Texas GOP lawmakers released their first draft of the state’s new congressional map Wednesday, proposing revamped district lines that attempt to flip five Democratic seats in next year’s midterm elections.
The new map targets Democratic members of Congress in the Austin, Dallas and Houston metro areas and in South Texas. The draft, unveiled by Corpus Christi Republican Rep. Todd Hunter, will likely change before the final map is approved by both chambers and signed by Gov. Greg Abbott. Democrats have said they might try to thwart the process by fleeing the state.
This unusual mid-decade redistricting comes after a pressure campaign waged by President Donald Trump’s political team in the hopes of padding Republicans’ narrow majority in the U.S. House.
Currently, Republicans hold 25 of Texas’ 38 House seats. Trump carried 27 of those districts in 2024, including those won by Democratic Reps. Henry Cuellar of Laredo and Vicente Gonzalez of McAllen.
Under the proposed new lines, 30 districts would have gone to Trump last year, each by at least 10 percentage points.
The districts represented by Cuellar and Gonzalez — both of which are overwhelmingly Hispanic and anchored in South Texas — would become slightly more favorable to Republicans. Trump received 53% and 52% in those districts, respectively, in 2024; under the new proposed lines, he would have gotten almost 55% in both districts….
Category Archives: Voting Rights Act
Ellen Katz: “Redistricting Texas Now is Illegal and the U.S. Department of Justice is the Reason Why”
Ellen Katz has posted this draft on SSRN. Here is the abstract:
The U.S. Department of Justice sent a letter to the Texas Governor and Attorney General that claims four Texas congressional districts violate the Voting Rights Act and the Constitution. The letter seemingly demands that Texas alter the racial makeup of those districts. This short essay shows why the legal claims set forth in the DOJ letter are incorrect and why Texas would violate both the VRA and the 14th Amendment’s Equal Protection Clause were it to change its districting map to target these four districtsin response to the DOJ letter.
Breaking: 8th Circuit, Following Earlier Decision Holding Private Plaintiffs Cannot Sue to Enforce Section 2 of Voting Rights Act, Now Says No Right to Sue under Voter Assistance Provisions Either [Corrected]
Via Hansi Lo Wang comes this order finding no private right of action under section 208 of the VRA. The fate of this case will likely follow the fate of what the Supreme Court will do with the Section 2 case likely to be before the Supreme Court later this year.
An earlier headline of this post referred to language provisions, which are in section 203, not 208.
The Prospect of Bailing-in Alabama
Tomorrow, the three-judge district court in the Alabama congressional redistricting litigation will hold a hearing on whether to bail-in Alabama to the VRA’s preclearance regime. If bailed-in, Alabama would have to seek preapproval for any redistricting changes from either DOJ or that court through the 2030 redistricting cycle.
Readers may remember this case as the Supreme Court’s surprising 5-4 ruling in Allen v. Milligan back in 2023. More recently, this past May, the district court found that Alabama’s proposed remedial map—which flagrantly disobeyed Milligan by failing to create a second Black-opportunity district—was enacted with discriminatory intent. I’ve previously argued on this blog (see here and here) why Alabama’s defiance necessitates bail-in as a remedy. Right now, I want to make some global comments and flag some points from the briefs that readers might find interesting.
1. We are twelve years out from Shelby County, and this is the fifth time that a State has been under a credible bail-in threat. Unfortunately, no State has been bailed-in during this time. In the 2010s, Texas twice escaped being bailed-in for its voter ID law and its redistricting plan after passing animus laundering laws that took off the roughest edges of the prior statutes. Around the same time, North Carolina was not bailed-in by the Fourth Circuit notwithstanding a finding that its voter-suppression law had been enacted with invidious intent. That strategic move helped evade Supreme Court review. And in 2022, Florida was bailed-in by a district court for its third-party voter registration law, but the Eleventh Circuit overturned the predicate finding of intentional discrimination thereby avoiding the Section 3(c) question.
