The Supreme Court will soon decide if only Republicans are allowed to gerrymander

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Last month, the Supreme Court’s Republican majority reinstated Texas’s Republican gerrymander after a lower federal court struck it down. The plaintiffs in that case presented considerable evidence that Texas’s gerrymander was enacted, at least in part, to racially gerrymander some parts of the state. But the Court’s Republican majority deemed this evidence insufficient.

Now, the Supreme Court is about to decide a similar case, Tangipa v. Newsom, which challenges California’s attempt to offset Texas’s Republican gerrymander by enacting a Democratic gerrymander that cancels out the GOP’s gains in Texas. While there is much less evidence that the California gerrymander was racially motivated than there was in the Texas case, the California GOP has produced some evidence that at least points in that direction. If the Supreme Court had struck down the Texas gerrymander, it’s possible to imagine a fair judge also concluding that California’s new maps must go.

But no competent lawyer, and certainly no reasonable judge, could conclude both that the Texas gerrymander is lawful and that the California maps are an illegal racial gerrymander. Tangipa, in other words, is a test of the Republican justices’ honesty. If they actually believe what they said in the Texas case, which is known as Abbott v. LULAC, they will deny the Republican Party’s attempt to undo California’s gerrymander.

Alternatively, if they rule in favor of this challenge, it will remove any doubt that this Court is trying to rig the game to benefit the Republican Party.

Before we dive into the facts of these two gerrymandering cases, it’s helpful to understand two different ways that states can gerrymander their legislative maps. Sometimes, a state may draw its map to favor one of the two major political parties. These gerrymanders are known as “partisan” gerrymanders. In Rucho v. Common Cause (2019), the Supreme Court’s Republican majority held that federal courts must allow states to engage in partisan gerrymandering.

Other states, meanwhile, may draw their maps to increase or reduce the voting power of a particular racial group. These gerrymanders are known as “racial” gerrymanders. Though the Court’s Republican majority has spent the past decade making it much harder to contest racial gerrymanders than it used to be, the Supreme Court has not yet handed down an absolute prohibition against federal judges hearing suits that challenge racial gerrymandering. So, under current law, it is still theoretically possible for a plaintiff alleging a racial gerrymander to prevail in federal court.

That said, in practice, the Republican justices’ decisions have made it nigh impossible to win a racial gerrymandering case. In their recent LULAC decision, for example, the Court’s Republican majority held that lawmakers enjoy an extraordinarily high “presumption of legislative good faith” when they draw legislative maps. And it faulted the lower court that struck down Texas’s gerrymander for “construing ambiguous direct and circumstantial evidence against the legislature.”

Thus, under LULAC, if it is possible to look at the evidence in a racial gerrymandering case and conclude that no racial gerrymander occurred, federal courts must reach that conclusion.

In LULAC, the evidence that Texas drew its gerrymandered congressional maps for impermissible racial reasons arose out of an incompetently drafted letter signed by US Assistant Attorney General Harmeet Dhillon, and from Texas officials’ response to that letter.

The Trump Justice Department’s letter claimed, incorrectly, that it is illegal for a state to draw any congressional district where white people are in the minority, and two other racial groups combined make up the majority. It effectively ordered Texas to change the racial makeup of its congressional map to eliminate districts that fit this description. Several top Texas officials, including Republican Gov. Greg Abbott, cited this letter to justify Texas’s new maps.

But the Republican justices deemed this evidence insufficient to strike down Texas’s map, saying it is “ambiguous” and ruling that ambiguous evidence is not enough.

Meanwhile, in Tangipa, Republicans cite several statements by state lawmakers and other people involved in the mapmaking process, which they claim are evidence that California’s new maps were drawn in order to increase the voting power of Latinos.

Most of the statements the GOP points to in their brief say nothing of the kind. They fault one state senator, for example, for saying that, under California’s new maps “the Voting Rights Act in all districts in every corner of California is upheld.” It should go without saying that a lawmaker is not confessing to an illegal racial motive when they state that they are complying with federal law.

That said, Republicans do place an enormous amount of weight on a statement by Paul Mitchell, a private consultant hired by Democrats to draw the California maps. After the maps were drawn, but before they were approved by the state’s voters, Mitchell told a Latino interest group that the new maps “will further increase Latino voting power,” that they add an additional “Latino influence district” (a district where Latinos are not in the majority but are nonetheless likely to elect their preferred candidate), and that they “ensure that the Latino districts are bolstered in order to make them most effective.”

It is safe to say that this statement, if it were combined with other evidence of impermissible racial motives, could help bolster a case against California’s new maps. If I were a lawyer for the California Democratic Party, I would have advised Mitchell not to make these remarks. But it’s also quite a stretch to say that this one isolated statement is a confession of racist intent.

Mitchell’s comments could just as easily be construed as a neutral description of how the maps would impact Latino voters. Rather than saying, “I drew these maps to increase Latino representation,” Mitchell may have instead been trying to communicate that the maps he drew to increase Democratic representation would also have the incidental effect of benefitting Latino voters.

All of which is a long way of saying that the California GOP’s evidence that the state’s maps were drawn for racial reasons is, at best, ambiguous. And the Supreme Court just held in LULAC that ambiguous evidence is not enough for a plaintiff to prevail.

In fairness to the Court’s Republicans, they did suggest in their LULAC opinion that the Texas and California gerrymanders are mirror images of each other. The majority opinion in that case begins with the observation that after Texas drew its new map, “California responded with its own map for the stated purpose of counteracting what Texas had done.” Justice Samuel Alito, a Republican, also wrote a separate opinion stating that it is “indisputable” that “the impetus for the adoption of the Texas map (like the map subsequently adopted in California) was partisan advantage pure and simple.”

All that the Republican justices need to do in order to uphold California’s map, in other words, is to reach the exact same conclusions that they already reached in the LULAC opinion. If they instead decide to strike down California’s map, the only possible explanation will be that the Court’s Republican majority wants to rig the 2026 midterms for their own political party.