New Hurdles to Redistricting Reform?: State Evasion, Moore and Partisan Gerrymandering

Proponents of fair districting reforms continue to face challenges in seeking to address the problem of partisan gerrymandering. Even in states that have successfully enacted redistricting reforms, state actors have been able to evade compliance, and state courts have been unable to guarantee fair districts. In addition, the Supreme Court’s decision in Moore v. Harper could also limit state court efforts to guarantee fair districts. This Article argues that state evasion and Moore threaten to undermine the efficacy of fair districting norms recognized by state courts or enacted through either state political processes. Moore could create a one-way ratchet by weakening state courts’ role in policing partisan gerrymandering, while allowing state courts to dismantle fair districts and fail to address the problem of evasion.
This Article analyzes these dynamics by examining recent examples of evasion of anti-partisan gerrymandering norms by legislatures, redistricting commissions, and other political actors in the post-2020 redistricting cycle in Ohio, New York, and Florida. The Article begins by situating Moore and state evasion dynamics within theories of federalism, democracy, and election law. It then provides a descriptive account of state partisan gerrymandering regimes, by analyzing variation in the pathways through which states have entrenched norms against partisan gerrymandering, and variation in evasion strategies employed by political actors. Finally, the Article assesses the broader implications of Moore and state evasion dynamics for state court decision-making and the efficacy of state reforms.