In Common Cause v. Rucho, Chief Justice Roberts pointed to the significant reforms to redistricting that had been taking place in the states, as a way of asserting that the federal courts and constitutional doctrine were not the only avenues to address the issue. As we are now seeing with the prospect of mid-decade redistricting, a state-by-state approach might turn out to be an unstable equilibrium.

If red states like Texas go ahead with mid-decade redistricting, and blue states like CA and NY decide to adopt measures that respond in kind, there will now be questions about what will happen after the 2030 Census and round of redistricting. Will the states with commissions go back to using them or will they attempt to take measures, such as new voter initiatives, to repeal the reforms they had enacted?

This collective action dynamic is what led Congress to pass the Apportionment Act of 1842, which required all states to use single-member districts to elect members of Congress. Before that, some states wanted to use single-member districts, other states wanted to use at-large elections. But “state choice” was an unstable equilibrium. As a partisan matter, states that used single-member districts weakened themselves in Congress compared to those that used at-large elections. If a state using single-member districts had five representatives, it might end up with a 3-2 delegation in partisan terms (say a net of 1 seat for Party A). If a smaller state with only three representatives used at-large elections, it would be likely to have all three represent the same party (so at net of 3 for, say, Party B). So even the first state would be driven to using at-large elections, even if it preferred to use single-member districts.

That’s why Congress imposed a uniform, national requirement. In the redistricting context, such a uniform, national requirement to constrain partisan gerrymandering could have come from the Court or could come from Congress. And absent a nationally uniform requirement, it’s unclear how “free” states will be as a practical matter to choose to constrain partisan gerrymandering. Absent a national solution, we will see how much unraveling of prior state reforms takes place, both in the short term and in the run-up to the 2030 round of redistricting.

Disclosure: I represented Common Cause in Common Cause v. Rucho.

I did this Q&A with Mike Albertus on the ongoing battle over mid-decade re-redistricting. Here are some excerpts:

Texas is trying to redraw its congressional district plan, in the middle of the decade, solely in order to increase the plan’s pro-Republican tilt. There has long been a norm that district maps are redrawn only once every ten years, after each Census comes out. This norm promotes stability in representation and prevents the endless fine-tuning of maps for the sake of partisan advantage. Texas is shattering this norm, and it’s doing so for no legitimate reason. Unlike in 2003, when Texas also engaged in mid-decade re-redistricting, the plan Texas is now seeking to replace was enacted by the legislature, not imposed by a court. So Texas can’t argue that it wants to substitute a “more” democratic map for a “less” democratic one.

Additionally, the U.S. House is, at present, extremely fair in aggregate. This is true whether the chamber’s bias is measured using seat-vote metrics like the efficiency gap or by comparing enacted plans to party-blind computer-generated maps. So Texas’s mid-decade re-redistricting also can’t be defended on the ground that it would make the U.S. House, as a whole, fairer. To the contrary, a more potent Republican gerrymander in Texas would skew the U.S. House to the right and undo its current balance. . . .

If Texas opens the Pandora’s box of partisan mid-decade re-redistricting, other states will likely follow suit. Blue states will try to offset Texas’s intensified gerrymander, while red states will try to double-down on Texas’s strategy. As I’ve previously written, I think the imperative with respect to congressional redistricting is national partisan fairness: a U.S. House that’s fair, in aggregate. So I think blue states would be justified in responding to Texas’s mid-decade pro-Republican gerrymander with offsetting pro-Democratic redraws. This certainly isn’t my first-best universe. I’d much rather have fair maps in all states aggregating to a fair U.S. House. But the Supreme Court has refused to police partisan gerrymandering and the current Congress certainly isn’t going to enact sweeping redistricting reform. So in the world we’re stuck in, our options are offsetting gerrymanders in red and blue states or gerrymanders in red states and fair maps in blue states. The former option is much better than the latter, in my view, because it prevents representation and policy nationwide from being distorted by gerrymandering.

