What does federal law say about partisan gerrymandering? Fact-checking Florida Democratic leader

Florida's Republican-controlled Legislature approved a new congressional map that could help the GOP flip four seats in the midterm elections. 

State Democrats say the map, put forward by Gov. Ron DeSantis, conflicts with Florida’s Fair Districts amendment prohibiting drawing districts with partisan intent. DeSantis has offered several reasons for the changes, including population growth. 

Florida House Democratic Leader Fentrice Driskell, D-Tampa, went further, saying after the April 29 vote that it was not only illegal on a state level, but also federal.

"Even if Fair Districts falls, you still have general principles of map drawing, and you still have, under federal law, you cannot engage in partisan gerrymandering," Driskell told reporters. "It would not be OK to draw that map based on partisan data."

Gerrymandering is drawing district boundaries to give one political party, incumbent or group an advantage.

No federal law says states cannot undertake partisan gerrymandering. The U.S. Supreme Court ruled in 2019 that partisan gerrymandering claims are "political" questions that federal courts can’t answer. 

"The court ruled the matter ‘nonjustiable’ by federal courts," said Rick Hasan, a UCLA School of Law election law expert. "It recognized the argument that partisan gerrymandering could be unconstitutional but it wasn’t for the federal courts to say when it is happening."

The court’s majority opinion said excessive gerrymandering is "incompatible with democratic principles," but state legislatures and Congress have the responsibility to police it. 

Driskell’s office told PolitiFact she misspoke and meant to reference racial gerrymandering prohibitions in federal law and the partisan gerrymandering prohibitions in state law. 

What did the Supreme Court say in 2019?

In Rucho v. Common Cause, Chief Justice John Roberts, writing for a 5-4 majority, said that although extreme partisan gerrymandering may seem reasonably "unjust," the Constitution provides no manageable standard for federal judges to determine when a redistricting plan becomes too partisan. 

"The fact that such (excessive) gerrymandering is ‘incompatible with democratic principles,’" Roberts wrote, "does not mean that the solution lies with the federal judiciary." Federal judges have "no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution."

The opinion acknowledged that courts have gotten involved in other redistricting-related claims, such as racial gerrymandering, but said partisan gerrymandering is particularly thorny because it’s well settled law that legislatures can consider politics when drawing maps.

Does the U.S. Constitution say anything about partisan gerrymandering?

The Constitution doesn’t explicitly mention "gerrymandering" or "partisan gerrymandering." But the practice is regulated through several constitutional provisions, including the elections clause and the 14th Amendment.

The Article 1, Section 4 elections clause grants state legislatures the power to oversee congressional elections. The Supreme Court pointed to this clause in its 2019 decision as the primary constitutional tool for addressing gerrymandering.

Critics of gerrymandering say it violates the 14th Amendment’s equal protection clause by diluting citizens’ voting power based on political affiliation. The clause says no state shall "deny to any person within its jurisdiction the equal protection of the laws," requiring them to treat people in similar situations equally and prohibits discriminatory laws.

The Supreme Court has used the clause to strike down racial gerrymandering and population imbalances, often called the "one person, one vote" principle. It ruled in Rucho that federal courts can’t use it to police partisan intent because there’s no clear mathematical standard for "fairness."

How does this play out for Florida’s new map?

Potential challenges to Florida’s new map lie in state law, not federal.

In 2010, 63% of Florida voters approved the Fair Districts amendments to be added to the state Constitution. They prohibit redistricting plans "with the intent to favor or disfavor a political party or an incumbent" and plans with the intent or result of "denying or abridging the equal opportunity of racial or language minorities to participate in the political process."

"The Florida maps are far more likely to be challenged in state court, on state constitutional grounds, given Florida’s fair districting amendment," Hasan said. "That’s why DeSantis went out of his way to say that he was drawing the maps because populations have shifted — a clear subterfuge since he sent out maps showing the partisan implications."

DeSantis had said the Legislature would be "forced" to redistrict because of an expected Supreme Court decision over whether certain race-based districts under the Voting Rights Act are unconstitutional.

The high court ruled the districts unconstitutional, and DeSantis’ lawyers told state lawmakers they now believe both the partisan and racial sections of the Fair Districts amendments are unconstitutional. They said the race-based requirements in one section cannot be severed from the partisan-based requirements in the other.

Courts decide whether a provision can be severed from another by asking whether the drafters would have wanted the entire law to be eliminated, or if they would've wanted one part to stay intact, said Justin Levitt, a Loyola Marymount law school professor who served as a senior Biden policy adviser.

Daniel Smith, University of Florida political science professor, said that although the Supreme Court’s 2019 decision opened the door to partisan gerrymandering in some states, Florida is not one of them.

"Notwithstanding Governor DeSantis’ claims to the contrary," he said, "under Florida state law, the prohibition of gerrymandering to advantage or disadvantage a party or incumbent is still in effect."  

Our ruling

Driskell said, "Under federal law, you cannot engage in partisan gerrymandering."

No federal law says states cannot undertake partisan gerrymandering. The Supreme Court ruled in 2019 that partisan gerrymandering claims are "political" questions that federal courts can’t answer, and left it to the states and Congress to pass laws to regulate redistricting.

In Florida, the Fair Districts amendment prohibits drawing congressional or legislative districts partisan intent. Driskell’s office said she misspoke. 

We rate the statement False.

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