Category Archives: redistricting

Could the Texas Mid-Decade Redistricting Scheme Backfire?

redistricting, Voting Rights Act

This article from Politico, quoting Democratic lawmakers, makes the case.

From the article:

A Donald Trump-backed effort to gerrymander Texas would boost the GOP’s attempts to cling to its razor-thin House majority in next year’s midterms — but it also runs a serious risk of backfiring.

Texas Gov. Greg Abbott asked the state legislature to redraw the map during its special session this summer, following a push from the White House and the Justice Department. Ohio is also required by state law to redraw its lines before next year’s midterms. Taken together, Republicans see an opportunity to potentially create more GOP seats, guarding against the possibility of a blue wave in 2026.

But in Texas, Republicans are in danger of creating a so-called dummymander, whereby an attempt to draw more seats for one party accidentally benefits the other. Texas’ congressional map already heavily favors the GOP, so any changes to further benefit the party would have to walk a careful line. Adding Republican voters to blue districts to reduce Democrats’ margins means taking those same voters out of the red districts where they reside. The result is more competitive districts across the board — ones Democrats hope to take advantage of as they harness anti-Trump energy in the midterms.

Share this:

Supreme Court sets Louisiana congressional case for reargument

election law and constitutional law, redistricting, Supreme Court, Voting Rights Act

Well, that was unexpected.  As mentioned a moment ago, the Court today punted on the Louisiana congressional case, Louisiana v. Callais, setting it for reargument next Term.  The order says that the Court will “issue an order scheduling argument and specifying any additional questions to be addressed in supplemental briefing” “in due course.”

That’s an odd outcome in a case that’s already taken a wild path to get to the Court.  Louisiana’s first set of congressional lines were passed over a gubernatorial veto, and enjoined as a VRA violation in mid-June 2022, in a decision put on pause by the Supreme Court awaiting Alabama’s Milligan case.  When the Supreme Court upheld Milligan in 2023, it vacated the stay — but that meant that Louisiana’s 2022 elections were held under the unlawful lines.  A bit more nuttiness ensued with different 5th Circuit panels stopping and starting different facets of the case, but eventually we got to a clear need, affirmed by the 5th Circuit, for a remedial plan.

In January 2024, the legislature passed that remedial plan — not in the part of the state where the VRA plaintiffs had asked for a remedial district, but in a part of the state where it felt more politically useful.  Plaintiffs in Callais noted that the remedial district looked a lot like one that had been enjoined in 1996 as unjustifiably based predominantly on race.  And so these plaintiffs challenged the new remedial district, along with a swipe at the VRA in the process — not in the same court that had been overseeing the VRA case, but in a different district.  The three-judge trial court enjoined the new remedial district … and that led to the decision I was expecting today.

I think this case should be pretty easy (and that’s backed up by the fact that Louisiana and the NAACP LDF are on the same side of the case, which is … unusual).  Yes, race was a factor in drawing the remedial map, because the state had an obligation to draw a district compliant with the VRA (which plaintiffs in the original case established after an enormous amount of fact-specific evidence, confirmed by the not-notoriously-liberal 5th Circuit, in an opinion itself in line with exactly how the Supreme Court said these cases should go in Milligan).  But as to how the remedial map was drawn, that seems shot through with political calculations, including how to best rearrange the seat of the Speaker of the House.  (Indeed, the hardest part of this case is whether the State got so political in its line drawing that it didn’t actually remedy the VRA problem … but that’s not what these plaintiffs are challenging.)  And after the Court’s decision in Alexander v. SC NAACP last year, I’d think that the evidence here would be comparatively straightforward that if the State’s going to go all in on politics, it can permissibly decide on the particular political composition on the district it wanted to draw.

Justice Thomas, in a solo dissent from today’s rescheduling order, thinks this case is also easy, but in an entirely different direction.  As he points out, “[f]or over three decades, I have called for “a systematic reassessment of our interpretation of §2 [of the Voting Rights Act].”  And that’s true, he has.  But mostly because he has an impression of §2 that is, as I’ve written before, a completely fictional construct.  In today’s dissent, Justice Thomas says that “[i]n effect, the upshot of Milligan is that whenever a State feasibly can create an additional majority-minority district, it must do so.”  That’s … not even close to how the law works right now (as a bunch of unsuccessful VRA claims this very cycle should attest).

