litigation below, she presents the principle undergirding her entire opinion: that a functioning government functions entirely—as the Declaration of Independence emphasizes—upon “the Consent of the Governed” (as do, Kagan notes, the Constitution, President Lincoln’s Gettysburg Address, and James Madison’s Congressional speeches, to name just a few). Moreover, “[f]ree and fair and periodic elections are the key to that vision.” “The people get to choose their representatives,” Kagan writes, “[a]nd then they get to decide, at regular intervals, whether to keep them.” And if all these principles come together on any one day—the “foundation of democratic governance,” per Kagan—that day is “[e]lection day.”

But partisan gerrymandering can make election day meaningless.” She reemphasizes that partisan gerrymandering “not only subverts democracy (as if that weren’t bad enough)”; it “violates individuals’ constitutional rights as well.” That isn’t the “lonesome cry of a dissenting Justice”; to Kagan, it’s a recognition the Court has made “for many years.” Specifically, the Court many years ago declared that the Equal Protection Clause of the Fourteenth Amendment “guarantees the opportunity for equal participation by all voters in the election” of Congressional Representatives (quoting Reynolds v. Sims (1964)). Kagan would hold that partisan gerrymandering violates the Equal Protection Clause because it in effect amounts to vote dilution on the basis of party affiliation, much the same as vote dilution on the basis of residency location as is the case with “one-person, one-vote” violations. Next, Kagan would hold that partisan gerrymandering subverts the First Amendment as well. So long as partisan gerrymandering “subject[s] certain voters to ‘disfavored treatment’ . . . precisely because of ‘their voting history [and] their expression of political views,'” she argues, it stands oppugnant to the “greatest protection” the First Amendment gives to “political beliefs, speech, and association” (quoting Vieth).

Kagan then moves to attacking what she sees as an abject passing-of-the-buck by the majority:

[T]he only way to understand the majority’s opinion is as follows: In the face of grievous harm to democratic governance and flagrant infringements on individuals’ rights—in the face of escalating partisan manipulation whose compatibility with this Nation’s values and law no one defends—the majority declines to provide any remedy. For the first time in this Nation’s history, the majority declares that it can do nothing about an acknowledged constitutional violation because it has searched high and low and cannot find a workable legal standard to apply.

To Kagan, the majority for two reasons fails to exercise the power it so desperately and necessarily ought to apply in a case like this: One, there is no neutral standard by which to do so; and two, even if it could find a standard, it could only decide arbitrarily when a partisan gerrymander breaks that standard.

To the “we can find no standard” rationale, Kagan claims the majority “misses something under its nose”: that there is a neutral, workable standard upon which a number of federal courts have already converged. That standard is the “predominant intent” test the North Carolina district court used and the majority throws out first. Recall that when a plaintiff challenges a map as a partisan gerrymander, the first prong of that test goes like this—and its latter two prongs follow from it (as laid out in Common Cause v. Rucho, 318 F.Supp. 3d 777, 864, 867 (M.D. NC 2018)):

  1. Plaintiffs “must show that the legislative mapdrawer segregated voters on the basis of partisanship for an invidious purpose—to subordinate adherents of one political party and entrench a rival party in power” (internal quotation marks and citation omitted) (emphasis in original).
  2. Once prong 1 is met, plaintiffs “must show that the dilution of the votes of supporters of a disfavored party in a particular district . . . is likely to persist in subsequent elections such that an elected representative from the favored party in the district will not feel a need to be responsive to constituents who support the disfavored party.”
  3. Once prongs 1 and 2 are met, “the burden shifts to the governmental defendant to prove that a legitimate state interest or other neutral factor justified such discrimination.”

Recall that the majority took issue with the first prong immediately, saying that a partisan “predominant purpose” does not by itself violate the Constitution, as does a racial “predominant purpose.” But Kagan would hold otherwise, writing that “when political actors have a specific and predominant intent to entrench themselves in power by manipulating district lines, that goes too far.”

Next, the majority offers hardly a passing glance at the second and third prongs. Kagan affords them a much deeper analysis. Kagan feels the test’s “vote-dilution-persistence” standard is perfectly reasonable, especially given the level of technology now available to politicians who are responsible for redrawing districts. And, she adds, those “same technologies and data that today facilitate extreme partisan gerrymanders also enable courts to discover them, by exposing just how much they dilute votes.”

