“How much is too much?”1
Redistricting issues, like many others, pose this difficult question — at what point, or to what degree, is something impermissible? Although the Supreme Court has provided articulable standards for other thorny redistricting issues,2 it has consistently failed to do so when asked at what point partisan gerrymandering violates one’s equal right to vote. The Court acknowledged in Davis v. Bandemer3 that partisan gerrymandering could discriminate against certain political groups and unconstitutionally dilute votes.4 However, it was unable to espouse a standard by which to meaningfully evaluate such claims.5 After decades of doctrinal confusion,6 the Court ultimately found adjudicating questions of partisan effect to present “political, not legal” questions of fair representation, and so foreclosed all such claims as “nonjusticiable” in Rucho v. Common Cause.7 Instead, the Court left the question for each state to determine.8 In doing so, the majority dismissed Justice Kagan’s impassioned argument that the Court should adopt the clear test already articulated by several lower courts.9 Litigation on this question at the state level has since proliferated10 as each state now grapples with the legality of partisan gerrymandering on its own terms.11
Recently, in In re 2021 Redistricting Cases,12 the Alaska Supreme Court held that the state’s legislative map was an “‘unconstitutional partisan gerrymander’ violating [the state constitution’s] equal protection doctrine.”13 To reach this conclusion and render the maps illegitimate, the court focused on evidence that the state’s purpose was “intended discrimination against a class of voters.”14 The Alaska Supreme Court’s focus on partisan intent, rather than effect, to find the maps unconstitutional demonstrates how state courts can condemn attempts to manipulate redistricting processes for partisan advantage, especially as state actors across the country actively test the legality of partisan gerrymandering.
In November 2021, the Alaska Redistricting Board15 voted to enact a legislative map for the state along partisan lines.16 In creating the map’s Senate districts,17 the Board disregarded public testimony that advocated for pairing the Eagle River community districts together, which are both safely Republican, and the Muldoon community districts together, which are more diverse and considered “highly competitive.”18 The Board instead split up the Eagle River and Muldoon districts in its Senate pairings to create two safely Republican seats, even as dissenting board members raised concerns that doing so was plainly “partisan gerrymandering.”19
Litigants across Alaska challenged the maps as unconstitutional,20 and the Superior Court of Alaska found that one of those Senate district pairings violated the Alaska Constitution’s equal protection clause as a partisan gerrymander due to its purposeful dilution of certain groups’ voting power.21 The court remanded with orders for the Board to revise its Senate district pairings,22 and the Alaska Supreme Court affirmed in a summary order that the contested Senate district was “an unconstitutional political gerrymander violating equal protection under the Alaska Constitution.”23 The Board revised the Senate district pairings but still gave Eagle River control of two Senate seats in the new map24 — which the superior court again found to be an unconstitutional partisan gerrymander.25 The court put an interim map in effect for the 2022 general elections and remanded with orders for the Board to adopt a new redistricting plan.26 In another summary order, the Alaska Supreme Court once more affirmed the lower court’s finding of partisan gerrymandering and adoption of an interim map.27
Nearly a year later, the Alaska Supreme Court issued a full opinion detailing the legal foundation for both summary orders. Writing for the majority, Chief Justice Winfree relied on extensive legislative history to demonstrate that the Alaska Constitution’s approach to redistricting — both its explicit criteria governing legislative maps and its general guidelines for the redistricting process — was motivated by its framers’ desire to prevent gerrymandering.28 In addition, the court emphasized that “Alaska’s equal protection clause requires a more demanding review than its federal analog,” which results in a stricter standard for “fair and effective representation” in the voting rights context.29 The state supreme court relied on Kenai Peninsula Borough v. State30 as the “controlling . . . equal protection analysis in redistricting.”31 Kenai set out a three-step balancing inquiry for sliding-scale scrutiny that assesses: (1) the nature and weight of the individual’s constitutional interest to determine the appropriate level of scrutiny, (2) the importance of the state’s purpose to “counterbalance the weight given to the individual’s interest,” and (3) the fit between the state’s purpose and means.32 But the state’s purpose must be deemed “proper” to engage in this analysis.33 If the identified state purpose is illegitimate, the state action is an equal protection violation unless the Board can prove that it improves proportional representation.34 And in this case, the court clarified that “intended discrimination against a class of voters” is an illegitimate purpose.35 To determine if the Board had discriminatory intent, the court analyzed Kenai’s set of neutral factors36 to guide a “totality of the circumstances” inquiry.37
In assessing the equal protection claim,38 Chief Justice Winfree analyzed whether the Board created the challenged Senate district with an illegitimate purpose by assessing the Kenai neutral factors.39 The court found the Board’s extensive use of private executive sessions and selective consideration of Senate plans as “indicative of secretive procedures,”40 noted that the Senate district “pairing’s political undertones [were] impossible to ignore” due to regional partisanship,41 and considered the willful ignorance of overwhelming public opposition to the pairings as strong evidence that “partisanship was at play.”42 Since the Board split Eagle River in both cases43 “solely ‘to provide it with two solidly Republican [S]enate seats,’” it acted with discriminatory purpose.44 As the Board failed to provide any justification that this action improved proportional representation, the challenged Senate district was “‘an unconstitutional partisan gerrymander’ violating [Alaska’s] equal protection doctrine.”45 The state supreme court approved the decision to implement an interim map and noted that, while it had the authority to mandate a redistricting plan in this situation, it would “remand out of respect for the Board’s constitutional role in redistricting.”46
In finding the map unconstitutional based on discriminatory intent alone, the Alaska Supreme Court provided an avenue to outlaw partisan gerrymandering well suited to stem the current flood of state actors deliberately testing the legal boundaries of partisanship in redistricting. In comparison, Justice Kagan’s dissent in Rucho articulated a more stringent test that required both predominant partisan intent and substantial partisan effect.47 This “combined inquiry . . . set[s] the bar high” to limit judicial intervention to only the most egregious gerrymanders48 — a response to the Rucho majority’s concern that judicial intervention would too often amount to “reallocating power and influence between political parties” in cases that did not merit such an “extraordinary step.”49
But the dissent in Rucho contemplated a world in which partisan gerrymandering was declared justiciable across the country, and so redistricting officials would not be overtly partisan.50 In contrast, when partisan gerrymandering is litigated state by state, as it is now, state actors are still firing off “smoking guns”51 of partisan intent.52 Justice Kagan’s test and its state analogs53 may not find Alaska’s partisan gerrymander to rise to the level of an equal protection violation based on such evidence, but the Alaska Supreme Court’s focus on intent allows for a map to be ruled unconstitutional based solely on the Board’s overtly partisan intent.
