Reference — MSI Thomas Reynolds Gerrymandering-Solution Memorandum

TL;DR

• The proposed standard partially answers, but does not fully escape, Chief Justice Roberts’ core objections in Rucho. Its rule-like character (a 60% supermajority trigger, a ±2-point band, a 4-point hard cap, all measured against five-cycle precinct returns) addresses the “indeterminacy” critique that doomed the efficiency gap, partisan symmetry, mean-median, and predominant-intent tests. But Roberts’ deeper objection — that the choice among visions of “fairness” (competitiveness, proportionality, stability, partisan symmetry) is itself political, not legal — applies with full force to a rule that elevates competitiveness to an objective function. Rucho, 588 U.S. at 705-08.

• The primary federal pathway is congressional legislation under the Elections Clause, not federal-court constitutional enforcement. Rucho expressly invited this remedy: “The Framers gave Congress the power to do something about partisan gerrymandering in the Elections Clause,” and “the avenue for reform established by the Framers, and used by Congress in the past, remains open.” 588 U.S. at 718-19. A federal statute imposing the framework on U.S. House districts, signed into law, supplies the very “judicially manageable standards” the Rucho majority found absent in constitutional doctrine. Rucho’s manageability concern is a justiciability doctrine constraining courts inferring rules from open-ended constitutional text, not courts applying duly enacted statutes — federal courts apply quantitative statutory standards routinely (one-person-one-vote precision under Karcher v. Daggett, 462 U.S. 725 (1983); the Gingles preconditions under Section 2 of the VRA, Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986)). Louisiana v. Callais, 608 U.S. ___ (Apr. 29, 2026), reaffirmed Rucho’s nonjusticiability holding for constitutional claims but did not disturb Congress’s Elections Clause authority.

• The federalism limit is on state legislative districts, not federal congressional districts. Congress’s Article I, § 4 power covers “Senators and Representatives” — federal offices. State legislative redistricting remains within state plenary authority, subject only to Equal Protection (Reynolds v. Sims, 377 U.S. 533 (1964)), the VRA, and anti-commandeering principles (Printz v. United States, 521 U.S. 898 (1997)). Federal funding conditions and state-constitutional adoption (now expressly secured by Moore v. Harper, 600 U.S. 1 (2023)) supply the complementary pathways for state legislative maps.

• The standard’s most acute doctrinal vulnerabilities are the VRA tension and Equal Protection scrutiny post-Callais. Step One’s supermajority allocation will, in many jurisdictions, conflict with the first Gingles precondition; Allen v. Milligan, 599 U.S. 1 (2023), preserved (and Callais narrowed but did not eliminate) the duty to draw majority-minority districts where geographically compact and politically cohesive minority populations would otherwise be cracked. A third allocation step for VRA-mandated districts, taken before competitiveness optimization, is essential — and even then, post-Callais, the framework must be tightly justified to avoid strict scrutiny under the Equal Protection Clause.

Key Findings

1. Congress has plenary authority under the Elections Clause, U.S. Const. art. I, § 4, cl. 1, to impose the framework on U.S. House districts, and Rucho, 588 U.S. at 718-19, expressly invited that legislative remedy. Once Congress enacts the standard, Rucho’s manageability objection no longer applies — manageability is a justiciability doctrine constraining courts inferring rules from open-ended constitutional text, not courts applying duly enacted statutes. Federal courts apply statutory rules of comparable quantitative complexity routinely (the population-equality requirements of Karcher v. Daggett, 462 U.S. 725 (1983); the Gingles preconditions interpreting Section 2 of the VRA; the per-state apportionment formula of 2 U.S.C. § 2a).

2. Rucho’s manageability test demands a rule that (a) is “limited and precise,” (b) is “judicially discernible,” (c) does not require courts to “reallocate political power” or pick among contested visions of fairness, and (d) is grounded in a textual constitutional anchor. The proposed standard satisfies (a)-(b) better than any test Rucho rejected. Criteria (c)-(d) are the core obstacle to constitutional (judge-made) enforcement; they are not obstacles when Congress supplies the rule by statute.

