Redressability and Irreparable Harm in the Texas Gerrymandering Case

The Plaintiffs argued the 2021 map was an unconstitutional gerrymander. How could reimposing the 2021 map actually redress their purported injuries?

The briefing has now concluded in Abbott v. LULAC. Texas's reply brief contends that a stay would not harm the plaintiffs. Here, the District Court ordered that Texas must use the 2021 map--the same map that the plaintiffs previously argued was unconstitutional.

Finally, Plaintiffs fail to demonstrate that a stay would harm them. Plaintiffs contend that allowing the election to be held under the 2025 map would cause them the irreparable harm of being "forced to vote under a racially discriminatory map that violates their constitutional rights." NAACP Resp. 26; MALC Resp. 38–39; Gonzales Resp. 39–40; LULAC Resp. 27; Brooks Resp. 41. But according to Plaintiffs, the preliminary injunction would not prevent this harm because they allege that the 2021 map is also an unconstitutional racial gerrymander: "[T]he Texas Legislature engaged in intentional racial discrimination and racial gerrymandering in the drawing of [CD9, CD18, and CD30 in the 2021 map.]" ECF 983 at 1 (Plaintiff-Intervenors); see also ECF 981 at 4 (NAACP Plaintiffs); ECF 985 at 7 (LULAC Plaintiffs); ECF 975 at 4 (MALC Plaintiffs).

Plaintiffs' newfound embrace of the 2021 map, which they challenged for years of litigation, is explained by their preference for the politics of the 2021 map compared to the politics of the 2025 map. They seek "to transform federal courts into weapons of political warfare that will deliver victories that eluded them in the political arena." Alexander, 602 U.S. at 11 (quotation marks omitted).

Let me unpack this argument.

First, Alexander v. S.C. State Conf. of the NAACP found that when a plaintiff asserts there is a racial gerrymander, the plaintiff will usually have the evidentiary burden to introduce an alternate map that the state could have adopted that would achieve comparable partisanship without a racial gerrymander. The Supreme Court observed that "if a sophisticated plaintiff bringing a racial-gerrymandering claim cannot provide an alternative map, that is most likely because such a map cannot be created." This evidentiary burden make sense. Requiring the plaintiffs to submit an alternative map provides something concrete for the parties and the court to test. In the Texas case, however, the sophisticated plaintiffs did not produce an alternative map. This was likely a strategic choice, and one they should be held to.

Second, because the plaintiffs did not submit an alternative map, the district court was in an awkward spot. Having found a racial gerrymander, the district court had to issue some remedy. The conventional remedy would be to invalidate the maps, and give the Texas legislature the opportunity to draw new maps. But given that the deadline for candidate registration is ongoing, there would never be enough time to go down that route for the 2026 elections. If Purcell has a short fuse, requiring the Governor to call a special session would be impossible. Had the plaintiffs submitted an alternate map, the court could have chosen that remedy. But again, there was no map to adopt. Instead, the District Court reverted to the 2021 map.

Third, the same plaintiffs have spent nearly four years arguing that the 2021 map was an unconstitutional racial gerrymander. The record is replete with page after page alleging racial gerrymandering. The plaintiffs also argued that the 2025 map was an unconstitutional racial gerrymander. The only difference between the maps is that Democrats had more seats under the 2021 map than the 2025 map. This is politics all the way down. The asymmetry is clear: Democrats can challenge Republican maps but Republicans cannot challenge Democratic maps.

Texas framed this turnabout in terms of irreparable harm. The Plaintiffs have already told the court the racial gerrymander in the 2021 map will irreparably harm them. How can it be a viable remedy to then impose the very same map that would inflict irreparable harm?

