How Congress Can Combat Gerrymandering Despite a Hostile Supreme Court

American elections are increasingly shaped by partisan gerrymandering, which creates fewer competitive congressional seats and locks in outcomes regardless of voter choice. Addressing this issue is challenging, as many lawmakers benefit from the current system of contorted districts.

However, a potential shift in political power could enable Congress to tackle gerrymandering. Democrats previously passed legislation aimed at eliminating partisan maps when they controlled the House, though it failed in the Senate. If current polling holds true, Democrats could regain control of both houses of Congress in the upcoming election, potentially creating an opportunity for reform. This is particularly significant because recent developments suggest that any effective solution must come from Congress, not individual states. Even states that have implemented anti-gerrymandering measures are now seeking to bypass them to counteract gerrymandering in opposing states.

Despite potential legislative victories, a significant obstacle remains: the Supreme Court. The Court's current composition, with a conservative Republican majority, has shown a tendency to permit partisan maps. In the 2019 case of Rucho v. Common Cause, the Court ruled that federal courts cannot hear cases alleging partisan gerrymandering. More recently, in Louisiana v. Callais (2026), the Court's Republican justices effectively dismantled protections against racial gerrymandering, leading to maps that favor white Republicans.

Navigating Judicial Constraints

Opponents of gerrymandering must strategize carefully to ensure reforms can withstand judicial scrutiny. A key takeaway from recent Supreme Court decisions is the need to avoid explicit racial considerations in redistricting legislation. Historically, the federal Voting Rights Act offered protections against racial gerrymandering, which also had the effect of limiting partisan gerrymandering. However, the Court's interpretation of "colorblindness" has led to the repeal of these protections, making any new law that considers race highly vulnerable to being struck down.

Furthermore, the Court's approach to statutory interpretation, as seen in NFIB v. Sebelius (2012), suggests that a single unconstitutional provision within a broader law could lead to the entire act being invalidated. This risk is amplified with the current Court's conservative leanings. Democrats have acknowledged these constraints by separating their reform efforts: the For the People Act, which includes anti-gerrymandering provisions, and the John R. Lewis Voting Rights Advancement Act, which addresses racial discrimination in voting. This segregation aims to protect the non-racial reforms from being jeopardized by the Court's stance on race-based measures.

Even non-racial proposals, such as independent redistricting commissions, face constitutional challenges. The For the People Act proposes 15-member commissions with a mix of Democrats, Republicans, and independents, barring elected officials and lobbyists. However, questions arise regarding whether these commissioners would be considered federal or state officials, and how their appointment and removal would be managed without violating the Constitution's "unitary executive" or "anti-commandeering" doctrines.

The Constitution grants Congress broad authority to regulate the "Times, Places and Manner" of federal elections. This power could allow Congress to establish national standards for how congressional districts are drawn, even if it means superseding state laws. Precedents like Smiley v. Holm (1932) suggest that Congress can create a "complete code" for congressional elections. This could involve mandating proportional representation or setting specific criteria for district drawing, such as respecting communities of interest. Enforcement could occur through federal courts, although litigation can be a lengthy process, potentially allowing elections to proceed under flawed maps.

Another potential mechanism is a federal preclearance requirement, similar to a provision in the original Voting Rights Act. While the Supreme Court struck down the VRA's state-specific preclearance in Shelby County v. Holder (2013), a nationwide preclearance regime might be more palatable to the Court. Combining preclearance with the ability for individual citizens to sue could offer a more robust safeguard.

Congress could also explore assigning map-drawing responsibilities to judges. While the For the People Act proposes a three-judge panel for certain situations, this mechanism might face challenges related to the "cases" or "controversies" requirement in Article III of the Constitution. Adjustments, such as ensuring clear standing for plaintiffs and framing the process as a judicial proceeding, could potentially overcome these hurdles.

The Primary Challenge: Effective Reform

Beyond constitutional concerns, the most significant challenge for lawmakers will be crafting redistricting rules that genuinely prevent partisan bias. While Congress has broad discretion to set national standards, the effectiveness of these standards in achieving fair maps is not guaranteed. Proposals like mandating compact districts, while seemingly equitable, could inadvertently increase partisan bias in some states due to residential patterns.

Lawmakers must proceed with caution, aiming for solutions that are not only constitutional but also practically effective in curbing gerrymandering. The ultimate goal is to establish a system that reduces the role of partisanship in map drawing and increases the number of competitive elections, even as they navigate the complex legal landscape shaped by the Supreme Court.