Last month, a federal court in Texas ruled that a Republican gerrymander, expected to give the GOP five extra seats in the US House, must be struck down because of incompetent lawyering by President Donald Trump’s Justice Department.
In August, at Trump’s urging, Texas Republicans redrew their state’s congressional maps to make them much more friendly to the GOP. This led Democrats to push for retaliatory gerrymanders in blue states. California voters backed a ballot referendum allowing that state to redraw its maps to make them more Democratic, and Virginia may also redraw its maps once Democrats take full control of its government this winter.
These transparent attempts to rig congressional elections to benefit one party or the other are permissible largely because of the Republican justices’ decision in Rucho v. Common Cause (2019), which held that federal courts may not intervene to prevent partisan gerrymandering.
Key Takeaways
- A federal court struck down Texas’s Republican gerrymander because of a Justice Department letter telling Texas to draw an illegal racial gerrymander.
- Texas asks the Supreme Court to reinstate the maps for two reasons, one of which has alarming implications.
- If Texas prevails on its most radical argument, it could allow states to immunize virtually any election law from judicial review.
Yet, while the Court’s Republican majority is normally very tolerant of biased legislative maps — they are expected to eliminate the Voting Rights Act’s safeguards against racial gerrymandering in the Court’s current term — most of the Republican justices still believe that one form of gerrymandering is not allowed. As Justice Samuel Alito wrote in Alexander v. South Carolina NAACP (2024), “if a legislature gives race a predominant role in redistricting decisions, the resulting map is subjected” to the most skeptical level of constitutional scrutiny.
This matters because, as Texas Republicans were trying to decide whether to redraw the state’s maps earlier this year, Trump’s Justice Department wrote a letter threatening to sue the state unless it enacted an illegal racial gerrymander. The letter claimed, falsely, that it is illegal for a state to draw any map that includes a district where white people are in the minority, and two other racial groups make up the majority. DOJ told Texas that it must redraw its congressional maps to eliminate several districts that fit this description.
The Justice Department, in other words, effectively ordered Texas to give race a predominant role when it redrew its maps — changing the configuration of several districts in order to change their racial composition. Several key Texas officials, moreover, cited this letter as justification for the new maps. Governor Greg Abbott, for example, told the legislature to consider “legislation that provides a revised congressional redistricting plan in light of constitutional concerns raised by the U.S. Department of Justice” in a special session.
Given this evidence that Texas impermissibly assigned voters to congressional districts because of their race, a federal court struck those maps down in League of United Latin American Citizens (LULAC) v. Abbott.
This case is now before the Supreme Court, with Texas asking the justices to reinstate its Republican gerrymander. Given the Republican Party’s 6-3 majority on the Court, it is likely that Texas will succeed.
The case arises on the Court’s “shadow docket,” a mix of emergency motions and other matters that the justices often decide without full briefing or oral argument, or even without issuing an opinion explaining their decision. So the Court could rule on Texas’s request at any time.
In the likely event that Texas prevails, it still matters a great deal how it prevails in the Supreme Court. Broadly speaking, Texas’s lawyers make two arguments to the justices. One is a fairly normal argument: there is also a bunch of evidence that Texas redrew its maps for political, and not racial, reasons. And so, Texas’s lawyers argue that the justices should focus on this evidence and ignore the DOJ’s letter and any statements from Texas officials who agreed with that letter.
Texas’s other argument, however, is extraordinarily dangerous. If taken seriously by the Supreme Court, it would give states virtually limitless power to rig elections in ways that blatantly violate the Constitution.
Texas’s dangerous argument, explained
If the Republican justices want to bail out their party without handing down a decision with broad legal implications, they can do so by focusing narrowly on the facts of the LULAC case. There is considerable evidence on both sides of the case: Texas points to various facts which suggest that it redrew its maps solely to benefit Republicans, while the plaintiffs point to the DOJ’s letter and related evidence showing that race played a central role in the state’s decision to redraw the maps.
A narrow decision in Texas’s favor would emphasize the former evidence, while downplaying the significance of the DOJ’s letter.
But Texas’s lawyers also make another argument that would allow states to evade judicial review of virtually any election law, even laws that clearly violate the Constitution or that explicitly seek to rig elections. And, given some of the justices’ past rulings in similar election cases, there is a very real risk that this Court will embrace this argument.
