The State of Texas, as expected, has filed an application for a stay at the Supreme Court of the 2-1 racial gerrymandering decision issued earlier this week (over a fiery dissent by Judge Smith). Justice Alito has already requested a response by 5 pm Monday and will almost certainly refer the question to the entire court.

Also as expected, Texas makes two primary arguments: first, this case comes too late under Purcell, with candidates filing for office under the 2026 lines now and the filing deadline coming December 8. If the Supreme Court does not intervene, it’s possible the timing of Texas primaries could be pushed back. The second argument is that this was all about politics to help Republicans, not race, and therefore the Texas legislature did not have the intent to do a racial gerrymander.

If I had to bet, I think the Court will likely put the district court ruling on ice, for three reasons. First, the election season is already underway, and the Court in cases like Milligan put the lower court ruling on hold when the election was even further away. Second, there’s a fair chance a majority of Justices see this as politics, not race, that predominates. Third, Judge Smith’s dissent may convince some of the more conservative justices that the majority did not give the dissent a chance to make a fair case, and that the ruling was rushed and should be reversed.

I also think we will hear something soon, maybe even before Thanksgiving.

Nothing is for certain, of course. And if the Texas ruling comes too late for the 2026 elections, this could well be true for the California maps enacted via Prop. 50 that are a Democratic gerrymander, which has been challenged by California Republicans.

Stay tuned.

UPDATE: Justice Alito, not unsurprisingly, has granted an administrative stay, which keeps the 2026 maps in place until the full court can decide what to do on the request for a stay. I would not read too much into it on the merits, but as I said above, I think there’s a good chance of a stay being issued when the full court considers the case.

Rick Pildes has a characteristically thoughtful post responding to my Slate piece with Matthew Cooke arguing that when the three-judge court assesses whether California voters approved a racial gerrymander, we need to consider the voters’ intent, not the intent of the Legislature (or mapmaker hired by the Legislature) who proposed the maps to voters via Prop. 50. Rick P. argues that my argument would allow a “whitewash,” whereby a legislature acts with an unconstitutional intent that is then cleansed by the voters’ approving it. (Rick does not argue that the Legislature had an unconstitutional intent in California; he’s instead making a general point about whose intent should matter.)

I think Rick P. is incorrect under the Supreme Court’s current doctrine. To begin with, motive or intent is key to the question of whether something is a racial gerrymander. As the Supreme Court indicated in the lead case, Miller v. Johnson:

The plaintiff’s burden is to show, either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district. To make this showing, a plaintiff must prove that the legislature subordinated traditional race-neutral districting principles, including but not limited to compactness, contiguity, and respect for political subdivisions or communities defined by actual shared interests, to racial considerations. Where these or other race-neutral considerations are the basis for redistricting legislation, and are not subordinated to race, a State can “defeat a claim that a district has been gerrymandered on racial lines.” Shaw, supra, at 647.

(my emphases)

So we are looking at the intent of those who passed the maps, which in the Prop. 50 California case is the voters. In Abbott v. Perez, Justice Alito for the Court majority  engaged in what’s been termed “animus laundering” or animus “cleansing” by passing again after court review a map that in the past had been found to have been to have been intentionally discriminatory. I write about that in this Georgetown LJ piece.

Surely if the Legislature can cure its own animus by repassing a map after it had been found to be discriminatory, any improper attempt of the legislature can be “cleansed” through the voters. (I know that the racial gerrymandering claim is not about animus, but about racial predominance. But I would argue the same theory should apply.)

Further in another Justice Alito opinion, Brnovich v. DNC,  the Court refused to use a “cat’s paw” theory to infer the full legislature had a racial intent even if a sponsor of a bill had such intent:

The Court of Appeals did not dispute the District Court’s assessment of the sincerity of HB 2023’s proponents. It even agreed that some members of the legislature had a “sincere, though mistaken, non-race-based belief that there had been fraud in third-party ballot collection, and that the problem needed to be addressed.” 948 F. 3d, at 1040. The Court of Appeals nevertheless concluded that the District Court committed clear error by failing to apply a “‘cat’s paw’” theory sometimes used in employment discrimination cases. Id., at 1040–1041. A “cat’s paw” is a “dupe” who is “used by another to accomplish his purposes.” Webster’s New International Dictionary 425 (2d ed. 1934). A plaintiff in a “cat’s paw” case typically seeks to hold the plaintiff ’ employer liable for “the animus of a supervisor who was not charged with making the ultimate [adverse] employment decision.” Staub v. Proctor Hospital, 562 U. S. 411, 415 (2011).