Let me use an example. Imagine a class of plaintiffs brings a suit against a police department, alleging that a particular pattern or practice adopted in 2021 violates the Fourth Amendment. While the case was pending, the police department adopted a new pattern or practice in 2025 that is also alleged to violate the Fourth Amendment. The Super Bowl is coming to town, and there is some question which police practice will be enforced. The plaintiffs bring a new suit, and seek emergency injunctive relief, but they don't propose what would be a valid practice. The city will soon host the Super Bowl, which entails massive police activity, and there has to be some certainty over which policies should be in place. On the eve of the Super Bowl, could a court enter a preliminary injunction, and order the police department to implement the 2021 policy? I don't think so--especially where the plaintiffs never asked for the 2021 policy to be reimplemented, and the plaintiffs argued to 2021 policy was unconstitutional. I tend to think this order would be vacated by a court of appeals very quickly. Sometimes, the answer may be that in advance of a massive and complex operation, the district court is unable to fashion a remedy out of whole cloth that the plaintiffs did not propose, and indeed previously argued was unconstitutional. It cannot be repeated enough: district court judges are not gods.

An analogy could also be made to the redressability prong of standing law. If the courts are unable to issue a remedy that redresses the plaintiff's injury, then the court lacks Article III standing. I could cite California v. Texas, Brackeen, and Murthy as recent precedents to this effect. Of course the Texas court could have issued a valid remedy, but it chose not to. Indeed, there may be no actual remedy that would redress their harms for purposes of a preliminary injunction. The plaintiffs didn't offer a map, and the court failed to provide one. Enforcing the 2021 maps may have seemed like the most logical, or even the most effective remedy. But it doesn't actually redress the alleged harm. The plaintiffs are still stuck with a racial gerrymander, albeit one that is more favorable to Democrats.

Ultimately, I think the most likely path forward is that the Court grants a stay, notes probable jurisdiction, and hears the case in February. Or the Court could grant a stay, and hold the decision pending Callais.

A colleague asked why I thought Callais, a VRA case, would have any impact on the Texas 14th Amendment case. The amicus brief from America First Legal Foundation speaks to this issue:

The resolution of Callais will likely clarify, if not fundamentally reshape, the legal framework governing Plaintiffs' claims against Texas. The appellants in Callais argue that the Constitution mandates color-blindness, asserting that race-based redistricting, even in the name of Voting Rights Act compliance, is unconstitutional and violates the principle that "[e]liminating racial discrimination means eliminating all of it." Id. at 2 (quoting Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 206 (2023)). Louisiana contends that the current jurisprudence forces sovereign States into a no-win, goldilocks scenario where they must consider race but "perennially suffer the indignity of … being sued for considering race too much or too little," putting the federal judiciary in the position of having to "pick winners and losers" in this racial calculus. Id. at 2.

Texas is caught in this precise predicament. The majority opinion below invalidates the State's 2025 map, concluding that the Texas Legislature's actions constituted impermissible racial gerrymandering. App.2–3. Texas maintains its actions were driven by permissible partisan objectives. Emergency.Appl.for.Stay.1. As Judge Smith's dissent below aptly explained, this "tension between Section 2 of the Voting Rights Act and racial-gerrymandering jurisprudence" will likely be resolved by Callais. App.173 (Smith, J., dissenting).

Judge Brown's opinion will be untenable if Louisiana prevails in Callais. And I think this will be the case even if Shaw v. Reno is not revisited.

Comments

[John F. Carr]

Federal election law contemplates at large elections in some circumstances when a map is invalidated. Sounds like fun. Let's do it.

[Stupid Government Tricks]

38 representatives means 76 D+R candidates, and probably a few dozen more small parties. You really think a ballot with "choose 38 of 100 candidates" is going to be useful?

[Incunabulum]

Is it worse that 'we arranged thing so you vote can never matter'?

Personally, I'd like *some* say in all the idiots that will be voting to take my money - so a big old list where I have to pay attention to all the state reps is a good start.

[Michael P]

How are winners chosen in such a case? Are they all treated as at-large candidates for a single district, with the top N candidates chosen? Or proportional representation or some other multi-winner method?

[JeffDG]

Can you cite that law?

2 U.S. Code § 2c is pretty clear:

"In each State entitled in the Ninety-first Congress or in any subsequent Congress thereafter to more than one Representative under an apportionment made pursuant to the provisions of section 2a(a) of this title, there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative"

[ducksalad]

IANAL but look at §2a(c), and especially item (5). Applies to states that gain or lose representatives and fail to reapportion. Would it apply to Texas if both the plans are invalidated?

