Partisan Gerrymandering: The Promise and Limits of State Court Judicial Review

In 2021, the Oregon Legislature succeeded in redrawing the state’s legislative and congressional districts, but the new redistricting plans were immediately challenged in state court as partisan gerrymanders. The Oregon Supreme Court rejected the challenge to the state legislative map, but its analysis, which accorded significant deference to the legislature’s choices, raised more questions than answers about the appropriate level of scrutiny for state redistricting plans. A special, five-judge court likewise rejected the gerrymandering challenge to the congressional map, and, while its analysis was less deferential, its decision also left unanswered the fundamental question regarding at what point a redistricting plan becomes an impermissible gerrymander. Both decisions, then, highlight the difficulty for state courts to police partisan gerrymandering.

This Article concludes by examining some of the reasons for the Oregon courts’ deferential approach to reviewing redistricting plans and offers several recommendations for future reform – recommendations that apply equally to other states whose redistricting process and legal framework governing redistricting share similarities with Oregon’s.