And so I worry a bit that Justice Thomas’s view of this appeal as an easy case may be pulling some of the Justices away from what I think should make this appeal an easy case, leading to an opportunity in re-argument for the fictional version of the VRA to once again overcomplicate the Court’s decisionmaking.  We’ll see soon enough.

In the meantime, the status quo leaves the existing January 2024 Louisiana congressional map in place.  The Court stayed the three-judge trial court’s order in May 2024, and I don’t think anything in today’s rescheduling order interferes with that continuing stay.

Halfway through the 2021 redistricting cycle, there are still 35 pending cases challenging congressional or state legislative lines in 11 states, and at least one (Ohio) where lines will have to be redrawn even without pending litigation.  Buckle up.

Share this:

“Wisconsin Supreme Court rejects bid to reconsider congressional maps before the 2026 midterms”

redistricting

The Milwaukee Journal-Sentinel reports on two cases that the state Supreme Court declined to hear. 

I’m sure Justice Bradley, who angrily pre-castigated her colleagues (in a dissent from the order simply directing a response to the initial petitions) for their presumed future decision, will be moderating her remonstrances going forward.

Share this:

“Recovering from Rucho: How States Can Create National Partisan Fairness”

legislation and legislatures, political parties, redistricting

Jamie Piltch and Aaron Goldzimer have a new piece in the Wash. U. L. Rev. Online:

Rucho v. Common Cause and the failure to pass H.R. 1 have left national gerrymandering reform on life support. At present, however, states committed to creating fair maps limit themselves to considering their own political makeup when doing so. This internal approach risks the possibility that states committed to fairness subvert that value, as their refusal to consider national political data and other states’ maps may lock in an unfair map nationwide if other states gerrymander. This internal focus therefore also creates the possibility that reform-minded states fail to protect their voters’ interests in Congress.

This Essay proposes a novel path forward: a new redistricting criterion that allows states to prioritize national partisan fairness, rather than statewide fairness. Federalisms new and old justify this new criterion on a theoretical basis, while the seeming impossibility of national reform in Congress or federal courts justifies it on a practical one. The Essay explains how the consideration of other states’ maps would allow states to make the national Congressional map fair on net and walks through the mechanics necessary for this criterion’s implementation.

As the authors note, this really works only if a state draws congressional lines after most other states with sizable populations are done, and I’m skeptical that the race to be last would be feasible in a world with mid-decade redistricting possibility. (Or, if feasible, that it wouldn’t have unanticipated consequences of its own.)  Which means I still think national legislation makes the most sense problem of national scale.  But if, as they say, national legislation isn’t available . . . .

Share this:

DOJ weighs in in Alabama preclearance

Department of Justice, redistricting, Voting Rights Act, ,

In the Alabama redistricting case, readers will recall the May 8 unanimous 571-page-opinion from one judge first appointed by Reagan and two judges appointed by Trump; the opinion said, inter alia, “try as we might, we cannot understand the 2023 Plan as anything other than an intentional effort to dilute Black Alabamians’ voting strength and evade the unambiguous requirements of court orders standing in the way.”

Travis Crum noted at the time that this decision made an ideal candidate for “bail-in” back into the preclearance regime under section 3 of the Voting Rights Act, which remains a viable (but underutilized) path to preclearance in the face of intentional misbehavior.

One set of plaintiffs in Alabama have asked for section 3 bail-in.  Friday afternoon, the DOJ weighed in, opposing the need for preclearance and asserting that outright defiance of federal courts in the service of discrimination isn’t discrimination that’s flagrant enough to matter under the statutory standard. 

(The brief also has a curious Etch-a-Sketch approach to both history and precedent.  It claims that the “Supreme Court found in 2013 that Alabama’s past constitutional and statutory violations of the right to vote were insufficient to sustain continued coverage under Section 5.”  There’s no pincite for that claim.  Given the discussion at pp. 2629-30 of Shelby County, I think that’s a particularly strained reading of what the Supreme Court actually found in the case.)

Share this:

“Amid upcoming redistricting deadline, massive changes could soon be coming for Ohio’s congressional map”

conflict of interest laws, election law and constitutional law, political parties, redistricting

Ohio’s redistricting process has been, charitably, a mess. 

