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.
Category Archives: redistricting
Brahin, “Redistricting and the Origins of the Good Faith Presumption”
I’ll post some academic pieces over the weekend. First up, Leonard C. Brahin in the Barry Law Review:
Evidentiary and substantive presumptions are a well-established tool that courts employ when addressing a variety of legal problems. These presumptions streamline litigation, avoid debate over minor disputes, and ensure that the most important issues can be addressed. But these same presumptions just as frequently close the courthouse doors on meritorious claims and preemptively shut down litigation where a disputed issue exists.
One area this occurs is redistricting. In the last fifty years, the Supreme Court of the United States has expanded its substantive presumptions in redistricting matters to permit facially discriminatory redistricting plans. By invoking the presumption of good faith, the Supreme Court insulates state legislators from their constitutional obligations on dubious grounds.
Invoking a substantive presumption—especially in redistricting—lacks any constitutional, doctrinal, or historical basis. To draw this conclusion, this Article reviews the doctrine, history, and tradition of good faith in the Supreme Court of the United States. It explains how the Court’s understanding of good faith in redistricting matters reflects a significant departure from its good faith jurisprudence—and seems to have been created by accident. It then harmonizes the Court’s earlier good faith doctrines and explains how a substantive presumption for state-based redistricting contravenes the structure, context, and purpose of the Reconstruction Amendments and Constitution itself.
To remedy this incongruous application, this Article examines the constitutional source of a substantive good faith presumption and where (and by whom) it may be properly invoked. By understanding good faith through these parameters, this Article explores the true constitutional interests that a presumption of good faith vindicates.
Three-judge federal panel rejects claim of racial gerrymandering in Arkansas congressional districts
The decision in Christian Ministerial Alliance v. Thurston, written by Judge Stras on the Eighth Circuit and joined by two district court judges, is here.
“Tarrant County Judge Tim O’Hare Speaks on Redistricting Effort, Partisanship Claims”
A coming vote on new mid-decade maps for Tarrant County, Texas (where Ft. Worth is the county seat) has been quite controversial, with charges of racial and partisan impropriety, and likely litigation on the horizon.
County Judge Tim O’Hare has initiated the redistricting process. (In Texas counties with fewer than 225,000 people, the “county judge” is a judicial official, but in counties like Ft. Worth, the “county judge” is both a member of the legislature and the chief executive; the policymaking body consists of four commissioners elected from precincts and the county judge elected at-large.)
And Judge O’Hare has been in the news quite a bit this week based on the rationale for the new maps. Per The Texan: “The only reason O’Hare said he is looking for three Republican precincts in the county is because he can’t figure out a way to have four.” And CBS recounts: “O’Hare said, ‘This is about partisan politics. You can legally in this country, according to the U.S. Supreme Court, draw maps for partisan purposes. So for me, it’s 100% about partisan politics.’”
O’Hare’s dead wrong about that latter point, but his confusion is understandable, and that’s absolutely the Supreme Court’s fault. In Rucho v. Common Cause, citing dicta from racial gerrymandering cases and improperly conflating “partisan” and “political,” the Supreme Court did say that securing partisan advantage to some degree is constitutionally permissible. (I still think that was both unnecessary and wrong, but I’m not the one in the robes.)
But – and this is a critical point that some legislators of both parties have willfully misunderstood — the Court did NOT say that excessive partisan gerrymandering was legal. Quite the opposite: the Court recognized as “fact” that “excessive partisanship in districting” is “incompatible with democratic principles.” Rucho held only that the federal courts were unavailable to hear claims of excessive partisanship.
That’s a big difference. Or, at least, it should be to anyone who takes an oath to uphold the Constitution. If local law enforcement won’t arrest or prosecute you for shoplifting, that forbearance doesn’t make shoplifting legal. (See, e.g., federal appropriations riders preventing federal prosecution of some marijuana-related crimes; federal executive orders temporarily declining to enforce a very clear statutory social media ban)
So while O’Hare’s correct that blatant use of government power to punish opposing partisans represents a weird lacuna in the redistricting context for federal court enforcement, it’s not true that 100% partisanship in the drawing of district lines is “legal.”
“Fuzzy Math: Several House districts could be redrawn before 2026 elections”
The Washington Examiner looks at some of the congressional district plans most likely to be modified over the next year.
“Alabama may pause redistricting efforts until 2030 to avoid federal oversight”
That’s the headline of a States Newsroom piece about a Wednesday filing in Alabama’s congressional redistricting litigation. But I can’t understand why it’s warranted.
