In the case of Texas, it’s a race against politics on the Supreme Court

Washington – The Texas redistricting case now before the Supreme Court turns to a question that often divides the justices: Are voting districts drawn based on politics or race?

The answer, likely to come within days, could change five congressional seats and take political control of the House of Representatives after next year’s midterm elections.

Justice Samuel A. Alito, who oversees the appeals from Texas, issued a temporary stay on a judicial order that marked the new Texas voting map as a “racial gerrymander.”

State lawmakers asked for a decision by Monday, noting that candidates have until Dec. 8 to file for the election.

They said the justices violated the infamous Purcell rule by making major changes to the electoral map “midway through the candidate filing period” and that it only asked for a restraining order.

Texas Republicans argue that the court’s conservative majority will support them.

“We begin with the presumption that the legislature acted in good faith,” Alito wrote for a 6-3 majority in the South Carolina case last year.

The state’s Republican lawmakers moved tens of thousands of black voters into or out of newly drawn congressional districts, saying they did so not because of their race but because they were more likely to vote Democratic.

In 2019, conservatives upheld partisan gerrymandering by a 5-4 vote, ruling that drawing election districts is a “political question” left to states and their lawmakers, not judges.

All of the justices—conservative and liberal—say that drawing districts based on the race of voters violates the Constitution’s ban on racial discrimination. But conservatives say it’s hard to separate race from politics.

They also appear poised to limit access to the Voting Rights Act in a pending case from Louisiana.

For decades, civil rights laws sometimes required states to draw one or more districts that would give black or Latino voters a fair chance to “elect the representative of their choice.”

The Trump administration joined the support of Louisiana Republicans in October, claiming that the Voting Rights Act was “deployed as race-based affirmative action” that should end.

If so, election law experts warned that Republican-led states in the South could wipe out the districts of dozens of black Democrats who serve in Congress.

The mid-decade Texas reorganization case does not appear to have generated a major legal controversy because the partisan motivations were so obvious.

In July, President Trump asked Texas Republicans to redraw the 38th congressional district map to flip five seats to remove Democrats and replace them with Republicans.

Control of the closely divided House was at stake after the 2026 midterm elections.

Governor Greg Abbott agreed, and in late August, he signed into law maps with redistricting in Houston, Dallas, Fort Worth and San Antonio.

But federal judges last week, in a 2-1 decision, blocked the new map from taking effect, ruling that it appeared illegal.

“The public perception of this case is that it’s about politics.” U.S. District Judge Jeffrey V. Brown wrote the initial 160-page opinion. “To be sure, politics played a role” but “substantial evidence shows that Texas has set the 2025 map racially.”

He said the strongest evidence came from Harmeet Dhillon, the Trump administration’s top civil rights attorney at the Justice Department. She sent a letter to Abbott on July 7 threatening legal action if the state didn’t abolish four “coalition districts.”

The term, which was largely unknown, refers to districts where no ethnic or racial group has a majority. In one Houston district that was targeted, 45% of eligible voters were black and 25% were Latino. In the adjacent district, 38% of voters were black and 30% were Latino.

She said the Trump administration sees it as “unconstitutional racial gerrymandering,” referring to a recent ruling by the conservative 5th Circuit Court.

The Texas governor then cited these “fundamental concerns raised by the United States Department of Justice” when he called for a special session of the Legislature to redraw the state’s map.

Voting rights advocates saw the violation.

“They said their goal was to get rid of coalition districts. And to do that they had to draw new districts along racial lines,” said Chad Dunn, a Texas attorney and legal director of the UCLA Voting Rights Project.

Brown, a Trump appointee from Galveston, wrote that Dhillon was “clearly wrong” to believe the coalition districts were unconstitutional, and he said the state was wrong to rely on her advice to redraw its electoral map.

He was joined by a Second District judge who blocked the new map and asked the state to use the 2021 map prepared by the same Texas Republican.

The third judge on the panel was Jerry Smith, who was assigned to Reagan’s Fifth Circuit Court, and he issued a 104-page dissent. Much of it was devoted to attacking Brown and liberals like 95-year-old investor and philanthropist George Soros and California Governor Gavin Newsom.

“In 37 years as a federal judge, I have served on over 100 three-judge panels. This is the most transparent exercise of judicial activism I have ever seen,” Smith wrote. “From Judge Brown’s point of view, the real winners are George Soros and Gavin Newsom. The obvious losers are the people of Texas.”

“The obvious reason for the 2025 redistricting is, of course, a partisan gain,” Smith wrote, “Judge Brown seriously errs in concluding that the Texas Legislature is more partisan than political.”

Most federal cases go to a district judge, and they may be appealed first to the U.S. Court of Appeals and then to the Supreme Court.
Election-related cases are different. A three-member panel assesses the facts and issues a ruling, which then goes directly to the Supreme Court to be upheld or rejected.

Late Friday, Texas prosecutors filed an urgent appeal and asked the justices to halt Brown’s decision.

The first paragraph of their 40-page appeal noted that Texas is not merely pursuing political advantage by drawing its electoral maps.

“California is working to add a Democratic seat to its congressional delegation to open new Texas districts, despite Democrats already controlling 43 of California’s 52 congressional seats,” they said. they said

They argued that “the last-minute confusion in state election procedures—and the confusion among candidates and voters—demonstrates the need to overturn the lower court’s decision.”

Election lawyers question this claim. “This is a problem of Texas’ own making,” said Justin Levitt, a professor at Loyola Law School in Los Angeles.

The state opted for a fast-track, mid-decade redistricting at the behest of Trump.

On Monday, Dunn, the Texas voting rights attorney, responded to the state’s appeal and told the justices they should reject it.

“The election is a year away. No one will be confused using the map that has governed Texas congressional elections for the past four years,” he said.

“The governor of Texas called a special session to eliminate districts because of their racial makeup,” he said, and the justices heard clear and detailed evidence that lawmakers did just that.

In recent election disputes, however, the Court’s conservatives have repeatedly invoked the Purcell principle to free states from new judicial rulings that occurred too close to elections.

A stay would allow Texas to use its new GOP-friendly map for the 2026 election.

The justices could then hear arguments on the legal questions early next year.