Category Archives: redistricting

A Reply to Rick Pildes on Proposition 50 and Voters’ Intent to Engage in a Racial Gerrymander

redistricting, Supreme Court

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.

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“Republicans’ Redistricting Push Is at Risk of Backfiring”

political polarization, redistricting

Nate Cohn for the Tilt at the N.Y. Times focuses on the “series of setbacks for the G.O.P. [that] leave[] an unlikely opening for Democrats to narrowly win this year’s redistricting wars.

” . . . .[I]t’s worth being cautious about predicting what will come next. But looking ahead, only two additional states seem likely to redraw their maps: Virginia, controlled by Democrats, and Florida, controlled by Republicans. These two efforts should more or less cancel each other out. But here again Republicans probably face a greater risk of disappointment.”

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“Voting rights groups ask federal judges to block new gerrymandered NC congressional districts”

political polarization, redistricting, ,

NC Newsline’s the Pulse reports on oral arguments yesterday before a federal three-judge panel in Winston-Salem, NC, with respect to the NAACP and Common Cause’s challenge to the newly drawn congressional districts for eastern and northeastern North Carolina–the ones Republicans adopted in October.

The plaintiffs are relying in part on a novel argument that that the mid-decade, voluntary redistricting retaliated against voters, “argu[ing] that the redistricting deliberately targeted the people in that district for how they voted in 2024.”

“Sen. Ralph Hise (R-Mitchell), who was in charge of drawing the districts, was the hearing’s only witness. No racial data was used to create the plan, he said.

‘We undertook the process to improve the partisan advantage for Republicans,’ Hise said. 

Klein argued that if allowed, Republicans would be able to redistrict after every election if they don’t like the results.”

One of the three judges expressed skepticism that plaintiffs could win a preliminary injunction based on a novel argument:

“Judge Thomas Schroeder suggested that the novelty of the retaliation argument would work against opponents’ efforts to have the map blocked until the case can be tried. They have to show a likelihood of success on the merits to win a preliminary injunction.”

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Judge Jerry Smith Issues His 104-Page Dissent to Yesterday’s 3-Judge District Court Holding that Texas’s Re-Redistricting is Likely an Unconstitutional Racial Gerrymander. Along the Way He Calls Out the “Pernicious” and “Outrageous” Behavior of Judge Brown in the Majority

redistricting

You can find the dissent at this link.

It begins with a remarkable attack on Judge Brown (a Trump appointee) explaining that Smith was not responsible for any delay in issuing the decision:

In my 37 years on the federal bench, this is the most outrageous conduct by a judge that I have ever encountered in a case in which I have been involved.
In summary, Judge Brown has issued a 160-page opinion without giving me any reasonable opportunity to respond. I will set forth the details. The readers can judge for themselves.

And then turning to the merits:

The main winners from Judge Brown’s opinion are George Soros and Gavin Newsom. The obvious losers are the People of Texas and the Rule of Law. I dissent.

In the interest of time, this dissent is, admittedly, disjointed. Usually, in dissenting from an opinion of this length, I would spend more days refining and reorganizing the dissent for purposes of impact and readability. But that approach is not reasonably possible here because these two judges have not allowed it.


The resulting dissent is far from a literary masterpiece. If, however, there were a Nobel Prize for Fiction, Judge Brown’s opinion would be a prime candidate.

I have now had a chance to skim both the majority opinion and the dissent in this case. I don’t feel like I’m already steeped enough in the details to make a confident prediction about who is right on the merits of whether race predominated in drawing these maps.

But I do want to comment on the risky strategy of Judge Smith’s dissent. On the one hand, if the facts are as Judge Smith describes them, then there’s a good case to be made that Judge Brown did not afford Judge Smith a fair opportunity to write a dissent in time that would be responsive to the specific claims of the majority. (Judge Brown saw the press of time because of the Purcell principle—at some point it will be too late to interfere with the adoption of maps.

On the other hand Judge Smith’s opinion is not only dripping with anger, it includes a lot of gratuitous, personal attacks on the experts and lawyers on the plaintiffs’ side of the case. He tars many of them as being “Soros operatives,” as if the person paying services or backing a legal organization is somehow illegitimate because of who funds them. Judge Smith says he is doing so to show this was all about partisanship, rather than race, but I don’t think it shows it at all. Instead, it shows Judge Smith’s disdain for George Soros and Gavin Newsom.

