Why Texas could face greater legal hurdles than California in redistricting fight

Los Angeles Times

3 days ago

California is in a standoff with Texas over redistricting that could decide the balance of power in Congress for the end of Donald Trump's presidency — a high-stakes gambit with risks for both sides. But if the courts have their say, Texas, facing accusations of racial discrimination, may find itself at a distinct legal disadvantage.
Both efforts by Texas Republicans and California Democrats are blatantly partisan, proposing a mid-decade redrawing of district lines for the express purpose of benefiting their party in the 2026 midterm elections.
California Gov. Gavin Newsom is working with a Democratic supermajority in the Legislature on 'trigger' legislation that would schedule a ballot initiative this fall for the new maps. It was a direct response to a Texas plan, supported by Trump and currently in motion in the Austin statehouse, to potentially flip five seats in the upcoming election from blue to red.
The Supreme Court has ruled that judges are powerless to review partisan gerrymandering, even if, as it wrote in 2019, the practice is 'incompatible with democratic principles.'
The court ruled in Rucho vs. Common Cause that partisan gerrymandering 'is incompatible with the 1st Amendment, that the government shouldn't do this, and that legislatures and people who undertake this aren't complying with the letter of the Constitution,' said Chad Dunn, a professor and legal director of the UCLA Voting Rights Project who has argued multiple cases before the Supreme Court. 'But it concluded that doesn't mean the U.S. Supreme Court is the solution to it.'
What courts can still do, however, is enforce the core provisions of the Voting Rights Act, which bars states from redistricting that 'packs' or 'cracks' minority groups in ways that dilute their voting power.
'Texas doesn't need to have a good reason or a legitimate reason to engage in mid-decade redistricting — even if it's clear that Texas is doing this for pure partisan reasons, nothing in federal law at the moment, at least, would preclude that,' said Richard Pildes, a constitutional law professor at New York University. 'But Texas cannot redistrict in a way that would violate the Voting Rights Act.'
In 2023, addressing a redistricting fight in Alabama over Black voter representation, the current makeup of the high court ruled in Allen vs. Milligan that discriminating against minority voters in gerrymandering is unconstitutional, ordering the Southern state to create a second minority-majority district.
Today, Texas' proposed maps may face a similar challenge, amid accusations that they are 'cracking' racially diverse communities while preserving white-majority districts, legal scholars said. Already, the state's 2021 congressional maps are under legal scrutiny over discrimination concerns.
'The Supreme Court affirmed two years ago that the Voting Rights Act works the way we all thought it worked,' said Justin Levitt, a professor at Loyola Law School and former deputy assistant attorney general in the Department of Justice's Civil Rights Division. 'That's part of the reason for current litigation in Texas, and will undoubtedly be a part of continuing litigation if Texas redraws their lines and goes ahead with it.'
The groundwork for the current Texas plan appears to have been laid with a letter from Harmeet Dhillon, assistant attorney general for civil rights at the Justice Department, who threatened Texas with legal action over three 'coalition districts' that she argued were unconstitutional. Coalition districts feature multiple minority communities, none of which comprises the majority.
The resulting maps proposed by Texas redraw all three.
J. Morgan Kousser, a Caltech professor who recently testified in the ongoing case over Texas' 2021 redistricting effort, said the politics of race in Texas specifically, and the South generally, make its redistricting challenges plain to see but harder to solve.
How do you distinguish between partisanship, which is allowed, and racism, which is not, in states where partisanship falls so neatly down racial lines?
That dilemma may become Texas' greatest legal problem, as well as its saving grace in court, Kousser said.
'In Texas, as in most Southern states, the connection between race and party is so close that it is exceedingly difficult to distinguish between them,' he said. 'That seems to give a get-out-of-jail free card, essentially, to anybody who can claim this is partisan, rather than racial.'
Today, nine states face ongoing litigation concerning potential violations of the Voting Rights Act, a law that turned 60 years old this week. Seven are in the South — states that had for decades been subject to a pre-clearance requirement at the Justice Department before being allowed to change state voting laws.
The Supreme Court struck down the requirement, in the case of Shelby County vs. Holder, in 2013.
Newsom has been vocal in his stance that California should position itself to be the national bulwark against the Texas plan.
Last week, the Democratic caucuses of the state Legislature heard a presentation by the UCLA Voting Rights Project on how California might legally gerrymander its own maps for the 2026 midterms.
Matt Barreto, the co-founder of the project and a professor of political science and Chicana/o and Central American studies, said his organization's position is that gerrymandering 'should not be allowed by any state,' he said.
But 'if other states are playing the game, the governor is saying he wants to play the game too,' Barreto added.
He said that although five seats have been discussed to match what Texas is doing, he sees a pathway for California to create seven seats that would be safely Democratic.
That includes potential redraws in Orange County, San Diego, the Inland Empire and the northern part of the state. Barreto said there are many districts that currently skew as much as 80% Democratic, and by pulling some of those blue voters into nearby red districts, they could be flipped without risk to the current incumbents, though some new districts may have odd shapes.
For example, districts in the north could become elongated to reach into blue Sacramento or the Bay Area, 'using the exact same standards that Texas does,' he said.
Legislators seemed receptive to the idea.
'We've taken basic American rights for granted for too long,and I think we're ill equipped to protect them,' said Assemblymember Maggy Krell (D-Sacramento), who attended the meeting.
'To me, this is much bigger than Texas,' she said.
State Sen. Tom Umberg (D-Santa Ana), who has worked on redistricting in the past, echoed that support for Newsom, saying he was not 'comfortable' with the idea of gerrymandering but felt 'compelled' in the current circumstances.
'In order to respond to what's going on in Texas in particular,' Umberg said, 'we should behave in a like manner.'
Barreto, the UCLA professor, warned that if any redistricting happens in California, 'no matter what, there's going to be a lawsuit.'
Dunn said that it's possible voters could sue under the Voting Rights Act in California, claiming the new districts violate their right to fair representation — even white voters, who have more traditionally been on the other side of such legal actions.
The 1965 law is 'for everybody, of every race and ethnicity,' Dunn said. A lawsuit 'could be on behalf of the places where the white community is in the minority.'
The prospect of that litigation and the chaos it could cause gives pause to some voting rights experts who see the current situation as a race to the bottom that could ultimately harm democracy by undermining voters' trust in the system.
'It's mutual destruction,' said Mindy Romero, a voting expert and professor at USC, of the Texas-California standoff.
The best outcome of the current situation, she said, would be for Congress to take action to prohibit partisan gerrymandering nationwide. This week, Rep. Kevin Kiley (R-Rocklin), who represents a district north of Sacramento that would be vulnerable in redistricting, introduced legislation that would bar mid-decade redistricting. So far, it has gained little support.
'Just like lots of other things, Congress is dropping the ball by not addressing this national problem,' said Richard Hasen, a UCLA professor of political science and director of the Safeguarding Democracy Project.
'When it comes to congressional redistricting, fairness should be evaluated on a national basis, since the decisions made in California or Texas affect the whole country,' he said.
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