Until the Court’s December 4 ruling in Abbott v. League of United Latin American Citizens, 25A608, the law on gerrymandering seemed clear.[1]  Political gerrymandering, in which voters were moved around to obtain partisan advantage, no matter how blatant, was safe because it involved a political question which the Court said was beyond the powers of the federal courts to remedy. But if the redistricting were done with the primary goal of creating racial districts of one kind or another, that was a violation of the Constitution.  Thus, the Court recently held in Alexander v. South Carolina State Conference of the NAACP, 602 U.S. 1 (2024), that a state could defend against a claim of racial gerrymandering by arguing that moving voters based on their race was permissible if done to obtain partisan advantage, but not for racial reasons.

With what looked like a safe harbor in sight, the Trump Administration urged Texas to engage in a between-census redistricting in an effort to pick up five or more seats in the U.S. House of Representatives following the 2026 election. Although the Governor and the Texas legislature are under firm Republican control, they showed no interest in trying to redistrict for partisan reasons.  But then the Trump Justice Department advised Texas that the current plan was unlawful because it contained racially drawn coalition districts, and the legislature immediately took up the opportunity and produced a new map that is designed to pick up five seats for the Republicans in January 2027.

The new plan, which was enacted in late August 2025, was immediately challenged in federal court as a racial gerrymander on the ground that the movement of voters was done on the basis of race, which also produced the intended effect, but not the avowed purpose, of adding to the Republican majority in the House.  The case proceeded to a nine-day trial before a three-judge court in Texas on a highly accelerated basis, with the majority issuing a 160-page opinion on November 18, finding based on both direct and circumstantial evidence that race was the predominate reason for revising the existing districts.

Three days later, the State sought a stay in the Supreme Court, which was granted in a brief unsigned order, joined by a short concurrence by Justice Alito, in which Justices Thomas and Gorsuch joined. The unsigned order gave two reasons: “the District Court failed to honor the presumption of legislative good faith by construing ambiguous direct and circumstantial evidence against the legislature,” and “the District Court failed to draw a dispositive or near dispositive adverse inference against respondents even though they did not produce a viable alternative map that met the State’s avowedly partisan goals.”  The order also faulted the District Court because it “improperly inserted itself into an active primary campaign, causing much confusion and upsetting the delicate federal-state balance in elections.”  The concurrence, which appears to have been penned in response to the dissent and to which the dissent did not have an opportunity to reply, added that “the dissent does not dispute—because 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” and that “it is critical for challengers to produce an alternative map that serves the State’s allegedly partisan aim just as well as the map the State adopted.” 

The order observed that its conclusions were “preliminary,” but the result is fully conclusive for the 2026 election, for which the primary will, unless changed, be in March.  The order’s assertion that the District Court interfered with a state election at the last minute assumes that the status quo is whatever the state does last, no matter how late in the process it acts.  The state has complete control over the timing of its changes, whereas challengers can only react.  If the Court wanted to send a message that everyone should avoid last minute challenges, it should have denied the stay because the state drew its new map too late, rather than chastising the District Court and the plaintiffs for seeking to undo an unconstitutional gerrymander.  The message that this stay sends is just the opposite: no matter when a state acts, it is never too late.

Second, far from disregarding the presumption of regularity, the District Court bent over backwards, but found by overwhelming evidence (summarized by Justice Kagan) that the lines that the state drew were based predominately on racial reasons.   The dissenter in the trial court disagreed with the conclusion of the majority, but it is surely not the role of the Supreme Court to overturn factual findings of the majority made after a full trial and an extensive ruling below—especially on a stay motion.  Moreover, the unsigned order claims that the trial court majority “failed to honor” the presumption of regularity, which is simply not true.  If the Court thought that the factual findings of the District Court were clearly erroneous, that would have been a legally defensible conclusion, but the order was not willing to say that.

As for Justice Alito’s assertion that the “indisputable” goal of the redrawn map “was partisan advantage pure and simple,” the District Court’s findings, as set forth in Justice Kagan’s dissent, make it “indisputable” that Texas explicitly refused to undertake a partisan redistricting despite the urging of President Trump.  It only changed its mind when the Trump Justice Department claimed that the existing map was unconstitutional because it was improperly drawn to produce racially-based coalition districts.  Indeed, the State did not invoke the “it’s only partisan gerrymandering” defense that succeeded in Alexander, because it could not under the circumstances. 

As for the “critical” importance of producing an alternative map that would produce the same partisan result without moving voters based on race, Justice Alito’s majority opinion in Alexander is much more nuanced. 602 U.S. at 8-10, 18, & 34-35.  Under it, an alternative map may be necessary where, unlike this case, there is only circumstantial evidence, or where plaintiffs’ experts produced, in that case, 20,000 alternative maps, but none resulting in the claimed goal of partisan advantage.  Here, however, given the amount of direct evidence of racial gerrymandering and extraordinary timetable under which the case was tried (and the absence of any discovery which could be used to create an alternative map), the District Court was surely within its discretion when it refused to treat the lack of an alternative map “as an implicit concession that the plaintiff cannot draw a map that undermines the legislature’s defense that the districting lines were ‘based on a permissible, rather than a prohibited, ground.’”  Id. at 35.

Perhaps now the law governing gerrymandering is that a state may defeat a racial gerrymandering claim as long as it might have raised a defense of partisanship—even if it deliberately chose not to do so.  If that is the result, it would directly contradict what the Court held just eighteen months ago in Alexander where it recognized the right of states to engage in partisan line drawing, but affirmed that “if a legislature gives race a predominant role in redistricting decisions, the resulting map is subjected to strict scrutiny and may be held unconstitutional.”  602 U.S. at 6. 

Alan B. Morrison is an associate dean at the George Washington University Law School, where he teaches civil procedure and constitutional law.

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[1] Many of the objections to the majority’s ruling noted in this essay were made in the 17-page dissent of Justice Kagan, in which Justices Sotomayor and Jackson joined. In the interest of making this essay more readable, the observations of the dissenters are acknowledged, but will not be cited in all places where they might apply.