At last, Kagan turns to the majority’s principal holding—as she phrases it, that partisan gerrymandering “is a price we must pay because judicial oversight of partisan gerrymandering cannot be ‘politically neutral’ or ‘manageable.’” She first goes after the “neutrality” aspect. The majority of course is greatly perturbed at the thought of having courts neutrally choose what a “fair” map is among all the possible options. But Kagan argues that isn’t what the district courts below did. “Instead, they looked at the difference between what the state did and what the state would have done if politicians hadn’t been intent on partisan gain.” Put another way, “[a]ll the courts did was determine how far the State had gone” from the state’s own “fairness baseline” due to the “politicians’ efforts to entrench themselves in office.”

Next, Kagan seeks to undermine the majority’s “how much is too much” rhetoric. (This is her “this much is too much” answer the majority laughs off.) “By any measure,” she says, “a map that produces a greater partisan skew than any of 3,000 randomly generated maps (all with the State’s political geography and districting criteria built in) reflects ‘too much’ partisanship.” She underscores this point, again saying that she is talking about the “absolute worst of 3,001 possible maps,” á la the North Carolina redistricting map. Besides, even if the majority “thought that approach too case-specific,” Kagan would urge it to use the “predominant purpose” test laid out by the North Carolina district court to guide its determination “without fear of indeterminacy.”

Kagan concludes by demarcating the differences between her and the majority’s conclusions. To Kagan, the Court “has long understood that is has a special responsibility to remedy violations of constitutional rights resulting from politicians’ districting decisions,” and that because those harms stem from “politicians who want to stay in office[,] [n]o one can look to them for effective relief.” The majority, as she puts it, “disagrees” and “conclude[s] its opinion with a paean to congressional bills limiting partisan gerrymandering.” But what “these bills have in common,” she emphasizes, “is that they are not laws” (emphasis in original); politicians who make the laws are “unlikely to change” their own partisan gerrymandering. Kagan also places much less stock than the majority in voters’ own ballot-box initiatives and in state court solutions.

“Of all times to abandon the Court’s duty to declare the law, this was not the one,” Kagan declares. “The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations,” and “[n]one is more important than free and fair elections.” Thus, as I noted when I began my summary of her dissent, Kagan dissents “[w]ith respect but deep sadness.”

Looking Ahead

So what’s next for claims of extreme partisan gerrymandering? You may be quick to note the negatives that follow from the Court’s decision here in Common Cause. First, as we know, the Court here distinguishes racial gerrymandering—over which federal courts do have jurisdiction and can strike down racially-gerrymandered maps—from partisan gerrymandering, over which federal courts now do not have jurisdiction. That difference may open the door to disguising racial gerrymanders as partisan gerrymanders and vice versa. Suppose a new district map is challenged as an unconstitutional racial gerrymander; the map drawer as a defense can argue the map was drawn with partisan interests rather than racial considerations. Conversely, the aggressive civil-rights lawyer may try to recast as a racial gerrymander a map that was in fact redrawn with only partisan interests, which are legal under current federal law.

But the Court did not declare all forms of partisan gerrymandering legal; quite the opposite, in fact. Instead, the Court simply stated that federal courts, at this moment, have no role to play in claims of partisan gerrymandering under federal law. In doing so, the Court leaves open the ability of Congress and of the states to curb partisan gerrymandering as they see fit. For example, under the Elections Clause, Congress may enact statutes that muzzle the reach of partisan gerrymandering—statutes that are not likely to be struck down by the federal courts unless they flagrantly violate other provisions of the Constitution. States, too, have a number of options. State legislatures can pass laws or amendments to their constitutions cabining the extent of partisan gerrymandering, or even abolishing it entirely. In Roberts’ majority opinion, he also adds that state legislatures can place the power to redraw districts into the hands of independent commissions rather than incumbent legislators. State legislatures also can expand existing, or create new criteria that demarcate the limits of partisan gerrymandering and by which legislators (or the independent commissions) must abide when redrawing maps. Finally, excessive partisan gerrymandering may yet infringe state constitutions or state statutes and codes. While Common Cause removes federal courts from the equation, it does nothing to restrict the jurisdiction of state courts.

In all, was the Court’s decision here in Common Cause suprising? I would say yes. But does it give a free pass to all partisan gerrymandering efforts? No. Does it (dare I say) endorse partisan gerrymandering? Not in the slightest. At the other extreme, does Common Cause exemplify a failure of the Supreme Court to do its job? Certainly not. Common Cause simply states that in the context of partisan gerrymandering, federal courts are currently closed for business. They may open up shop again if Congress enacts a statute dealing with partisan gerrymandering. Such a statute would be a federal law under which federal courts could adjudge claims of partisan gerrymandering. And state courts remain open for business too, as do the efforts of state legislatures.

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