Blue Brief 2025-2026

Quoting from precedents on which he built, Justice Alito in Callais explained the consequence of treating partisan bias as “a constitutionally permissible criterion” for districting. Someone claiming that the government is engaged in race discrimination would have to “‘disentangle race from politics’ by proving ‘that the former drove a district’s lines.’ ... ‘That means, among other things, ruling out the competing explanation that political considerations dominated the legislature’s redistricting efforts. If either politics or race could explain a district’s contours, the plaintiff has not cleared its bar.’” In other words, drafters of district lines are home free so long as the factual record supports a story of partisan political bias and does not tell a distinct and separable story of racial bias. The Supreme Court has never cast doubt on the rightness of its landmark decisions that stopped American governments from drawing districts with significantly different numbers of people in them. In Rucho , the majority emphasized that the decisions holding malapportionment unconstitutional remain the law. But why is malapportionment unconstitutional? The Rucho majority observed that malapportionment violates the individual right to an equally weighted vote. Why do individual citizens have reason to care that their votes are equally weighted? So that they have an equal say in deciding who will govern . Voting for candidates matters only because it affects who will govern. Malapportionment violates the Constitution’s promise of equal protection because it does not give voters an equal say in who will govern. But partisan bias in drawing district lines —

so-called partisan gerrymandering — also does not give voters an equal say in who will govern. The reason that malapportionment is unconstitutional also applies to gerrymandering. If one tactic is unconstitutional, then the other should be too. Constitutional constraints that courts will not enforce are still in the Constitution, and when legislators act unconstitutionally, they violate their oaths even when there is no judicial remedy. What basis is there for treating partisanship as a constitutionally permissible reason for drawing district lines? Is partisan advantage a legitimate government interest? How could it be? Even under the most deferential “rational basis” standard of review, government action needs a legitimate reason, and for a reason to be legitimate, it cannot be bad . If the government’s only defense against having a bad reason is that it has another bad reason, why should that salvage the government’s action? If the government’s conduct is explicable as one or both of two things, one of which is bad and clearly unconstitutional and the other of which is bad and might be unconstitutional (but we won’t say), why should the badly behaved government get a pass? Why isn’t it enough to establish a claim of intentional race discrimination that redistricting leaves a racial minority with less say in who will be elected and the government’s drafters cannot point to any good reason for their districting choices? By letting gerrymanderers shelter their handiwork behind bad reasons, the Callais Court has made the Constitution’s promise of equal voting rights much harder to keep.

Laurence Claus

UNIVERSITY OF SAN DIEGO SCHOOL OF LAW | Faculty Review of 2025-2026 U.S. Supreme Court Term | Page 10