Academic journal article Boston University Law Review

"Gobbledygook" or Unconstitutional Redistricting?: Floterial Districts and Partisan Gerrymandering

Academic journal article Boston University Law Review

"Gobbledygook" or Unconstitutional Redistricting?: Floterial Districts and Partisan Gerrymandering

Article excerpt

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Mr. Smith: [G]errymanders now are not your father's gerrymander. These are going to be really serious incursions on democracy if this Court doesn't do something. And this is really the last opportunity before we see this huge festival of new extreme gerrymanders . . .

Justice Gorsuch: And where exactly do we get authority to revise state legislative lines? . . .

Justice Ginsburg: Where did one-person/one-vote come from?1


At least every ten years, states redraw their district maps.2 The next wave of redistricting will occur across the country after the 2020 election and release of the decennial census. In preparation for the next redistricting, individuals and organizations have attempted to shape redistricting restrictions by challenging state district maps in court.3 For instance, in Whitford v. Gill,4 retired law professor William Whitford, among other Wisconsin Democratic voters, challenged the constitutionality of Wisconsin's legislative map, claiming the state legislature's use of extreme partisan gerrymander diluted Democratic votes.5 On June 19, 2017, the Supreme Court agreed to hear the case,6 and as a result took up the question of partisan gerrymandering for the first time in more than a decade.7 In Davis v. Bandemer,8 the Court held that partisan gerrymandering is a justiciable issue;9 however, since that opinion, the Court has failed to provide the standard for determining if a map was drawn with partisan motives.10 The Court's decision in Gill v. Whitford11 outlined the standing required to bring a vote dilution claim in a partisan gerrymandering context, but failed to settle the question of what makes a map an unconstitutional partisan gerrymander.12 As the lower courts review partisan gerrymander challenges in light of Gill v. Whitford, their rulings (and the possibility of the Supreme Court confronting the question again before 2020) could have significant repercussions on the next redistricting wave.

Gerrymandering is "the deliberate and arbitrary distortion of district boundaries and populations for partisan or personal political purposes."13 While district maps must comply with the "one-person, one-vote" principle, the Voting Rights Act, and traditional districting principles,14 state legislatures often undermine these requirements with partisan motives, such as ensuring protection for incumbents or increasing the number of seats for a particular political party.15 In an effort to suppress partisan motives, some states have implemented nonpartisan or advisory redistricting commissions.16 For states without commissions, gerrymandering has been, and still is, a significant part of the redistricting process.17 In preparation for the next redistricting wave, most state legislatures will likely look for new strategies and devices to help draw the maps with partisan motives in mind.18

Although most district maps are drawn using single-member, multi-member, or at-large districts, a map may also include floterial districts, an infrequently used redistricting device.19 A floterial is a legislative district "which includes within its boundaries several separate districts or political subdivisions which independently would not be entitled to additional representation but whose conglomerate population entitles the entire area to another seat in the particular legislative body being apportioned."20 Unlike the more commonly used district types, the Supreme Court has yet to directly rule on the constitutionality of floterials.21 New Hampshire is the only state that currently uses floterial districts, although several other states have used this redistricting device in the past.22 While floterials are rarely used, this Note suggests that this redistricting device may be used as a tool to assist with partisan gerrymandering. In future redistricting efforts, majority members of the state legislature may consider using floterial districts as a way to maintain party control. …

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