The Texas Gambit

American politics at present is defined by the daily discarding of long-standing norms. The Trump administration’s steady march toward authoritarianism has destabilized what were thought to be roughly settled understandings about, for example, the judiciary’s role in checking the legislative and executive branches, the U.S. Constitution’s enshrinement of birthright citizenship, the necessity of apolitical law enforcement (e.g., FBI, DOJ), and the moral repellency of internment camps. President Trump, Vice-President Vance, and nearly the entirety of the Republican Party have contrived a state of exception that dispenses with the basic tenets of liberalism. With unchecked power as the objective, once extreme political tactics are now commonplace.

The latest ignominy involves the brazen attempt, by the Republican leadership of the State of Texas, to gerrymander (i.e., redesign) the state’s congressional districts to give the GOP control over an additional five seats; a move that, if successful, would raise the number of U.S. House seats held by Texas Republicans from twenty-five to thirty (Texas has thirty-eight congressional districts). This attempt came at the behest of Trump, who is desperate to lock in as many surefire Republican congressional districts as possible in advance of the 2026 midterm elections. Given that the Republican Party is heavily favored to retain control of the U.S. Senate next year, the result of the House elections will likely determine whether Trump receives any meaningful legislative resistance throughout his administration’s epilogue. Hence, the Texas (and possibly the Missouri, and Indiana, and Florida, and…) gambit.

Mapmaking and its abuse

Partisan gerrymandering is a sordid practice, unfamiliar to the rest of the world. As background, in most advanced nations, politicians are elected from districts that are designed by nonpartisan bureaucrats. In the U.S., by contrast, with a handful of exceptions, state legislators themselves design both state legislative and congressional districts every ten years, following the completion of the national Census (the technical term for this practice is “redistricting”). This timing makes sense. Over the course of a decade, people are born, people die, and people move. The decennial Census therefore produces the data that is necessary for the redistricting process to proceed in accordance with the law. Under a series of landmark U.S. Supreme Court cases from the 1960s, the population totals in each of the congressional districts within a state must be near identical (i.e., they must be “equipopulous”). For instance, the 2020 Census determined that there are 29,145,505 residents of Texas. As noted above, Texas has thirty-eight congressional districts. Thus, Republican state legislators in Texas, who, as the majority party, control the redistricting process, must ensure that each congressional district in Texas is populated by roughly 766,987 people. The figures are of course different in each state, given the size of their respective populations and the number of congressional districts they are allocated (a determination that is itself dependent on state population figures).

The trouble arises from the fact that, even with the obligation to create equipopulous districts, there are countless ways to design a redistricting map, and the nature of modern political data is such that politicians can predict with great accuracy how most people will vote. Consequently, politicians of the majority party in a state legislature can design maps with preordained electoral outcomes, thereby entrenching an electoral advantage for their party. Although both parties have long been guilty of such partisan gerrymandering, we seem to have entered into a perilous new phase of mapmaking abuse.

The Supreme Court’s responsibility

The Supreme Court bears some of the blame. For decades, the Court left open the question of whether partisan gerrymandering was unlawful; a majority of the Court could never agree on what standards might be used to sensibly distinguish lawful from unlawful partisan gerrymanders. But the irresolution at least mitigated whatever maximalist gerrymandering ambitions politicians might have had; that is, there was still at least a possibility that an egregious partisan gerrymander might be invalidated. The watershed moment arrived in 2019, when a majority of the Court, in a regrettable case called Rucho v. Common Cause, finally deemed federal courts unfit, given a lack of workable standards, for evaluating partisan gerrymandering at all. Since then, states have been free to engage in aggressive partisan gerrymandering without fear of facing federal litigation. And while some state courts have heard partisan gerrymandering suits, and in some instances even invalidated redistricting maps for running afoul of state constitutional provisions, what happens in one state has no bearing on what goes on in another. In a state like Texas, then, which is dominated by the Republican Party and has an oversupply of Republican-appointed judges, the state legislature can now gerrymander without caution. The same could be said for the Democratic Party’s tenacious gerrymandering in the State of Illinois.