Now, it’s true that blue states like California, Colorado, New Jersey, New York, and Washington have enacted reforms (like independent commissions) that make it harder for these states to adopt offsetting gerrymanders. But the key word here is harder—not impossible. These reforms have generally been approved through state constitutional amendments. And just as states constitutions were amended to make redistricting less partisan, they can be amended again to authorize offsetting gerrymanders. Indeed, this appears to be California’s strategy: to get a constitutional amendment passed that would codify a new (more pro-Democratic) congressional plan for the rest of the decade.

The New York Times:

Illinois, a Democratic state, was supposed to be a haven, but Texas Democrats have been unable to escape escalating legal and political threats that have gone further and come faster than many of them had anticipated, based on earlier walkouts in 2021 and 2003. Now they are wondering just how long they can hold out — and hoping to make it to the end of the special legislative session they left behind, which is set to end Aug. 19.

“They’re using hardball, unconventional, authoritarian tactics that we didn’t see in 2021,” said State Representative Ron Reynolds, a Houston Democrat who was part of the group at the hotel in St. Charles. “People are concerned. We’re looking over our shoulder.”

Those tactics keep coming.

On Tuesday, Senator John Cornyn, Republican of Texas, called for F.B.I. agents to round up the Democrats who were camped out in Illinois. Mr. Trump seemed to endorse the idea of federal agents getting involved — “They may have to,” he said that evening — though the agency has not commented.

The same day, the state’s attorney general, Ken Paxton, took steps to remove the absent lawmakers from office. That initially drew scoffs. Then hours later, Gov. Greg Abbott filed an emergency petition with the Texas Supreme Court asking for the state’s high court to vacate the Texas House seat of the walkout’s leader, State Representative Gene Wu of Houston, claiming he had abandoned it.

The state’s high court gave Mr. Wu until Friday evening to respond. Friday is also the deadline set by Mr. Paxton for the absent Democrats to return, before he begins removal proceedings against many of them.

Politico:

Texas Attorney General Ken Paxton launched an investigation into a political organization led by former presidential candidate Beto O’Rourke for helping Texas Democrats block newly proposed congressional maps.

In a Wednesday afternoon press release, Paxton said the O’Rourke-led group, Powered by People, may have violated bribery, campaign finance and abuse of office laws, citing “public reports” that Powered by People was “bankrolling” the Texas House Democrats.

The organization’s purported involvement in helping fund Democrats’ out-of-state travels was first reported by The Texas Tribune. POLITICO has not independently confirmed the report.

“The guy impeached for bribery is going after the folks trying to stop the theft of five Congressional seats,” O’Rourke said in response to Paxton’s announcement. “Let’s stop these thugs before they steal our country.”

Paxton — a Republican who is also primarying Sen. John Cornyn (R-Texas) — has vowed to seek the expulsion of Democratic state lawmakers who fled the state this weekend to prevent the legislature from hitting quorum, preventing Republicans from passing a gerrymandered congressional map that could give the party as many as five more House seats in the midterm elections.

Politico:

Redistricting ahead of the 2026 midterms is at the center of the political universe this week, and Vice President JD Vance’s visit to Indiana on Thursday is a big signal the White House isn’t backing off the strategy anytime soon.

Vance’s visit to a state to ask lawmakers to redistrict is a significant escalation from the White House, which was pressuring Texas Republicans behind closed doors to redraw the state’s congressional map.

Republicans could draw 10 or more new seats that advantage the party ahead of the midterms. Later this year, Ohio will be legally forced to remap the state, potentially giving Republicans up to three more seats there. And talks are underway in Missouri, New Hampshire, South Carolina and Florida.

Trump’s team is putting “maximum pressure on everywhere where redistricting is an option and it could provide a good return on investment,” according to a person familiar with the team’s thinking and granted anonymity to describe it.While Democratic efforts to counter Texas are well underway, including lawmakers who continue to deny Republicans in Austin quorum over a new congressional map that could net up to five seats for the GOP, the party’s options are far more limited.

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