[Lee Moore]

IAANAL but even if §2a(c) applied, item (5) wouldn't. Item (5) deals with states which lose representatives as a result of reapportionment and thus have more existing districts than their new representative entitlement. Texas however gained reps after the 2020 census and so would be in (2), ie only the 2 extra reps would be elected at large.

But it's hard to see how the triggering condition :

"Until a State is redistricted in the manner provided by the law thereof after any apportionment"

would be met. Texas has already had two House elections under the new 2021 boundaries so it seems a stretch to say that it hasn't been redistricted. And even if you were to argue that the 2021 redistricting was an unconstitutional racial gerrymander and therefore not a thing , that's not what the court decided.

FWIW my money is on SCOTUS continuing its stay on Judge Brown's scheme for the 2026 election on Purcell grounds. If Texas thinks there's even a murmur of rationality in Judge Brown's decision, they'll just have another go in 2027.

[JeffDG]

One quirk of the 2025 reapportionment act in Texas is that it explicitly repealed the 2021 act, and specifically included that repeal within a severability provision, meaning the law defining the 2021 district boundaries no longer exists.

[John F. Carr]

So Texas gets the districts from the 2010 census plus two at large representatives.

[Lee Moore]

Maybe, but the legal question is whether the condition :

"Until a State is redistricted in the manner provided by the law thereof after any apportionment"

is met or not. Even if the 2021 Act has been repealed, Texas has still held two elections under them. The laws may not exist now, but for a time, they did exist. Compare, for example :

"Until a woman is married, she may not have a bank account without her father's consent."

She marries, she divorces. Does she now need her father's consent to have a bank account ? I think very probably not.

"I am not married, but I have been married" seems to me to be a pretty conclusive answer to the question as to whether the condition "until a woman is married" has been achieved or not.

[Armchair]

It's never actually been about race.

It's about partisan politics. If race takes a backseat to getting more Democrat districts, then it's worth it.

[Riva]

It's hard to argue that the challenges to the Texas map are not legally meritless. Because they are. Blatantly.

[Poxigah146]

Of course. The reason I support things that have a disproportionate impact on black voters is not because of their skin color, but because for every 10 blacks who are effectively disenfranchised, 9 out of 10 were Democrat Party votes.

Nothing morally or legally wrong with trying to make sure the bad people lose.

[Brett Bellmore]

But they're not effectively disenfranchised, unless you want to say that roughly half the people voting in this country are actually disenfranchised, and don't know it.

Because you're not defining disenfranchised in terms of whether you can vote, but in terms of whether you win the election. And outside of blowout elections, a large fraction of the electorate routinely are going to lose the election! It's inherent in the process.

The right to vote is a right to participate, not a right to prevail.

[Poxigah146]

The left's claim is that voter ID laws, prohibiting ballot harvesting and so forth effectively disenfranchise black voters.

My point is that even if that's true, I don't care, as it's not de jure racial discrimination which is the only thing the 13th Amendment prohibits.

[Brett Bellmore]

14th, but, yeah.

[David Nieporent]

15th, but no.

[Brett Bellmore]

We can argue about that, but certainly not the 13th amendment.

[Sarcastr0]

Plaintiffs
"suffer a debasement of their votes by virtue of the incorrect, arbitrary, obsolete and unconstitutional apportionment of the General Assembly . . . ,"
and the totality of the malapportionment's effect -- which permits a minority of about thirty-seven percent of the voting population of the State to control twenty of the thirty-three members of Tennessee's Senate, and a minority of forty percent of the voting population to control sixty-three of the ninety-nine members of the House -- results in "a distortion of the constitutional system" established by the Federal and State Constitutions, prevents the General Assembly "from being a body representative of the people of the State of Tennessee, . . ." and is "contrary to the basic principle of representative government . . . ," and "contrary to the philosophy of government in the United States and all Anglo-Saxon jurisprudence. . . ."

