Dem
47
GOP
53
The Supreme Court continued to wreak havoc on the American legal system and electoral system through its use of the shadow docket. In yet another unsigned edict, written in record time and once again excoriating the careful work of the three-judge panel on the lower court (written by a Trump appointee), the Court gave Donald Trump and Texas a free hand to draw new maps regardless of the evidence of racial discrimination.
On Thursday, the Supreme Court granted a stay of the Texas district court's ruling striking down Texas' new 2025 maps as an illegal racial gerrymander. In doing so, the Court did what they always do, which is to give Trump a win without actually ruling on the merits of the case. But even worse is they've thrown the entire jurisprudence around race discrimination in elections into disarray without, of course, acknowledging any of it.
The opening paragraph is the clearest indication of how this Court's partisan majority views its role. They make the practice of mid-decade redistricting sound so mundane as if the fact that several other states have caved to Trump's pressure, along with California's response, somehow inoculates Texas from any finding of wrongdoing. It shouldn't matter, but in fact it is rare and Texas started it.
Associate Justice Elena Kagan's short dissent is worth a read because it reminds us of where we were this past summer when Trump's pressure campaign on Texas to redraw its Congressional maps began. At that point, no other states were contemplating mid-decade redistricting. Gov. Greg Abbott (R-TX) and the Texas legislature were reluctant to do a blatant political gerrymander because: (1) they just redrew the maps in 2021 after the 2020 census and had heavily gerrymandered them then; and (2) politicians choosing their voters in a mid-decade gerrymander is very unpopular and could backfire. So, they put their heads together and came up with an ingenious plan. Harmeet Dhillon, Trump's former personal attorney, who is now heading up the DoJ's Civil Rights Division, would send a threatening letter to Abbott saying that the 2021 map violates the Voting Rights Act because it contains so-called "coalition districts"—districts that are drawn to allow majority-minority districts where one race does not predominate.
It was all a ruse, of course, because coalition districts are legal, and no one disputes that. Nevertheless, this gave Texas the political cover it felt it needed to obey Trump's demand. So, the legislature redrew the Congressional maps, ostensibly in response to CRD's threats, to remedy the alleged violations: They erased the coalition districts and drew three districts that were either majority-Hispanic or majority-Black that barely make it past the 50% mark (further diluting minority votes), which all just happened to wipe out five Democratic Congressional seats. Mission accomplished.
What's especially pernicious about the five paragraphs it took for the Court to erase the district court's careful work in sifting through all the evidence after 9 days of hearings and countless witnesses is that it doesn't dispute that race drove Texas' redistricting process. Instead, the majority relies on two laughably lame excuses, which they don't even bother to support with legal or factual references (in fact, the one case cited is to a Supreme Court case that holds the opposite!). The Court said it was staying the district court's decision because it failed to give Texas the benefit of the doubt, or a presumption of good faith (in fact, the court did, but direct evidence overcame it) and continued the case despite the plaintiffs' failure to include their own map.
Associate Justice Samuel Alito's concurrence, which is not the majority opinion, also claims that the court should not have gotten involved because Texas is in an "active primary campaign." Which begs the question of what time period is not an "active primary campaign" and also ignores the fact that Texas finalized this map in August and the lawsuit was brought even before Abbott signed off on it. The parties and the court moved with lightning speed. But according to Alito (and Associate Justices Neil Gorsuch and Clarence Thomas, who joined his three paragraphs of searching and thorough analysis), state legislatures should deliberately wait until the last minute to draw unconstitutional maps to avoid judicial scrutiny. Alito fails to mention that the 2021 Texas map will still be used for a January special election to fill Rep. Sylvester Turner's seat. And the Court hasn't yet ruled on a Voting Rights Act case that will impact Louisiana's maps. Perhaps those factors explain why his is just a concurrence.
But more importantly and ominous is the Court's clear edict to lower courts: Let Republicans choose their voters even if they violate the Fifteenth Amendment to do it. To the Texas district court: Just ignore all the political maneuvering and the CRD's "threat" as cover—we know what they were really doing, which is to guarantee five more Republican seats to satisfy Trump's demand. The fact that Texas also broke up coalition districts and further diluted minority votes was just icing on the cake, but not their true purpose. Nothing to see here.
Because this order is just a stay pending an appeal of the lower court's order, the Court could later take it all back and decide the case differently on the merits. By then, of course, the issue will be moot and the 2026 midterm elections will have been held under the new, 2025 Texas map. In fact, the order says that if Texas abandons its appeal (which will magically happen after the election if all goes according to plan), the Court's order will "terminate automatically." How convenient. This Court's cynicism knows no bounds. One wonders whether the lower courts will bother to keep holding hearings and gathering evidence to actually rule based on the law and facts and will instead simply ask the Supreme Court what result it wants and work backward from there.
In the end, all these machinations probably won't make any difference and could backfire spectacularly, especially with the once-reluctant Abbott now crowing about how entrenched Republicans' power is in Texas thanks to this decision. Does he think that suddenly there's an appetite for rigged elections or maybe since California responded, it's TX v. CA? It's a risky bet.
And can anyone really take this Court seriously anymore as an unbiased and independent arbiter of the law? They didn't have to get involved here, but they obviously saw that the case against California's map has no merit and so decided to let the Texas map stand, the Fifteenth Amendment be damned. And the shadow docket is the perfect vehicle since they can play politics in five short paragraphs devoid of legal substance.
It's always risky to try to read the tea leaves with this Court, but it seems obvious where this is going: The VRA is toast. Mid-decade redistricting had been rare, but the Court seems to be not only encouraging it but also sanctioning any method to keep Republicans in power, including overt violations of the Fourteenth and Fifteenth Amendments to the Constitution.
The Court stayed out of the 2020 election fights. We are not alarmists here, but this is the clearest signal we've seen yet that the Court may not sit the next one out. With each decision, this court seems to show its willingness to interfere in elections to ensure the outcome it wants. Maybe they've convinced themselves that no one can hold them accountable or that Democrats will pursue major reform if they ever get back in control again and, like Trump, they'll do all they can to retain power. These are dark days, indeed. (L)