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 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.
Yet, while the Court’s Republican majority is normally very tolerant of biased legislative maps, 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.
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,” 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 allow states to evade judicial review of virtually any election law. 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. 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.
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.
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.
You can read Ian's full story on the Vox site here.
