On June 9, the New York Times reported that the White House would be encouraging Texas to redraw its Congressional districts ahead of the 2026 midterm elections. Weeks later, the Texas House of Representatives Committee on Redistricting voted to advance a redrawn congressional map likely to create five more Republican-leaning seats.
This past Sunday, Texas Democratic legislators left the state in an attempt to stall the vote to approve the redrawn districts. By Monday afternoon, the Texas House of Representatives had voted 85-6 to locate and arrest the absent lawmakers.
The Texas redistricting controversy has already begun to motivate states with large Democratic majorities, including New York and California, to examine similar options ahead of the 2026 midterm elections. According to Kirkland & Ellis Professor of Law Nicholas Stephanopoulos, however, state-specific election laws would make redistricting in these and other jurisdictions a much more daunting challenge.
With the Texas redistricting saga still unfolding, Stephanopoulos met with Harvard Law Today to explain redistricting, gerrymandering, and the legal standards underlying our American democracy in action.
Harvard Law Today: Can we start by reviewing where we are today? Why have Democratic legislators in Texas exited the state?
Nicholas Stephanopoulos: Texas currently has a district map in place that was adopted based on the 2020 census. It’s a map somewhat biased toward Republicans, but not as brutally biased toward Republicans as it could be. Republicans are trying to squeeze out more House seats nationwide in a hope they will be able to hold their existing House majority even if the 2026 election doesn’t go well for them. Redrawing the Texas map and flipping it from a moderately pro-Republican map to a savagely pro-Republican map is part of that strategy. If Republicans can achieve their goal of netting out three, four, or five more seats from Texas, that would really help them keep control of the U.S. House.
The Democrats in Texas, on the other hand, are the minority party. They don’t have a lot of leverage, but one thing they can do is walk out and deny Republicans the quorum needed to pass any legislation. Texas Democrats are essentially using the one tool they have to either temporarily, or maybe even permanently, stop this from happening by leaving the state in order to deny Republicans the quorum that they need to enact the gerrymander.
HLT: If states are interested in a particular partisan outcome at the federal level, are they allowed to redraw districts to make their preferred outcome more likely?
Stephanopoulos: Yes, thanks to a really awful Supreme Court decision that I was heavily involved in litigating on the losing side six years back. In Rucho v. Common Cause, the Supreme Court voted 5-4 that all partisan gerrymandering disputes are nonjusticiable and federal courts cannot hear those cases. With courts unable to grant relief in those cases, there is effectively no federal limit on gerrymandering. Legally speaking, redrawing the lines every two years instead of every 10 years is totally fine. Using computers to draw maximal gerrymanders is totally fine. Drawing noncontiguous districts that unite little bubbles of people in different parts of the state is totally fine. These practices are antithetical to democracy, but totally legal according to the Supreme Court.
HLT: What is gerrymandering?
Stephanopoulos: Gerrymandering is when district lines are drawn with the goal, and usually the effect, of benefiting one party. Partisan gerrymandering, for instance, is essentially some combination of partisan intent and partisan effect. Racial gerrymandering is another form; however, I should clarify that there are really two different theories that relate to race and redistricting. The analog of partisan gerrymandering in the racial context is actually known as “racial vote dilution,” not “racial gerrymandering.” Racial vote dilution is similar to partisan gerrymandering and typically refers to reducing the electoral influence of a group of minority voters by drawing district lines in a way that disadvantages those minority voters. What really confuses things is that there’s then also a separate doctrine called “racial gerrymandering.” It’s a constitutional doctrine, not a statutory doctrine. Racial gerrymandering just refers to excessively taking race into account when drawing district lines, independent of the actual consequences for representation.
Often people talk about racial gerrymandering when they really mean racial vote dilution, that is, reducing the electoral power of Black voters, Latino voters, etc. Very often, though, it’s white voters who invoke racial gerrymandering claims as the basis to challenge districts drawn with the goal of enfranchising minority voters. It’s very confusing where one race-related claim involves the representational consequences of redistricting and the other race-related claim involves the extent to which race itself happens to be a factor in redistricting. These two claims are often at odds with each other and often point in quite different directions.
HLT: On what grounds are challenges to gerrymandering typically brought?
