A sudden war over redistricting has broken out in Texas and looks to spread across the country, with California, New York and elsewhere considering tit-for-tat Democratic partisan gerrymanders to negate the Republican hardball in Texas. Congress, rather than the courts, is in the best position to stop the upcoming race to the bottom. But even though it’s in everyone’s interest that Congress act, don’t hold your breath.
Redistricting — the drawing of district lines for electing members of Congress or state or local representatives — is typically a cyclical affair that starts at the beginning of each decade, after the U.S. Census Bureau releases updated population figures. The Supreme Court’s “one person, one vote” cases from the Warren Court in the 1960s require that all these districts be redrawn to roughly equalize populations within districts. Other constraints apply too, including compliance with state laws, the Voting Rights Act and a requirement (that conservative justices have read into the 14th Amendment) that race not predominate in drawing district lines.
What’s going on now in Texas is different.
When legislators or other partisan actors draw the lines, it is not unusual for them to “pack” (concentrate) or “crack” (disperse) voters aligned with the minority. This partisan gerrymandering can assure that the majority maximizes the number of districts it controls. As the new decade progresses, some of these plans get challenged in court, and courts sometimes order new lines to be drawn. The process can take up to the full decade, until the next census, and then it may start all over again.
What’s going on now in Texas is different. Texas, with a Republican-dominated Legislature and governor, already gerrymandered its 38 congressional districts at the beginning of the decade. The 2021 redistricting remains the subject of ongoing legislation in federal court, with claims that parts of the line-drawing violate the Voting Rights Act and are unconstitutional. Texas is defending itself by saying that it drew lines to favor Republicans, and not to discriminate against Black or Latino voters. That may seem like an odd defense, but it relies on a 2019 Supreme Court ruling that held that federal courts would not police claims that partisan gerrymandering is unconstitutional. But courts continue to police racial gerrymanders.
The Trump administration is worried that Republicans lose control of the House of Representatives during the 2026 midterm elections, with a Democratic-run chamber making life much harder for Trump during his final two years in office. For that reason, Trump pressured Texas Republicans to do an even more egregious partisan gerrymander now, in the middle of the decade, replacing the old lines with a plan that could squeeze out four or five more Republican-leaning seats. The Department of Justice sent a laughably weak letter to Texas claiming that the state had to redistrict because its earlier redistricting plans were unconstitutional racial gerrymanders. That pretext and pressure from Trump got Texas Gov. Greg Abbott to call a special session of the Legislature. But Democratic legislators in Texas have temporarily fled the state, for now depriving the Legislature of a quorum to conduct business.
Texas’ actions have provoked the governors of California, New York and elsewhere to consider retaliatory Democratic partisan gerrymanders. In several of these states, enacting such gerrymanders would be more complicated than it is in Texas. Because California voters approved an independent redistricting commission that draws the district lines, Gov. Gavin Newsom may need to call a special election to get California voters to approve a Democratic gerrymander to get around the commission. And many Democrats have argued against the most extreme gerrymanders in the past as unfair to voters. But Democrats’ argument today is that, even if fairness in districting is a lofty goal to be pursued in the abstract, it must be measured on a national level for congressional districts and so fighting fire with fire is justified.
Republicans seem to have more states from which to squeeze partisan seats than Democrats, so it might be worth it for Republicans to press ahead with re-redistricting, even if Democrats retaliate. But there are dangers in too much gerrymandering, as when the majority party creates too many districts that are only marginally in its control. If Democrats have a wave election in 2026, as can happen at a midterm election for the party out of presidential power, some Republican redistricting could backfire and lead to the election of more Democrats. The Supreme Court just signaled that it may further weaken or kill Voting Rights Act claims in redistricting cases. It is possible the courts will block some of these gerrymanders if it can be shown, for example, that they violate the Voting Rights Act. But the Supreme Court just signaled that it may further weaken or kill Voting Rights Act claims in redistricting cases. With that red flag, and with the court’s decision to allow unlimited partisan gerrymandering, the courts are not likely to get the country out of this vicious cycle. Congress can stop the madness at any point. The Constitution gives Congress the power in Article I to “make” or “alter” state rules for running congressional elections, including redistricting. Congress could outlaw mid-decade redistricting, require the use of commissions, or set a standard barring the most egregious partisan gerrymanders. In the current polarized atmosphere in Congress, and with Trump (who would have to sign such legislation) looking to impose “maximum warfare, everywhere, all the time” to preserve Republican power, a bipartisan deal to avoid a redistricting war seems most unlikely. But as the Cold War taught us, détente is better than mutually assured destruction for all the parties. Those who suffer the most are the voters, who should not be packed in or cracked out of districts simply because their party is in the minority.
Richard L. Hasen
Richard L. Hasen is professor at UCLA School of Law, where he directs its Safeguarding Democracy Project. 