3. State precedent demonstrates that “competitiveness” as a redistricting criterion is judicially administrable in practice. Arizona, Colorado, Washington, and Michigan all employ versions of it. Critically, every existing American competitiveness mandate is subordinated to other criteria (Voting Rights compliance, equal population, contiguity, compactness, communities of interest) — none uses the “maximize the count” objective function the proposed framework adopts.

4. Allen v. Milligan, 599 U.S. 1, 17-25 (2023), and the Gingles preconditions of Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986), require modification of Step One whenever a compact, cohesive minority population is present. Louisiana v. Callais, 608 U.S. ___ (2026), tightens this further — race-conscious districting now triggers strict scrutiny and a sharper “narrow tailoring” requirement.

5. Moore v. Harper, 600 U.S. 1, 22-29 (2023), preserves state-court enforcement of state-constitutional limits on partisan gerrymandering, but invites U.S. Supreme Court review when state courts “transgress the ordinary bounds of judicial review.” Id. at 36-37.

6. State courts have adopted three distinct approaches to partisan gerrymandering claims. League of Women Voters v. Commonwealth, 645 Pa. 1, 178 A.3d 737 (2018), Ohio’s Article XI § 6 proportionality cases, and Maryland’s Szeliga v. Lamone outlier-analysis approach all support the manageability of some partisan standard — but none mandates competitiveness maximization. Harper v. Hall, 384 N.C. 292, 886 S.E.2d 393 (2023) (“Harper II”), reversing 380 N.C. 317, 868 S.E.2d 499 (2022) (“Harper I”), illustrates the political fragility of state-court enforcement.

7. Duchin’s group has expressly cautioned that “optimizing competitiveness can produce unintended consequences on other partisan metrics” — a competitiveness-maximizing map may simultaneously create a systematic partisan bias because of how it interacts with partisan geography (clustered Democratic voters in cities; dispersed Republican voters elsewhere).

Rucho’s Manageability Test

Chief Justice Roberts framed nonjusticiability under the political-question doctrine of Baker v. Carr, 369 U.S. 186, 217 (1962), focusing on “a lack of judicially discoverable and manageable standards.” Rucho, 588 U.S. at 695. He concluded: “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.” Id. at 718. He framed the affirmative test as the “need for a limited and precise standard that is judicially discernible and manageable.” Id. at 706.

Roberts framed the holding as a doctrine of judicial restraint, not as a substantive prohibition on remediation: “Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is ‘incompatible with democratic principles’ does not mean that the solution lies with the federal judiciary. … The avenue for reform established by the Framers, and used by Congress in the past, remains open. So does the avenue of reform offered by the States, as some of them are now exploring.” Id. at 718-19.

Rejected tests, with stated grounds. The efficiency gap was treated as a proxy for proportionality (S = 2V – 0.5), “not constitutionally required.” Rucho, 588 U.S. at 705-07. Partisan symmetry / mean-median tests rest on counterfactual elections and were characterized as “speculative” and as picking a contested fairness baseline. Id. at 706-07. Predominant-intent tests were dispatched on the ground that some partisan motivation is constitutionally permissible, Gaffney v. Cummings, 412 U.S. 735, 753 (1973), and supply no calibration. Id. at 707-08. The “extreme outlier” test reproduced the same indeterminacy: outlier on what dimension?

How the maximum-competitive-districts proposal fares against each objection.

Roberts’ Objection	Maximum-Competitiveness	Verdict
Disguised proportionality	The standard does not prescribe a seats-to-votes ratio. A 50/50 state could yield entirely R or entirely D delegations under the rule depending on how many ±2-point districts the geography supports.	Answers it. This is the framework’s strongest doctrinal feature.
Speculative counterfactuals	Calculation uses actual five-cycle returns; no uniform-swing imputation needed.	Answers it.
Indeterminate cutoff (“How much is too much?”)	A ±2-point band with a 4-point hard cap and 60% supermajority trigger is rule-like, ex ante, and bright-line.	Largely answers it.
”Picking a vision of fairness”	The framework selects competitiveness as the objective function. Roberts expressly cited “a greater number of competitive districts” as one possible — but contestable — fairness vision. Rucho, 588 U.S. at 705.	Does not answer it as a matter of federal constitutional law. It is fully answered when Congress legislates the choice.
No textual constitutional anchor	Federal Constitution contains no “Fair Districts Amendment.” Id. at 711.	Fully answered by Article I, § 4, cl. 1, when Congress legislates — the Elections Clause is the textual anchor.