The Alabama fact pattern is far worse than these unsuccessful bail-ins. Unlike Texas—which ameliorated its problematic laws—Alabama doubled down and defied a court order by failing to draw a second Black-opportunity district. Indeed, the three-judge district court had very harsh words on this very point back in May, suggesting that it was open to a bail-in remedy. Given Alabama’s bluster about gamesmanship being a prerequisite for bail-in, it appears that Alabama thinks States should get one free pass in evading court orders. If one is fine, what’s the line for triggering bail-in? Two, three, or four redistricting maps that defy court orders?
2. The specter of mid-decade redistricting now haunts the political landscape. President Trump is pushing Red States like Texas and Missouri to redraw their maps, and Blue States are threatening to do so in retaliation. If the norm against mid-decade redistricting were to evaporate, Alabama may face considerable political pressure to eliminate its second Black-opportunity district. And here is where the rubber hits the road. Alabama’s purported concession that it will not engage in mid-decade redistricting is from the current leaders of the state house and state senate. But those leaders cannot bind a future legislature—nor are they guaranteed to remain as leaders if politics dictated their replacement to draw another 6-1 Republican map.
3. The Milligan plaintiffs have alternatively requested that the three-judge district court retain jurisdiction to hear challenges to any new redistricting plans through the 2030 census. Put simply, this would not be a bail-in because Alabama would not have to preclear any changes. Rather, the same panel would hear any new challenges. This is an interesting litigation strategy, and it is obvious why the plaintiffs would want to keep this panel. However, it could raise interesting post-CASA questions about federal courts’ equitable powers, ones that dovetail with the points raised about Article III in Justice Thomas’s Alexander concurrence.
4. Alabama does not contest Section 3(c)’s constitutionality. Tellingly, Texas made the same decision back in the 2010s. Nonetheless, Alabama argues that it does not qualify for bail-in because there have not been multiple constitutional violations. On this front, Alabama’s arguments mirror Texas’s once again—and I have covered and refuted them extensively before (see here, here, here, here, here, and here). That said, I continue to believe that Shaw violations—which concern excessive use of race—are not the type of unconstitutional conduct that should count in the bail-in analysis, thereby taking the 2010s ALBC litigation off the table for the Milligan plaintiffs. In a similar vein, the 1990s DOJ objection should also not count, as it was based on the now repudiated “Black maximization” policy.
5. Alabama’s potential bail-in is happening against the backdrop of the Eighth Circuit’s twin holdings that Section 2 lacks a private cause of action and that Section 1983 cannot be used as a substitute. This matters for two reasons. First, Section 3(c) is some of the best textual evidence that the VRA is supposed to be enforced by private parties, as it authorizes bail-in relief in suits brought by the Attorney General and “aggrieved person[s].” Second, the Trump administration’s amicus brief opposing bail-in showcases the absurdity of the federal government—particularly this administration—being the sole actor empowered to bring Section 2 suits.
6. Because there’s a direct right to appeal to the Supreme Court, an Alabama bail-in is almost certain to get heard on the merits calendar. But as I wrote previously, this is an ideal case for a bail-in to go to the Supreme Court given Alabama’s defiance of the first Milligan decision. This case, therefore, could well decide if preclearance remains a viable mechanism post-Shelby County, which will set the stage for any future VRA revisions.
Unfortunately, the court is not live streaming the hearing, but I hope to post additional thoughts once a transcript becomes available.
Waiting for Callais
Earlier today, Rick Pildes flagged the Court’s inexplicable month-long delay in issuing a re-argument order in Louisiana v. Callais, last Term’s—and now next Term’s—major Shaw case. I agree with Pildes’s concerns and want to add a few points.
First, to further speculate, it is possible the Court wants to pair Callais with a Section 2 case. Indeed, the Alabama redistricting case—known to blog readers as Allen v. Milligan—is heading back to the Court soon. Recall that in May the three-judge district court found that Alabama’s 2023 redistricting plan was enacted with discriminatory intent. Coincidentally(?), Alabama filed its notice of appeal from that injunction on June 6, 2025. That notice of appeal is available on the district court docket, but I have been unable to locate a jurisdictional statement on the Supreme Court’s electronic docket. There’s also a bail-in hearing in Milligan scheduled for this Tuesday—about which I will have a preview post on Monday. This would further raise the stakes in Milligan. And if we add the Eighth Circuit implied cause of action/Section 1983 case to the docket, the October 2025 Term could be a monumental one for voting rights.
Second, assuming that the Court will order supplemental briefing, this case could be delayed well into the fall. Of course, supplemental briefs might be on a shorter timetable than normal merits briefs. But it seems counter-productive to push a case that proved impossible for the Court to decide in one Term even deeper into the next.
Third, I want to highlight something odd about Justice Thomas’s dissent from the Court postponing the case to next Term. Characteristically, he calls for a complete re-assessment of the Court’s voting rights jurisprudence and lambasts Section 2 of the VRA. What is striking is the complete absence of his change-of-face in his Alexander concurrence from 2024. Indeed, he doesn’t even cite it. If, as Thomas claimed in Alexander, racial gerrymandering claims are non-justiciable political questions, then Callais seem like an odd vehicle to invalidate Section 2 of the VRA. Moreover, Thomas’s questions at the Callais oral argument memory-holed the Alexander concurrence. I’ve previously written about how Thomas failed to reconcile his new position on Shaw claims with the VRA’s constitutionality, and his Callais dissent only raises more questions.
Supreme Court Puts on Hold Eighth Circuit Order that Would Have Ended Private Enforcement of the Voting Rights Act in Seven States, But Three Justices Appear Ready to Kill Section 2 Nationally
Via Steve Vladeck comes this Supreme Court order, over the dissents of Justices Alito, Gorsuch, and Thomas, of the Eighth Circuit case raising the question whether private plaintiffs have the right to sue under Section 2 of the Voting Rights Act:
The stay is in some ways not a surprise, since the argument that Section 2 can only be enforced by the Department of Justice is laughable. More than 90 percent of Section 2 cases have been brought through private enforcement. Congress knew this full well when it tweaked Section 2 in renewing the Voting Rights Act in 2006 and did nothing to touch private enforcement.
Justice Kavanaugh had already put enforcement of the ridiculous 8th Circuit has on hold, in part because there was a loony North Dakota Legislative Council argument that the current holder of a seat in the state legislature, elected from a Native-majority district, would be immediately ousted by the issuance of the mandate from the Eighth Circuit.
Now everything stays on hold pending a likely decision by the Supreme Court in the next few months to hear this case on the merits, and opponents of the VRA will have to try to pick off two of three additional conservative Justices (Kavanaugh, Barrett, and CJ Roberts) to go along with this unsupported evisceration of the remaining key part of the VRA (after the conservative Justices killed off the other part in the 2013 Shelby County decision).
North Dakota Legislative Council’s Bizarre Understanding of Redistricting Ruling May Have Led to Justice Kavanaugh’s Administrative Stay in Eighth Amendment Voting Rights Act (Private Right of Action) Case
As I noted a few days ago, Justice Kavanaugh put on hold via an administrative stay an Eighth Circuit case concerning whether private plaintiffs have the right to sue to enforce Section 2 of the Voting Rights Act. The answer should be that of course they do—that’s what Congress has understood since 1982, when it enacted the current regime for Section 2 claims (and in 2006 when Congress overwhelmingly renewed the VRA). The 8th Circuit decision conflicts with lots of other precedents, and stands alone. It would essentially kill VRA enforcement in all the states contained in that circuit.
When I blogged earlier, I had only a quick chance to glance at the petition seeking a stay pending the Native plaintiffs seeking full Supreme Court review of the decision, which would eliminate fair representation for tribal members in the North Dakota Legislature.
But this caught my eye upon reviewing the petition more closely:
Plaintiffs face potentially urgent harm in the absence of a stay. In a memorandum posted on its website after the Eighth Circuit denied Plaintiffs’ stay motion, the North Dakota Legislative Council contends that it is questionable whether legislators elected pursuant to the district court’s remedial map may continue to serve once the Eighth Circuit’s mandate issues if they do not reside in the 2021 legislatively adopted map’s version of their district. App. 101.1 Plaintiff Collete Brown resides on the Spirit Lake Reservation and was elected in 2024 as a state representative for district 9. She does not reside in the 2021 map’s version of district 9 that the district court enjoined. The specter that she becomes potentially ineligible to serve the moment the Eighth Circuit’s mandate issues warrants entry of an administrative stay to maintain the status quo while the Court considers the stay application.