Stephanopoulos: Under the aforementioned Rucho decision, partisan gerrymandering is legally fine under the federal Constitution. There are not any legal claims you can make against redistricting if the sole basis for challenging a district map is partisan gerrymandering. In Texas, the majority has likely taken care to ensure that all the districts in their proposed gerrymander have exactly the same population, for instance, to prevent challenges on “one vote” grounds. They will likely be prepared to defend the map on racial gerrymandering and vote dilution grounds, should those arise. I think they will likely face challenges on vote dilution grounds, which is probably the most plausible claim against the map. Comparing the maps, the redraw clearly alters “majority-minority districts” or coalitions of Black and Latino voters. The new map eliminates many of those districts and replaces them with either plurality or majority white districts. So, there may be a Voting Rights Act claim; however, I think Texas is hoping or expecting that the federal courts are not going to seriously enforce the Voting Rights Act. There was an earlier decision in the Fifth Circuit about a year ago or so that held plaintiffs aren’t allowed to bring claims for so called coalition districts. Since coalition claims aren’t permitted in the Fifth Circuit, Texas has now said we’re going to dismantle the coalition districts in Texas. So, I do think they are gambling on avoiding liability under the Voting Rights Act. I’m sure there will be a challenge, but they’re hoping they can win that challenge.
I’ll add that in other states, partisan gerrymandering is recognizable as a constitutional problem under the state constitution. So, in the wake of the U.S. Supreme Court’s ruling in 2019, a whole bunch of states have said that under our state constitution, partisan gerrymandering can be unconstitutional, but Texas is not one of those states. Texas has a 100% Republican state Supreme Court, and so nobody thinks that a state partisan gerrymandering case in Texas would go anywhere. That distinguishes Texas from a dozen or more other states where you could challenge a map on partisan gerrymandering grounds.
HLT: How often are districts redrawn with overt partisan objectives? How common is redrawing districts mid-decade?
Stephanopoulos: Redrawing districts for partisan purposes at the beginning of a decade is, unfortunately, absolutely common. What has been much more uncommon in modern times is partisan mid-decade partisan redistricting; that is, redrawing the lines for partisan purposes when you’re otherwise under no obligation to redraw the lines. There was a famous case in Texas about 20 years ago where their court-drawn plan for the 2000 election was revised after Republicans then took control of the Texas State Government in 2002. They revised and released an aggressive, redrawn partisan gerrymander. In 2006, the Supreme Court allowed that map to stand. There are a couple other minor examples of mid-decade redistricting, but in recent memory Texas has been by far the most frequent and most impactful. I should also note, however, that this kind of mid-decade redrawing was a lot more common in previous eras of American history. In the Gilded Age, states would redraw their maps all the time for partisan reasons. Lines were never stable and, as a result, representation shifted constantly. Regrettably, it seems we’re now heading back toward the redistricting world of 1880 or 1890 where both sides gerrymander without any constraints.
“In the Gilded Age, states would redraw their maps all the time for partisan reasons … Regrettably, it seems we’re now heading back toward the redistricting world of 1880 or 1890 where both sides gerrymander without any constraints.”
HLT: Have Democratic majority states, or other Republican majority states, undertaken redistricting efforts as well?
Stephanopoulos: California, for example, could easily draw a dramatically more pro-Democratic map that would more than offset the new Texas gerrymander. In its state constitution, however, California has a requirement that an independent commission draw district lines. So, California would have to figure out some way to amend the state constitution on very short notice in order to get a Democratic gerrymander. California Governor Gavin Newsom seems like he wants to try to do that, but California has a much more challenging puzzle to solve than Texas, where they can simply pass a law to approve the redistricting. There are similar safeguards in other blue states, like New York, Washington State, and Colorado that would make it hard for Democrats to fight fire with fire. It could be done, maybe, but it’s not easy to do it in those places.
Florida has a rule against partisan gerrymandering, but Governor Ron DeSantis has appointed 100% of the state Supreme Court, which has made it pretty clear it does not intend to enforce the state prohibition of partisan gerrymandering. Florida already has a heavily gerrymandered map and could go even further. Ohio is actually required to undertake mid-decade redistricting, and you could probably squeeze out another two Republican seats there. If Texas can do it, there’s no reason why other states can’t also do it. I think we’re heading toward a world where we might quickly have more aggressive gerrymanders, certainly on the Republican side and maybe also offsetting that in places like California on the Democratic side.
HLT: Is partisan-motivated redistricting consistent with how election law in the U.S. is supposed to work?
Stephanopoulos: It’s highly contested how election law is supposed to work. In a book I recently wrote, I argue that the point of election law should be to give us a government that gives us government policy reflective of what people want. Under that perspective, aggressive gerrymandering is one of the most distorting, misaligning forces that exists in modern American politics. If you agree with my position — that the point of election law is to be aligning — the issues that have arisen recently are terribly concerning because misalignment is the essence of gerrymandering. This is a practice that drives an inherent wedge between what people want from the government and what the government actually does for them. While this is difficult to reconcile from an alignment standpoint, the Supreme Court has essentially said that alignment is not part of our Constitution, and these types of gerrymanders don’t outright disenfranchise anybody. The Supreme Court’s vision of election law apparently views gerrymanders as a longstanding characteristic of American democracy, but by no means a bug in the system. Existing precedent, which states are bound to uphold, essentially instructs that as long as the plain text of the U.S. Constitution has not been explicitly violated, keep doing what you’ve always historically been doing. The current state of affairs does not seem problematic to the current Roberts court.
