Congress should enact rules and standards for congressional redistricting

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In 2019, the Supreme Court held in Rucho v. Common Cause, that partisan gerrymandering claims were not justiciable because the Constitution did not provide standards for evaluating such claims.  On April 29, 2026, the Supreme Court held in Louisiana v. Callais, that Louisiana’s 2024 congressional map was an unconstitutional gerrymander not justified by the Voting Rights Act of 1965. The Supreme Court’s decision in Callais and subsequent ruling on the court’s shadow docket have sparked last-minute changes to congressional district maps in several states with Republican-controlled legislatures.  The Democratic-controlled states also have gotten into the act, including California’s repeal by referendum of the state’s non-partisan redistricting commission and Virginia’s redistricting referendum that was invalidated by the Virginia Supreme Court on May 8, 2026.

The 2026 congressional redistricting sweepstakes has not only engendered gerrymandered congressional maps that unfairly dilute minority party representation by packing and cracking minority party voters into certain districts but also has caused great confusion because of last-minute changes in district boundaries. In 2006, the Supreme Court in Purcell v. Gonzales held that election rules and maps should not be altered on the eve of elections. However, Purcell has been observed in breach with respect to the last-minute changes that have occurred this year.

Congress has the power under Article I, Section 4 of the United States Constitution to remedy the redistricting mess. Congress can set standards for congressional district maps.  From 1840 to 1910, Congress specifically allocated congressional seats to the states after each decennial census and provided that each congressional district should be composed of “contiguous territory.”  Beginning with the 1900 allocation, Congress added that each district should consist of “contiguous and compact territory.”  In 1930, Congress provided for automatic allocation of congressional districts among the states after each census but omitted any language regarding how the districts should be drawn.

Since 1972, Article III, Section 4 of Maryland’s Constitution has provided the following with respect to state legislative districts:

Each legislative district shall consist of adjoining territory and shall be compact in form.  Due regard shall be given to natural boundaries and the boundaries of political subdivisions.

When Maryland’s federal congressional redistricting was challenged in 2022, the Maryland Supreme Court appointed Judge Lynne Battaglia as a special master to evaluate the map.  Judge Battaglia applied the Maryland constitutional standard for state legislative districts to the federal map and found it unconstitutional. The Maryland General Assembly quickly redrew the districts to comply with Judge Battaglia’s ruling, but the wrangling over both federal congressional districts and state legislative districts caused the 2022 primary election to be delayed.

We urge Congress to reenact the standard that each congressional district should consist of “contiguous and compact territory.”  We also urge Congress to enact specific deadlines by which the states must finalize congressional district maps and by which federal challenges to the maps can be brought to avoid the last-minute changes and confusion that are ongoing this year.

Editorial Advisory Board Members Arthur F. Fergenson and George Liebmann did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

Gary E. Bair

Jill P. Carter

Arthur F. Fergenson

Nancy Forster

Susan Francis

Julie C. Janofsky

Ericka N. King

George Liebmann

George Nilson

Steven I. Platt

Angela W. Russell

Debra G. Schubert

Jeff Sovern

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.