Supreme Court Update: Abbott v. League Of United Latin American Citizens (No. 25A608)

Yesterday, in Abbott v. League of United Latin American Citizens (No. 25A608), a presumably 6-3 Court issued a short order allowing Texas's new, and explicitly gerrymandered, congressional map to go into effect for the 2026 congressional election. In doing so, it stayed a split three-judge District Court's decision that the new map violated the Constitution by taking the racial composition of voting districts into account in achieving the legislature's partisan aims. Like many so-called Shadow Docket decisions—that is, orders on interim relief decided without much briefing or any argument—this one is short, with only a few sentences of reasoning. More significantly, like many other recent Shadow Docket decisions, this one appears to establish new law regarding the interplay of (justiciable) racial gerrymandering claims with (nonjusticiable) partisan gerrymandering ones in a way that will make it even harder for challenges to state legislative districts to succeed.

As you likely already know, state legislatures have historically established new congressional-district maps shortly after each decennial census, with those maps then remaining in effect until the next census reveals changes in population composition that prompt a new map. Absent unusual circumstances—like being compelled to redraw the maps for legal reasons—mid-decade redistricting was basically unheard of until this year. That changed when newly elected President Trump began pushing legislators in red states to redraw their maps for the upcoming 2026 congressional election to make it easier to defend the Republican's narrow majority in the House of Representatives.

At first, those pleas fell on deaf ears. But in July, the Department of Justice's Civil Rights Division sent a letter to Texas's Governor and Attorney General raising "serious concerns" about the legality of Texas's current map—adopted in 2021—and threatening legal action under the Voting Rights Act if Texas didn't revise the racial composition of some of its voting districts to come into compliance with what the DOJ claimed the VRA requires. (Notably, no one has ever tried to defend the DOJ's claims as to what the VRA required.) Shortly after receiving the letter, Texas Governor Greg Abbott issued a proclamation adding revised congressional maps to the agenda of an upcoming special session of the Texas legislature. At that session, the legislature adopted a new map, which many believe will help the Republicans secure five more House seats in 2026. Part of the way it accomplished that end was by redrawing certain majority-minority districts (ones where Black or Hispanic voters constitute a majority) by the smallest amount possible, which was closely aligned to what DOJ had said the VRA requires.

A group of plaintiffs promptly challenged the newly adopted map, alleging that it violated the Fourteenth and Fifteenth Amendments because even though the motive for redistricting was indisputably partisan, the basis on which legislators redrew the map for their partisan aims improperly relied on race. That framing was essential because, while partisan gerrymandering sounds gross, the Supreme Court held in Rucho v. Common Cause (2019) that partisan-gerrymandering claims are nonjusticiable, so it's basically licit. It does violate the Constitution, however, for legislatures to use race-based voting districts as a way to achieve their partisan aims. Texas never disputed that its mid-decade redistricting was partisan: To the contrary, that was its whole defense. Rather than arguing that the VRA required it to draw the maps in the way it had, it insisted that it was paying no attention to race and drew the map only to benefit Republicans. The racial features of its new map were merely a happenstance result of its partisan aims.

A three-judge District Court was then impaneled to hear the evidence and resolve these claims. After a lengthy trial, two of those three judges ultimately concluded that though Texas's goal was indisputably partisan, race played a predominant role in the redistricting in three main ways: First, it triggered the whole process, as the DOJ's letter claimed that Texas's existing districts violated the VRA and asked it to redraw certain districts based on racial considerations. And after receiving that letter, Governor Abbott placed redistricting on the agenda and directed legislators to consider the DOJ's concerns about the racial composition of several districts, even going so far as to ask legislators to give DOJ "the racial rebalancing it wanted." (Remember: Texas did not take the position that the VRA required it to draw its maps in the way it did, which might excuse it from considering race in drawing its maps.) Second, legislators, including the new maps' sponsors, repeatedly described their new maps as redrawing certain districts on racial lines. Finally, the racial composition of certain voting districts in Texas's ultimate maps differed from what one might expect to see if the legislature were truly creating their maps based solely on partisan considerations, suggesting that racial considerations had played a role in how legislators drew the lines. But that view was not unanimous: The dissenting judge wrote a fiery dissent accusing his colleagues of the "most blatant exercise of judicial activism" that he had ever witnessed.

Texas promptly asked the Supreme Court to step in and stay the District Court's order invalidating its map for the upcoming congressional election. In a short, unsigned order, it did so for three reasons: First, Texas was likely to prevail on its appeal of the District Court's order because the District Court failed to "honor the presumption of legislative good faith" by construing ambiguous evidence against the State. Second, Texas was likely to win because the District Court should have drawn a "near-dispositive" adverse inference against the plaintiffs from the fact that they did not present an alternative map with different boundaries that would have similarly advanced the State's partisan goals to the same extent. Finally, the Court concluded that the equities and the public interest favored Texas because throwing out Texas's maps shortly before the election violated the Purcell principal, which advises lower courts not to alter election rules "on the eve of an election." The District Court's decision striking down the maps is thus on hold until the case is ultimately resolved through appeal, meaning the new map will certainly be in place for the mid-terms in November 2026.

Justice Kagan dissented at some length, joined by Justices Sotomayor and Jackson. First, she pointed out that the District Court sat as fact finder when it weighed the various pieces of evidence and decided what it showed about Texas's actions. Ordinarily, district courts' factual findings are reviewed for clear error, making them difficult to reverse. And contrary to the majority, the dissenters thought that the District Court did extend Texas a presumption of good faith; it simply found that the evidence overcame that presumption. That was not clearly erroneous.

Second, Kagan criticized the majority for subtly changing established law. As prior cases have recognized, the failure of a plaintiff in a racial gerrymandering case to present an alternative proposed map that would satisfy the legislature's ends without improper racial gerrymandering merits an adverse inference that the legislature was not in fact engaged in a racial gerrymander. But those decisions also described that adverse interest as dispositive only when the plaintiff lacked direct evidence, evidence that the District Court concluded was present here. But for the first time, the majority suggested that this adverse inference was "near dispositive" even when there was direct evidence, a standard not previously found in the Court's gerrymandering law. The majority thus appeared to be making new law regarding the importance of alternative maps in racial gerrymandering cases.

Finally, the dissenters took issue with the majority's conclusion that the District Court wrongly altered election rules on the eve of the election. That election was hardly imminent—it will not take place for upwards of a year. And even if it were, the proximity to the election was entirely the result of the legislature, which amended its maps only this summer, leading to an immediate challenge. As the dissenters saw it, the Court's application of Purcell allows every state the opportunity to hold at least one free unlawful election: As long as a state changes its election laws late enough, Purcell will prevent courts from finding those newly changed laws invalid.

In sum, the Supreme Court has once again changed the law through a purportedly "interim" decision, without full briefing and argument, and in a manner that will directly impact the 2026 midterm elections (as, in fairness, denying the stay would also have done). And given the Court's reasoning, there appears to be little reason why any and every other state in which one party or the other controls the legislature and executive won't follow suit (as California and North Carolina already have) in order to get their one free (maybe even unlawful) election.

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