Blog Post | 114 KY. L. J. ONLINE | October 10, 2025
Mapping by Lot: The Principles of Sortition and Sequestration in Redistricting
By: Garrett Sams, Staff Editor, Vol. 114
2025 has been a complicated year for American voting rights. For one, the Supreme Court seems prepared to reduce the applicability of portions of the Voting Rights Act of 1965 (VRA).[1] In other news, there has been a high-profile arms race between blue and red states to see who can gerrymander congressional districts on political party lines the most dramatically.[2] These developments are upsetting because when legislators in power use demographic data to facilitate a particular election outcome, it undermines public faith in elections.[3] To make redistricting more respectable and democratic, it seems prudent to borrow elements from a truly respectable and democratic institution—juries. By fostering the principles of sortition—the choosing of a participant by lot—and sequestration—the isolating of participants or data to promote impartiality—in the map-drawing process, we can ensure that elections will appear, and perhaps be, more democratic and egalitarian, no matter what the Supreme Court decides in the upcoming term.
Gerrymandering has broadly come in two forms. There is “the practice of drawing the boundaries of electoral districts in a way that gives one political party an advantage over its rivals” which is termed partisan gerrymandering, and there is racial gerrymandering which “dilutes the voting power of members of racial or ethnic minority groups.”[4] Partisan gerrymandering strikes many as fundamentally undemocratic,[5] and jurists have identified constitutional concerns with this practice,[6] yet, since 2019, this type of gerrymandering has been deemed non-judiciable by federal courts.[7] There is no national law preventing this type of gerrymandering,[8] though such conduct is prohibited in some states.[9]
This year, the Texas legislature redrew its congressional districts in the middle of a decade, on party lines, to pick-up five Republican House of Representatives seats for the 2026 midterms.[10] Democratic lawmakers fled the state to prevent a quorum in the state legislature.[11] California threatened to retaliate by gerrymandering its own districts to gain more Democratic seats.[12] Even though California has, in its constitution, an independent, sortition-based redistricting committee,[13] the kind that holds bipartisan popularity,[14] Democrats have pushed to suspend this body to combat Texas’s gerrymander.[15] Thus, Texas and California—a study in political opposites—are engaging in the same undemocratic endeavor.
Political gerrymandering may be ineffective at swaying national politics, as it is a weapon that both sides can wield,[16] but it does impact the people living in the districts that are redrawn.[17] Moreover, it lowers the voters’ confidence in the election itself,[18] which is not beneficial in a nation that has grappled with election denialism over the past five years.[19] Finally, even if the balance of power does not change because of mutually assured redistricting,[20] it further entrenches a pernicious separation of powers that undermines the tripartite-Madisonian structure of our government in favor of the bifurcated nature of the two-party system.[21]
Unlike partisan gerrymandering, racial gerrymandering implicates the Constitution and the federal statute.[22] The VRA’s provisions seek to address voting policies affecting racial and language minority groups,[23] and more broadly, the poor.[24] What may be upended in the upcoming term is if states are required to redraw districts to facilitate equal representation under § 2 of the VRA.[25] The Supreme Court, evoking Justice Harlan’s dissent in Plessy v. Ferguson,[26] has recently been committed to enforcing a “color-blind Constitution.”[27] Thus, the creation of a majority-minority district in a state to ensure equal representation is equally unconstitutional, by the Court’s logic, as the pernicious line-drawing of the Jim Crow South.[28] The result: legislatures will likely be able to access census data, including race, to draw congressional maps, and so long as race does not “predominate” over the line-drawing decisions, there will be limited remedies for maps that have discriminatory impacts.[29]
Congressional map-drawing is simply too important to America’s national identity as a democracy to continue down this path. We must give the district-drawing process the deliberation it is due. Independent citizens’ councils, infused with the principles of the jury, are needed to restore faith in redistricting and democratic representation. We entrust juries of our peers to make findings of fact that can result in the depravation of another’s life.[30] It follows that we may vest in our peers, under the guidance of law, the duty of giving new, democratic life to map-drawing.
