The last time Texas engaged in mid-decade re-redistricting, back in 2006, I filed an amicus brief in the Supreme Court for myself, Burt Neuborne, and Sam Issacharoff. Our brief urged the Court to hold that states have no power under the Elections Clause to engage in mid-decade redistricting absent court order (or possibly extraordinary circumstances).

We argued that if states were permitted to do so, it would likely trigger a retaliatory set of responses in other states:

“Moreover, were mid-decade redistricting to be permitted, the political parties would inevitably engage in retaliatory re-redistricting — particularly when partisan control of the House is closely divided. In the dormant commerce clause context, this Court recognized long ago that the appropriate means to address discriminatory state commercial laws was not for states to enact retaliatory discriminatory laws of their own; instead, this Court declares such laws unconstitutional, lest a downward spiral of retaliation, in which national prosperity is drained, ensue. See C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 390 (1994) (condemning “local economic protectionism, laws that would excite those jealousies and retaliatory measures that the Constitution was de- signed to prevent. See THE FEDERALIST NO. 22 143-145 (C. Rossiter ed. 1961) (A. Hamilton); James Madison, Vices of the Political System of the United States, in 2 WRITINGS OF JAMES MADISON 362-363 (G. Hunt ed. 1901).”). The Court should instead stop this cycle in its inception by recognizing that the Constitution does not authorize states to engage in mid-decade redistricting, at least absent judicial compulsion or extraordinary circumstance.”

We also pointed out that there was no history and practice of mid-decade redistricting in the 20th century and that absent any judicial constraints, but was emerging in this era for specific reasons:

“No constitutional compulsion — indeed, no legal compulsion of any sort — exists for state legislatures to engage in redistricting during the decade as partisan political prospects wax and wane in particular states. Indeed, nothing in our historical experience compels this extraordinary assumption of power by the state legislatures. In the 20th century, there had been no practice of mid-decade congressional redistricting of which we are aware before mid-decade redistricting efforts suddenly erupted this decade. Rather, the emergence of this practice results from a combination of (1) closely balanced partisan control of the House and (2) technological breakthroughs in election data bases and computer technology that enable “perfecting” the self-interested creation of overwhelmingly safe districts. The partisan margin of power in the House has hung in the balance for a more sustained period than at any time over the past 100 years; when partisan control was last divided as closely, numerous state legislative schemes sprung up to manipulate congressional elections.²⁰ National legislation and constitutional law now prohibit most of the offending historical practices, such as legislative manipulations of suffrage rules and vote fraud. But given the allure of political power, efforts to invent new practices not yet prohibited — such as mid-decade redistricting — will inevitably arise again when partisan control of the House is at stake.”
 

Rather than arguing for this position under the Equal Protection Clause, we argued the Court should recognize the Elections Clause as an enumerated power. Just as the Court had been enforcing limits on Congress’ enumerated powers since the 1990s, we argued the Court should enforce limits on the enumerated power state legislatures have to draw congressional districts.