To be clear, the Alaska Supreme Court does not require discriminatory intent for an equal protection violation54 — this inquiry is a precursor to the individual and state balancing espoused in Kenai. In the absence of clearly evinced discriminatory intent, Alaska’s equal protection analysis can still bar partisan gerrymandering when the challenged maps have a proven impact on fair representation and the state is unable to articulate a compelling purpose for doing so.55 In fact, the Kenai equal protection analysis strongly resembles the scrutiny framework supported by the Rucho dissent and applied in other states.56 As gerrymandering efforts become more nuanced, rendering a discriminatory intent test ineffective, the Kenai balancing test can continue to capture those egregious gerrymanders that Justice Kagan set her sights on. But for now, there are clear indicators of partisan intent — such as a Board member outright admitting that she wanted to give Eagle River “more representation”57 — to demonstrate that state actors are subordinating concerns of fair representation to partisan politics.58
While other states tend to focus on circumstantial evidence of intent to prove partisan gerrymandering,59 the Alaska Supreme Court also assessed instances of demonstrated intent to render the maps an unconstitutional partisan gerrymander.60 Circumstantial evidence can be dispositive of both intent and effect; it indicates that the map does not empower voters equally along partisan lines, suggesting that the only reasonable “explanation” for such inequality is that the Board intended to create a partisan gerrymander.61 Here, the neutral factors of regional partisanship, selective treatment of political subdivisions, and ignorance of communities of interest are all circumstantial evidence of gerrymandering that suggests partisan intent. But the Board’s use of secretive procedures, members’ statements on gerrymandering, and willful ignorance of public opposition actively demonstrate partisan intent. Other states’ tests, such as those of Maryland and North Carolina, rely on empirical evidence of impact on voters and undue partisanship to determine the relevant level of scrutiny.62 In this case, the circumstantial evidence alone may not be enough evidence of effect to merit court intervention under those tests, which follow in the vein of the Rucho dissent. As Justice Kagan noted, “even the naked purpose to gain partisan advantage may not rise to the level of constitutional notice” if it is not linked to a significant partisan effect.63 By providing an intent-based application of equal protection analysis, the Alaska Supreme Court met the current moment with a strong antigerrymandering position that does not require finding substantial partisan effect. Rather than waiting to determine whether the gerrymandered map results in significant harm to voters, the court instead condemned the clear attempt to lessen the power of some citizens’ votes.
The Alaska Supreme Court’s approach cuts to the heart of the matter acknowledged in Bandemer — that partisan gerrymandering unconstitutionally dilutes the power of one’s vote.64 When contending with the question of “[h]ow much” partisan effect is permissible in Rucho,65 Chief Justice Roberts implicitly assumed that the question of impermissible partisanship was exclusively one of degree, rather than also one of kind. Yes, it is important to determine how much partisan impact is “too much” when partisanship quite often plays some role in drafting maps. But focusing on questions of effect risks obscuring intent entirely — the role partisanship actually plays in the process. Focusing only on effect falsely equates a nonpartisan entity using an unbiased statistical model with a state legislature hell-bent on extending its current majority regardless of voters’ preferences. As several scholars have noted, invidious or impermissible intent, such as setting aside legitimate state purposes in the pursuit of partisan advantage, is a separate question from degree.66 And as the Alaska Supreme Court demonstrated in this case, it is a necessary precursor to questions of degree. Redirecting the inquiry to first assess the nature of the Board’s intent, rather than jumping straight to evaluating its effect on voters’ rights, reaffirms the state’s constitutional norm of fair and effective representation.67
Alaska’s discriminatory-intent standard is still constrained by partisan effect in a pragmatic sense. The Alaska Supreme Court must find an intentional partisan gerrymander unconstitutional unless it increases proportional representation, as the state action is motivated by an illegitimate purpose.68 However, the court retains discretion as to whether redrawing the districts is an appropriate remedy and considers the impact on proportional representation in determining the relevant remedy.69 The question of effect is still an important one to contend with, but it is the second question to ask.
As Justice Kagan noted, clear instances of demonstrated intent will likely become few and far between in states where partisan gerrymandering is deemed justiciable.70 But, as seen in In re 2021 Redistricting Cases, finding partisan gerrymandering unconstitutional through discriminatory intent can provide a bridge to the world that Justice Kagan envisioned for her test. Before determining “how much” effect is “too much,” it is critical to stake out that partisan intent is an impermissible guiding initiative.71 By evaluating the Board’s discriminatory intent and finding the maps unconstitutional on that basis alone, the Alaska Supreme Court’s decision addresses the current state of play with a strong reminder that, regardless of the partisan effect, prioritizing partisan objectives over fair and effective representation unconstitutionally infringes on the equal right to vote.