First, sortition: when a state is to redistrict, those who draw the maps should be chosen at random. They will be citizens disconnected from local politics and expertise, uncorrupted and temporary. Sortition is, historically and presently, a counter to political entrenchment and corruption.[31] Second, sequestration: when a “jury” of map-drawers is empaneled, its connection to external influence and bias will be curtailed, and the map-drawers’ access to some types of voter data, likely concerning the racial composition and political affiliation of a geographic area, will be limited during the redistricting process. In the same manner as how evidence that is substantially more prejudicial than probative may not be admissible in court,[32] information on an area’s political leanings can only corrupt the map-drawers’ decision-making. The same goes for data on race which is inevitably obscured by the stereotypes and beliefs that are left in the wake of racism and ascribed to a voter’s presumed ethnonational origin beneath the façade of a sociological heuristic.[33]
With important matters being “returned to the people and their elective representatives,”[34] we must reconsider how maps are drawn to foster better optics in our elections and less determinism. The Constitution requires state legislatures to be the district-drawers, but Congress has oversight,[35] and the high Court has allowed independent commissions to draw maps when states so choose.[36] What is needed, then, is a national framework, malleable to state-specific laws and practical concerns, but guided by the general principles of sortition and sequestration.[37] What these redistricting bodies look like and how they specifically operate will likely vary and warrant further examination,[38] but the result of an electoral commitment to sortition and sequestration will invariably be a reaffirmation of voting rights and citizen decision-making, uncorrupted by bias or external influence. If the Supreme Court wishes to evoke a colorblind constitution, then let democracy’s cartographers too be blind to black and white, and red and blue.
[1] See Jamelle Bouie, The Death of the Fourth American Republic, N.Y. Times (Aug. 6, 2025), https://www.nytimes.com/2025/08/06/opinion/supreme-court-voting-rights-act.html?smid=url-share; Amy Howe, Group of Louisiana Voters Urges Supreme Court to Strike Down Major Provision of the Voting Rights Act, SCOTUSBlog (Sept 17, 2025), https://www.scotusblog.com/2025/09/group-of-louisiana-voters-urges-supreme-court-to-strike-down-major-provision-of-the-voting-rights-act/ (“On June 27, the justices announced that they would hear arguments in the case again during the 2025–26 term; they later directed the litigants to address a specific question: whether Louisiana’s intentional creation of a second majority-Black district violates either the 14th Amendment or the 15th Amendment….”).
[2] See Natalie Fertig, Why Democrats Can’t Match Trump’s Gerrymander Push, Politico (Sept. 22, 2025, 5:55 AM EDT), https://www.politico.com/news/2025/09/22/why-democrats-cant-match-trumps-gerrymander-push-00572965.
[3] David Danelski, Gerrymandering Erodes Confidence in Democracy, U.C. Riverside News (Aug. 12, 2025), https://news.ucr.edu/articles/2025/08/12/gerrymandering-erodes-confidence-democracy#:~:text=UCR%2Dled%20study%20draws%20from,view%2C%20cloaked%20in%20arguable%20legality (citing a study articulating that “manipulation of district boundaries to lock in political advantage . . . does more than distort representation in Congress. It undermines the belief that elections are fair, a cornerstone of democratic legitimacy.”).
[4] Gerrymandering, Encyclopedia Britannica, https://www.britannica.com/topic/gerrymandering (last visited Oct. 3, 2025).
[5] Alexander Rossell Hayes, Large Majorities of Americans Say Gerrymandering Is a Major Problem, Unfair, and Should Be Illegal, YouGov (Aug. 8, 2025, 2:31 PM GMT), https://today.yougov.com/politics/articles/52740-large-majorities-americans-say-gerrymandering-major-problem-unfair-should-be-illegal-redistricting-texas-california-poll (“Most Americans prefer for the districts in their state not to give an advantage to either party (67%) and few would support gerrymandering even if it countered partisan redistricting in Texas (24%) or California (19%).”).
[6] See Benisek v. Lamone, 348 F. Supp. 3d 493, 518–19 (D. Md. 2018), vacated and remanded sub nom. Rucho v. Common Cause, 588 U.S. 684 (2019) (finding partisan gerrymandering implicates First Amendment concerns).
[7] Rucho, 588 U.S. at 718 (“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”).
[8] See Roland Fryer, Geometry Solves Gerrymandering, N.Y. Times (Aug. 12, 2024, 5:01 AM EST), https://www.nytimes.com/2025/08/12/opinion/math-solution-gerrymandering.html (“The Supreme Court’s 2019 decision in Rucho v. Common Cause closed the federal courthouse door to partisan-gerrymandering claims. It didn’t bless the practice; it handed the ball to the states and to Congress.”).
[9] See, e.g., Matter of 2021 Redistricting Cases, 528 P.3d 40, 92 (Alaska 2023) (“[W]e expressly recognize that partisan gerrymandering is unconstitutional under the Alaska Constitution.”); Harkenrider v. Hochul, 197 N.E.3d 437, 454 (N.Y. 2022) (holding a congressional map to be “substantively unconstitutional as drawn with impermissible partisan purpose”).
[10] Max Matza, Why California and Texas Are at the Centre of a Redistricting Battle, BBC (Aug. 29, 2025), https://www.bbc.com/news/articles/cdxydpr1zz2o (“After Texas passed a redistricting measure that would create five more congressional seats favouring Republicans, California lawmakers hit back on by voting to re-draw the state's maps—carefully made to cancel out Texas' move.”).
[11] Id.
[12] Id.
[13] Cal. Gov't Code § 8252 (West 2008).
[14] September Poll: 64% of Republican and Independent Voters Want Ban for Mid-Decade Redistricting, Common Cause (Sept. 9, 2025), https://www.commoncause.org/press/september-poll-64-of-republican-and-independent-voters-want-ban-for-mid-decade-redistricting/#:~:text=57%25%20of%20Republicans%2C%2076%25,toplines%20can%20be%20found%20here (“Over three-in-four voters support a boundary-drawing process that puts community interests ahead of political advantage (78%) and having independent commissions draw electoral districts (77%).”).
[15] What Is Prop 50?, Cal. Democratic Party, https://cadem.org/prop50/ (last visited Sept. 26, 2025) (explaining that the proposal is “temporary” and the legislature-drawn maps “expire in 2030” while preserving “California’s award-winning redistricting reforms”).
[16] Rick Harrison, Partisan Gerrymandering Mostly Cancels Out at National Level, Study Shows, YALE ISPS (Jun. 13, 2023), https://isps.yale.edu/news/blog/2023/06/partisan-gerrymandering-mostly-cancels-out-at-national-level-study-shows.
[17] See Michael S. Kang, The Bright Side of Partisan Gerrymandering, 14 Corn. J. L. & Pub. Pol'y 443, 446 (2005) (“Incumbents rig their re-election prospects by packing their own districts with friendly voters, which scares off or trounces challengers attempting to take their seats.”).
[18] Danelski, supra note 3.
[19] See Kat Tenbarge & Bruna Horvath, Election Denialism Emerges on the Left After Trump’s Win, NBC News (Nov. 16, 2024, 3:00 PM EST), https://www.nbcnews.com/tech/tech-news/election-denialism-emerges-left-trumps-win-rcna179797 (“On the right, familiar conspiracy theories about voting popularized by President-elect Donald Trump continued to circulate. But similar ideas also took hold among some supporters of Vice President Kamala Harris and have continued to spread.”).
[20] For the term “mutually assured redistricting,” see Fryer, supra note 8. For the notion that partisan gerrymandering likely does not change the national balance of power, see Harrison, supra note 16.
[21] See Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Har. L. Rev. 2311, 2338 (describing how “gerrymandered ‘safe’ election districts” contributes to a system where “smaller partisan majorities” can pass sweeping legislation “without the full range of checks and balances that are supposed to divide and diffuse power in the Madisonian system”).
[22] See, e.g., City of Rome v. United States, 446 U.S. 156, 174–78 (1980) (explaining the Fifteenth Amendment protects voting rights against intentional discrimination and permits Congress to pass legislation like the VRA that targets discriminatory effects in voting); Shaw v. Hunt, 517 U.S. 899, 901–02 (1996) (finding a map that had “bizarre-looking districts” that were drawn on “the basis of race” to fail strict scrutiny and violate the Equal Protection Clause of the Fourteenth Amendment); Wesberry v. Sanders, 376 U.S. 1, 17–18 (1964) (holding that article 1, section 2 of the Constitution requires drawing congressional districts to be roughly equal in population).
[23] Voting Rights Act of 1965 § 2, 52 U.S.C. § 10301.
[24] See 52 U.S.C § 10303 (preventing the use of a “test or device” to prevent an individual from voting); id. § 10501 (defining a “test or device” to mean literacy tests, “moral character” tests, and voting vouchers); id. §§ 10503(b)(1),10508 (prohibiting English-only voting materials and allowing “voting assistance for blind, disabled or illiterate persons”); id. § 10307 (prohibiting those “acting under the color of law” from preventing people from voting and preventing any person from intimidating voters); see also, Robert J. Steinfeld, Property and Suffrage in the Early American Republic, 41 Stan. L. R. 335, 335–39 (describing the disenfranchisement of “paupers” and “propertyless” people in the United States); C. Vann Woodward, the Strange Career of Jim Crow 82–89 (1968) (discussing the devices used to disenfranchise Americans of African descent in the post-Reconstruction South as also “curtailing the franchise” of “objectionable whites” such as those who were poor or illiterate).
[25] See Louisiana v. Callais, Nos. 24–109 and 24–110, slip op. at 5–6 (U.S. June 27, 2025) (Thomas, J., dissenting) (arguing the Court’s ruling in Arthur v. Milligan, 599 U.S. 1 (2023), requires the Court to choose between “patent racial gerrymandering” to enforce § 2 compliance and not using a “race-based remedy” like redrawing a congressional map to promote equal representation).
[26] Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting) (“There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens.”).
[27] See Students for Fair Admission, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 200–206, 230 (2023); see Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 747–48 (2007).
[28] See Jamelle Bouie, Racism and Race—The John Roberts Two-Step (July 13, 2023), https://portside.org/2023-07-13/racism-and-race-john-roberts-two-step (“[Chief Justice Roberts] takes racism, a system of subjugation and social control, and removes the racists. What’s left is the mark of racism, that is, race. A landmark case about the legitimacy of race hierarchy—Brown v. Board of Education—becomes, in Roberts’s hands, a case about the use of race in school placement.”).
[29] For a guide on how a court decides if race “predominates,” see Miller v. Johnson, 515 U.S. 900, 916–17 (1995).
[30] See Ring v. Arizona, 536 U.S. 584, 609 (2002).
[31] See Sameul Bragg, Sortition as Anti-Corruption: Popular Oversight against Elite Capture, 68 Am. J. Pol. Sci. 93, 95–96 (arguing that sortition has served as a way of “disrupting specific forms of manipulation and entrenchment”); Anthony Gottlieb, Win or Lose, The New Yorker (July 19, 2010), https://www.newyorker.com/magazine/2010/07/26/win-or-lose (describing the complex, sortition-based election system for the Oligarchic position of “Doge” of the Republic of Venice as a system designed “to reassure Venetians that their new ruler could not have been eased into place by backroom deals”).
[32] See Fed. R. Evid. 403.
[33] See generally, Barbara J. Fields and Karen E. Fields, Racecraft: The Soul of Inequality in American Life (2012) (discussing the relationship between racism (“the theory and the practice of applying a social,
civic, or legal double standard based on ancestry, and to the ideology surrounding such a double standard”), race (the conception or the doctrine that nature produced humankind in distinct groups”), and “racecraft” (the “mental terrain and pervasive belief” that “transforms racism into race” through “human action and imagination”)).
[34] Dobbs v. Jackson Woman’s Health Org., 597 U.S. 215, 292 (2022) (finding the Constitution “does not confer a right to abortion”); see also United States v. Skrmetti, No. 23-477, slip op. at 24 (U.S. June 18, 2025) (holding that medical treatment for transgender children is a matter for “the people, their elected representatives, and the democratic process”); City of Grants Pass, Or. v. Johnson, 603 U.S. 520, 560 (2024) (finding public regulations that impact homeless people are matters for the voters and legislators).
[35] See U.S. Const. art. I, § 4.
[36] Ariz. State Leg. v. Ariz. Indep. Redistricting Comm'n, 576 U.S. 787, 812 (2015) (holding that “the Elections Clause permits the people of Arizona to provide for redistricting by independent commission”).
[37] The principles of sortition and sequestration are the main devices for reducing entrenchment, election denialism, and determinism. There are, however, practical considerations that may limit how far these principles stretch. Specifically, how much oversight, guidance, and authority a redistricting committee has should be carefully determined. Moreover, it is true, too, that sortition-based bodies may still be improperly influenced or guided if their task requires a high degree of expertise or is overly broad. See Bagg, supra note 31, at 96 (“Where charging ordinary citizens with the profoundly open-ended task of legislation simply leaves them vulnerable to manipulation by various elites, in short, entrusting them with narrower tasks of oversight enables them to effectively wield power over those elites.”).
[38] There are other requirements for juries in America that may be helpful in considering the principles that should guide the formation of redistricting committees. Juries must have a minimum number of jurors to be just. See Ballew v. Georgia, 435 U.S. 223, 245 (1978). Unanimity is required for serious crimes. Ramos v. Louisiana, 590 U.S. 83, 93 (2020). And jurors must be “impartial” from the “[s]tate and district” in which the crime occurred. U.S. Const. amend. VI.