The proposed competitive-maximization rule prescribes its own functional baseline (vote share as close to 50% as geography allows) and is therefore more, not less, vulnerable than ensemble-based tests to Roberts’ “fairness is political” critique — but only as a matter of constitutional doctrine. Once Congress enacts the substantive choice, that critique has been answered by the political branch, which is precisely where Roberts said it belonged.

State Commission Precedents

Arizona. Ariz. Const. art. IV, pt. 2, § 1(14)-(15) enumerates six criteria: (A) U.S. Constitution and VRA compliance; (B) equal population; (C) compactness and contiguity; (D) communities of interest; (E) visible geographic features and political subdivisions; (F) “to the extent practicable, competitive districts should be favored where to do so would create no significant detriment to the other goals.” Competitiveness “is the only goal subject to the limitation that pursuing it must not significantly detract from the other goals.” Arizona Minority Coalition for Fair Redistricting v. AIRC, 220 Ariz. 587, 208 P.3d 676, 686-87 (2009).

California. Cal. Const. art. XXI, § 2(d) enumerates six criteria in strict priority order; competitiveness is not a criterion. The Constitution prohibits drawing districts “for the purpose of favoring or disfavoring an incumbent, political candidate, or political party.”

Michigan. Mich. Const. art. IV, § 6(13) — “districts shall not provide a disproportionate advantage to any political party.” The partisan-fairness criterion is anti-gerrymandering, not affirmative competitiveness maximization.

Colorado. Colo. Const. art. V, § 44.3(3)(a): “the commission shall, to the extent possible, maximize the number of politically competitive districts.” Competitive is defined as “having a reasonable potential for the party affiliation of the district’s representative to change at least once between federal decennial censuses.” The 2021 cycle produced controversy: LULAC argued that joining Latino voters with rural white voters in CD-8 to create competitiveness “creates a significant risk that white bloc voting would result in general election victories by candidates opposed by Latino voters.” This is a real-world preview of the proposed framework’s VRA tension.

Washington. Wash. Const. art. II, § 43 — “encourage electoral competition.”

Iowa. Iowa Code § 42.4 prohibits the use of political affiliations of registered voters or previous election results.

Synthesis. No American jurisdiction uses the “maximize the count” objective function as the proposed framework prescribes; in every existing regime, competitiveness is subordinated to at least four other criteria, and Colorado’s “maximize” formulation is bounded by “to the extent possible” and by the VRA and other prior-ranked criteria.

Recent Supreme Court Doctrine

Allen v. Milligan, 599 U.S. 1 (2023). Reaffirmed the Gingles framework for Section 2 vote-dilution claims:

1. The minority group must be “sufficiently large and compact to constitute a majority in a reasonably configured district.” Id. at 18.
2. The minority group must be “politically cohesive.” Id.
3. The white majority must “vote sufficiently as a bloc to enable it … to defeat the minority’s preferred candidate.” Id.

Tension with Step One. Step One allocates a “safe seat” only when a partisan supermajority of ≥60% (five-cycle average) exists. Where a minority population is geographically compact and politically cohesive but is concentrated below the 60% threshold of Republican or Democratic vote share at the precinct level (a common configuration in dispersed Black populations across the South or in Latino populations in the Southwest), Step One would not draw a “safe” district at all and Step Two would draw competitive districts that systematically crack that minority population. This produces vote dilution under Milligan.

