Gerrymandering, the practice of drawing electoral districts to advantage a particular political party, is under attack in courts across the country. The Supreme Court recently heard arguments in one case challenging the constitutionality of partisan gerrymandering and is scheduled to hear a second this Spring. Former Attorney General Eric Holder, with support from President Barack Obama, has embarked on a campaign to eliminate the practice. Last Monday, the Supreme Court of Pennsylvania declared the state’s electoral maps to be in violation of the Pennsylvania state constitution.

But while the Supreme Court has yet to say once and for all whether partisan gerrymandering is constitutional, a recent decision by a three-judge panel of the U.S. District Court for the Middle District of North Carolina provides some insight. Earlier this month, that court made history by becoming the first to declare partisan gerrymandering unconstitutional, and ordered the North Carolina state legislature to redraw its entire electoral map. Although the Supreme Court granted a stay of the district court’s decision, likely ensuring that North Carolina’s maps will remain unchanged for the 2018 midterm elections, the district court’s opinion may reveal one way the Supreme Court could find gerrymandered maps to be unconstitutional.

The case, Common Cause v. Rucho (M.D.N.C. 2018), featured a redistricting scheme that was candidly partisan. North Carolina Representative David Lewis and North Carolina Senator Robert Rucho, members of the Republican-controlled redistricting committee, collaborated with a Republican strategist, who also served on the party’s “redistricting team,” to draw the state’s electoral maps. The team, part of the party’s Redistricting Majority Project, or “REDMAP,” was tasked with drawing the state’s maps to “solidify conservative policymaking at the state level and maintain a Republican stronghold in the U.S. House of Representatives for the next decade.” During debate in the North Carolina House of Representatives, Lewis flatly admitted his motivation in helping create the maps was that he thought “electing Republicans is better than electing Democrats.” Thus, absent any pretextual justification for the way the maps were drawn, the court addressed the issue of whether partisan gerrymandering standing alone is constitutional.

The court, in an opinion written by Judge Wynn and joined by Judge Britt, concluded that the state legislature’s redistricting plan violated the Equal Protection Clause, the First Amendment, and Article I of the U.S. Constitution. It then required the legislature to file a proposed remedial plan by the end of January and appoint a Special Master under Rule 53 of the Federal Rules of Civil Procedure to assist in drafting the plan. Judge Osteen concurred with respect to the majority’s Equal Protection and Article I analyses, but dissented with respect to its First Amendment analysis and decision to appoint a Special Master before allowing the legislature another chance to draw permissible districts itself.

Perhaps the most important aspect of the opinion in terms of predicting the future of partisan gerrymandering is how it dealt with justiciability. In Vieth v. Jubelirer (2004), a plurality of the Supreme Court held that partisan gerrymandering is a “political question,”  which courts cannot review. However, Justice Kennedy, who provided the plurality with a fifth vote, stated that the issue may eventually become justiciable if “judicially manageable standards” are developed to determine when a state’s redistricting scheme becomes unconstitutionally partisan. Unlike the challengers in the Wisconsin case currently pending in the Supreme Court, who attempted to devise such standards mathematically by measuring the amount of “wasted votes” in an election, the challengers in Rucho relied on a variety of empirical evidence allegedly demonstrating that supporters of non-Republican candidates would be significantly underrepresented in elections under the state’s maps. While the court there was persuaded by the plaintiff’s “academically derived, social science evidence,” whether such evidence would persuade Justice Kennedy, whose vote will likely decide the pending Supreme Court cases on the issue, is less clear.