If you take a look at the appendix beginning around page 100, you can see the memo from the North Dakota Legislative Council, taking the bizarre position that once the 8th Circuit mandate issues, the lower court opinion finding a voting rights violation automatically becomes a nullity, the state reverts back to the 2021 districts that were found to be a voting rights violation, and the state legislator elected from a majority-Native American district could be ousted because the no longer lives in the (old) district.
I’ve never seen anything like this and it is now how things work. The districts are what they are until the next election or a new court order. The 8th Circuit ruling does not automatically render the last election invalid. This is an insane interpretation unlike anything else I’ve ever seen.
If the Supreme Court stay is lifted and the mandate issues, that does not nullify the old election or old districts. It would mean instead that in the next election, the old district lines would be be used (following an order from the lower court that would have to reverse its initial ruling). The eligibility rules would apply for the next election.
I expect the Supreme Court to keep the stay in place and grant cert in this case, eventually reversing the 8th Circuit. But sheesh!
“The Supreme Court Is Writing a Slow-Motion Eulogy for One of America’s Greatest Achievements”
Next month marks the 60th anniversary of the passing of the Voting Rights Act—a law often celebrated as the “crown jewel” of the Civil Rights Movement. Signed in 1965 after years of organizing and unimaginable sacrifice, it was meant to realize the constitutional promise that the right to vote would not be denied or abridged on account of race.
Yet, as we approach this milestone, we find ourselves not in a moment of reflection or rededication but in a state of legal free fall. The Supreme Court has scheduled arguments next term on Louisiana’s racially gerrymandered congressional map, and the court as early as next week may put on hold and set for argument a case in which the 8th Circuit held that private plaintiffs have no right to sue to enforce Section 2 of the act. These pending decisions threaten to gut what remains of this once powerful statute, which has already been largely hollowed out by the Roberts court over the past decade-plus.
The Voting Rights Act was always meant to be a living safeguard, its strength rooted in community enforcement. Section 2 has allowed private citizens—not just the government—to sue when states draw district lines or enact voting laws that dilute minority voting power. It is this private right of action that has given the act its sharpest teeth.
Over the past 12 years, however, the Supreme Court has systematically dulled those teeth.
Tokaji, “Racist Voting”
My latest article, recently published in the Alabama Law Review. Here’s the abstract:
Does the Constitution protect individual voters’ freedom to cast their votes for racially discriminatory reasons? Or does it prohibit racist voting that denies a minority group the opportunity to elect its candidate of choice? The surprising answer is that it does both. On an individual level, voters are free to cast their votes for their preferred candidates for whatever reasons they choose, including racist ones. On a systemic level, however, the aggregation of racist votes violates the Constitution where it is sufficiently prevalent to affect election results.
The practical importance of recognizing racist voting as a constitutional violation is to fortify Section 2 of the Voting Rights Act of 1965 (VRA). The constitutional status of Section 2 remains an open question after the Supreme Court’s two most recent redistricting decisions. In Allen v. Milligan, the Court affirmed the constitutionality of Section 2, while leaving the door open to a future challenge based on its unlimited temporal scope. In Alexander v. South Carolina State Conference of the NAACP, the Court raised the bar for showing that intentional race discrimination by the legislature invalidates a redistricting plan. These two cases highlight the urgency of defining with precision the “constitutional wrongs” that Section 2 addresses.
There is no doubt that intentional race discrimination by legislators is a constitutional wrong that Congress has the power to remedy through appropriate legislation. This Article argues that intentional race discrimination by voters is also a constitutional wrong that Congress may address through legislation. Part I considers the extent to which intentional race discrimination influences vote choice—in other words, whether racist voting is a thing. Part II considers whether racist voting is constitutionally protected, concluding that the combination of the secret ballot and constitutional limits on compelled disclosure effectively protects vote choices from judicial scrutiny. Part III argues that racist voting may nevertheless violate the Constitution where it is sufficiently prevalent to affect election results and that Section 2 of the VRA should be understood as a remedy for this constitutional wrong.
More on this and other subjects in a great conversation with my former colleagues at Ohio State, on their Law & Democracy Podcast.
