Texas’ Political Motives on Trial in Redistricting Fight (2)

One question in Texas’ redistricting fight could determine which party controls Congress in the latter half of President Donald Trump’s term: Did race or politics prompt the state’s rare mid-decade redraw?

Over the next week-and-a-half, lawyers defending the maps for Texas will argue in an El Paso courtroom that state lawmakers drew them strictly to hand Republicans five additional seats in Washington—an unapologetic position that legal experts say is likely unconstitutional but, paradoxically, likely to prevail in court.

Though excessive gerrymandering is forbidden, federal courts are prohibited from considering it, said Justin Levitt, a former deputy assistant attorney general for civil rights in the Justice Department. The reason is Supreme Court precedent set in 2019 by Rucho v. Common Cause that courts can only consider whether the maps were drawn in a way that disadvantages racial minorities.

“That’s one of the unpleasant background facts hovering over the entire thing,” said Levitt, now a professor at Loyola Law School.

Three federal judges—one of them appointed by Trump—beginning Oct. 1 will decide if Texas can use its latest map in the midterm election next year. The stakes couldn’t be higher, with Republicans holding a narrow advantage in the US House.

On the eve of the trial, the court narrowed the dispute by dismissing a count alleging Texas unlawfully used census data from the start of the decade to draw the map.

No court has ever blocked a mid-decade redistricting plan based on the use of decennial data, “and the court has not identified sufficient legal support to blaze that trail,” the judges said in the Tuesday order.

The preliminary injunction hearing will have a major impact nationwide, as Texas’ move to redraw its maps—taken at Trump’s urging—began a tit-for-tat with California. Other left-leaning states responded in kind, taking steps to redraw their own maps to add Democratic seats.

“A ruling in favor of the defendant (Texas) will confer legitimacy on the partisan gerrymandering war that Texas started,” said John Hooker, professor of business ethics at Carnegie Mellon University, who has studied gerrymandering. “I don’t see how anyone can believe this is good for democracy.”

An Awkward Spot

By defending the redraw on political grounds rather than racial, Texas finds itself criticizing a July letter from the Justice Department that it had at first used to justify its move.

The letter had ordered Texas to make a new map because the one the state had been using from 2021 was unconstitutionally racially gerrymandered in four districts.

Texas also may have to contradict Abbott, who cited “constitutional concerns raised by the U.S. Department of Justice” in his July 9 call ordering a special session to draw new maps. But his second call from Aug. 15—which became necessary after House Democrats fled the state to avoid a vote in the first session—made no reference to the DOJ letter.

The plaintiffs—a coalition of minority and voter rights groups—argue the DOJ letter affirms the point they’ve hammered for years about racial discrimination in the 2021 map. The recent redraw is similarly unconstitutional, they say.

The plaintiffs “cant use a partisan gerrymandering lens to attack the map,” said Rebecca Green, a professor at William & Mary Law School, “so they’re left with a racial gerrymandering hook.”

Witnesses

The hearing, expected to last up to 10 days, will wrap up about a month before the window opens Nov. 8 for candidates to declare for the 2026 primary election

But the judges have set strict parameters to keep the proceeding moving quickly. They won’t entertain opening statements from lawyers, instructing the parties instead to present witnesses right away, and the judges “will not tolerate gaps between each witness’s testimony.” If the hearing starts to drag, the court will work on Oct. 4, a Saturday that it otherwise expects to take off.

The federal government shutdown won’t disrupt the proceedings, the court says, which began as planned Wednesday.

Seven Texas lawmakers are scheduled to testify, while seven others are on notice that they might be called.

The judge panel includes Judge Jeffrey Brown, whom Trump appointed to the Southern District of Texas in 2019. Brown was previously on the Texas Supreme Court.

The two others are Senior Judge David Guaderrama, an Obama appointee on the Western District of Texas, and Judge Jerry E. Smith, whom Ronald Reagan put on the US Court of Appeals for the Fifth Circuit.

The same judges presided over a three-week trial ending in June involving a race-based challenge to the 2021 map. Before ruling, the legislature took the extraordinary step of replacing the map, rendering much of the trial a waste.

“The court is not going to be able to ignore the fact that Texas was up to seriously shady doings in calling the special session,” Levitt said. “Whether that translates into enough evidence that they did something illegal is going to be tough.”

The plaintiffs are represented by Brazil & Dunn, Mark P. Gaber PLLC, Jesse Gaines of Fort Worth, Molly Danahy of Helena, MT., Sonni Waknin of the UCLA Voting Rights Project, Mexican American Legal Defense and Educational Fund, Elias Law Group LLP, Max Renea Hicks of Austin, Dechert LLP, Lawyers’ Committee for Civil Rights Under Law, the Law Office of Robert Notzon, the Bledsoe Law Firm PLLC, the NAACP office of the general counsel, and Sommerman, McCaffity, Quesada & Geisler LLP.

The case is LULAC v. Abbott, W.D. Tex., No. 3:21-cv-00259, trial scheduled to begin 10/1/25.