Walter Olson
What if there were a redistricting shootout but only one side was competent at using its weapons? In recent months Texas and then California decided to enact gerrymanders designed to grab five congressional seats from the other side, helping trash a venerable norm against so-called mid-cycle redistricting. If a November 17 decision stands, however, national Republicans are likely to wish they hadn’t started the fight.
In its decision yesterday in LULAC v. Abbott, a panel of federal judges in Texas struck down the state’s recent gerrymander, finding that the state’s legislature had drawn district lines by race in violation of the federal Voting Rights Act (VRA). It ordered the state to use its existing 2021 map, which would doom GOP hopes of shifting five Texas seats now held by Democrats. The decision was written by Judge Jeffrey V. Brown, a Trump appointee, and joined by Obama appointee David Guaderrama; Reagan appointee Jerry E. Smith will file a dissenting opinion.
While the Trump White House started things off, the decision is especially scathing on the role of the Civil Rights Division of the US Department of Justice, which pushed for the revamp by sending a letter to Texas saying its 2021 lines were unlawful under the VRA and had to be changed. Not only was that erroneous, Judge Brown wrote, but the changes DOJ pressed for, revamping the racial composition of various districts where no one racial group of voters had predominated, were themselves unlawful under the VRA as race-conscious tampering with lines. Yet the Texas legislature, backed by Gov. Greg Abbott, followed the marching orders.
In court later the state tried to claim that the lines were based on politics rather than race, but the court’s 160-page opinion assembles plenty of evidence that that’s not so.
From here on out, the time pressure is going to be intense. Republicans will seek super-speedy intervention by the Supreme Court, but there isn’t time for much back-and-forth, as preparations have already begun for Texas’s 2026 election cycle. And while federal courts generally frown on last-minute challenges to election laws, Judge Brown rightfully points out that the fault here lies not with the fact of judicial review but squarely with those who tried to change the Texas lines so late in the game.
Finally, it’s worth noting that the ideological trend at the Supreme Court that has made it increasingly skeptical of race-conscious line drawing, as seen in the pending case of Louisiana v. Callais, actually works for the Democratic side in this case. Both parties have been known to engage in race-conscious line drawing when it suits their interests—and both parties should be held to constitutional account when they do it.