By Thomas Cribbins
Thomas Cribbins is a junior at the University of Michigan studying Political Science
A curiosity of the American electoral system revolves around the practice of state legislatures redrawing the map of electoral districts every 10 years. This may seem strange, akin to someone judging their own trial, since these very legislators have a vested interest in keeping their job and therefore drawing their district to optimize job security. Moreover, America’s electoral districts exemplify vehement partisan tendencies. There has been a long legal history of judicial intervention (and non-intervention) in gerrymandering. Some of the more recent developments in gerrymandering case law, specifically dealing with gerrymandering for partisan reasons, have been Cox v. Larios (2004) and Wake Citizens Assoc. v. Wake County (2016). These cases both dealt with state legislature-drawn electoral maps that were ruled overly partisan and violated the “one person, one vote” principle extrapolated from the 14th Amendment’s Equal Protection Clause.
However, the Supreme Court did not draw a distinct line in the sand for when a redistricting plan violates Equal Protection. The best guidance the Court has provided is that a redistricting plan must reflect traditional redistricting criteria such as equal population, communities of interest, and compactness. The Court now rules that if the plan does not conform to traditional criteria and political discrepancies appear to be controlling the configuration, this would trigger the presumption of a constitutional violation; essentially, it would reign in the Court’s jurisprudence from the open-range Gaffney decision and back to the more restrictive Reynolds precedent. Hopefully, the Supreme Court will continue to corral gerrymandering back towards the precedent set in Reynolds.
Preceding Cox and Wake County, Reynolds v. Sims in 1964 required that all electoral districts must be of the same size. In that case, state legislative districts were the question at hand.  Moreover, state legislative districts must be as nearly equal in population as possible, despite the United States Senate’s example. However, in 1973, Gaffney v. Cummings, the Court relaxed the strictness of the holding in Reynolds. The Court in Gaffney essentially gave state legislatures free-reign to create a districting plan with up to a 10 percent disparity between districts.  This loosening of restrictions on the reapportionment of districts has left present jurisprudence in an increasingly awkward position of determining which direction to take on redistricting law. The cases of Larios and Wake County have established and solidified that the Court is returning American election law to a stricter direction, similar to the guidance of Reynolds.
In Larios, the Court considered the 2002 Georgia state legislature redistricting plan, very similar to the plan examined in Reynolds. The Court analyzed the fact that the plan’s districts fell within the 10 percent guideline from Gaffney, but still demonstrated gross inequities in partisan composition. Throughout the state, Democrats were advantaged, time and time again, while Republicans were disadvantaged, time and time again. Essentially,, many Democratic incumbents were handed districts drawn to have overwhelming Democratic majorities, thus securing their seat. Meanwhile, Republican incumbents were pitted against each other to remove at least one from the statehouse. In the background, heavily Republican districts were overpopulated, cramming the Republican voters into just a few districts, with the opposite situation for Democrats. Considering this Democratic favoritism you might think that this map would be unconstitutional, but since the population of the districts were within the 10 percent threshold, the Court would need substantial reasons to strike down the reapportionment plan according to the Gaffney precedent. The Court decided to establish a hierarchy of considerations in the redistricting process. It places traditional redistricting criteria as the preeminent concern for state legislatures. If, and only if, these criteria are sufficiently met, then the mapmakers could adjust for partisan considerations. 
Wake County reaffirms the findings of the courts in Larios. This case’s most recent decision has come from the 4th Circuit, not the full Supreme Court. However, this case continues the jurisprudence the Supreme Court has most recently directed. This demonstrates that the Larios precedent is being put to practice. In this case, the North Carolina legislature redrew the boundaries of the Wake County Board of Commissioners districts, heavily advantaging Republicans. In much the same manner as the Larios case, the state legislature heavily weighed partisan factors in proscribing the boundaries of the electoral districts. Also in much the same manner as the Larios case, the Court struck down the plan because of inappropriate partisan considerations, even though the plan was under the prima facie threshold of 10 percent. 
In the modern jurisprudence of the US Supreme Court, the Court has decided to steer precedent back towards the stricter standard handed down in Reynolds and reeling back in the precedent set in Gaffney. The Court no longer enforces that plans with less than 10 percent deviation among districts are automatically acceptable, per Gaffney. The Court now rules that “traditional districting criteria” must inform the vast majority of decisions when drawing boundaries; first and foremost, equal population, per Reynolds. If Larios and Wake County are any indication, we might be witnessing the end of the “good ol’ days” of partisan gerrymandering.
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.