Political norms

What is novel in the Texas situation is both the origin and timing of the attempted gerrymander, and the gaudy theatricality that has followed. I am unaware of any prior instance in which a President has implored a Governor to undertake an immediate partisan gerrymander, especially by way of a special legislative session occurring in the middle of a decade, well outside of when redistricting traditionally occurs. Many might wonder whether such a move is legal. It undoubtedly is. Article I, Section 4 of the Constitution – the Elections Clause – states that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” There is no dispute that the Elections Clause authorizes the design of congressional districting maps, which is squarely within a state’s power (unless superseded by Congress). This authority, though, doesn’t make the current circumstance any less nefarious.

Even in this era of deteriorating political norms, few, if any, anticipated that mid-decade redistricting would emerge as a means of consolidating political power. It is true that Texas Republicans successfully pursued mid-decade redistricting back in 2003. But the exceptionality of that episode only underscores how strong the norm against such tactics has been. And for good reason. The moves underway are incredibly disruptive. Voters have come to expect that, however tumultuous the decennial redistricting process might be, once completed, the resulting district lines will be in place for the next decade. Politicians, and those seeking office, likewise benefit from the stability and predictability that comes with knowing who they represent, or aspire to. A mid-decade redistricting effort unsettles all of that, and worse yet, threatens to exacerbate the misalignment between voters’ preferences and electoral outcomes. Put differently, excessive partisan gerrymandering produces disproportionate success rates for one party or the other, thereby compromising electoral accountability and representative self-government. In this regard, it only furthers the downward spiral of American politics.

Tit-for-tat

Unsurprisingly, then, the Texas gambit has inspired political stagecraft of the highest order. After a few days of internal debate, over fifty Texas Democratic lawmakers decided to decamp to New York, Massachusetts, and Illinois, as a means of breaking quorum in the Texas legislature, thus preventing a legislative vote on the proposed redistricting map (In 2003, Texas Democrats fled the state for identical reasons, though only to neighboring Oklahoma). Though breaking quorum is lawful, Texas Governor Greg Abbott and Texas Attorney General Ken Paxton have nevertheless touted the fining of each absent member $500 per day, threatened to prosecute the absent members for bribery if they accept any funds from others as a means of paying the fines, and asked the Texas courts to remove the absent members from office for forfeiting their seats. While the $500 daily fine is permissible under the Texas House Rules Manual, the legal bases for the bribery prosecution and office removal are dubious at best. Meanwhile, the Texas House has voted to issue civil warrants for the arrest of the absent members, and John Cornyn, the senior U.S. Senator from Texas, has asked the Federal Bureau of Investigations for help in “locating” the Democratic lawmakers, a curious request given the number of press conferences they have been conducting from afar. In fact, the lawmakers temporarily inhabiting Illinois are so locatable to have been the target of a bomb threat at their hotel.

As other Republican-led states contemplate redesigning their own congressional maps either this year or next, a handful of Democratic Governors have promised retaliation. Governor Gavin Newsom of California, Governor Kathy Hochul of New York, and Governor JB Pritzker of Illinois, have all vowed to find ways to redistrict their maps in short time to maximize Democratic Party safe seats (the nuances of these efforts vary across states). Military metaphors abound, as in Governor Hochul’s admonition that “we are at war.” POLITICO describes the state of play as “a proxy war between national Republicans and Democrats for control of Congress.” At the time of this writing, no compromise appears in sight.

It is too early to track all of the reverberations from this charade. That said, if, in fact, a national tit-for-tat redistricting overhaul occurs, it will be hard to not feel some remorse for the citizenry. A political landscape in which California, Illinois, New York, Maryland, and other blue states are represented in Congress almost entirely by Democrats marginalizes the many Republican voters in those states. The same could be said for Democratic voters living in Texas, Florida, Missouri and in other red states. Even if partisan gerrymandering was always profane, and never sacred, the gross prioritization of partisanship over public service makes a mockery of the responsibility entrusted to those with power.