The “cat’s paw” theory has no application to legislative bodies. The theory rests on the agency relationship that exists between an employer and a supervisor, but the legislators who vote to adopt a bill are not the agents of the bill’s sponsor or proponents. Under our form of government, legislators have a duty to exercise their judgment and to represent their constituents. It is insulting to suggest that they are mere dupes or tools

Just like legislators are not dupes or fools, neither are voters. They made the ultimate decision, and as our Slate piece shows, that decision was imbued with partisan intent, with almost no mention, much less predominance of racial motives in the material California courts use to interpret voter intent.

Finally, in a number of cases (many written by Justice Alito) we are told that legislators should be afforded a “presumption of good faith” when they engage in districting, and there should not be a presumption that they had unconstitutional motives or intent to violate the Voting Rights Act. Surely voters, who are not politicians acting in self interest, are entitled to as much a presumption of good faith when they redistrict.

My student Matthew Cooke and I have written this piece for Slate. It begins:

California Republicans, now joined by the Trump administration’s Department of Justice, have sued California in federal court to stop implementation of Proposition 50, a voter-passed ballot measure that creates a Democratic gerrymander of the state’s congressional districts, adding up to five more Democratic seats. The lawsuit argues that the Legislature had an unconstitutional race-focused intent on the state’s Latino voters when it passed the maps. In fact, whatever the Legislature intended should be irrelevant to the Republicans’ claim, and they likely will lose because California voters were acting with a predominantly political, not racial, intent.

If Republicans lose the Prop 50 lawsuit and the United States Supreme Court does not interfere with a new federal district court ruling putting Texas’ new gerrymander on hold for 2026, Democrats could have an advantage going into 2026, even as the Supreme Court contemplates even more changes in redistricting rules in its pending case out of Louisiana….

The Republicans’ complaint in California will likely focus on evidence regarding the supposed intent of members of the state Legislature and particularly the intent of Paul Mitchell, a redistricting consultant who drew the new lines for the Legislature. Republicans argue that the evidence shows that racial considerations predominated in drawing those lines. It’s a tough argument to make, because the Legislature seemed motivated to do a Democratic partisan gerrymander to counter Texas’ partisan gerrymander of congressional maps favoring Republicans. Any racial considerations were simply to make sure that the new proposed maps did not violate the Voting Rights Act, as it currently stands.

But there is a far more serious threat to Republicans’ argument about racial predominance—they may be focusing on the wrong actors’ intent. To understand this argument, we need to look at the kind of law Proposition 50 was. Back in 2008 and 2010, California voters adopted plans through voter initiatives to have redistricting done by independent commissions, not the Legislature. Under the California Constitution, the Legislature could not simply pass its own law reversing the voter-approved use of commissions for the state’s congressional districts. Instead, the Legislature had to authorize a ballot measure to be approved or rejected by voters suspending use of the commission-drawn lines for Congress. Proposition 50 asked voters to approve the new maps that Mitchell drew and the Legislature proposed, maps that would only come into effect if California voters approved. This is key: Because California voters’ were the ultimate decision-makers, we should be asking in any racial gerrymandering case if California voters, not the state Legislature, had a predominantly racial focus.

So how to prove the intent of the voters? After all, voters don’t meet like a legislature in a great hall and debate the finer points of legislation. Under California law, courts look first to the text of a ballot measure. When that text does not unambiguously disclose the electorate’s intent, courts next look to official ballot materials to clarify the electorate’s understanding of the measure’s impact. These materials can include the official summaries of the impact, which the California attorney general is required to prepare, or text included in the “voter information guide,” also known as the “ballot pamphlet” mailed to every registered voter in California. Indeed, the California Supreme Court has held in the analogous context of interpreting the meaning of a voter initiative that the “opinion of drafters or legislators who sponsor an initiative is not relevant since such opinion does not represent the intent of the electorate and we cannot say with assurance that the voters were aware of the drafters’ intent.” As another California appeals court wrote in 2005, the only materials for courts to look at when it comes to voter intent are those ballot materials.

