Justices’ Texas Map Order May Spur Last-Minute Voting Law Tweaks

Texas’ US Supreme Court victory allowing its new congressional maps to be used for next year’s midterm elections has potentially broad implications for election law more generally.

The court’s ruling that it’s too close to the 2026 elections for the federal courts to weigh in on Texas’ new maps risks giving state legislatures excessive latitude to change election laws well in advance of elections—without fear of federal court oversight.

This summer, Texas opened a new front in the voting wars by launching the re-redistricting of its congressional map in the middle of the decade rather than following the custom of redistricting every 10 years after the federal census. That ignited an ongoing battle of re-redistrictings of congressional maps among red and blue states.

The Supreme Court weighed in on Dec. 4 on the first of these new maps—the one from Texas. A three-judge federal court had held in a 2-1 vote that the map was an unconstitutional racial gerrymander.

In a 6-3 vote, the Supreme Court stayed the decision, which means Texas will be able to use its new map in the midterms. The brief stay opinion cast doubt on the correctness of the lower court’s racial-gerrymandering judgment but also imposed troubling limits on the permissible timing of federal court review of late-breaking changes to state election law and policies.

The substantive dispute of whether Texas “merely” engaged in partisan gerrymandering, which current doctrine unfortunately makes permissible, or unconstitutional racial gerrymandering, is highly fact-specific. It turns on how individual districts were designed.

I want to focus here instead on the remarkable implications of the Supreme Court’s decision for the timing of when federal courts are permitted to adjudicate state election law changes.

Texas’ new map became law on Aug. 29 of this year. The plaintiffs couldn’t have moved more quickly in challenging the law: They filed for injunctive relief even before Gov. Greg Abbott (R) signed the enacted map into law.

The district court also moved quickly, issuing its 160-page decision on Nov. 18, a month after post-hearing briefing had concluded. At that point, the midterms were a year away, with Texas primaries scheduled for March.

Nonetheless, the Supreme Court held that it was too late for the district court to act. Quoting from its most significant decision in the run-up to the 2020 presidential election, the Supreme Court said the lower court had violated “the rule” that “lower federal courts should ordinarily not alter the elections rules on the eve of an election.”

That rule traces to an enigmatic, brief 2006 per curiam opinion, Purcell v. Gonzalez, which gave birth to what’s come to be known as the Purcell principle. This principle reflects legitimate concerns about the role of federal courts in the election context.

It cautions that federal courts should be wary of changing the status quo on the eve of an election. Late changes can cause voter confusion, create difficult administrative issues for election officials, and undermine confidence in the integrity of the process.

But though Purcell’s concerns make sense at a general level, the decision has caused understandable confusion in the lower federal courts. If a state policy has been in place for a long time and only challenged on the eve of an election, it’s clear that Purcell comes into play.

But how far in advance must a federal court act before it becomes too late to intervene under Purcell? And what’s the remedy if the state changes its policies close to an upcoming election and plaintiffs challenge this change as a violation of federal law or the Constitution?

The Supreme Court seems to be pushing back the date at which Purcell is triggered further and further from election day. In Purcell itself, the state policy, which had been adopted two years earlier, was enjoined by the lower court a mere month before the election.

In the 2020 election case that the high court in the Texas case quoted, the lower court ordered state election deadlines changed five days before the election. More recently, the Supreme Court stayed a lower-court decision that held Alabama’s post-2020 congressional map violated the Voting Rights Act.

The court invoked Purcell on the grounds that the lower-court decision in late January of the election year came too late and would be too disruptive of the election process. The court thus permitted elections under a map the lower court had held violated the VRA—and the court ultimately agreed as much.

The latest Texas decision now pushes Purcell out even further, to decisions that come down before an election year. This is no longer the “eve of an election” in any meaningful sense.

The Supreme Court stretches the purported disruptive effect of the lower-court decision by saying it came down during “an active primary campaign,” but all that means as a practical matter is that the window had opened for candidates to file their intent to run in the March primaries.

The deadline for filing was still down the road on Dec. 8, three weeks after the lower-court injunction. And federal courts have the power to postpone candidate filing deadlines when needed to ensure compliance with court injunctions.

For the current mid-decade redistricting saga, the Texas decision means the federal courts will be out of the business of enjoining before the midterms any of these maps, even if they violate federal law. While Republicans are the immediate beneficiary of the Texas decision, Democrats will now similarly have their last-minute power grabs, as in California, immune from federal court invalidation in advance of the 2026 elections.

It also looks like all the frantic partisan mid-decade redistricting battles are going to cancel each other out, with current predictions suggesting at most perhaps a “very minimal” gain for Republicans. Yet all of these blatant mid-decade partisan gerrymanders just further erode voters’ belief in the integrity and legitimacy of the democratic process.

For election law more generally, the Supreme Court’s Texas ruling shutting down federal court oversight so early in the election cycle is deeply troubling. The “rule” it reflects isn’t necessarily limited just to redistricting, but runs the risk being applied to state election laws and policies more generally.

It also creates an apparent path for state legislatures to game federal law: Change your election policies close to the election—which can mean perhaps even a year before the election—and Purcell might prohibit the federal courts from interfering.

It’s one thing to prohibit 11th-hour federal court intervention in elections. But it’s far different to insulate states from federal court oversight on election law changes that occur even a year or more before the general election.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Richard H. Pildes, professor at NYU School of Law, is an expert on constitutional law and legal issues concerning democracy and the structure of American government.

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