Louisiana v. Callais, 608 U.S. ___ (Apr. 29, 2026). A 6-3 majority struck down Louisiana’s SB-8 congressional map. The Court held that “[b]ecause the Voting Rights Act did not require Louisiana to create an additional majority-minority district, no compelling interest justified the State’s use of race in creating SB8, and that map is an unconstitutional racial gerrymander.” Slip op. at 28. Justice Kagan, joined by Sotomayor and Jackson, JJ., dissented: “today’s decision renders Section 2 all but a dead letter.”

Effect on the proposed framework. Callais does not overrule Milligan but tightens the geographic-compactness inquiry under the first Gingles prong. Step One of the proposed framework, if it produces a majority-minority district that is not geographically compact or that is justified primarily by race, will fail strict scrutiny under the Fourteenth and Fifteenth Amendments.

The Callais opinion expressly reaffirms Rucho’s holding that “partisan gerrymandering claims are not justiciable in federal court,” id. at 14 — but reaffirms it as a justiciability holding, not as a limit on Congress’s substantive authority under the Elections Clause.

Moore v. Harper, 600 U.S. 1 (2023). Rejected the strong Independent State Legislature theory: “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.” Id. at 22. The Court left an opening for U.S. Supreme Court review where state courts “transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.” Id. at 36-37.

Alexander v. South Carolina State Conference of the NAACP, 602 U.S. 1 (2024). Reinforced the “presumption of legislative good faith” in racial-gerrymandering cases and required plaintiffs to disentangle race from partisanship.

State Court Decisions

League of Women Voters v. Commonwealth, 645 Pa. 1, 178 A.3d 737 (2018). The Pennsylvania Supreme Court held the 2011 congressional plan violated the Free and Equal Elections Clause, Pa. Const. art. I, § 5. The Court adopted traditional neutral redistricting criteria (compactness, contiguity, equal population, respect for political subdivisions); the legislature could not “subordinate[]” those criteria “to extraneous considerations such as gerrymandering for unfair partisan political advantage.” Id. at 816-22. The Court did not require competitiveness.

Harper v. Hall. Harper I, 380 N.C. 317, 868 S.E.2d 499 (2022), held partisan gerrymandering claims justiciable under the North Carolina constitution; Harper II, 384 N.C. 292, 886 S.E.2d 393 (2023), after a partisan flip on the court, overruled Harper I and held such claims nonjusticiable because there were no “judicially manageable standards.” Practical lesson: state-court enforcement of a competitiveness mandate is politically fragile.

Maryland: Szeliga v. Lamone, No. C-02-CV-21-001816 (Md. Cir. Ct. Anne Arundel Cty. Mar. 25, 2022). The trial court invalidated Maryland’s 2021 congressional plan as “an extreme gerrymander that subordinates constitutional criteria to political considerations,” using outlier analysis. Maryland recognizes claims under the compactness requirement, requiring “flagrant partisan abuse of the redistricting process.”

New York: Matter of Harkenrider v. Hochul, 38 N.Y.3d 494, 197 N.E.3d 437 (2022). N.Y. Const. art. III, § 4(c)(5) prohibits maps drawn to “discourage competition or for the purpose of favoring or disfavoring incumbents or other particular candidates or political parties.” This is the only state-constitutional provision in the country that explicitly references competition, but it operates as a prohibition on discouraging competition, not as an affirmative maximization mandate.

Ohio: League of Women Voters of Ohio v. Ohio Redistricting Commission, 167 Ohio St.3d 255, 2022-Ohio-65, 192 N.E.3d 379. Ohio Const. art. XI, § 6(B) requires the commission to “attempt” to draw a plan in which “the statewide proportion of districts whose voters, based on statewide state and federal partisan general election results during the last ten years, favor each political party shall correspond closely to the statewide preferences of the voters.” This is a proportionality mandate — the antithesis of a competitiveness-maximization mandate.

The VRA Tension

The conflict. Step One requires a partisan supermajority (≥60% over a five-cycle general-election average) to allocate a “safe” seat. The first Gingles precondition asks whether a minority group is “sufficiently large and geographically compact to constitute a majority in a reasonably configured district.” Milligan, 599 U.S. at 18. There is no mathematical correspondence: a minority population sufficient to form a 50%-plus voting-age majority in a compact district may not produce 60% partisan vote share at the precinct level. In Black-majority districts of the rural South, Black VAP can be 50-58% while Democratic vote share is 55-62%. In majority-Latino districts of the Southwest, the gap is wider still. Step One would fail to allocate VRA-required districts in many of these jurisdictions.