Bake v. Carr
https://supreme.justia.com/cases/federal/us/369/186/#tab-opinion-1943625

[Brett Bellmore]

Not sure what that's got to do with the present case, where all the districts are almost identical in population. Baker v. Carr was about Tennessee's failure to redistrict for decades despite population changes, resulting in districts of wildly differing population.

In the present case nobody is alleging that the districts fail to have the same population.

[Chris Upchurch]

So if the same challenge to the 2025 map were brought by a different group of plaintiffs, with no involvement in litigation against the 2021 map, could they get a different result (or at least a different remedy) than plaintiffs that had previously litigated against the 2021 map?

[Michael P]

If someone did that, Texas would certainly point to the complaints against the 2021 map. This would probably prevent any preliminary decision to keep the older map, but the final merits might be a little bit easier than for these plaintiffs.

[John F. Carr]

All statewide redistricting cases should be merged to avoid conflicting remedies.

[MollyGodiva]

"if a sophisticated plaintiff bringing a racial-gerrymandering claim cannot provide an alternative map, that is most likely because such a map cannot be created."

This is bullshit. A plaintiff does not have access to the detailed population information needed to produce a map. To assume that a map is impossible is bunk.

[JeffDG]

Census data and precinct voting patterns are all public information. Why wouldn't a plaintiff have access to such information?

[Michael P]

Current census data is corrupt, sadly. It resulted in biased Congressional allocations, to say nothing of what it would do to individual districts.

[Brett Bellmore]

But it's still the same data available to the state and to the plaintiffs, so even if it is to some extent corrupted, that doesn't bear on this point.

[John F. Carr]

Plaintiffs also need gerrymandering software to make sense of the data. I recall reading a particular program cost about $40,000 some years back. Too much for a reporter writing a story but far less than the value of owning a Congressman.

[y81]

Once again, Blackman's insightful legal analysis proves that: Republicans win! (David Bernstein's insightful analysis proves that the critics of Israel have no legal rights and must be silenced.) I wonder, is there anyone who reads this website and finds his respect for law professors increased?

[ducksalad]

Seriously, these posts increase my respect for Prof. Volokh. Each is further proof of his deep commitment to freedom of speech. And frankly, so are the Open Threads.

[JoeFromtheBronx]

"his respect for law professors increased?"

Depends on who is doing the posting.

[Patrick Henry, the 2nd]

Smart people do! Stupid people make stupid comments like yours though!

[JerKat]

The court must choose between a map with *some* racial gerrymandering (2021) or one with *lots* of racial gerrymandering (2025). Because the injuction won't cure *all* racial gerrymandering, then the map with *lots* of racial gerrymandering must be left in place.

Brought to you from the makers of "since you complained about the occasional beating, the bearings will now be constant."

[santamonica811]

Jerkat,
Yeah; that was my first reaction as well. I do get the argument that plaintiffs should have brought in their own map. That's a legit point. But Blackman's argument is just dumb. He's saying, "If you want to invalidate this horrible current map, then it's *impossible* to understand why you (or a court) might want to revert to a former map...one that was also bad, but much less bad than the current one."

That's just an idiotic argument, as people very very very often will say, "I don't want 2025 version; I want 2021 version, because '21 is better/more fair than is '25. I agree that '21 also sucks. But it sucks less than the crap you've forced on us now."

[Lee Moore]

I also arrived at the same conclusion. You can certainly think of reasons why the plaintiffs might prefer the 2021 maps to the 2025 maps, even if they think the former are also racially discriminatory.

But the question which occurs to me is - have they, or the judge, shown their work as to why, and by what measure, the 2021 maps are less racially discriminatory than the 2025 maps ?

It's easy to see that the 2021 maps might be politically more acceptable to the plaintiffs than the 2025 maps, but that's not really the point. The point is do they have to show that the 2021 maps are less racially discriminatory than the 2025 maps ? And how would they go about showing that ?

[Michael P]

The usual mechanism for determining that a district is diverse is that it elects Democrats, which is hardly good for showing a racial demographic rather than a political one.

[santamonica811]

Michael,
Instead of whining and bleating about legal standards that occur only in your paranoid brain; why not instead give a good-faith response to the guy's question?