It’s true that after a three-judge court’s 571-page opinion (not a typo) a few weeks ago, one of the issues in continuing proceedings is whether Alabama should be put back into preclearance based on its intentional racial discrimination, under the Voting Rights Act’s “bail-in” provision. A separate issue in continuing proceedings is whether Alabama should have another opportunity to redraw the congressional map, after the 571-page opinion found problems with the legislature’s latest.
The map currently in place is a temporary placeholder drawn by a special master in 2023 for the 2024 election. Wednesday’s filing resolves the second issue: it says that the legislature has no intent to draw a new map before 2030; pending appeal, the state is fine with leaving the special master’s temporary map in place. But I have no idea why that decision should have any impact on the issue of bail-in. In describing the legislature’s conduct to date, the court said “try as we might, we cannot understand the 2023 Plan as anything other than an intentional effort to dilute Black Alabamian’s voting strength.” I don’t know why Wednesday’s filing impacts the strength of that finding – or the consequences of that finding for bail-in — one iota.
“2 lawsuits challenging Wisconsin’s congressional map filed with state Supreme Court”
Two lawsuits have been filed asking the Wisconsin Supreme Court to declare the state’s congressional map unconstitutional ahead of the 2026 midterm elections.
The lawsuits come roughly a month after liberals retained their majority on the court with the election of Dane County Judge Susan Crawford. They also come about a year-and-a-half after liberal justices struck down Wisconsin’s political maps for the state Senate and Assembly.
The new suits ask the state’s highest court to strike down Wisconsin’s congressional map, which has helped Republicans hold six of eight congressional seats, but they take different angles to get there.Both focus on a “least changes” directive from the Supreme Court’s former conservative majority in 2021 that preserved a Republican advantage in maps for Congress and the Legislature….
One of the petitions was filed by the Democratic firm Elias Law Group. It claims the state’s congressional map, endorsed by the court’s former conservative majority in 2021, violates several sections of the Wisconsin Constitution.
The case claims the map violates Democratic voters’ rights to free speech and association under the state constitution because despite nearly equal numbers of Democratic and Republican votes in Wisconsin’s statewide elections, the GOP has been able to hold six of eight congressional districts.
“This congressional map directly discriminates against Petitioners, who support Democratic candidates in Wisconsin and—because of that affiliation—are effectively silenced and shut out from casting a meaningful congressional vote,” the lawsuit states. “Wisconsin’s Constitution prohibits this injustice several times over. This Court should grant this original action and replace the adopted congressional map with a lawful alternative.”
The Elias Law Group’s suit also claims the congressional map should be tossed because it was drawn by Democratic Gov. Tony Evers under the “least changes” directive from 2021. In its 2023 ruling that struck down state legislative maps, the court’s liberal majority did not allow parties to use the “least change” criteria, saying it had no basis in the constitution. …The other lawsuit challenging the congressional map was filed by the Campaign Legal Center, one of the groups behind the successful lawsuit against the state legislative maps.
The Campaign Legal Center’s challenge claims the congressional map violates the state constitution’s guarantee of equality because it “does not equally apportion population among Wisconsin’s eight congressional districts.”
The suit also focused on the number of counties that were split when the current congressional map was approved by the court three years ago. It claims the former conservative majority erroneously put more importance on the “least changes” directive than “traditional redistricting” principles in the Wisconsin Constitution, like minimizing the number of counties that are split to form congressional districts. It alleges an “eight district map need only have seven county splits to achieve population equality” while the current map has 12.“Thus, in addition to being unequally populated, the current congressional map is an improper court-imposed remedy because it elevated ‘least change’ over Wisconsin’s traditional redistricting criteria of minimizing county splits, resulting in the needless splitting apart of counties (and therefore communities of interest),” the lawsuit states….
Lucas Vebber is an attorney with the conservative Wisconsin Institute for Law and Liberty, or WILL, which helped develop the “least changes” approach that was used by the state Supreme Court in 2021. He told WPR the approach makes sense because the primary role of redistricting falls on state legislatures.
Vebber said the Elias Law Group’s gerrymandering claims are “something that our court has never taken up before and ruled on,” and if they do, there’s a chance the U.S. Supreme Court could get involved….
Moreover, Vebber said if the Wisconsin Supreme Court does order a new congressional district map, it could trigger U.S. constitutional issues that would be subject to review by federal courts. He said a 2023 U.S. Supreme Court decision known as Moore v. Harper cautioned that state courts do not have “free rein” to strike down maps and election laws passed by state legislatures. …University of Wisconsin Law School Professor Robert Yablon, who co-directs the State Democracy Research Initiative, said he’s not sure it’s that simple. He said the Moore v. Harper ruling found that the U.S. Constitution doesn’t “insulate state legislatures from the ordinary exercise of state judicial review” when drawing new voting maps.
