I did this Q&A with Harvard Law Today about mid-decade re-redistricting, the reargument in Callais, and other redistricting issues. Here are some excerpts:

Redrawing districts for partisan purposes at the beginning of a decade is, unfortunately, absolutely common. What has been much more uncommon in modern times is partisan mid-decade partisan redistricting; that is, redrawing the lines for partisan purposes when you’re otherwise under no obligation to redraw the lines. There was a famous case in Texas about 20 years ago where their court-drawn plan for the 2000 election was revised after Republicans then took control of the Texas State Government in 2002. They revised and released an aggressive, redrawn partisan gerrymander. In 2006, the Supreme Court allowed that map to stand. There are a couple other minor examples of mid-decade redistricting, but in recent memory Texas has been by far the most frequent and most impactful. I should also note, however, that this kind of mid-decade redrawing was a lot more common in previous eras of American history. In the Gilded Age, states would redraw their maps all the time for partisan reasons. Lines were never stable and, as a result, representation shifted constantly. Regrettably, it seems we’re now heading back toward the redistricting world of 1880 or 1890 where both sides gerrymander without any constraints. . . .

In a book I recently wrote, I argue that the point of election law should be to give us a government that gives us government policy reflective of what people want. Under that perspective, aggressive gerrymandering is one of the most distorting, misaligning forces that exists in modern American politics. If you agree with my position — that the point of election law is to be aligning — the issues that have arisen recently are terribly concerning because misalignment is the essence of gerrymandering. This is a practice that drives an inherent wedge between what people want from the government and what the government actually does for them. While this is difficult to reconcile from an alignment standpoint, the Supreme Court has essentially said that alignment is not part of our Constitution, and these types of gerrymanders don’t outright disenfranchise anybody. The Supreme Court’s vision of election law apparently views gerrymanders as a longstanding characteristic of American democracy, but by no means a bug in the system. Existing precedent, which states are bound to uphold, essentially instructs that as long as the plain text of the U.S. Constitution has not been explicitly violated, keep doing what you’ve always historically been doing. The current state of affairs does not seem problematic to the current Roberts court. . . .

[In Callais,] [t]he issue as now presented is exactly the issue that Kavanaugh said he wanted to consider in the future, in his Milligan concurrence. This is deeply, deeply threatening to Section 2. The logic of the argument that the concurrence floated is just that Section 2 is now unconstitutional because it’s obsolete, vote dilution claims under federal law should no longer exist, and race-conscious redistricting should no longer be allowed. So, Callais has morphed from kind of a garden variety racial gerrymandering case into now possibly a huge blockbuster, landmark case with an outcome that could put Section 2 of the Voting Rights Act in serious jeopardy. Just as Shelby County v. Holder invalidated Section 5 of the Voting Rights Act a decade ago.

The most immediate consequence of that ruling would be dozens, maybe hundreds, of districts everyone assumes are required by Section 2 could be eliminated. Take a state like Louisiana, the state at issue in Callais, that had one Black majority district since the 1990s. There was an effort in litigation over the last couple of years to get a second Black majority district in Louisiana, but all of those efforts were under Section 2. Without Section 2, nothing is stopping Louisiana from replacing those two Black majority districts with an all-white, all-Republican congressional delegation. The same thing would be true in South Carolina, Alabama, Mississippi, and Tennessee and many other jurisdictions. If there is no legal requirement to guard against vote dilution, many states will seize the opportunity to engage in widespread vote dilution for partisan purposes. I think we’ll see substantial redistricting to get rid of these majority-minority districts that currently exist but would no longer be protected if Section 2 is found unconstitutional.