Unlike racial gerrymandering, which is barred by the Voting Rights Act, partisan gerrymandering has not been definitively addressed by the nation’s highest court.
In the 2004 case Vieth v. Jubelirer, Justice Antonin Scalia, writing for the majority, concluded that it was impossible to come up with a sensible test to decide when lawmakers had gone too far in manipulating boundaries for partisan advantage.
But in a concurring opinion, Justice Anthony M. Kennedy suggested that the First Amendment could be the basis for a challenge if plaintiffs could prove that redistricting created “disfavored treatment” of groups based on their voting preferences.