My own guess is that you'd show the court the map, and give the racial breakdowns in each relevant area. Now, I have no idea if a judge would be persuaded by this. But that's how I'd go about it. I suspect that (like pornography) we know it when we see it.

(I don't know if a court would be convinced by the Texas argument of, "Yes, of course we're discriminating against minorities. But that was not our *primary* motivation. Our main goal was to get more Republicans elected, and the racial discrimination was just a happy byproduct of our primary goal." This seems morally objectionable to me. But when this case shakes out, and the Sup. Ct makes the ultimate decision; I can't see any of the far-right conservative, utterly partisan, Justices moving to prevent Texas from doing what it wants to do.)

[Lee Moore]

Is that what Texas claims ? I would have thought they'd be saying "No we weren't racially discriminating we were politically discriminating - if there's a disparate racial impact, we didn't intend it, so them's the breaks. Noogie time."

"you'd show the court the map, and give the racial breakdowns in each relevant area'

which would be insufficent since it fails to distinguish between discrimination and disparate impact. You'd really need a haul of secret emails saying "Ha ha ha, l know this line will actually damage our chances of maximizing our haul of GOP Reps, but since it screws the brown folk even more let's do it anyway."

[Joe_dallas]

fwiw - there is a lot of disputed facts. Brown relies heavily on the doj letter and the pleadings from the plaintiff's as proof the 2025 map is using illegal racial criteria, where as the actual racial composition of 2025 map likely indicates better compliance with the VRA. Evidence that one party urged the use of illegal criteria, when the end result shows better compliance with the legal criteria is not evidence of the use of illegal criteria.

[David Nieporent]

fwiw - there is a lot of disputed facts.

bookkeeper_joe keeps repeating this, apparently not understanding that in cases of this nature, it’s the judges' job to resolve those disputes.

[Joe_dallas]

unbeknownest to DN , there was a dissent that pointed out much of the disputed and conflicting facts.

[David Nieporent]

Dissents are the side that lose the disputes. In any lawsuit, there will be disputed and conflicting facts. The finder of fact — which in these cases are the judges — resolves those disputes and conflicts. The fact that the dissent says "I disagree" is irrelevant, because he lost.

[Michael P]

santamonica811, instead of vapidly pretending that the racial inquiry does not stand free from partisan determinations, why not do the work that you suggest?

One can do a demographic analysis, but what if the difference is (say) 51% vs 55% Black residents -- does that mean either map is gerrymandered against Black residents? How geographically contorted a district should a court tolerate in order to generate districts with the right demographics?

There are a lot of objectives in drawing these maps: partisan advantage, racial representation, geographic compactness, similarity to existing districts and precincts, and probably more. What weighting function tells a court which maps are acceptable, or which changes are illegal? In practice, the evaluation that gets used most is "does the district elect a Democrat?", as I said before, which makes it hard to distinguish partisan gertymanders from racial ones.

[Lee Moore]

There are a lot of objectives in drawing these maps: partisan advantage, racial representation, geographic compactness, similarity to existing districts and precincts, and probably more.

My understanding is that "racial representation" is usually impermissible legally - subject to the weird VRA dance about creating majority minority districts. Why a GOP redistricter would have such a thing on his list of objectives - if he does - entirely escapes me. It seems perfectly counterproductive. Would a GOP supporter prefer to have a white Democrat Senator in South Carolina ahead of Tim Scott ? Really ?

[Michael P]

When I said "racial representation", I only meant whatever the VRA wants to achieve. The big problem is that the VRA doesn't provide either an objective target or threshold, and decades of litigation have not filled that gap.

[Joe_dallas]

MP makes a good point. The 2021 maps are hugely distorted geographically to comply with the VRA (or attempt to comply with the VRA) while obtaining a partisan advantage. Same with other states gerrymandering to comply with the VRA. The need to hugely geographically distort the districts to comply with the VRA is a reflection of how unwieldly the law and court rulings have evolved.

