In 2019, the Supreme Court slammed the federal courthouse doors on partisan gerrymandering claims from contested state redistricting plans in Rucho v. Common Cause. Yet racial gerrymandering claims remain justiciable. Judicial review of contested redistricting plans is therefore suspended in a state where racial gerrymandering is unconstitutional at the same time that partisan gerrymandering is nonjusticiable, leaving federal courts in the cumbersome position of splitting a stubborn atom: race or party?

As critics have long pointed out, the question is a false dichotomy in a hyperpolarized political environment. Federal courts have nonetheless repeatedly resolved this question as racial gerrymandering claims have been increasingly met with partisanship defenses. The dilemma for courts in the next decade is not the novelty of this configuration, but parsing the Supreme Court’s vague guidance on how courts should disentangle race from party based on the available evidence. To illuminate a path forward, this Note presents a bottom-up synthesis of redistricting cases since 2010 addressing the race-or-party question in order to identify common factors—or not—within three analytical models: race-exclusivity, totality of the circumstances, and race-as-proxy.

This exercise clarifies federal courts’ struggles with applying predictable standards to muddled evidence of racial and political motive. By taking one political thicket off the table, the Supreme Court only stranded courts in an adjacent one. With 2020 serving as a redistricting inflection point, this Note then argues that federal courts in the new decade must resist Rucho’s temptation to turn a blind eye to the intertwined nature of race and partisan motive.

The full text of this Note can be found by clicking the PDF link to the left.


In Rucho v. Common Cause, the Supreme Court held that partisan gerrymandering claims present a nonjusticiable political question, effectively depriving federal courts of jurisdiction over redistricting claims falling into this category. 1 139 S. Ct. 2484, 2506–07 (2019) (“[P]artisan 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.”). Yet racial gerrymandering  remains  a  justiciable  doctrine,  one  even  affirmed  in  the  last  few years. 2 See, e.g., Cooper v. Harris, 137 S. Ct. 1455, 1481–82 (2017); Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788, 802 (2017); Ala. Legis. Black Caucus v. Alabama (ALBC), 135 S. Ct. 1257, 1262–63 (2015). Rucho therefore leaves judicial review of redistricting suspended in a state where racial gerrymandering is unconstitutional at the same time that partisan gerrymandering is nonjusticiable, leaving federal courts in the cumbersome position of splitting a stubborn atom: race or party? 3 This Note borrows this framework from Professor Richard Hasen, who developed it prior to Rucho. Richard L. Hasen, Race or Party, Race as Party, or Party All the Time: Three Uneasy Approaches to Conjoined Polarization in Redistricting and Voting Cases, 59 Wm. & Mary L. Rev. 1837, 1840–41 (2018) [hereinafter Hasen, Race or Party].

Scholars and commentators decry the race-or-party inquiry as impossible under modern conditions of conjoined political and racial polarization. 4 See Bruce E. Cain & Emily R. Zhang, Blurred Lines: Conjoined Polarization and Voting Rights, 77 Ohio St. L.J. 867, 869 (2016) (defining conjoined polarization as “[t]he more consistent alignment of race, party, and ideology since 1965”). Because race and party-line voting substantially overlap, critics charge that a doctrine requiring fine factual assessments of legislative motives based on this false dichotomy invites judicial arbitrariness. 5 See, e.g., Hasen, Race or Party, supra note 3, at 1856 (analyzing the “race or party” approach and concluding that “[i]t blinks reality to see these as two separate and independent claims”); Richard L. Hasen, Racial Gerrymandering’s Questionable Revival, 67 Ala. L. Rev. 365, 381 (2015) [hereinafter Hasen, Questionable Revival] (“The intersection of race and party makes the search for a predominant motive impossible.”); Michael Li & Yurij Rudensky, Rethinking the Redistricting Toolbox, 62 How. L.J. 713, 735 (2019) (“[C]ourts . . . [are in] the world of having to embrace the artificial dichotomy that race and politics are completely distinct. As the [C]ourt found, however, untangling race and politics was cumbersome in the extreme . . . .”); Joshua S. Sellers, Politics as Pretext, 62 How. L.J. 687, 688 (2019) (“The extraordinary overlap between ‘race and party’ often renders the ‘race or party’ debate absurd.”); Nicholas Stephanopoulos, Walking the Line: Modern Gerrymandering and Partisanship, Keynote Address at the Georgia Law Review Symposium (Feb. 2, 2018), in 52 Ga. L. Rev. 1009, 1011 (2018) [hereinafter Stephanopoulos, Walking the Line] (arguing that because the Court developed redistricting doctrines in a relatively nonpartisan political environment, its surviving doctrines work poorly in the hyperpartisan present); The Supreme Court, 2016 Term—Leading Cases, 131 Harv. L. Rev. 303, 310 (2017) (reviewing Cooper v. Harris and observing that “‘race or party’ is a false dichotomy because both are usually present, at least in effect and oftentimes in motive, justification, and methodology”); Olga Pierce & Kate Rabinowitz, ‘Partisan’ Gerrymandering Is Still About Race, ProPublica (Oct. 9, 2017), https://www.propublica.org/article/partisan-gerrymandering-is-still-about-race [https://perma.cc/2DA3-PR6S] (“The record shows that the reliably Democratic voters in communities of color are crucial chess pieces in the partisan game that is redistricting.”). Nonetheless, federal courts repeatedly encountered and resolved this question over the last decade as racial gerrymandering claims have been increasingly met with partisanship defenses. 6 See Nina Rose Gliozzo, Note, Judicial Embrace of Racial Gerrymandering Cases, 70 Hastings L.J. 1331, 1333, 1347 (2019) (surveying 141 redistricting lawsuits filed since 2010 and finding that defendants raised a partisanship defense “[i]n slightly more than half of the racial gerrymandering cases”). With Rucho closing the door on an independent constitutional limit to partisan gerrymandering, this familiar dynamic—a claim that legislators unconstitutionally sorted voters on the basis of race, a defense that voters were sorted not on impermissible racial grounds but on the legitimate basis of party, and courts choosing one motivation over the other—is the now-unavoidable pattern of gerrymandering cases. 7 Litigation alleging improper racial motive in gerrymandering will carry on regardless of the parallel world of partisan gerrymandering jurisprudence. See id. at 1333 (acknowledging that racial gerrymandering claims are justiciable regardless of the nonjusticiability of political gerrymandering claims). However, as this Note argues, unlike prominent pre-Rucho partisan gerrymandering cases, the concern is not that courts will avoid redistricting challenges through procedural dismissal. Rather, it is that any fair evaluation of the merits of racial gerrymandering claims is confounded by the entanglement between race and party and creates a trivially exploited partisanship loophole in racial gerrymandering cases. See infra section III.B. The dilemma going forward is not the novelty of this configuration, but parsing the Supreme Court’s vague guidance on how courts should disentangle race from party, a task made even more ambiguous by Rucho’s apparently  categorical  treatment  of  partisan  motives  as  exempt from  judicial scrutiny. 8 See, e.g., Joey Fishkin, Rucho: A Sinkhole Dangerously Close to the House (Rucho Symposium), Election L. Blog (July 1, 2019), https://electionlawblog.org/?p=105928 [https://perma.cc/535T-4JGK].