Justice Kavanaugh Stays 8th. Cir. Ruling Denying Private Enforcement of Section 2
Washington Post reports on yesterday’s administrative stay in Turtle Mountain Band of Chippewa Indians v. Howe:
Supreme Court Justice Brett M. Kavanaugh on Wednesday paused a federal appeals court ruling that bars individuals in some states from filing lawsuits claiming discrimination based on the landmark Voting Rights Act.
The administrative stay will allow the Supreme Court more time to consider whether to take up an appeal by Native American tribes in North Dakota who claim the ruling endangers a powerful tool to ensure equitable voting laws. It’s unclear when the high court might issue a decision to hear the case.
Law Dork Chris Geidner offers commentary.
Tribes Ask Supreme Court to Put on Hold Eighth Circuit Ruling Holding that Private Plaintiffs Cannot Sue to Enforce Key Part of Voting Rights Act
Here is the petition. Justice Kavanaugh has set July 22 for a response from North Dakota.
“Clarence Thomas has long tried to undercut the Voting Rights Act. Now, he may finally have the numbers”
Joan Biskupic has this analysis at CNN.
Voting Rights Plaintiffs and Texas Officials Spar Over Mid-Decade Redistricting
A group of plaintiffs in a case challenging the State’s redistricting map have asked the trial court to reopen testimony in the case in response to Texas Governor Greg Abbott’s decision to call a special session to consider redrawing some of the State’s congressional lines. Michael Li has good coverage of these proceedings on his X feed.
From the plaintiffs’ motion:
New evidence reveals that witnesses, including Senator Huffman, Chris Gober, and Adam Kincaid, potentially falsely testified that Texas’s congressional map was drawn without consideration of race. Specifically, the Governor has called a special session of the Legislature to take up redistricting of the congressional map, approvingly citing a letter from the United States Department of Justice asserting that evidence exists to prove that the current congressional map was drawn with race as a predominant consideration. The deposition and trial testimony of the relevant witnesses and this new evidence are flatly contradictory. One or the other is false, and Plaintiffs and the Court are entitled to probe whether key witnesses truthfully testified at deposition and at trial—on the central question in this case—given this new evidence. That testimony is not only probative to Plaintiffs’ specific claims regarding the existing congressional map but is also probative to the credibility of these witnesses in general on all of Plaintiffs’ claims.
The State has responded to oppose the plaintiff’s motion.
From the State’s response:
As established by the robust trial record, the Texas Legislature did not racially discriminate in drawing the current congressional electoral districts—full stop. Following that robust trial record, and perhaps because of it, the Brooks, Gonzales, and MALC Plaintiffs (Plaintiffs) have filed an Emergency Motion, requesting that this Court reopen the record and schedule an expedited hear-ing in response to “new evidence.” This “new evidence” contains no alleged facts about how districts were drawn back in 2021. It does not even consist of any new, contradictory statements by the witnesses whose testimony they seek to reopen. Instead, it is a legal argument by the De-partment of Justice (DOJ)—a third party with no personal knowledge—about changes to redis-tricting caselaw in 2024, as well as Governor Abbott’s call for the Legislature to consider congres-sional redistricting in an upcoming special session. Neither the DOJ letter nor the Governor’s Proclamation—both of which come nearly four years after the Legislature passed the current maps—constitute new evidence requiring the Court to reopen the record. And neither in any way impugns the truthfulness of Chairwoman Joan Huffman, Chris Gober, and Adam Kincaid.
VoteBeat on Texas Redistricting
VoteBeat covers the Texas redistricting here. They also have a fantastic quote from our brilliant colleague Justin Levitt.
From the article:
Justin Levitt, a constitutional law expert who served in the DOJ under former President Barack Obama, said the agency misinterpreted Petteway in its letter. That 2024 decision, Levitt said, did not rule on what constitutes an unconstitutional racial gerrymander — it just asserted that the Voting Rights Act does not let individual racial or ethnic groups join together to claim that political boundaries dilute their votes.
The argument laid out in the letter, he added, is not befitting of DOJ’s typical quality, in both Democratic and Republican administrations — especially on a topic so familiar to the agency.
“It’s sloppily dashed-off work,” Levitt said. “It looks like the sort of thing I’d expect from an AI engine that didn’t know how to do law.”
The DOJ declined to comment.