Simply as a matter of strategy, if Judge Smith’s audience is the Supreme Court, I think he would have been far more effective if he had been measured and focused more attention on what he sees as the defects in the merits of the case, rather than to continually cast aspersions on the other judges, experts, and lawyers in the case. Maybe what he says will resonate with some of the Supreme Court justices, but I expect some will be turned off by this ranting.

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Mid-Decade Redistricting and the Purcell Principle

redistricting, referendum, Supreme Court

Yesterday, a three-judge district court preliminarily enjoined Texas’s mid-decade congressional redistricting map. This case will be promptly appealed to the Supreme Court, and it will be the first of many mid-decade redistricting cases on the shadow docket.

The district court’s opinion has a lengthy discussion of the Purcell principle—the notion that courts should not enjoin election laws close to an election. As Rick Hasen and Wilfred Codrington have shown, the Purcell principle is problematic. This post, however, takes Purcell on its own terms and argues that it should not apply to mid-decade redistricting plans.

As an initial matter, Purcell has more bite at the start of the decade. That is because States cannot use their previous maps under one-person, one-vote principles. If a court enjoins a map in early 2022, then the court must draw a new map for the November 2022 election. There is no democratically enacted map to fall back on that complies with the Constitution. That is not true for a mid-decade redistricting. As the three-judge district court pointed out, Texas can still use its 2021 map. Indeed, it is doing so next year for a (long-delayed) special election.

A frequent defense of the Purcell principle is that it avoids voter confusion about what law governs the election. Once again, mid-decade redistricting changes the equation. Voters are used to getting new maps at the start of the decade—a trend that had largely held since the 1960s but is quickly disintegrating. Here, Texas and other mid-decade redistricting states are the ones seeking to change the rules mid-stream.

To be sure, this particular point carries less force in situations where the People have voted on a new map. Thus, California’s Proposition 50 helps minimize voter confusion over which maps will be in place for the 2026 midterms. Similarly, if Missouri voters get to decide whether to keep their new 2025 map, then voter confusion is not a problem there either.

Moreover, applying Purcell to mid-decade redistricting would encourage such behavior, as it gives mapmakers a free bite at the apple to entrench themselves further in office. Given that Purcell is an equitable doctrine, it is capacious enough to factor in such concerns. Indeed, the three-judge district court in this case highlighted that Purcell would encourage gamesmanship by state legislatures bent on mid-decade redistricting, timing their actions to avoid judicial review. And to the extent that Purcell’s embrace of federalism principles is intended to be democracy enforcing, then Purcell is especially ill-suited for mid-decade redistricting plans. Put simply, the motive for mid-decade redistricting is almost always a power grab by politicians at the expense of the People.

One final point. The situation is different when new maps are enacted in response to a court order. That occurred in the Robinson and Callais tango, and the Supreme Court stayed the Callais district court’s injunction, allowing the post-Robinson map to go into force for the 2024 election. In an age of potential defiance of judicial rulings, we should encourage compliance. Giving States the benefit of Purcell in those situations would incentivize that behavior.  

[Disclosure: I wrote an amicus brief in support of the Robinson intervenors in Callais.]

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“Dark money groups pour cash into fight over gerrymandered Missouri congressional map”

campaign finance, redistricting, referendum

Missouri Independent reports:

Voters across Missouri late last week received a text message urging them to take their names off petitions they may have “accidentally signed.”

The message, labeled as the work of the Republican National Committee, dropped the name of Republican Secretary of State Denny Hoskins, saying he had “declared TENS OF THOUSANDS of petition signatures IMPROPERLY COLLECTED.” The text, from a number in southwest Virginia, gave a number to call in southwest Missouri to withdraw a signature.

The number, when called, goes straight to a voice mail system and promises people who leave a number that they will be called.

The mass text was the latest maneuver in the fight over Missouri’s gerrymandered redistricting map, which is drawing millions in donations from dark money groups on the right and left — including $2 million over the weekend from a pair of Republican nonprofits. The deadline is approaching for opponents of the map to submit signatures to force a referendum while the question of which signatures to count and whether a referendum is even possible remains mired in state and federal courtrooms.