In Purcell v. Gonzales (2006), the Supreme Court issued a vague warning that judges should be reluctant to alter a state’s election procedures as the election draws close. Court orders changing these procedures, Purcell warned, “can themselves result in voter confusion and consequent incentive to remain away from the polls.” And “as an election draws closer, that risk will increase.”
It’s hard to argue with this basic point, at least in the abstract. If a court were to change, say, where polling places are located or what documentation a voter must show to cast a ballot, and if it did so a week before an election, many voters might be disenfranchised because they were unaware of these changes and did not know what they needed to do in order to vote.
But the lower court’s order in LULAC was handed down on November 18, nearly a full year before the 2026 midterm elections. So it is hard to imagine how Purcell could play any role whatsoever in this case.
Nevertheless, Texas’s lawyers claim that a court order handed down a year before a general election triggers Purcell. Among other things, they note that Texas currently is scheduled to hold primary elections for Congress on March 3, 2026, and that the current filing deadline closes on December 8, 2025. So, unless the Supreme Court lifts the lower court order, these deadlines would be disrupted.
It is unclear why the lower court couldn’t simply move these deadlines. There’s nothing in the Constitution that requires Texas to hold its primary elections in March.
The implications of Texas’s argument — that courts cannot block unconstitutional state election laws up to one year before a general election — are breathtaking. For one thing, it is doubtful that either the plaintiffs in LULAC or the lower court could have moved faster even if they wanted to.
Abbott signed the Texas gerrymandering bill into law on August 29; the LULAC plaintiffs actually filed their motion seeking to block that law one day before Abbott signed it, on August 28. Like many redistricting cases, LULAC required the lower court to consider piles of evidence and expert testimony.
The case was heard by a three-judge panel, and the two judges in the majority produced a 160-page opinion evaluating all this evidence. In a break from the judiciary’s ordinary practice, they also issued this opinion before dissenting Judge Jerry Smith’s rival opinion was ready — most likely so the majority could get the decision out quickly in order to avoid Purcell. Smith’s later-issued dissent was 104 pages.
Both the plaintiffs and the lower court, in other words, appear to have moved as fast as they possibly could have moved. If Purcell applies to LULAC, it could mean that any election law enacted up to 15 months before a general election could not be blocked by federal courts. A state might cancel its congressional elections altogether and assign all of its seats to one party or the other. Or it might draw single-person districts consisting solely of a Republican candidate for the US House.
And then, when the next election cycle rolls around, it could enact a new law that does the same thing with slightly different wording 15 months before the election — and that law would potentially be immune from judicial review as well.
Some members of the Court have used Purcell to achieve absurd results
The idea that courts are forbidden from hearing challenges to a state’s election laws a year or more before an election takes place may seem so absurd that no judge would take this argument seriously. But this Supreme Court has given serious consideration to similar arguments in the past.
In Merrill v. Milligan (2022), for example, a 5-4 Supreme Court blocked a lower court order requiring Alabama to redraw its congressional maps. That lower court order was handed down in late January 2022, so about nine months before the 2022 midterms.
Although most of the five justices in the Merrill majority did not explain themselves, Justice Brett Kavanaugh wrote a brief concurring opinion, joined by Justice Samuel Alito, which argued that the lower court’s order violated Purcell. “State and local election officials need substantial time to plan for elections,” Kavanaugh claimed. And apparently they needed so much time that they must be given a nine-month window where their election laws enjoy broad immunity from judicial review.
In fairness, Kavanaugh also wrote that he would make an exception to his nine-month moratorium on enforcing the Constitution and federal election law if the case was “entirely clearcut in favor of the plaintiff.” So even he probably would not allow a state to cancel its elections altogether and assign congressional seats to whichever party controls the state legislature. But so long as the state can raise a vaguely plausible argument for its maps, Kavanaugh’s moratorium would hold.
Notably, the Supreme Court eventually did consider this challenge to Alabama’s maps on the merits, and it agreed with the lower court that the maps were illegal.
The fact that two justices signed onto a nine-month moratorium on court orders blocking state election laws in Merrill suggests that Texas could succeed in its request for a 12-month moratorium. At least some members of the Court have already signalled that the Purcell window is big enough to swallow up almost an entire election year.
Again, it is unlikely that this Supreme Court will agree with a lower court decision that could cost the Republican Party five US House seats. But Texas’s Purcell argument risks neutralizing constitutional protections against voter disenfranchisement altogether. Hopefully, even this Supreme Court has the sense not to go there.
