Abstract
In Rucho v. Common Cause, the Supreme Court held that partisan gerrymandering is a nonjusticiable political question. The Court’s opinion admits that “[e]xcessive partisanship in districting leads to results that reasonably seem unjust.” The injustice is the ability of the majority party to use political gerrymandering to entrench itself as the governing party and to remain so, long after that party falls out of favor.
Although Rucho was an Elections Clause case, it is easily applicable to states’ exercise of their Electors Clause power. Republicans will wield this new, nonjusticiable power (and the concomitant political cover that it provides) to gerrymander the Electoral College. When they do, Democrats will follow suit. Rucho encourages, enables, and ensures an arms race to the end of meaningful participation by voters in presidential elections in many states.
Here is the template for the “Gerrymandered Electoral College,” using a new Texas statute (where Republicans have a state government trifecta) as an example:
The set of Elector candidates that is elected is the one that corresponds to the candidates for President and Vice President who win the most individual Texas congressional districts. The winners of each congressional district shall be the candidates for President and Vice President who receive the highest number of votes in that congressional district.
This system for allocating Texas’s Electoral College votes mimics the Electoral College system used to elect the President. Unlike the existing “District Systems” in use in Maine and Nebraska, it is a winner-take-all system (thus maximizing the State’s influence on the presidential election) that is not based on the popular vote for the relevant sovereign territory. Instead, it allocates all of the spoils of victory—all of Texas’s Electoral College votes—to the winner of the most subdivisions of that sovereign territory.
Alternatively, Texas might insulate its gerrymandering of the Electoral College from any future corrective legislation by Congress by creating its own set of forty unique, extremely gerrymandered “Electoral College Districts” and mandating that Texas allocate all of its Electoral College votes to the winner of the most individual Electoral College Districts.
The Gerrymandered Electoral College (1) satisfies the constitutional requirement of population equality; (2) mimics the actual Electoral College in its anti-majoritarian nature; (3) exploits the fact that partisan gerrymandering is a nonjusticiable political question; and (4) in the second example above, it leverages the fact that States have nearly unbridled discretion over the allocation of their Electoral College votes to craft unique Electoral College Districts so as to avoid oversight, constraint, or regulation by Congress. This last aspect is particularly powerful. Once a State establishes Electoral College Districts and enacts a Gerrymandered Electoral College, Congress will be powerless to override it.
Repository Citation
Henry S. Noyes,
Gerrymandering the Electoral College,
109 Marq. L. Rev. 1447
(2026).
Available at: https://scholarship.law.marquette.edu/mulr/vol109/iss4/7