“But it did seem like they were signaling that state courts should be a little bit careful about how they handle these cases, and they shouldn’t do things that are completely novel,” Yablon said. “They shouldn’t develop standards that are maybe out of step with how they’ve litigated cases before.”
Yablon said one other caveat is that Wisconsin’s congressional map wasn’t passed by the Legislature, but it was instead put into place by the state Supreme Court.
UCLA law professor Rick Hasen said the “least changes” directive from the Wisconsin court’s former majority “essentially grandfathers in the old partisan gerrymanders” of the GOP maps from 2011. He said it’s not shocking to see Democrats trying to pick at the former conservative majority’s ruling now that liberals are in control.“So now the state court is going to decide how to judge the constitutionality under the state constitution of a redistricting plan,” Hasen said.
Hasen said regardless of which branch enacted Wisconsin’s current congressional map, a federal challenge of any decision from the state Supreme Court wouldn’t be surprising.
Breaking: Three-Judge District Court Finds Alabama’s Congressional Redistricting Plan Intentionally Discriminated Against Black Voters **Updated**
The court’s 571-page opinion is here. This decision is on remand from the Supreme Court’s 5-4 ruling in Allen v. Milligan.
This is the latest decision in the long-running Section 2 litigation against Alabama’s congressional redistricting plans. Back in 2021, Alabama passed a congressional redistricting plan that created one majority-Black district out of seven districts, even though the State’s voting-age population is 27% Black. Civil rights groups successfully obtained a preliminary injunction, but the Supreme Court stayed that injunction in a shadow docket ruling. Then, in 2023, the Supreme Court shocked the voting rights community by affirming the preliminary injunction and ordering Alabama to create two Black-opportunity districts.
Alabama’s response was defiance. Alabama adopted a 2023 plan in which the second purportedly Black-opportunity district was only 39.9% Black. Once again, the district court enjoined the plan. This time, the Supreme Court allowed the injunction to go into effect without any noted dissents.
This, then, brings us to the present decision. In its massive and meticulous decision, the three-judge district court held that Alabama violated Section 2 of the VRA and that its 2023 plan was enacted with discriminatory intent. On the statutory claim, the district court relied heavily on decades of Section 2 precedent. Put simply, the Supreme Court’s affirmance in Milligan laid the groundwork for this part of the decision.
By contrast, the district court’s constitutional, intentional discrimination holding is far more newsworthy and potentially sets up another visit to the Supreme Court. Here, the district court—which includes two Trump appointed judges—was obviously frustrated by Alabama’s recalcitrance. The district court opined that “[i]t would be remarkable—indeed, unprecedented—for us to hold that a state legislature that purposefully ignored a federal court order acted in good faith.” Thus, Alabama’s 2023 plan dug itself deeper into a hole. That is because the district court will now entertain the Milligan plaintiffs’ motion to bail-in Alabama into the VRA’s preclearance regime under Section 3(c). If granted, Alabama would have to seek federal pre-approval for any congressional redistricting plan through the 2030 redistricting cycle.
As I previously argued on this blog in favor of bailing-in Alabama: “what is to stop Alabama from redrawing its congressional map for the 2026, 2028 or 2030 elections? Unfortunately, not much. Alabama’s Constitution prohibits mid-decade redistricting of state legislative districts, but it’s silent about congressional maps. There’s nothing in the U.S. Constitution barring mid-decade redistricting.”
For its part, the district court acknowledged that Alabama remained free to engage in mid-decade redistricting. And more importantly for future proceedings, the district court telegraphed that it is very open to a bail-in remedy in this case. The key paragraph reads:
“We emphasize that we remain deeply disturbed that the State purposefully enacted a map that the State readily admits does not provide the required remedy for the vote dilution that we clearly found. We also emphasize our concern that the State’s assertion in response to any injunction we may issue, it is free to repeat its checkmate move. We are troubled by the State’s view that even if we enter judgment for the Plaintiffs after a full trial, the State remains free to make the same checkmate move again—and again, and again, and again.”
Thus, the district court recognizes that Alabama is engaging in gamesmanship—the very behavior that preclearance was designed to eradicate. The Jim Crow-era game of whack-a-mole is alive and well in the heart of Dixie.
