Thanks to unprecedented gerrymandering battles, redistricting lawyers are busier than ever
As critical midterms loom, legions of election law lawyers are locked in nearly unprecedented conflict. Ordinarily, redistricting occurs after a census at the start of each decade; midcycle remapping for partisan advantage has happened only twice since 1970.
Not this year. With control of the lower chamber teetering on a knife edge, the White House launched the battle over the summer, with President Donald Trump telling Texas Republicans he was “entitled” to five more seats in the U.S. House of Representatives. The Texas GOP obliged in August with a new redistricting map.
California immediately sought to counterbalance Texas with new maps favoring Democrats, subject to a statewide referendum that got the green light as the state supreme court rejected GOP legislators’ petitions to halt the plan. Missouri jumped in with a redrawn district packed with pro-Trump conservatives.
Lawsuits inevitably followed, with active litigation in progress in Texas, California and Missouri over redistricting efforts. Missouri Democrats say they have nearly enough signatures to force a referendum on that state’s plan.
Unbowed, Trump called on New Hampshire to redistrict. An allied conservative political action committee, Club for Growth Action, is pressuring North Carolina, Indiana and Kansas for similar moves and has Florida and Kentucky in its sights.
While partisan professionals accelerate the redistricting push, voters aren’t so sure.
“There’s a lot of in-state pushback. It’s a destabilizing, ground-shifting process,” Democratic lawyer Abha Khanna of the Elias Law Group says.
Aiding the Republican effort are prominent conservative advocacy groups like the Public Interest Legal Foundation, led by led by J. Christian Adams, a former member of President Trump’s election integrity commission; the Dhillon Law Group, whose founder, Harmeet Dhillon, has stepped away to work at the U.S. Department of Justice; and red state attorneys general like Ken Paxton of Texas and Catherine Hanaway of Missouri.
Fighting back are counsel for the Democrats including the Elias Law Group, led by election lawyer Marc Elias, a former Perkins Coie partner; the Mexican American Legal Defense and Educational Fund, whose vice president of litigation, Nina Perales, is on the front lines battling redistricting in Texas; former Attorney General Eric Holder, a Covington & Burling senior counsel who heads the National Democratic Redistricting Committee; and California Attorney General Rob Bonta, in charge of promoting his state’s Election Rigging Response Act, designed to counter Texas.
Battlegrounds
Blame Elbridge Gerry, former vice-president who, as Massachusetts governor, signed a bill in 1812 that redrew voting districts in the state in the hopes of boosting his Democratic-Republican party’s chances against the Federalists, who were still strong in the state. One political cartoonist thought one of the newly-drawn districts looked like a contorted salamander, and the Gerry-mander was born. The gambit worked to an extent—the Democratic-Republicans did keep control of the state senate that year, but Gerry was defeated for reelection.
Politicos since have refined their cartographic skills. Today, voting registration data and artificial intelligence-enabled algorithms allow pinpoint precision in sorting the electorate for partisan advantage.
But is gerrymandering legal? What about the Voting Rights Act and the equal protection clause? That is the ever-shifting ground on which redistricting law’s shaky structure totters—ground that could become even more unsettled if the U.S. Supreme Court guts the Section 2 of the Voting Rights Act, as many commentators believe could happen after watching oral arguments in the gerrymandering case of Louisiana v. Callais take place at the high court in October.
Meanwhile, previous rulings by rulings by the Supreme Court and the New Orleans-based 5th U.S. Circuit Court of Appeals have helped set the stage for the Texas GOP’s creation of five pro-Republican districts this year.
In Rucho v. Common Cause (2019), the Supreme Court held 5-4 that federal judges had no business ruling on political redistricting questions, leaving state politicians to draw whatever lines they wished—except when racial bias violates Section 2 of the Voting Rights Act.
“Rucho closed federal courthouse doors to claims of partisan gerrymandering,” says election law authority Rick Hasen of UCLA School of Law. “It certainly created the conditions for the kind of hyper-gerrymandering that we are seeing now.”
It didn’t have to be this way, says Harvard Law School’s Nicholas Stephanopoulos.
“If we had a constitutional standard for partisan gerrymandering (with teeth), most of these recent redraws would be pretty clearly unlawful,” he said in an email, citing Justice Elena Kagan’s proposal in her Rucho dissent to bar maps that (1) were drawn with partisan intent; (2) are skewed in favor of the line-drawing party. “There’s no innocent justification for these biases,” he added.
The Texas GOP scored a second powerful win last year when the Public Interest Legal Foundation persuaded an en banc 5th Circuit court that multiracial groups, such as African Americans and Hispanics, could not form majority-minority coalition districts and then claim Voting Rights Act violations. The VRA’s Section 2 was reserved for singular racial minority groups, the winning PILF argument went.
That outcome, in a case called Petteway v. Galveston County, led directly to The Texas GOP’s belief it could legally remold four existing coalition districts into five pro-conservative congressional seats.
“It all starts with Petteway,” Adams says.
“We came in late to the case to argue that coalition claims aren’t protected by the VRA,” he says. “Our goal has long been to decouple race and politics, and it’s a noble goal.”
Opening the floodgates
With Petteway in hand, “some savvy lawyers at the [Texas] legislature saw what they could do,” Adams says. On his staff as litigation counsel is one former Texas representative, Joe Nixon, who argued against coalition districts in the Petteway case before the en banc court.
The Texas GOP then got a strong nudge from Dhillon, who is now assistant attorney general for civil rights at the Justice Department. In a July 7 letter to Texas Gov. Greg Abbott and Attorney General Paxton, Dhillon complained that the four coalition districts “constitute unconstitutional racial gerrymanders, under the logic and reasoning of Petteway.”
Texas Republicans took it from there, but pushing back hard was a coalition of civil and voting rights advocates led by the Mexican American Legal Defense and Educational Fund’s Perales, a veteran voting rights lawyer who has successfully argued at the Supreme Court against Latino vote dilution.
MALDEF has long contested that Texas’ districts are racially biased; its leading suit, known as League of United Latin American Citizens v. Abbott, has been in progress since 2021. When the new Texas plan passed, Perales and colleagues updated their complaint.
“The GOP’s reading of Petteway is just wrong,” says the Elias Law Group’s Khanna, the head of the firm’s redistricting practice. She says the firm’s dozen or so lawyers are actively involved in cases in five states, Texas included.
“Unprompted mid-decade redistricting is disruptive and destabilizing, and voters are watching. I share Marc [Elias]’s optimism about our chances of success,”
California was first to clap back. Rumors of Texas’ plot to engineer more GOP House seats reached Rep. Zoe Lofgren, D-Calif., the lawyer-politician who chairs California’s 43-member Democratic delegation. She first bluffed a retaliatory move, hoping to deter the Texas GOP. When that didn’t work, California went all in to grab five Democratic districts.
The redistricting race was on. Yet it’s unlikely to be the final word, because the Supreme Court’s forthcoming opinion, expected in June, in an important Voting Rights Act case over race-based district mapping could again tilt the scales.
Hasen thinks that in Callais, the justices could enable racial gerrymandering by neutering the VRA’s Section 2. Such a monumental move, he predicts, “would change the nature of congressional, state and local elections all across the country, and likely stir major civil rights protests as the midterm election season heats up.”
John Roemer is a legal affairs journalist in California.
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