Before We Start
Named after an actual governor, in 1812
Gerrymandering — drawing electoral district boundaries to favor a particular political party or group — takes its name from Governor Elbridge Gerry, whose 1812 Massachusetts redistricting plan produced a district shaped, critics said, like a salamander. The practice long predates the name, but the term has stuck for over two centuries.
💡 The Critical Constitutional Distinction
Racial gerrymandering and partisan gerrymandering are treated completely differently by the Supreme Court. Racial gerrymandering is unconstitutional if race is the predominant factor in drawing district lines (Shaw v. Reno). Partisan gerrymandering, by contrast, is something federal courts have held they CANNOT police at all (Rucho v. Common Cause, 2019) — leaving it to states and Congress instead.
Mnemonic
Packing and cracking — the two core strategies
Packing
Concentrate opponents into as few districts as possible
The opposing party's voters are crammed into a small number of districts, where they win by overwhelming margins — but those extra votes beyond what's needed to win are effectively "wasted," since winning by 90% accomplishes the same one seat as winning by 51%.
Cracking
Spread opponents thin across many districts
The opposing party's voters are dispersed across many districts, each falling just short of a majority — causing them to lose narrowly in district after district rather than concentrating enough strength to win any of them.
💊 Packing and cracking are opposite strategies achieving the same underlying goal: minimizing the number of seats the opposing party wins relative to their actual overall vote share, either by wasting their votes in landslide wins (packing) or diluting their strength below a winning threshold everywhere (cracking).
The Constitutional Split
Racial vs. partisan gerrymandering — treated completely differently
Racial Gerrymandering — Shaw v. Reno
Unconstitutional if race is the predominant factor
This connects directly to the Levels of Scrutiny content from Constitutional Law — race-based classifications trigger strict scrutiny, and district lines drawn predominantly based on race face genuine constitutional limits.
Partisan Gerrymandering — Rucho v. Common Cause
Federal courts cannot police it (2019)
Unlike racial gerrymandering, the Supreme Court has specifically held that partisan gerrymandering — drawing lines to favor a political PARTY rather than based on race — is a "political question" outside the scope of federal judicial review, leaving any remedy to state courts, state legislatures, or Congress instead.
⚖️ Applying the Distinction — Determining Which Cases Federal Courts Can Hear
A state's redistricting map is challenged in two separate lawsuits: one alleging the map was drawn predominantly based on race, and another alleging the SAME map was drawn to favor one political party over another.
Assess the Racial Gerrymandering Claim
This claim can be heard by federal courts and evaluated under Shaw v. Reno's standard — if race was genuinely the predominant factor in drawing the lines, the map could be found unconstitutional. Federal courts retain a genuine role in reviewing this specific type of claim.
Assess the Partisan Gerrymandering Claim
This claim, by contrast, falls outside what federal courts can address under Rucho v. Common Cause — regardless of how extreme the partisan favoritism might be, federal courts have held this is a political question they cannot resolve. Any remedy for this specific claim would need to come from state courts, state legislatures, or Congress instead.
Recognize the Genuine Constitutional Split
The same underlying map can be simultaneously reviewable on racial grounds and unreviewable on partisan grounds by federal courts — this isn't a contradiction, but reflects a genuine, deliberate distinction the Supreme Court has drawn between these two categories. Recognizing this split is essential for correctly analyzing any gerrymandering-related constitutional question.
📌 Exam Application
Gerrymandering questions test both the packing/cracking mechanics and the racial/partisan constitutional split:
Strategy identification: "A district map concentrates opposition voters into one district where they win overwhelmingly, wasting their surplus votes. What gerrymandering strategy is this?" → Packing.
Constitutional distinction: "Can federal courts review a partisan gerrymandering claim?" → No — Rucho v. Common Cause (2019) held this is a political question outside federal judicial review.
Constitutional distinction: "Can federal courts review a racial gerrymandering claim?" → Yes — under Shaw v. Reno, if race was the predominant factor in drawing district lines.
⚠️ The Trap — Assuming Racial and Partisan Gerrymandering Receive the Same Legal Treatment
Because both racial and partisan gerrymandering involve manipulating district lines for advantage, it's easy to assume they're treated the same way constitutionally. But the Supreme Court has drawn a genuine, significant distinction — racial gerrymandering remains subject to federal judicial review, while partisan gerrymandering does not.
The safeguard: Always specify which TYPE of gerrymandering (racial or partisan) a question is asking about, since the applicable legal standard and judicial reviewability differ significantly between them.
✓ Quick Self-Test
Answer before checking:
1. What is the difference between packing and cracking?
2. Who was gerrymandering named after, and when?
3. What did Shaw v. Reno establish about racial gerrymandering?
4. What did Rucho v. Common Cause (2019) establish about partisan gerrymandering?
Answers:
1. Packing concentrates opponents into few districts (wasting surplus votes); cracking spreads them thin across many districts (diluting their strength below winning thresholds).
2. Governor Elbridge Gerry, in 1812.
3. It's unconstitutional if race is the predominant factor in drawing district lines.
4. Federal courts cannot police partisan gerrymandering — it's a political question left to states and Congress.
Next Lesson
Electoral Systems Compared
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