[Joe_dallas]

JerKat 10 hours ago
"The court must choose between a map with *some* racial gerrymandering (2021) or one with *lots* of racial gerrymandering (2025)"

As noted below, the facts are in dispute and the correct application of VRA to the facts are in dispute. Contrary to the assertions in Brown's majority ruling, the 2025 map is likely in better compliance with the VRA.

[A Japanese Student]

Plaintiffs need not seek a perfect remedy. Massachusetts v. EPA, 549 U.S. 497; see also Uzuegbunam v. Preczewski, 592 U.S. 279, 293 (2021) (nominal damages sufficient for redressability purposes)

[Brett Bellmore]

You seem to be treating harm as a binary. But it's not a binary, it's a continuous variable. It's perfectly reasonable, for instance, to prefer being beaten to being murdered, if those are your only available choices.

This is not to say that the plaintiffs should get their injunction. I think the merits are against them.

It's my understanding that the new map scores higher on compactness than the old map. This by itself should be virtually fatal to any claim it is more gerrymandered than the old map.

Secondly, according to the author of the map, it was generated totally without any use of racial data. Is this true? I don't have proof either way, but since they would have direct access to voting data, it wouldn't have made any sense at all to use race data as a proxy for voting data. So it's probably true, barring evidence to the contrary. It would be up to the plaintiffs to present that evidence, and I haven't heard of any.

If it was generated without use of race data, it is categorically impossible for it to be an actual racial gerrymander.

The problem here is that we're gradually emerging from a period during which the courts were, instead of prohibiting racial gerrymanders, mandating them. Any move away from racial gerrymandering is going to reduce the number of majority black districts, because the number was artificially high.

[wvattorney13]

That seems to be what they are doing if you are able to wade through their misrepresentations and deflections.

For 60 years districts have been racially gerrymandered because courts have required it. Now that states are noticing this, they decide to have fair districts that do not account for race.

Yet, the act of doing that necessarily implies a deviation from past practice which acts as a harm to racial minorities. So, in effect, because we are taking away the massive advantage you previously had, that means that we are "harming" you with the new proposal. The distinguishing factor that causes the harm is race. Cobble them together, it gerrymandering based on race.

Only our resident left wing posters could appreciate that type of conclusion.

[SRG2]

Josh, as usual, is being disingenuous. It's perfectly possible for the 2021 map to be racially gerrymandered while nowhere near as badly as we know the 2025 map is and so the plaintiffs don't lose their claim.

[Brett Bellmore]

I agree with you, it's certainly possible. Though I'm not going to agree that the new map is a racial gerrymander, barring evidence that it was drawn on the basis of race.

[Patrick Henry, the 2nd]

No Josh, as usual, is being smart. It's a great point. Either racial gerrymandering is bad or it's not. You can't pick a map that is less.

It's clear neither actually is, and this is all about politics.

[loki13]

"It's clear neither actually is, and this is all about politics."

As detailed in the opinion written by a Trump-appointed judge, the problem with the gerrymander was that it WASN'T about politics. If they had just said it was to screw the Democrats, it would have been fine.

Instead, the Governor explicitly said he wouldn't do a partisan gerrymander. Then the Trump DOJ sent a BS letter saying he HAD to do a racial gerrymander. So from that point on, he insisted that he was doing it on the basis of race and not for partisan reasons (the ones that the Trump DOJ said in the BS letter).

That was the entire problem.

As for the redressability "problem," that's just Josh talking out of his posterior. In effect, his argument is, "You did a racist thing, and it can't be undone because the status quo is only less racist, not perfect."

I will again point out that the Trump-appointed Judge went out of his way to keep stating that if Texas had just done a partisan gerrymander, it would have been fine. But instead, they kept insisting they were doing it EXPLICITLY for the one reason that this SCOTUS is insisting you can't do.

It's a bizarre opinion for that reason, and very much a self-inflicted wound. Mostly because it sets up the Supreme Court in the weird position of having to go against the one thing they've been hellbent on doing (dismantling districts that have majority-minority populations ... if you know what I mean) in order to uphold it.

But, you know, calvinball.