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My New One at Slate with Matthew Cooke: “Republicans Are Suing to Kill California’s Pro-Democratic Gerrymander. They Have a Huge Problem.”

redistricting, Supreme Court

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….

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Breaking: Federal Court on 2-1 Vote Blocks Texas from using new Congressional Gerrymander for 2026 Midterms, Requires Using 2021 Maps (Link to ruling)

redistricting, Supreme Court

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.

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“Indiana lawmaker who opposed Trump’s redistricting push is victim of a swatting”

authoritarian threats in US, redistricting

AP News reports that one of the two Indiana lawmakers, who resisted the White House’s redistricting push to have Republicans redraw the state’s congressional boundaries, was the victim of a swatting call Sunday that brought sheriff’s deputies to his home.

“Earlier Sunday, Trump criticized Goode and Indiana Senate President Pro Tem Rodric Bray for opposing a redistricting plan for Indiana. Republicans already hold a 7-2 advantage in the state’s congressional delegation.

‘Because of these two politically correct type “gentlemen,’” and a few others, they could be depriving Republicans of a Majority in the House, a VERY BIG DEAL!’ Trump wrote on his social media platform.”

The White House is concerned that Democrats only need to secure three seats to retake the House. They have instituted mid-decade redistricting processes in Texas, Missouri, North Carolina, and Ohio to entrench their power. California and Virginia are poised to engage in countermeasures. None of this is auspicious for the state of democracy.

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“Trial over referendum on Missouri’s gerrymandered congressional map delayed again”

redistricting, referendum

The Missouri Independent reports:

A new political action committee funded by the national Republican Party won a delay Thursday in a trial over the effort to force a statewide vote on Missouri’s gerrymandered congressional district map.

…

The case postponed on Thursday is one of six — five in state courts, one in federal court — focused on the September special session. One case, challenging the authority for the special session, has been decided at the trial court level and is under appeal.

Another, questioning whether lawmakers had the power to revise districts without new census data, was heard on Wednesday. A hearing in the federal case, which attempts to win a decision that congressional redistricting maps are protected from citizen referendum petitions by the federal Constitution, is scheduled for Nov. 25 in St. Louis.

In the case postponed Thursday, People Not Politicians is arguing that the right to seek a referendum on any law is triggered when lawmakers take a final vote on a bill. The committee is suing Secretary of State Denny Hoskins, who rejected petition forms because Gov. Mike Kehoe had not signed the redistricting legislation.

Kehoe called lawmakers into special session in September at the insistence of President Donald Trump in a bid to give Republicans seven instead of six of Missouri’s eight congressional seats.

Under the bill scheduled to take effect Dec. 12, Missourians would vote next year in revised districts. The new Missouri map targets the Kansas City-based 5th District, held by Democratic U.S. Rep. Emanuel Cleaver, to flip to the Republican Party.

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“Kansas Redistricting Was on the Fast Track. Then Some Republicans Said No.”

redistricting

NYT:

The top Republicans in Kansas were ready to join President Trump’s redistricting push and redraw the state’s political map to deliver another seat in Congress to Republicans. Democrats feared that a special session to pass new district lines was inevitable.

Then something surprising happened. Some Republicans refused.

The pushback on the Plains leaves in place, at least for now, the one Democratic-leaning congressional district in Kansas. It comes as a small but rising number of lawmakers across the country, Republicans and Democrats, have balked at joining the drive to carve up congressional districts to boost their side’s odds in the midterm elections.

The national flurry of remapping, set off this summer when Texas Republicans drew a new one at the president’s behest, happened quickly in several states. But growing resistance from state lawmakers, for reasons both practical and philosophical, has put a chill on the effort.

When the Republican governor of Indiana called a special session for redistricting last month, the Senate Republicans said the votes were not there. Maryland Democratic leaders are divided. And in Kansas, where top Republicans had hoped to meet about a new map last Friday, House leaders failed to get enough support.

The debate over remapping in Kansas is not over, and new boundaries could still pass when lawmakers return for their regular session in January. Some Republican legislators were stripped of committee leadership roles on Friday, a punishment for bucking the party line on redistricting. And several lawmakers said they had considered the possibility of more political repercussions if the president were to become more involved.

But the depth and breadth of Republican skepticism, both conservative and moderate, from both rural areas and cities, suggests that redistricting faces an uphill climb in Kansas even if political pressure continues to increase….

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