Step One’s vulnerability post-Callais. Post-Callais, even intentional creation of majority-minority districts triggers strict scrutiny when race “predominates” over traditional districting criteria.

Recommended modification: insert a Step 0. A defensible framework would allocate, first, all districts the VRA requires under Milligan’s preserved Gingles analysis (a compact, cohesive minority population whose preferred candidates would be defeated by majority bloc voting); second, partisan supermajority safe seats per Step One; third, competitive districts per Step Two.

The Congressional Implementation Pathway

(a) Congressional power under the Elections Clause is plenary. Article I, § 4, cl. 1, provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” The Supreme Court has consistently treated this as a power to displace state regulation in its entirety. Smiley v. Holm, 285 U.S. 355, 366-67 (1932); Arizona v. Inter Tribal Council of Arizona, 570 U.S. 1, 8-9 (2013) (Elections Clause authority “is paramount”). Congress has historically used this authority to (i) require single-member districts, Apportionment Act of 1842; (ii) require contiguity and compactness, Apportionment Act of 1911; (iii) prohibit racial discrimination in districting, VRA, 52 U.S.C. § 10301 et seq.; (iv) require uniform federal voter-registration procedures, NVRA; (v) impose voting-system requirements, HAVA. Each survived constitutional challenge.

Rucho invited the remedy. Roberts ended Rucho by identifying the legislative branch as the appropriate enforcer:

“Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is ‘incompatible with democratic principles’ does not mean that the solution lies with the federal judiciary. 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. … The avenue for reform established by the Framers, and used by Congress in the past, remains open. So does the avenue of reform offered by the States, as some of them are now exploring.” 588 U.S. at 718-19.

(b) Rucho’s manageability test does not constrain Congress. The political-question doctrine of Baker v. Carr, 369 U.S. 186, 217 (1962), is a doctrine of judicial restraint that limits courts in inferring substantive rules from open-ended constitutional text. It does not limit the Legislature’s substantive policy choices.

Statutory standards of equivalent or greater quantitative complexity are routinely applied without justiciability concern. The Gingles preconditions of Section 2 of the VRA involve quantitative thresholds (50% minority CVAP; political cohesion measured by racially polarized voting analysis; white bloc voting sufficient to defeat minority-preferred candidates). No constitutional text directly defines them. Federal courts adjudicate Gingles claims continuously, without political-question concern, because Section 2 is a statute. The one-person-one-vote precision required of congressional districts under Karcher v. Daggett, 462 U.S. 725, 730-44 (1983), enforces Article I, § 2, but the operational standard (“good-faith effort to achieve mathematical equality”) is judicially crafted in part from 2 U.S.C. § 2c.

Roberts’ “fairness is political” critique is satisfied when Congress legislates the policy choice. Competitiveness becomes the legal standard not because a court chose it from among contested options, but because the constitutionally appropriate political branch made the choice through bicameralism and presentment.

Roberts’ “no textual constitutional anchor” objection is answered by the Elections Clause itself. Article I, § 4, cl. 1, is the textual anchor for the congressional power to legislate.

(c) How courts would apply the framework as a federal statute. (i) state legislatures or commissions draft maps; (ii) states submit certifications that maps satisfy the framework’s three steps (VRA-required districts, supermajority allocation, competitive maximization); (iii) plaintiffs may challenge maps as non-compliant; (iv) federal courts adjudicate under the statutory standard.