[Brett Bellmore]

"Then the Trump DOJ sent a BS letter saying he HAD to do a racial gerrymander."

I'd like to see this letter. Got a link to it?

"As for the redressability "problem," that's just Josh talking out of his posterior. In effect, his argument is, "You did a racist thing, and it can't be undone because the status quo is only less racist, not perfect.""

Now, on THAT, we agree. It's a silly argument.

[Brett Bellmore]

I'm going to guess you mean THIS letter.

"As stated below, Congressional Districts TX-09, TX-18, TX-29 and TX-33 currently constitute unconstitutional "coalition districts" and we urge the State of Texas to rectify these race-based considerations from those specific districts"

...

"It is the position of this Department that several Texas Congressional Districts constitute unconstitutional racial gerrymanders, under the logic and reasoning of Petteway. Specifically, the record indicates that TX-09 and TX-18 sort Houston voters along strict racial lines to create two coalition seats, while creating TX-29, a majority Hispanic district. Additionally, TX-33 is another racially-based coalition district that resulted from a federal court order years ago, yet the Texas Legislature drew TX-33 on the same lines in the 2021 redistricting. Therefore, TX-33 remains as a coalition district.

Although the State's interest when configuring these districts was to comply with the Fifth Circuit precedent prior to the 2024 Petteway decision, that interest no longer exists. Post-Petteway, the Congressional Districts at issue are nothing more than vestiges of an unconstitutional racially based gerrymandering past, which must be abandoned, and must now be corrected by Texas."

The letter is saying that the current, not the proposed map, is a racial gerrymander. It specifically states that the violative map is the 2021 map, not the new one.

You wrote, "Then the Trump DOJ sent a BS letter saying he HAD to do a racial gerrymander. "

And yet, when I looked up the letter, it actually said the exact opposite, that he had to REFRAIN FROM doing a racial gerrymander.

[loki13]

*sigh*

You have to actually understand stuff ... not just try and google things and assume they mean what you want them to mean.

Seriously, Brett, just for a second assume I might know a little more about, um, this than you do (since I already identified the key issue and have read the opinions and have commented before on this) before wading in and demonstrating your ignorance.

If you can't be bothered, you can certainly look up a lot of independent analysis that will explain to you exactly why you don't have a clue on this one. Heck, there's even some court opinions!

(Seriously, what is it with people that confidently assert things like this? Do you know Pettaway? What a coalition district is? Why the DOJ letter is ... farcical? I'm guessing that's a no. I mean, did you bother even trying to figure this out? I ask that honestly.)

[Brett Bellmore]

Look, I am at least capable of parsing English sentences, and that letter nowhere says to racially gerrymander. It says to STOP racially gerrymandering.

It doesn't move me one bit that you regard not racially gerrymandering as racially gerrymandering. The letter said what it goddamn said: 'You have been racially gerrymandering. Stop.'

[Kenneth Almquist]

The opinion quotes from the Supreme Court decision in Parents Involved in Community Schools v. Seattle School Dist. No. 1: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

There is a long line of people arguing that race based remedies are necessary to correct past discrimination, but they have lost the argument, at least in the legal world. So, for example, you quote the letter saying that the boundaries for TX-33 were the result of “a federal court order years ago” which presumably involved racial gerrymandering. The letter says that Texas retained those boundaries in 2021, presumably not with any consideration of race, but just because of status quo bias. That, according to the letter, is impermissible. Texas must perform a redistricting that explicitly targets race in order to correct past discrimination.

You have a lot of company when you argue that discriminating on the basis of race is not really discrimination when it is done to correct past discrimination, but that argument lost in the courts, which is why Texas lost this case.

It’s also why the appeal to the Supreme Court spends so much time arguing the facts rather than arguing the law. The only legal argument being argued in the Supreme Court is that the injunction was issued too close to the time of the election.

[Lee Moore]

You have a lot of company when you argue that discriminating on the basis of race is not really discrimination when it is done to correct past discrimination, but that argument lost in the courts, which is why Texas lost this case.