With respect to Proposition 50, the California ballot materials show exclusively partisan intentions. Beginning with the quick-reference guide at the very start of the 2025 ballot pamphlet, voters were met with a set of explicitly partisan arguments. The quick-reference guide provided an argument in support of Proposition 50 on the grounds that it would “counter Donald Trump’s scheme to rig next year’s congressional election.” Meanwhile, the quick-reference guide describes Proposition 50 as follows: “AUTHORIZES TEMPORARY CHANGES TO CONGRESSIONAL DISTRICT MAPS IN RESPONSE TO TEXAS’ PARTISAN REDISTRICTING.” It also includes an argument against adoption on the grounds that Proposition 50 would remove “protections that ban maps designed to favor political parties.” Neither argument identifies nor even alludes to racial considerations. Instead, concerns over partisan advantage predominate. Likewise, the attorney general’s summary (included in the ballot pamphlet) describes Proposition 50 as a response to “Texas’ mid-decade partisan redistricting.” (Importantly, nothing in the Proposition requires Texas’ gerrymander to be upheld for Proposition 50 to remain in effect.)….

Whether or not California voters were justified in “fighting fire with fire” by engaging in a Democratic partisan gerrymander to counter Republicans’ partisan gerrymander in Texas—and if the Texas plan is blocked and the California plan upheld, Donald Trump will have made things far worse for Republicans—the point here is that it was California voters who made the ultimate call. And the evidence leaves no doubt they were acting as naked partisans, not motivated at all by the racial considerations necessary to make out a claim for racial gerrymandering as the Supreme Court has explained it….

Texas Tribune:

Texas cannot use its new congressional map for the 2026 election and will instead need to stick with the lines passed in 2021, a three-judge panel ruled Tuesday.

The decision is a major blow for Republicans, in Texas and nationally, who pushed through this unusual mid-decade redistricting at the behest of President Donald Trump. They were hoping the new map would yield control of 30 of the state’s 38 congressional districts — up from the 25 they currently hold — and help protect the narrow GOP majority in the U.S. House.

The map cleared the GOP-controlled Legislature in August and was quickly signed into law by Gov. Greg Abbott. Several advocacy groups sued over the new district lines, saying lawmakers intentionally diluted the voting power of Black and Hispanic Texans and drew racially gerrymandered maps. Over the course of a nine-day hearing in El Paso earlier this month, they aimed to convince the judges that it was in voters’ best interest to shelve the new map until a full trial could be held…

.

You can find the 160 page ruling at this link. There will be a dissenting opinion issued by Judge Jerry Smith that is not out yet. The plan includes a detailed analysis of why the majority concluded that race, rather than partisanship, predominated in drawing the district lines.

I fully expect Texas to appeal to the Supreme Court to block this preliminary injunction, both arguing on the merits that the lower court is wrong and arguing that the Purcell principle should block the timing of this ruling. The majority has an extensive discussion of Purcell.

Without having reviewed the full 160 pages yet, and without the benefit of Judge Smith’s dissent, it is hard to handicap the chances of a Supreme Court stay of this ruling at this point.

NYT:

But election lawyers and experts say that what is happening now is a crisis with few parallels in American history, especially given the potential weakening of the Voting Rights Act, which the Supreme Court is expected to rule on in the coming months.

They fear this one-two punch could weaken democracy.

“The wheels are coming off the car right now,” said Nathaniel Persily, a professor at Stanford Law School who has studied gerrymandering. “There’s a sense in which the system is rapidly spiraling downward, and there’s no end in sight.”

Congressional redistricting is typically carried out after the national census, which is taken every decade. States can win and lose House seats according to population changes, and state legislatures from both parties have used the once-per-decade opportunity to redraw districts that benefit them politically.

But this year, that norm has been shattered. Election experts worry that if the trend continues, redistricting could become a chaotic and near-constant process, with state lawmakers redrawing districts with the onset of every midterm election…..

Richard H. Pildes, a law professor at New York University, said that gerrymandering generated more controversy when the country was closely divided politically, with power regularly flip-flopping between parties.

At the same time, both parties in recent years have painted the other as a fundamental threat to the future of the republic.

“When the stakes are viewed as so high and the partisan margins of control are so thin,” Mr. Pildes said, “it creates all of this pressure for those who control the structure of elections to use that power to try to advance the interests of their side.”…