(d) The federalism limit: state legislative districts. Congress’s Article I § 4 power covers federal elections — “Senators and Representatives.” It does not extend to state legislative redistricting, which remains within state plenary authority subject only to the Equal Protection Clause (Reynolds v. Sims, 377 U.S. 533 (1964)), the VRA, and the Guarantee Clause. The anti-commandeering doctrine of New York v. United States, 505 U.S. 144 (1992), and Printz v. United States, 521 U.S. 898 (1997), bars Congress from directly commanding state legislatures to draw their own state legislative districts a particular way. Three workarounds are constitutionally available:

1. Spending-power conditions. Congress can condition federal funds on state adoption of equivalent state-law standards, subject to the South Dakota v. Dole, 483 U.S. 203, 207-08 (1987), unrelatedness/coercion limits.
2. State-constitutional adoption. Moore v. Harper, 600 U.S. 1, 22-29 (2023), confirms that state-constitutional standards governing federal and state elections are enforceable in state court. Voter initiative on the Arizona / Colorado / Michigan model is the cleanest path for state legislative districts.
3. VRA-style direct prohibition. Where competitiveness-related practices intersect with VRA prohibitions, Congress retains direct enforcement authority under § 2 of the Fifteenth Amendment, which is not subject to the anti-commandeering doctrine.

Predictable constitutional challenges.

• Commandeering of state map-drawing functions. Likely fails. Arizona v. Inter Tribal Council expressly distinguishes Elections Clause regulation from impermissible commandeering: “[T]he federalism concerns underlying the resistance to commandeering are not implicated when the Federal Government acts under its Elections Clause power.” 570 U.S. at 17.
• Excessive delegation. Manageable through clear quantitative parameters and the intelligible-principle doctrine, Whitman v. American Trucking Ass’ns, 531 U.S. 457, 472 (2001).
• Equal Protection concerns to the extent the framework correlates with race. Manageable through the proposed Step 0 VRA allocation and the application of traditional districting criteria.
• First Amendment associational claims by political parties. No court has accepted such a claim against neutral districting criteria.
• Tenth Amendment / federalism. Limited to state legislative districts.

The most serious post-enactment constitutional challenge would be the as-applied Equal Protection challenge under Callais — that the framework’s competitiveness optimization correlates with race in such a way that race “predominates” over traditional districting criteria.

Counterarguments

The “communities of interest” objection. The proposed framework’s competitiveness optimization will frequently slice through cohesive communities to achieve a ±2-point partisan baseline. The Pennsylvania Supreme Court in LWV v. Commonwealth treated subordination of communities of interest to partisan considerations as itself an unconstitutional act. 178 A.3d at 816-19. A maximum-competitiveness rule, by definition, subordinates communities-of-interest to partisan-balance optimization. This is a doctrinal vulnerability under most existing state-constitutional regimes — though not a federal-constitutional bar to a congressional statute, which can preempt state-constitutional criteria for federal districts. Smiley v. Holm, 285 U.S. at 366-67.

The “partisan choice” objection. Duchin and DeFord’s empirical work establishes that competitiveness optimization is not partisan-neutral. Whichever party currently has the better-distributed swing voters benefits asymmetrically; in Wisconsin and Pennsylvania, with concentrated Democratic urban populations, a competitiveness-maximization rule produces fewer competitive Democratic-leaning districts than competitive Republican-leaning ones. This converts what looks like a neutral procedural rule into a partisan substantive rule.

Synthesis: Strongest Arguments For and Strongest Obstacles Against

Strongest Arguments for the Framework’s Federal Enforceability

1. Congressional authority is express, plenary, and Rucho-invited. Article I, § 4, cl. 1, supplies the textual anchor. Rucho explicitly identifies Congress as the proper enforcer, 588 U.S. at 718-19. Congress has used Elections Clause authority to impose districting requirements since 1842, and every such statute has survived constitutional challenge.

2. Rule-like character satisfies Roberts’ specific manageability concerns. Unlike the efficiency gap (criticized for “complicated mathematics,” Rucho, 588 U.S. at 706), partisan symmetry (speculative counterfactuals), or “predominant intent” (indeterminacy), the proposed framework is bright-line: a 60% threshold, a ±2-point band, a 4-point hard cap, a five-cycle window, and an explicit objective function (maximize the count).

3. State-precedent support post-Moore. Moore v. Harper, 600 U.S. 1, 22-29 (2023), guarantees state-court enforcement of explicit state-constitutional standards.