WLWT in Ohio focuses on the coming summer redraw of Ohio’s congressional lines, which were valid only for 2022 and 2024 under Ohio’s constitution, because they were passed by a simple legislative majority rather than by bipartisan consensus.  The article picks up on the national pressure for both Texas and Ohio to redraw congressional lines to maximize partisan gain.

Seems like a useful time for a reminder that the Supreme Court called “excessive partisanship in redistricting” “incompatible with democratic principles,” even as it closed federal courthouse doors to hearing partisan gerrymandering claims.  Whether something is constitutional or not – or consistent with elected officials’ oaths of office – is a question emphatically different from whether a judicial dispute resolution forum is available.

Share this:

When will Supreme Court Further Erode Our Democracy . . . probably not until next week

redistricting, Voting Rights Act

The Court did not decide Louisiana v. Callais today.

The case involves a challenge to Louisiana’s congressional maps. In 2023, after a federal court found Louisiana had violated Section 2 of the Voting Rights Act by failing to provide a second minority opportunity district for its black voters, the state enacted the challenged map. The new map established a second majority–black congressional district, an uncouth “shaky ‘Z’ across the state” not unlike a district previously enjoined. The new district was then challenged by the current plaintiffs as an unconstitutional racial gerrymander. Louisiana defended on the grounds, first, that it used race based on its good-faith and court-ordered belief that the VRA required a second minority-opportunity district and, second, that the district is the result of its desire to preserve the districts of its two most important incumbent representatives (Mike Johnson and Stephen Scalise–serving as Speaker and Majority Leader, respectively). The lower court held that the district did indeed violate the Equal Protection Clause.

My prediction: Nothing good will come of this case. The question is only how far they will go to further undermine VRA.

Share this:

“NJ Justices Nix Redistricting Challenge, Draw Rare Dissent”

redistricting,

Bloomberg

“The New Jersey Supreme Court rejected a challenge to municipal political district drawing, short-circuiting litigation that could have led to a wave of redistricting lawsuits across the state.

The divided court ruled that judges need not consider mathematical formulas or community cohesion when deciding if a political district meets the state’s mandate for ‘compactness.'”

Divided decisions are apparently rare for the NJ Supreme Court. The case involved a challenge to the drawing of Jersey City wards, “with challengers claiming that the addition of wealthy high-rise residents into a low-income ward diluted the power of poor residents to elect a candidate that championed additional low-income housing.”

Share this:

“Redistricting trial begins in North Carolina over allegations that GOP-enacted maps erode Black voting power”

redistricting, Voting Rights Act

PBS News

Plaintiffs allege “GOP legislative leaders violated federal law and the U.S. Constitution when they enacted new electoral maps.” Republicans claim the maps are a legal partisan gerrymander.

“Favorable rulings for the plaintiffs could force Republicans to redraw maps for the 2026 elections, making it harder to retain their partisan advantage. Otherwise, the districts could be used through the 2030 elections.”

Share this:

“White House Pushes Texas to Redistrict, Hoping to Blunt Democratic Gains”

redistricting

NYT:

President Trump’s political team is encouraging Republican leaders in Texas to examine how House district lines in the state could be redrawn ahead of next year’s midterm elections to try to save the party’s endangered majority, according to people in Texas and Washington who are familiar with the effort.

The push from Washington has unnerved some Texas Republicans, who worry that reworking the boundaries of Texas House seats to turn Democratic districts red by adding reliably Republican voters from neighboring Republican districts could backfire in an election that is already expected to favor Democrats.

Rather than flip the Democratic districts, new lines could endanger incumbent Republicans.

But a person close to the president, who spoke on condition of anonymity because the person was not authorized to talk publicly, nevertheless urged a “ruthless” approach and said Mr. Trump would welcome any chance to pick up seats in the midterms. The president would pay close attention to those in his party who help or hurt that effort, the person warned.

At an “emergency” meeting on Monday night in the Capitol, congressional Republicans from Texas professed little interest in redrawing their districts, according to a person briefed on the gathering who was not authorized to comment publicly. The 20-minute meeting, organized by Representative Michael McCaul, a senior member of the state delegation, focused on the White House push.

Share this: