Category Archives: redistricting

Alabama Dodges Bail-in

court decisions, redistricting, Voting Rights Act

Yesterday, the three-judge district court in the Alabama congressional redistricting litigation declined to bail-in the State to the VRA’s preclearance regime. You can find the district court’s decision here.

Recall that the district court had previously found that Alabama’s 2023 defiance of the Supreme Court’s decision in Allen v. Milligan constituted intentional discrimination. Based on the district court’s obvious frustration with Alabama’s recalcitrance, it appeared that the State was a prime candidate for bail-in under Section 3(c) of the VRA. Moreover, plaintiffs’ bail-in request was limited: only for congressional redistricting and only through the post-2030 redistricting map. Bail-in was designed to stop the game of whack-a-mole that was Southern defiance of federal court decrees. Unfortunately, Alabama dodged the hammer once again.

For prior analysis of bail-in in this case, see here, here, and here. Here’s some takeaways from the district court’s opinion and recent bail-in litigation overall:

1.         The district court’s fifteen-page opinion is mostly a summary of the litigation and last week’s bail-in hearing. Its analysis of the bail-in issue is cursory. The court sidestepped contentious questions about whether multiple constitutional violations are necessary for bail-in; whether Shaw violations count; and whether constitutional violations by political subdivisions are part of the inquiry. Instead, the district court relied heavily on its retention of jurisdiction over the case through the 2030 redistricting cycle and its injunction that Alabama must use the Special Master’s remedial maps. It observed that this “largely obviate[d]” the need to delve into the “intrusive waters” of preclearance.  Indeed, the district court’s approach recalls the Fourth Circuit’s minimal analysis of the bail-in question in McCrory, the North Carolina voter-suppression case.

Furthermore, the district court appears to conflate the question of retaining jurisdiction and bail-in. For example, the district court’s opinion could be read to express concern about dealing with the case through the entire 2030 redistricting process—that is, through 2041. But that is emphatically not how bail-in under Section 3(c) would have worked. Alabama would have been required to preclear the first map that it drew after the 2030 Census. So long as Alabama met its burden to show by a preponderance of the evidence that it had not intentionally discriminated and had not retrogressed Black voting strength, the bail-in would have ended. Any Section 2 or Shaw claims would have been heard by a separate court. And the bail-in would not have applied to a 2030 mid-decade redistricting either.

To be clear, some of this confusion could be attributable to plaintiffs’ back-up request for the court to retain jurisdiction. But the substantive standard and process for how preclearance would work under Section 3(c) is distinct from how the same court hearing a potential Section 2 case in the 2030s would work.

2.         Although the district court declined to bail-in Alabama, it did mandate that it use the Special Master’s remedial map until the 2030 redistricting cycle. Thus, for now, Alabama cannot take part in the potential wave of mid-decade redistricting that might occur. However, Alabama has appealed the underlying merits determination to the Supreme Court, and with the Callais re-argument next Term, it is possible Alabama may be freed from this permanent injunction.

3.        The lightning bolt of the Callais re-argument order looms large here. The short time frame between last week’s hearing and yesterday’s decision hints at a district court that thinks it’s gone as far as it can go without being rebuked by the Supreme Court.

4.         Finally, one cannot help but wonder what might have been in these post-Shelby County bail-in suits if the Supreme Court had not become considerably more conservative during the first Trump administration. Put differently, if the Senate had not successfully blockaded Merrick Garland or if Justice Ginsburg had retired in a timely manner, the preclearance regime might have been partially rebuilt. We have seen district courts issue intentional discrimination findings against two States that were previously fully covered (Alabama and twice against Texas) and two States that were previously partially covered (Florida and North Carolina). But when it came to pull the trigger on Section 3(c) relief, the lower courts blinked.

Perhaps one upshot of yesterday’s decision is that bail-in’s constitutionality will continue to escape Supreme Court review. Although I still believe that this is the best post-Shelby County vehicle for addressing Section 3(c)’s constitutionality, one need not look far for other voting/civil rights cases—such as Brnovich—in which an aggressive litigation posture ended up backfiring. We will have to wait and see what remains of the Voting Rights Act after next Term, which is shaping up to be monumental.

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The Media’s Unfortunate Greater Interest in the Texas Redistricting Car Wreck than the Supreme Court’s Slow Poisoning of the Voting Rights Act

redistricting, Supreme Court, Voting Rights Act

I’ve written about two big election stories this week, the newly ignited redistricting wars starting in Texas and the Supreme Court’s strong signal that it could kill off the Voting Rights Act Section 2 by next June. Judged by my conversations with those in the media, Texas redistricting is the bigger story, but I think the VRA is—especially coming on the 60th anniversary of the passage of the Act.

It’s not surprising that the media is more attracted to the Texas story. It happens right now with great visuals of fleeing legislators and threats to bring in the FBI, and Democratic governors vowing to engage in tit-for-tat warfare. The harms to democracy are easy for everyone to see.

But when the Supreme Court acts, it’s very hard to make exciting for the public. A cryptic briefing order issued at the start of a summer weekend does not make good visuals. You don’t get sound bites from Justices Alito and Sotomayor. The action will take place in dense, technical briefs, over months.

So when the Supreme Court kills another aspect of democracy and does it with slow poison, it is much harder to get the public to pay attention. But the lasting cost to our democracy is likely to be far greater than the redistricting skirmishes happening in prime time.

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My New One at MSNBC Opinion: “Trump started a redistricting war. Only Congress can stop it.”

redistricting, Supreme Court, Voting Rights Act

I have written this piece for MSNBC Opinion. It begins:

A sudden war over redistricting has broken out in Texas and looks to spread across the country, with California, New York and elsewhere considering tit-for-tat Democratic partisan gerrymanders to negate the Republican hardball in Texas. Congress, rather than the courts, is in the best position to stop the upcoming race to the bottom. But even though it’s in everyone’s interest that Congress act, don’t hold your breath….

It is possible the courts will block some of these gerrymanders if it can be shown, for example, that they violate the Voting Rights Act. But the Supreme Court just signaled that it may further weaken or kill Voting Rights Act claims in redistricting cases. With that red flag, and with the court’s decision to allow unlimited partisan gerrymandering, the courts are not likely to get the country out of this vicious cycle.

Congress can stop the madness at any point. The Constitution gives Congress the power in Article I to “make” or “alter” state rules for running congressional elections, including redistricting. Congress could outlaw mid-decade redistricting, require the use of commissions, or set a standard barring the most egregious partisan gerrymanders.

In the current polarized atmosphere in Congress, and with Trump (who would have to sign such legislation) looking to impose “maximum warfare, everywhere, all the time” to preserve Republican power, a bipartisan deal to avoid a redistricting war seems most unlikely. But as the Cold War taught us, détente is better than mutually assured destruction for all the parties. Those who suffer the most are the voters, who should not be packed in or cracked out of districts simply because their party is in the minority.

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My New One at Slate on the Supreme Court Potentially Killing the Remaining Pillar of the Voting Rights Act: “The Supreme Court Just Signaled Something Deeply Disturbing About the Next Term”

redistricting, Supreme Court, Voting Rights Act

I have written this piece for Slate. It begins:

Reading the tea leaves from cryptic Supreme Court orders can be perilous business because the justices are not bound by the questions they ask at oral argument, the offhand comments they make at a judicial conference, or even their monumental “shadow docket” rulings on emergency petitions that have become all too common. But a technical briefing order in a long pending case out of Louisiana, posted on the Supreme Court’s website after 5 p.m. on a Friday in August, was ominous. The order was likely intended to obscure that the court is ready to consider striking down the last remaining pillar of the Voting Rights Act, known as Section 2. Such a monumental ruling, likely not coming until June 2026, would change the nature of congressional, state, and local elections, all across the country, and likely stir major civil rights protests as the midterm election season heats up….

We waited weeks for the court to issue its rescheduling order and when it came this past Friday it was a doozy. The court pointed specifically to a set of pages in plaintiffs’ brief which argue that Section 2 is unconstitutional, at least as applied in this case, and that the Voting Rights Act cannot serve as a compelling interest to defeat a racial gerrymandering claim when race predominates. “The parties are directed to file supplemental briefs addressing the following question raised [in that brief]: Whether the State’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments to the U. S. Constitution.”

Although the court’s order did not explicitly mention Section 2 or even the Voting Rights Act more generally—unquestionably to obscure things further—there is no doubting what’s going on here. The court is asking the parties to consider whether Louisiana’s compliance with Section 2 of the Voting Rights Act by drawing a second majority-minority district—as the earlier Ardoin case seemed to require—was unconstitutional under a view of the Constitution as requiring colorblindness.

If the Supreme Court moves forward with this interpretation it would be a sea change to voting rights law. A reading of the Constitution as forbidding race-conscious districting as mandated by Congress to deal with centuries of race discrimination in voting is at odds with the text of the Constitution, with the powers granted directly to Congress to enforce the Fourteenth and Fifteenth Amendments, and with numerous precedents of the Supreme Court itself. It would end what has been the most successful way that Black and other minority voters have gotten fair representation in Congress, state legislatures and in local bodies. It would be an earthquake in politics and make our legislative bodies whiter and our protection for minority voters greatly diminished. Even if the court less drastically says that Section 2 could not be used to require the second congressional district in this case, such a superficially more minimal ruling would mean the quick unraveling of most Section 2 districts because if the facts in Louisiana don’t justify drawing a second district, most other Section 2 claims would fail too….

Court conservatives likely thought teeing up the issue of overruling Section 2 on a hot summer weekend would avoid public notice. But that’s a short term strategy. Come next June, any decision to strike down what’s left of the Voting Rights Act could kick off the start of a new civil rights movement and more serious talk of Supreme Court reform in the midst of crucially important midterm elections. A court fundamentally hostile to the rights of voters places the court increasingly at odds with democracy itself.

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“Texas House Democrats flee the state in bid to block GOP’s proposed congressional map”

redistricting

Texas Tribune:

Texas Democratic lawmakers fled the state Sunday in a bid to block passage of a new congressional map designed to give the GOP five additional seats in the U.S. House next year, raising the stakes in what’s poised to be a national fight over redistricting ahead of next year’s midterm election.

The maneuver, undertaken by most of the Texas House’s 62 Democrats, deprives the Republican-controlled chamber of a quorum — the number of lawmakers needed to function under House rules — ahead of a scheduled Monday vote on the draft map. The 150-member House can only conduct business if at least 100 members are present, meaning the absence of 51 or more Democrats can bring the Legislature’s ongoing special session to a halt.

“This is not a decision we make lightly, but it is one we make with absolute moral clarity,” state Rep. Gene Wu, chair of the House Democratic Caucus, said in a statement, in which he accused Gov. Greg Abbott of “using an intentionally racist map to steal the voices of millions of Black and Latino Texans, all to execute a corrupt political deal.”

Most House Democrats left Texas Sunday afternoon en route to the Chicago area, where they’re expected to hold a press conference with Illinois Gov. JB Pritzker. Some also headed to New York to meet with Gov. Kathy Hochul, who has condemned Texas’ mid-decade redistricting effort and entertained the idea of retaliating with new maps in her state. A third contingent of lawmakers also departed for Boston to attend the National Conference of State Legislatures’ annual legislative summit….

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“Democratic governors advise strong counteroffensive on redistricting”

chicanery, redistricting

Politico:

A  group of Democratic governors is urging its colleagues to get tough in countering Republican-backed efforts to gerrymander Texas’ congressional districts.

“It’s incumbent upon Democrat governors, if they have the opportunity, to respond in kind,” outgoing Kansas Gov. Laura Kelly told reporters at a Democratic Governors Association meeting Friday. “I’m not a big believer in unilateral disarmament.”

The advice from Kelly, who chairs the DGA, came two days after Texas Republicans proposed congressional lines that would create five GOP-friendly House districts ahead of next year’s midterms. Democrats need only to net three seats to regain control of the lower chamber.

