Redistricting battles in Texas and elsewhere: Will courts play a role?: ANALYSIS

Yahoo

2 days ago

As Democrats search for ways to delay, if not defeat, Republican efforts to redraw election maps for political gain ahead of the 2026 midterm elections, they say, they may not find much help from federal courts.
A landmark 2019 decision by the U.S. Supreme Court -- Rucho v. Common Cause -- removed federal judges almost entirely from the business of mediating disputes over partisan gerrymandering.
"Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is incompatible with democratic principles does not mean that the solution lies with the federal judiciary," wrote Chief Justice John Roberts.
The ruling effectively shut the courthouse door on legal challenges to creatively-drawn electoral maps that dilute the influence of certain voters based on party affiliation.
MORE: How redistricting in Texas and other states could change the game for US House elections
"Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions," Roberts concluded in the opinion.
Race, however, is a different matter -- and one that the Supreme Court has recognized a limited role for judges in examining under the Voting Rights Act of 1965.
Section 2 of the Act prohibits the denial or abridgment of the right to vote on account of race, which has historically been interpreted to include the drawing of congressional districts that "crack" or "pack" communities of color in order to limit their influence.
As recently as 2023, the high court said lower courts could intervene in "instances of intensive racial politics where the excessive role [of race] in the electoral process ... den[ies] minority voters equal opportunity to participate."
MORE: Abbott threatens to oust Democrats who fled Texas over redistricting
Some Democrats have begun alleging that the Texas GOP effort (and those in other states) is racially motivated.
"They're coming in and cracking up parts of Austin voters and then merging my district with [Democratic] Congressman [Lloyd] Doggett's district, all with the intended effect of making it so that voters of color have less of a say in their elections, and so that Donald Trump gets his preferred member of Congress," Texas Democratic Rep. Greg Casar told ABC's Selina Wang on Sunday.
Former Obama attorney general turned voting rights advocate Eric Holder told ABC News "This Week" co-anchor George Stephanopoulos on Sunday he is contemplating the possibility of new litigation under the Voting Rights Act. "This really exacerbates that which they've already done and strengthens the case that we have brought," Holder said of Texas' Republicans' redistricting efforts.
A race-based challenge to any new Texas congressional map would get through the courthouse door, but it could ultimately face a skeptical Supreme Court, which has increasingly looked to eliminate any racial considerations under the Constitution.
The justices are already considering a case from Louisiana involving the competing interests of the Equal Protection Clause and Voting Rights Act when it comes to race. Plaintiffs allege race was impermissibly used to create a discriminatory districts under Section 2; opponents argue that requiring a creation of new map that explicitly accounts for race is itself a violation of colorblind equal protection.
When the court hears arguments this fall, there are signs several of the justices could seek to have Section 2 strictly limited or struck down entirely.
"For over three decades, I have called for a systematic reassessment of our interpretation of §2," wrote Justice Clarence Thomas in June. "I am hopeful that this Court will soon realize that the conflict its §2 jurisprudence has sown with the Constitution is too severe to ignore."
Ultimately, despite widespread public complaints about gerrymandering and the challenges it creates, the most likely and lasting solution may lie in legislatures and Congress.
"The avenue for reform established by the Framers, and used by Congress in the past, remains open," Chief Justice Roberts wrote in Rucho.
Proposals for fair districting criteria and independent commissions have circulated in statehouses and Congress for years.
On Monday, one Republican lawmaker — Rep. Kevin Kiley of California — introduced a bill to ban mid-decade redrawing of congressional maps nationwide. Such a proposal could halt the state redistricting "arms race" now underway if it was adopted, though that looks highly unlikely.