Brett isn't arguing that. He's arguing that Texas should stop discriminating on the basis of race, and that's what the 2025 law did. It's conceivable that loki thinks that racially discriminating so as to try to reverse the effects of previous racial discrimination, is not racial discrimination, but he hasn't offered us an opinion. All we know is that he's not a reliable reporter on DoJ letters.

[Brett Bellmore]

I certainly would argue that Texas should stop discriminating on the basis of race. I think it's at least arguable that's what the 2025 law did, and I have seen no evidence to the contrary presented.

But my chief point is just that Loki lied about what the DOJ letter said.

[Joe_dallas]

Likewise I agree with Brett -
The letter tells the Texas legislature to refrain from racial gerrymandering, not to engage in racial gerrymandering.
The end results appear that the new districts more closely comply with VRA and the holding in Petteway.
Brown's finding of facts notably took the plaintiffs pleadings as true - akin to CA6 taking UofM's pleadings as true.
As noted in the dissent, there are quite a few disputed facts. Which contrary to DN assertion, the disputed facts are not resolved.

[wvattorney13]

You claimed none of this. You claimed:

"Then the Trump DOJ sent a BS letter saying he HAD to do a racial gerrymander."

If you are referring to the letter that Brett linked then you wholly misrepresented it. Cite me the sentence in there where the DOJ said that Texas "HAD to do a racial gerrymander." That would be quite a terribly stupid thing for any DOJ to do. But, it's not in there. You said it was.

[Brett Bellmore]

You have to understand the way they think: Their baseline is never the status quo, or neutral, it's what they want. If they get less than what they want, you're 'taking from them'.

If they want the thermostat turned up, and you refuse, you're turning down the temperature.

If they want more welfare spending, and you refuse, you're taking from the poor.

And if they want pro-black racial gerrymandering, and you refuse, you're guilty of anti-black racial gerrymandering.

So, by telling Texas to stop gerrymandering in the way THEY want, the Trump DOJ was telling them to gerrymander in the opposite direction!

Not gerrymandering is gerrymandering. If you're insane, anyway.

[Lee Moore]

loki : Seriously, Brett, just for a second assume I might know a little more about, um, this than you do (since I already identified the key issue and have read the opinions and have commented before on this) before wading in and demonstrating your ignorance.

How to win friends and influence people*. Not.

If you really did understand anything more than Brett about this, it would be the work of a moment either to explain how, in legalese, the letter Brett linked could be interpreted as a demand to do a racial gerrymander, rather than its natural English meaning - a demand to remove one.

But it's just the usual loki snotty snark. From which I deduce that what you're really saying is : "I got nothing."

* the best version of loki's comment comes from the English courts of a century or more ago.

The - then - famously brilliant lawyer, FE Smith had just finished explaining a complicated point of law, when the judge cut in :

Judge : "Thank you Mr Smith, but I'm afraid I'm none the wiser."

FE Smith : "No my Lord. But better informed."

(You kinda have to be FE Smith, or his modern peer, to pull this off. loki not so much.)

[Brett Bellmore]

To be clear, Loki could have said something like, "While the letter facially demands that Texas stop racially gerrymandering, it's using a definition of "racial gerrymandering" that I disagree with, and by ceasing "racial gerrymandering" as the Trump administration defines it, Texas would actually be committing it as *I* define it."

If he'd said that, I would almost certainly have taken issue with his definition of "racial gerrymandering", had he deigned to explain it, but I wouldn't have considered that a lie.

He didn't. He said, "Then the Trump DOJ sent a BS letter saying he HAD to do a racial gerrymander."

Which was, as it turned out, a lie. Explaining why he'd said that, but couldn't be bothered to back it up.

[SRG2]

Either racial gerrymandering is bad or it's not

That does not mean that all racial gerrymanders are equally bad. You seem to think they are.

[Brett Bellmore]

Well, all racial gerrymanders aren't equally bad, in the sense that some are more extreme gerrymanders than others.

But the badness of racial gerrymandering doesn't depend on who benefits from it. That's the sort of unprincipled approach to the topic which just tosses aside any pretense of actually regarding discrimination or gerrymandering as wrong.