When the Supreme Court’s Republican-appointed majority approved Texas’ congressional map last month, it did so on the grounds that the GOP-backed effort was motivated by politics, not improper racial considerations.
In an unsigned order, the majority observed that, ahead of the 2026 midterm elections, “Texas adopted the first new map, then California responded with its own map for the stated purpose of counteracting what Texas had done.” Justice Samuel Alito wrote in a concurring opinion that “the impetus for the adoption of the Texas map (like the map subsequently adopted in California) was partisan advantage pure and simple.”
Against that backdrop, it would seem that the high court is similarly poised to green-light California’s map, approved by voters under a measure called Proposition 50, which is likely to flip five congressional seats from Republicans to Democrats in the Democratic-led state.
The California litigation moved a step closer to a Supreme Court resolution Wednesday, when a divided three-judge panel declined to block the map, teeing up a Republican appeal to the justices. Notably, both the two-judge majority (both Democratic appointees) and the dissenting judge (a Trump appointee) cited the Supreme Court’s Texas ruling as backing their respective sides.
The majority opinion authored by Judge Josephine Staton quoted from Alito’s concurrence in the Texas case, writing: “Having carefully reviewed and weighed the relevant evidence, we find that the evidence presented reflects that Proposition 50 was exactly what it was billed as: a political gerrymander designed to flip five Republican-held seats to the Democrats. In other words, the ‘impetus for the adoption’ of the Proposition 50 Map was ‘partisan advantage pure and simple.’”
In his dissent, Judge Kenneth Lee wrote that he wanted to address “the elephant in the room: The Supreme Court stayed the district court panel’s decision preliminarily enjoining Texas’ redistricting map that potentially added five more Republican seats. Why does that Supreme Court order not control here?”
Lee sought to distinguish the Texas case from the California case. He said that, unlike in Texas, the plaintiffs challenging the California map have “rebutted the presumption of good faith” owed to the state and that California had engaged in illegal racial gerrymandering. He also said that, unlike in the Texas case, there are viable alternative maps available in California.
Those points led Lee to conclude that the panel majority in the California case is “defying the rationale of the Supreme Court’s order” in the Texas case by refusing to block California’s map, which he called racially gerrymandered. Lee has thus provided a guide for the high court majority, if it’s inclined to go back on what it suggested it would do for California when it approved Texas’ map. According to Lee, of course, it wouldn’t be going back on what the justices said in the Texas case but rather would be consistently applying the same principles to different maps. At any rate, the inescapable reality of the situation, plainly apparent to the proverbial “man on the street” whom Chief Justice John Roberts has invoked when seeking to make a commonsense point in election cases, is that going Lee’s route would let Republicans redraw a key map while blocking Democrats from doing the same ahead of the crucial midterm elections. It’s a route the Supreme Court strongly suggested it wouldn’t take when it issued the Texas ruling. There, the clear message was that the court would let both sides of the political aisle play politics. But we’ll have to see what the justices say when the California case is inevitably appealed to them. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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