This is an ideal case for a bail-in to go to the Supreme Court. Recall that the Supreme Court’s decision in Shelby County invalidated only the VRA’s coverage formula, not preclearance as a solution. And it said nothing about Section 3(c)’s bail-in mechanism for imposing preclearance. To be sure, we know from Shelby County that Justice Thomas would invalidate preclearance, and his conservative colleagues might share that view. But Alabama’s defiance of the first Milligan decision received no public support from any of the four conservative Justices who previously dissented. And at a time when the Trump Administration’s potential defiance of judicial rulings looms over the Supreme Court, Alabama’s behavior in this litigation may well prove counter-productive.
One final point. Section 3(c) allows a State to seek preclearance from either the local district court or the Attorney General. Given the recent gutting of DOJ’s Voting Section, one must be skeptical that the Trump DOJ would enforce Section 3(c)’s retrogression protections in good faith. Nevertheless, preclearance is the appropriate remedy in this case. And it is the best fact pattern since Shelby County for getting the Supreme Court’s imprimatur on Section 3(c)’s constitutionality, which matters not only for this specific provision but also for future congressional efforts to revise the VRA.
“Reporting Gerrymanders”
Ross Davies has written this fun article for The Green Bag. Here is the abstract:
Over the past 80 years or so, maps have appeared in many (but not all) of the U.S. Supreme Court’s decisions involving gerrymanders. This papers discusses some of those maps, and also addresses a couple of problems with the way those maps are published (or not published) in the U.S. Reports, in the Supreme Court Reporter, and in online databases of Supreme Court opinions.
There is an accompanying puzzle which is, alas, sold out.

MALDEF Files Section 2 Suit Challenging Stanislaus County, California, redistricting plans
The complaint is here. The press release is here:
MALDEF (Mexican American Legal Defense and Educational Fund) filed a challenge to the county’s 2021 Board of Supervisors and Board of Education redistricting plans on behalf of four voters who live in the county. The lawsuit was filed in U.S. District Court for the Eastern District of California. In the complaint, attorneys argue that the adopted maps were drawn in such a way as to deny Latino voters an opportunity to elect the candidates of their choice. Attorneys say the maps violate Section 2 of the Voting Rights Act of 1965.
…
The lawsuit asserts that the County’s Board of Supervisors failed to draw a second Latino-majority voting district despite an increase in the percentage of Latinos in the county’s voter population. Supervisors adopted maps that lowered the Latino Citizen Voting Age Population (LCVAP) by 1 percent in the county’s only majority Latino district. The complaint alleges that despite the dramatic growth of the Latino population, the supervisors broke a large, geographically compact, Latino community into three districts rather than create a second Latino district.
Pennsylvania: “DOJ drops lawsuit against City of Hazleton”
Another Section 2 case dropped by the Trump Administration. The Standard Speaker reports:
The U.S. Justice Department dropped a lawsuit Monday to stop the City of Hazleton from electing council members at-large, a change that the lawsuit said would give Hispanic candidates and voters more opportunities to participate in the political process.
“The DOJ’s baseless assumption that the non-Hispanic white voters vote as a block to defeat Hispanic candidates could not be supported. The Hazleton community simply cannot be stereotyped by people who have never visited the area. The City believes that the five at-large City Council seats elected on rotating election cycles should continue to be duly elected by the people,” Hazleton Mayor Jeff Cusat said Tuesday in a news release.
While 43.3% of Hazleton’s citizens old enough to vote are Hispanic, no Hispanic candidate has been elected to council, even though Hispanic candidates ran in seven elections between 2014 and 2023, according to the lawsuit filed Jan. 14.
My New One at Slate: “What Elon Musk Won in Wisconsin”
I have written this piece for Slate. It begins:
Democrats and progressives rightly celebrated the victory of liberal Susan Crawford over Trump-endorsed Brad Schimel for a seat on the Wisconsin Supreme Court. But the left is prematurely gloating over how Elon Musk’s deep support of Schimel appears to have backfired. There’s every reason to believe that the same pathologies in U.S. elections and election law on exhibition in Wisconsin will continue. So too will the outsize involvement of Musk and other billionaires in American elections, although the Wisconsin race is more likely to push Musk and his compatriots into the shadows.
One could teach an entire course in election law by studying just this one race. …
And not to be missed are the stakes themselves. Aside from a high-profile abortion rights case, the most important issue likely to come before the Wisconsin justices soon involves the question of whether partisan gerrymandering violates the state Constitution. Wisconsin has some of the most gerrymandered congressional districts in the country, and when conservatives controlled the court, they rejected arguments to require the drawing of fair districts under the state Constitution. The court could now reverse such a holding with Crawford’s victory. (The opposite happened in North Carolina, where the left-leaning state Supreme Court first recognized partisan gerrymandering claims only to see that reversed when the right took control of the court.)