Kelly didn’t cite California Gov. Gavin Newsom by name, but he is the most high profile, and likeliest, example of a Democrat considering a counteroffensive remapping effort to squeeze more seats from a blue state. On Thursday, Newsom said he’d seek a November special election to have voters approve a new House map that would boost Democrats’ numbers. It’s an expensive and potentially perilous gamble that his Democratic colleagues throughout the country appear to be backing — a notably more aggressive posture for the party….

NYT on “maximum warfare”:

The aggressive push by President Trump and Republicans in Texas to squeeze as many as five House Democrats out of office before a single vote is cast in the 2026 midterm elections has opened up a new chapter in an era of unconstrained partisan warfare.

For six months, Democrats have watched, sometimes haplessly and sometimes hopelessly, as Mr. Trump and his allies have bent much of the country’s political, legal and educational systems to his will.

But the bald attempt to redraw the Texas congressional map to shore up House Republicans has pushed many Democrats, including some longtime institutionalists, to a breaking point. Now, they are vowing to “fight fire with fire” and even to embrace some of the very gerrymandering tactics they have long decried as anti-democratic.

“The Texas Republicans are taking us on a race to the bottom,” said Representative Jamie Raskin, a Maryland Democrat who lamented in an interview that his party must reluctantly participate in “this rotten system.”…

The gerrymandering is deeply consequential at a time when a single House race can cost tens of millions of dollars. Republicans won control of the House in 2024 by only three seats, a margin the remapping in Texas alone would more than double.

One person close to the president, who insisted on anonymity to describe the White House’s political strategy candidly, summed it up succinctly: “Maximum warfare, everywhere, all the time.”

The redistricting push is only one element. Mr. Trump has targeted Democratic law firms with executive actions. He has threatened prosecutions of and ordered investigations into his political enemies, while the Justice Department has dropped lawsuits aimed at protecting voting rights. And his congressional allies are investigating ActBlue, the organization that processes an overwhelming share of online donations for Democrats….

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“How the New Texas Map Changes the Outlook for Control of the House”

redistricting

Nate Cohn for The Tilt:

So far this election cycle, most analysts have assumed that Democrats will win the House next November. No, it’s not a guarantee. But the party out of the White House usually does well in midterms, and Democrats need a mere three seats to retake the chamber.

Over the last few weeks, this reasonable assumption has started to get more complicated. It turns out that Democrats might need to flip more than three seats, as President Trump is pushing red states to undertake a rare mid-decade redistricting effort to shore up the slender Republican House majority.

On Wednesday, Republicans in Texas unveiled the first of these efforts: a new map that could flip as many as five seats from blue to red.

It’s still too early to say what might happen beyond Texas. Maybe other Republican states will join; maybe Democrats will retaliate. Obviously, a wider redistricting war could have far greater implications, to say nothing of whether it is healthy for the country. But on its own, while the Texas map makes the Democrats’ path to the House harder, it doesn’t necessarily make it hard. They would still be favored to win the House if the election were held today on the new map, even though they don’t hold a very large lead in the polls….

For another, recent electoral trends have positioned Democrats to win House elections more easily. The Republican advantage in the early 2010s was partly a reflection of the geographic distribution of the Obama coalition, which showed its greatest strength in urban areas where Democrats had already been winning House elections. Since then, Democrats have made big gains in highly educated suburbs, flipping many previously Republican-leaning districts. At the same time, the collapse of the Obama coalition cost Democrats many popular votes in urban and rural areas but didn’t cost them many House seats. Put it together, and today’s congressional map is arguably the most balanced map since the enactment of the Voting Rights Act in 1965.

Perhaps the easiest way to tell: Democrats barely lost the House popular vote in the last two elections, and they barely lost the chamber. By some measures — including the so-called efficiency gap promoted by redistricting reformers — the current House district map actually leans slightly to the left. By others — including my preferred measures — the map leans slightly to the right.

Either way, the fundamentally balanced House map is the backdrop to the new Texas map. While a few more Republican seats will certainly help the G.O.P., it will take more to give Republicans a major structural advantage in the fight for the House….

