Voters Cannot Whitewash a Racial Gerrymander: A Response to Rick Hasen on CA’s Prop. 50

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I also have no idea whether there’s any merit in DOJ’s racial gerrymandering challenge to California’s redistricting via Prop. 50. Assessing those claims would require development of a full factual record that does not yet exist.

But I wanted to respond to a legal argument Rick Hasen recently made in Slate about that challenge that I believe is wrong.  Rick asserts that DOJ has a “huge problem:” even if the legislature designed various districts as unconstitutional racial gerrymanders, he argues that doesn’t matter because CA voters ultimately approved the map.  And he argues (and here I agree) voters approved the map for partisan political purposes.  Thus, his argument runs, race cannot have predominated in the design of specific districts and hence DOJ’s racial gerrymandering challenge to various districts must fail.

I do not think voter approval can turn an unconstitutional set of districts into constitutional ones. Voter approval cannot “cure” a map that would otherwise violate the Constitution.  Suppose, for example, the mapmakers had designed districts with a racially discriminatory intent.  But when voters approve the map, the entire campaign is based on partisan appeals.  The voters themselves might not have had a racially discriminatory intent (leave aside the complexity of assigning purposes in a direct democracy process). Nonetheless, I’m confident the map would still be struck down, because a map designed for racially discriminatory reasons remains unconstitutional even if voters approve it.

Similarly, if the mapmakers design a map that violates the “results” test of Section 2 of the VRA, the map still violates Sec. 2 — even if voters must approve the map before it takes effect.

There is no reason racial gerrymander claims are any different. Racial gerrymandering doctrine prevents a State, in the absence of “sufficient justification,” from “separating its citizens into different voting districts on the basis of race.” Bethune-Hill v. Virginia State Bd. of Elections, 580 U. S. ___, ___ (2017) (slip op., at 6). Absent sufficient justification, race cannot be the predominant factor in how districts are designed. If districts are designed as unconstitutional racial gerrymanders, they do not become unracially gerrymandered merely because voters approve the final map. In the Texas litigation, for example, if voters in Texas had approved the new maps, after a campaign proclaiming the redistricting was done for purely partisan purposes, that would surely not have affected the district court’s recent decision that six of those districts were unconstitutional racial gerrymanders.

Moreover, voters do not design districts. They approve a map. But a racial gerrymandering claim does not challenge a “map” as a whole.  Those challenges must be made to specific districts.  Voter approval of a map does not change the way specific districts have been designed. The harm in racial gerrymandering cases, under the doctrine, is that race has been the predominant factor in how a district has been designed.

As I say, I have no idea whether the facts support DOJ’s racial gerrymandering claim.  But if those districts are racial gerrymanders, they don’t magically become unracially gerrymandered merely because voters have approved the final map. 

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The Texas Gerrymandering Decision Rests on Shaw v. Reno

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I have no view at this stage whether the majority is correct that six districts in Texas’s re-redistricting are unconstitutional racial gerrymanders. The dueling opinions are long; the issues are highly fact dependent. But I wanted to note that the decision is based on the anti-racial gerrymandering doctrine that the Court first established in Shaw v. Reno (1993).

At the time Shaw was decided, many voting-rights groups were sharply critical of the decision. But in the years since, Shaw has been used successfully over and over again by voting-rights groups and their allies to invalidate racially gerrymandered maps. In the Texas case, the lead plaintiff was the League of United Latin American Citizens (LULAC), which has been the major group litigating on behalf of Latino voting rights in Texas for decades.

If the majority is indeed right that these districts were racially gerrymandered, it would be far more difficult, and frequently impossible, to invalidate them on some other basis in the absence of Shaw’s constraint on racial gerrymandering. In Texas, the plaintiffs also brought vote dilution and intentional discrimination claims. But racial gerrymandering frequently happens without vote dilution taking place. And voting-rights plaintiffs have long been concerned about the difficulty of proving intentional discrimination.

The court decided the Texas case based on Shaw and the racial gerrymandering claims precisely because those claims are easier to prove. Having invalidated the districts on that basis, the court did not address these other claims.

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On Blexit’s efforts to urge Black voters to leave the Democratic Party

political parties, voting, Voting Rights Act

The Washington Post has a fascinating, relatively short podcast exploring larger questions about where Black voters fit within the two-party system through a story about Blexit’s arrival at Howard University’s homecoming weekend. Blexit, a conservative group currently tied to Charlie Kirk’s Turning Point USA, seeks to persuade black voters to leave the Democratic Party, an argument that is not without appeal to many voters of color, who question what the party to which they have been so loyal has actually done for them.

The podcast resonated with me because it reconfirms my argument that for many voters of color, the shortfalls of American democracy today are substantive, not procedural–a point I made in a forthcoming chapter. It also reinforces points made by Lee Drutman and others that our two-party system does not map well onto the diversity of our society, racial or ideological.

Blexit was co-founded by influencer Candace Owens to coax Black people away from the Democratic Party during Trump’s first term. Owens, however, stepped away from the movement since it merged with Turning Point in 2023. The podcast elaborates on a much shorter, earlier article.

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Development in Alabama Racial Gerrymander Case

Voting Rights Act

AP News has an update on Alabama’s racial gerrymander case:

“U.S. District Judge Anna Manasco, appointed by President Donald Trump during his first term, issued the ruling Monday putting a new court-selected map in place for the 2026 and 2030 elections. Manasco ruled in August that the state had violated the Voting Rights Act by “packing” Black voters into Montgomery’s Senate District 26 to limit their influence elsewhere. Manasco selected one of three proposed plans drawn by a court-appointed expert.

‘The Court orders the use of a remedial map that was prepared race-blind and affords Black voters in the Montgomery area an equal opportunity, but certainly not a guarantee, to elect Senators of their choice,’ Manasco wrote.”

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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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“Citing extraordinary circumstances, Chester County will count the vast majority of provisional ballots cast after Election Day chaos”

election administration, provisional ballots
Philadelphia Inquirer. Last month, officials mistakenly sent poll books to precincts in Chester County (PA) that did not include the names of independent and third-party voters. As a consequence, over 12,000 voters (mostly independent and third-party voters) were forced… Continue reading