Rucho’s most prominent justification for partisan gerrymandering’s nonjusticiability rests on the lack of manageable standards to guide courts’ assessments of just when partisan redistricting is extreme enough to violate the Constitution. 9 See Rucho v. Common Cause, 139 S. Ct. 2484, 2506–07 (2019). Yet as this Note argues, the abstract racial gerrymandering predominant motive standard does not reliably guide federal courts’ factual analyses and ensnares courts in political warfare anyway, revealed by muddy evidentiary approaches when confronted with the race-or-party conundrum. 10 See infra Part II. To illuminate a path forward for courts and the racial gerrymandering doctrine after Rucho, this Note presents a bottom-up synthesis of federal cases since 2010 11 This review is limited to the post-2010 cycle, both because it is the most relevant period for understanding how courts will likely evaluate evidence of unconstitutional racial motive after the 2020 reapportionment, and because 2010 marked the beginning of the now-prevalent dynamic of a “race claim” followed by a “politics defense” in gerrymandering cases. See Gliozzo, supra note 6, at 1347 (noting that the partisanship defense was raised in “slightly more than half of the racial gerrymandering cases” reviewed in the 2010 cycle). Gerrymandering also reemerged as a hotly debated political issue since the 2010 election cycle left an unprecedented number of state houses in unified Republican hands during a census year. See Ed Kilgore, How the Republicans Did It, New Republic (Nov. 3, 2010), https://newrepublic.com/article/78903/how-the-republicans-did-it [https://perma.cc/S93S-N9EG] (reporting that Republicans gained control of fifteen state legislative chambers). For background on how Republicans unprecedentedly gerrymandered state maps to their political advantage in 2010, see generally David Daley, Ratf**ked: Why Your Vote Doesn’t Count (2017) [hereinafter Daley, Ratf**ked]. addressing the race-or-party question to identify common factors—or not—that tease racial motive apart from political motive, organizing judicial approaches into three analytical models: race-exclusivity, unpredictable totality of the circumstances (including a subcategory where explicit racial markers are present), and race-as-proxy.

Part I summarizes the race-or-party redistricting dilemma and traces recent Supreme Court treatment of the question. Part II reviews lower court applications of the doctrine and describes the models that explain their analyses in weighing the key kinds of facts in the race-or-party question. Part III analyzes commonalities that sway courts one way or the other and concludes that courts’ scattershot approaches provide insufficient guidance to litigants or future courts to “accurately” detect unconstitutional reliance on race across a range of factual circumstances. Section III.B argues that this, as a result, leaves the doctrine vulnerable to circumvention by Rucho’s signal permitting unfettered partisan gerry-mandering. Finally, this Note recommends that courts upgrade the totality of the circumstances mode of analysis that characterized the 2010s to the nuanced race-as-proxy approach in order to salvage the utility of a constitutional doctrine that, after Rucho, may be otherwise rendered null in the new decade.