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“Texas House panel advances redrawn congressional map that would add more GOP seats”

redistricting

Texas Tribune:

A Texas House panel on Saturday advanced a draft congressional map aimed at adding five new Republican districts next year over protests from Democrats that the proposal would suppress the votes of people of color.

The chamber’s redistricting committee approved the map on party lines, 12 to 6, after spending much of Friday hearing testimony from U.S. House Democrats from Texas and members of the public largely opposed to the plan. The map could be considered by the entire state House as soon as early next week.

Earlier in the hearing, GOP lawmakers said that they are redrawing the state’s congressional map to advantage Republican candidates, setting aside a legal justification offered by the U.S. Department of Justice and making their political motivations explicit for the first time.

“Different from everyone else, I’m telling you, I’m not beating around the bush,” Rep. Todd Hunter, the Corpus Christi Republican carrying the bill, said about the goal of the map. “We have five new districts, and these five new districts are based on political performance.”

Texas Republicans launched the redistricting effort after pressure from President Donald Trump’s political operatives, who demanded state leaders redraw the map to help Republicans maintain their slim House majority ahead of a potentially difficult midterm election.

The House redistricting committee released its proposed redo of the map Wednesday. It slices up districts in the Houston, Austin and the Dallas areas, yielding five additional districts that would have voted for Trump by at least 10 percentage points in 2024. In 2024, Trump won 56.2% of votes in Texas. Under the current lines, Republicans hold 66% of Texas’ 38 House seats. The new map aims to push that share to 79%….

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California: “Gavin Newsom floats November special election for his anti-Trump redistricting push”

redistricting

Politico:

Gov. Gavin Newsom said Thursday he will likely call a November special election to have voters approve new House maps that boost Democrats.

By embracing a public vote, Newsom teed up a nationalized contest that opens a prominent front in national Democrats’ efforts to thwart President Donald Trump’s agenda. Newsom has vigorously embraced the party’s push to counter a GOP-friendly Texas gerrymander by buoying Democrats in blue states like California, arguing Trump has left the party no choice….

The governor’s remarks were his most detailed yet since he first vowed to counter Texas’ GOP-buoying gerrymander by having California redraw its boundaries. Newsom had formerly said he was also considering having the Democratic-dominated Legislature simply draw new maps, circumventing the voters who enshrined an independent commission in 2010.

But Newsom backed away from that option Thursday, signaling he would prefer to put the issue to voters. He said the new maps would remain in place for the next three election cycles, after which the commission would draw new lines as scheduled.

“We’re not here to eliminate the [independent redistricting] commission,” Newsom said. “We’re here to provide a pathway in ’26, ’28, and in 2030 for congressional maps on the basis of a response to the rigging of the system of the president of the United States.”…

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The Downballot on Why the Texas Gerrymander is Likely to be Effective and Not a “Dummymander”

redistricting

Downballot:

Texas Republicans unveiled a congressional redistricting proposal on Wednesday that would, as Donald Trump asked, further gerrymander the state’s map by making five Democratic-held seats more likely to flip in next year’s elections.

The plan, which could change prior to passage, seeks to undermine Democrats by diluting the voting strength of Black and Latino voters, potentially in violation of the Voting Rights Act. It makes radical changes to do so, moving more than a third of Texans into new constituencies. Of the state’s 38 districts, only one, the Lubbock-area 19th, would remain untouched.

Below, we outline the most important changes to the five districts Republicans are targeting. In each case, we’ve also included data showing how each current district voted in the 2024 and 2020 presidential elections, as calculated by The Downballot, and how each proposed district would have voted in that same election, according to Dave’s Redistricting App and the Redistricting Data Hub (for 2024) and VEST (for 2020).

Notably, the proposal in no way resembles a “dummymander“—an overly aggressive map that winds up backfiring on the party it was meant to favor, which was a possibility some had forecast (or wished for). Republicans may not pick up all five of the seats they have their sights on should they adopt these new boundaries, but they’ve been careful not to weaken any of the districts they currently hold….

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