4. Computational tractability and ex ante notice. Five-cycle precinct returns are publicly available, the calculation is reproducible, and a reviewing court can determine ex ante whether a proposed plan satisfies the standard.

Strongest Doctrinal Obstacles

1. The “fairness vision” critique survives against any judicially-derived (constitutional) version of the rule. Roberts in Rucho, 588 U.S. at 705-06, explicitly identified “competitiveness” as one of several contestable visions of fairness. The obstacle is neutralized by congressional enactment but remains a serious obstacle to any judge-made version.

   Recommended response. Pursue the framework through legislative channels (Congress for U.S. House; state constitutional amendment for state legislative seats), not through litigation seeking to establish a judge-made rule.

2. VRA tension and Callais amplification. Step One will systematically underproduce VRA-required districts in jurisdictions with dispersed but cohesive minority populations.

   Recommended response. Insert an explicit Step 0 that allocates VRA-required districts (as defined by Milligan’s preserved Gingles preconditions) before the supermajority and competitive allocations. Adopt the Bartlett v. Strickland, 556 U.S. 1, 18 (2009), 50%-CVAP rule.

3. “Competitiveness optimization is itself a partisan choice.” Maximizing competitive-district counts produces systematic partisan effects depending on the geography of swing voters.

   Recommended response. Pair the framework with a partisan-symmetry floor (e.g., the expected seat share at 50/50 statewide vote must be within 5 points of 50%). This converts the framework from a single-objective optimization into a constrained optimization.

Bottom Line

The maximum-competitive-districts framework is manageable in the formal Rucho sense (rule-like, ex ante, computationally tractable). It is enforceable in federal court when implemented by congressional statute under the Elections Clause — the very pathway Rucho expressly invited, 588 U.S. at 718-19. Rucho’s manageability concern does not constrain Congress’s substantive legislative judgments. It is also adoptable at the state level under Moore v. Harper, with state-constitutional initiative as the cleanest pathway for state legislative seats.

The framework is not enforceable in federal court as a freestanding constitutional rule derived directly from the Equal Protection Clause or the First Amendment, post-Rucho and post-Callais — but it does not need to be, because the legislative branch is the constitutionally appropriate enforcer.

The framework is doctrinally vulnerable to (i) Section 2 of the VRA unless Step 0 is added; (ii) the empirical reality that competitiveness optimization is not partisan-neutral, unless paired with a partisan-symmetry floor; and (iii) state-constitutional communities-of-interest doctrines.

The framework’s strongest deployment is in three layers:

1. Federal statute under the Elections Clause for U.S. House districts. The 60% / ±2-point / 4-point cap / five-cycle parameters, paired with an explicit Step 0 for VRA-required districts and a partisan-symmetry floor, would be enforceable in federal court without justiciability concern.
2. State constitutional amendment for state legislative seats, modeled on Colorado’s Amendments Y and Z but with sharper quantitative content and explicit subordination to VRA requirements.
3. Federal funding conditions for state legislative redistricting in states that have not adopted state-constitutional standards, drafted within the South Dakota v. Dole limits on conditioned spending.

Caveats

• This memo treats Rucho’s holding as binding federal precedent for constitutional claims and assumes no overruling. Callais (April 29, 2026) reaffirms Rucho in passing, slip op. at 14.
• The proposed framework’s ±2-point band, 4-point cap, and five-cycle window are user-specified parameters not drawn from any existing legal regime; their specific values are not constitutionally derivable, but this is not a defect when Congress legislates them — Congress regularly enacts quantitative thresholds (e.g., the 50%-CVAP rule of Bartlett v. Strickland, the 10% population deviation tolerance for state legislative districts) without those values being constitutionally derived.
• Empirical findings about partisan effects of competitiveness optimization are based on the specific geographic distributions present in particular cycles; results in 2030 and beyond may differ as residential sorting evolves.
• The interaction between the proposed framework and Callais’s narrowing of Section 2 is preliminary; lower courts have not yet had occasion to apply Callais to a competitiveness-objective regime.