Redistricting, more than anything else, probably explains why Elon Musk poured more than $20 million into this race and made numerous statements and even a personal appearance to boost Schimel. He said on the Sunday before the election: “If the [Wisconsin] Supreme Court is able to redraw the districts, they will gerrymander the district and deprive Wisconsin of two seats on the Republican side. … Then they will try to stop all the government reforms we are getting done for you, the American people.” Indeed, he also said: “What’s happening on Tuesday is a vote for which party controls the U.S. House of Representatives—that is why it is so significant. … And whichever party controls the House to a significant degree controls the country, which then steers the course of Western civilization. I feel like this is one of those things that may not seem that it’s going to affect the entire destiny of humanity, but I think it will.”…
And then in the middle of the night the weekend before the election, he announced on X—the platform he owns and uses to promote his political causes—that he would give away $1 million to some people who voted in the Wisconsin race. That announcement likely violated Wisconsin election law, as I explained soon after it was made. He quickly reworked his plan so that it no longer required proof of voting, in order to give it a sheen of legality, but the message was out there. Indeed in another message that Musk’s people posted and then took down, one of the $1 million winners of Musk’s giveaway (which apparently also wasn’t a random lottery) said she got the money in part for voting.
After Musk lost, he downplayed the importance of the race, but his political people signaled he is going to stay involved in supporting Republicans in 2026 and beyond. The lesson he’s likely to learn is the lesson other billionaires already have learned. If you’ve got it, don’t flaunt it. People are turned off by the display of money being converted to raw political power….
“Liberal Wins Wisconsin Court Race, Despite Musk’s Millions”
A liberal candidate for a pivotal seat on the Wisconsin Supreme Court overcame $25 million in spending from Elon Musk and defeated her conservative opponent on Tuesday, The Associated Press reported, in a contest that became a kind of referendum on Mr. Musk and his slashing of the federal government.
With turnout extraordinarily high for a spring election in an off year, Judge Susan Crawford handily beat Judge Brad Schimel, who ran on his loyalty to President Trump and was aided by Mr. Musk, the president’s billionaire policy aide.
Mr. Musk not only poured money into the race but also campaigned personally in the state, even donning a cheesehead. But his starring role seemed to inflame Democratic anger against him even more than it helped Judge Schimel.
The barrage of spending in the race may nearly double the previous record for a single judicial election. With about 95 percent of the vote counted on Tuesday evening, Judge Crawford held a lead of roughly 9 points….
The race could also have implications for control of Congress, where Republicans’ razor-thin edge was fortified on Tuesday when the party held on to two Florida seats in special elections. Democrats have quietly argued for months that a Crawford victory would pave the way for a liberal-tilting Wisconsin Supreme Court to order new congressional maps, which could help Democrats defeat one or two of the state’s Republican Congress members.
…
“Elon Musk Revealed Why He’s Spending Millions to Flip the Wisconsin Supreme Court; It’s all about preserving gerrymandered districts that lock in Republican power.”
On March 22, Elon Musk hosted conservative Wisconsin Supreme Court candidate Brad Schimel and US Senator Ron Johnson (R-Wisc.) for a discussion on X about the importance of the Wisconsin Supreme Court election on April 1. It began 36 minutes late and was beset with technical difficulties, as Musk repeatedly talked over Schimel.
But once things got straightened out, Musk made it clear why he is offering voters $100 a pop to sign a petition opposing “activist judges” and spending $18 million through various political groups—a record for any donor in a Wisconsin judicial contest—to elect Schimel and flip the ideological majority of the court.
“This is a very important race for many reasons,” Musk said. “The most consequential is that [it] will decide how congressional districts are drawn in Wisconsin, which if the other candidate wins, instead of Justice Schimel, then the Democrats will attempt to redraw the districts and cause Wisconsin to lose two Republican seats. In my opinion that’s the most important thing, which is a big deal given that the congressional majority is so razor-thin. It could cause the House to switch to Democrat if that redrawing takes place.”
Musk’s fear is that the court, if it retains a progressive majority, will strike down the congressional lines that give Republicans a 6-2 advantage in the US House delegation. (Democrats have made similar claims.) The Princeton Gerrymandering Project gave that map an F for partisan fairness, saying it had a “significant Republican advantage.” The court has yet to take up a lawsuit challenging the congressional map, but if they were to eventually strike it down, that could help Democrats retake the House, which would allow Democrats to scrutinize the unprecedented role Musk is playing in shredding the federal government, accessing sensitive personal information on millions of Americans, and the $38 billion in federal funding his businesses receive….