“Gerrymandering is a practice that drives an inherent wedge between what people want from the government and what the government actually does for them.”
HLT: In Allen v. Milligan, the U.S. Supreme Court upheld the constitutionality of Article 2 of the Voting Rights Act, the prohibition on voting systems that discriminate against recognized minority classes of race, color, or language. What was the central issue in that case and what was the challenge based on?
Stephanopoulos: Milligan was primarily a statutory case, not a constitutional case. In Milligan, Alabama advocated a new standard for deciding whether a plaintiff can win a vote dilution claim under Section 2 whereby new maps would be compared to the representation minority groups would likely win under neutral or race-blind district map. Under that standard, liability would only be possible if the status quo was worse than a race-blind benchmark. But Alabama lost, and since Milligan, litigants have been able to continue to offer race-conscious alternative maps for comparison. A departure from that standard would have had the effect of making Section 2 claims much, much more difficult to win across the country. In Milligan, the Supreme Court essentially preserved existing doctrine and rejected the new attempt to apply a race-blind baseline. Milligan was a very dramatic decision because, for the first time in a long time, the voting rights plaintiffs won in front of the Supreme Court. Milligan didn’t technically move the existing standard, but it prevented existing tests from being altered.
HLT: On Friday, the Supreme Court announced updates on the questions it will consider at issue for the upcoming Louisiana v. Callais decision. What do those updates implicate in terms of voting rights precedent?
Stephanopoulos: In Milligan, which preceded Callais, Justice Kavanaugh sided with the 5-4 majority. However, he wrote a concurrence essentially saying that his agreement to cast the fifth vote in favor of upholding the law, in this case, was limited to the arguments before the Court. He basically said that he is interested in examining whether circumstances have changed so much since 1982 that even though Section 2 was lawful when it was first adopted 30 or 40 years ago, perhaps now it is obsolete and unconstitutional. In Callais, the plaintiffs are making that exact argument that Section 2 of the Voting Rights Act is now obsolete and can no longer justify any kind of race-conscious redistricting in Louisiana. Friday’s order from the Supreme Court said it wants to get briefing on exactly that issue.
The issue as now presented is exactly the issue that Kavanaugh said he wanted to consider in the future, in his Milligan concurrence. This is deeply, deeply threatening to Section 2. The logic of the argument that the concurrence floated is just that Section 2 is now unconstitutional because it’s obsolete, vote dilution claims under federal law should no longer exist, and race-conscious redistricting should no longer be allowed. So, Callais has morphed from kind of a garden variety racial gerrymandering case into now possibly a huge blockbuster, landmark case with an outcome that could put Section 2 of the Voting Rights Act in serious jeopardy. Just as Shelby County v. Holder invalidated Section 5 of the Voting Rights Act a decade ago.
HLT: If the Supreme Court overturns Milligan in the upcoming Callais decision, what would the impact be?
Stephanopoulos: The most immediate consequence of that ruling would be dozens, maybe hundreds, of districts everyone assumes are required by Section 2 could be eliminated. Take a state like Louisiana, the state at issue in Callais, that had one Black majority district since the 1990s. There was an effort in litigation over the last couple of years to get a second Black majority district in Louisiana, but all of those efforts were under Section 2. Without Section 2, nothing is stopping Louisiana from replacing those two Black majority districts with an all-white, all-Republican congressional delegation. The same thing would be true in South Carolina, Alabama, Mississippi, and Tennessee and many other jurisdictions. If there is no legal requirement to guard against vote dilution, many states will seize the opportunity to engage in widespread vote dilution for partisan purposes. I think we’ll see substantial redistricting to get rid of these majority-minority districts that currently exist but would no longer be protected if Section 2 is found unconstitutional.
HLT: What is the specific legal basis for challenging the addition of a majority-minority district on 14th or 15th amendment grounds?
Stephanopoulos: What’s a little tricky is we don’t know whether the Voting Rights Act will be reexamined under doctrine about Congress’ authority to enact legislation or a claim that the act itself violates the Equal Protection Clause for being overly race-conscious. The Court could essentially say that Congress has no authority to enact the Voting Rights Act because there’s not a sufficient fit between the Voting Rights Act and the kinds of problems that Congress is authorized to tackle under the 14th and 15th amendments. Or the Court could say that the VRA itself classifies by race and doesn’t survive strict scrutiny. The second of those potential holdings would be even more radical and would potentially threaten state-level voting rights acts across the country. The first holding would be more about what powers Congress does and doesn’t possess.
Both would be catastrophic, massive earthquakes for American election law for minority representation, and for American democracy. The pure equal protection holding is probably more threatening because it also calls into doubt non-federal action, whereas the holding about Congress’s authority wouldn’t immediately necessarily threaten things that other non-federal actors are doing.
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