Texas Attack on Political Guardrails is Not Business as Usual

August 20, 2025

[An abbreviated version of this post was published by the Virginia Pilot]

Redistricting is divisive and partisan enough when it happens every ten years. Now, Texas has opened a new front in our polarizing political wars by drawing new congressional maps mid-cycle and doing it for one purpose—to prevent Trump and the Republicans from losing the House majority in the 2026. Florida, Ohio, and Missouri, all with legislatures under the control of Republicans, may soon follow suit. In response, Democrats in states like California, Illinois, and New York, are threatening to redraw their own maps, actions that will further exacerbate the polarization in the country.

Texas has always been known for cooking its maps, but the process has only been made easier by our Supreme Court. In 2019, SCOTUS, in Rucho v. Common Cause, barred challenges to partisan gerrymandering from being heard in federal courts. And the Court is now considering arguments that would prevent federal courts from also hearing cases where maps are drawn to disadvantage racial and ethnic minorities. If this occurs, it will be the death knell of the 1965 Voting Rights Act, and state redistricting plans would largely be free of federal judicial oversight.

BOTH SIDES DO NOT DO THIS

The public perceives redistricting as a cynical way by which legislators pick their voters instead of constituents choosing their representatives. When they exclaim “both sides do it,” it is easier to portray the Texas plan as “business as usual.” Except it isn’t!!

Our founders intended congressional redistricting to occur after the once-a-decade population count by the U.S. Census Bureau. Census data would be used to adjust the size of a state’s congressional delegation to reflect changes in its population. To protect the principal of “one person, one vote,” embedded in our Constitution, each district must contain approximately the same number of residents. In that way, no person’s vote is more powerful than any other’s. Over the years, however, the redistricting process has been corrupted by power-hungry legislators and tech-savvy consultants who can slice and dice the electorate in ways previously thought unimaginable. This has served two purposes; to draw maps to favor the party in power, and to protect incumbents. Some states have created nonpartisan redistricting commissions to bring more fairness and transparency, but most state legislatures still control the process.

TEXAS AS OUTLIER

The Texas approach is very different—and much more insidious—than any typical partisan redistricting that we have seen in recent history. Unlike traditional once-a-decade redistricting, which has spawned partisan hijinks on both sides, Texas is manufacturing new maps off-cycle, and primarily at the behest of a President who deathly fears that he will lose the House majority in 2026. No court has ordered the legislature to draw new maps. The census is still five years away. Texas is already politically gerrymandered, with Republicans holding 68% of their congressional seats (25-12) in a state where Trump received 56% of the vote in 2024. But Republican lawmakers want more. Their goal is to draw new maps to gain 5 GOP seats in Congress and protect the Republican majority against the effects of a Trump backlash.

To protect their constituents against this power grab, Texas House Democrats employed a dramatic example of nonviolent noncooperation; they left the state. The Texas legislature has an unusual rule---a supermajority quorum is required to transact business.---and the Democrats exploited it to prevent a vote. Republicans were incensed, and threatened Democrats by issuing civil arrest warrants, requesting FBI assistance to compel their return, and filing lawsuits to remove them from office. They even accused Democrats like Beto O’Rourke of bribery, simply because he supported the legislators. This is not “business as usual.”

Democrats held their ground, and the special session, which was scheduled to run until August 19, ended early. Gov. Abbott then called another special session, and a new map has been passed.

OTHER RED STATES MAY JOIN

Despite Trump’s pressure on other red states to also draw new maps, it is not clear who will join this power grab. Ohio will have to do something, if only because the state’s supreme court ruled their 2021 partisan gerrymander to be unconstitutional. But how far will they go? The state is already gerrymandered to favor Republicans. While Donald Trump beat Kamala Harris 55%-45% in the 2024 election, Republicans control 66% of Ohio’s U.S. Congressional delegation, holding a 10-5 advantage over Democrats. Ohio Republicans think a gain of two to three is possible but some worry that if they push too hard, they could endanger some of their incumbents. The state has a redistricting commission, but it will not be involved until the next census.

Florida is another likely candidate, if only because Gov. Desantis has embraced hyper partisan redistricting for years. When the Republican legislature last produced a map in 2021, Desantis vetoed the measure and labeled it as too balanced. He then crafted, with assistance of national political consultants, his own plan that both favored Republicans and targeted Black-dominated congressional districts. Florida Republicans now have a 20- 8 advantage in their congressional delegation. Florida’s quorum rules would not permit Democrats from doing more than protesting, but challenges nonetheless remain for the GOP. The state’s population distribution may make it more difficult to create additional GOP districts. And its Constitution contains a provision inserted by state voters in 2010 requiring “Fair Districts” in Congressional apportionment, a political talking point even if the conservative state supreme court would likely ignore the clause.

Missouri may also join, but Republican gains would likely be minimal. The GOP already outnumbers Democrats 6-2 in their congressional delegation, and some legislators have expressed concern that cooking the maps to target one or two seats could backfire.

THE PRISONER’S DILEMMA—AND A TARGETED RESPONSE

Democrats, many of whom have been critical of redistricting and support nonpartisan commissions, face a serious dilemma. They are leery of employing the Texas approach for fear of losing the moral high ground embodied in a nonpartisan approach to drawing district lines. But they understand the stakes. They witnessed the U.S. Supreme Court open the flood gates to increasingly partisan maps in the Rucho case. They watched as North Carolina, a state where the Governor (who happened to be a Democrat) has no power to veto redistricting plans, redrew congressional lines in 2023 after the state’s Supreme Court overturned an earlier court decision holding that the GOP’s 2021 plan was unconstitutional. The result was a hyper partisan plan giving the GOP an advantage in 10 of 14 congressional seats.

The Democratic base is demanding a response and rejecting the opt-repeated phrase, “when they go low, we go high.” Gov. Newsom in California is leading the charge, but the state requires redistricting to be done by an independent commission. Consequently, his proposal will require voter approval, and the maps only take affect if Texas passes new ones. The new map will simply balance the new Republican seats in Texas with the same number in California. A ballot initiative is a big gamble and has drawn criticism from former governor Arnold Schwarzenegger. The new maps would only remain until after the next census and would keep the next redistricting in the hands of the commission.

While Illinois and New York leaders have discussed drawing new maps, those efforts have challenges of their own. Illinois is already highly gerrymandered, with Democrats having 14-3 advantage in their Congressional delegation. The state does not have a redistricting commission, but there are not many more seats to squeeze out of new maps. In New York, where Democrats presently hold a 19-7 congressional advantage, the presence of a 10-member Independent Redistricting Commission passed by voters in 2014, complicates any path to mid-cycle redistricting. A 2021 map drawn by the Democratic legislature was thrown out by a court in 2022; the party ultimately adopted a less partisan map in 2024. State Democratic leaders have now decided to propose a constitutional amendment to make changes, but any new map would not take effect until after the 2026 midterms. Some scenarios suggest that the Empire State could create as many as four new Democratic seats.

The public does not like this fight. A recent poll found that (75%) of Americans say that partisan gerrymandering is a major problem, with 69% of respondents stating that redistricting legislative districts to advantage one party over the other should be illegal. In addition, about half (51%) believe that responding to unfair redistricting by creating new hyper partisan maps in other states as a counterbalance is also wrong. This suggests that red and blue states should step away from this redistricting arms race.

VIRGINIA SHOWS IT NEED NOT BE THIS WAY

The Commonwealth is no stranger to the redistricting wars. In 2011, Republicans controlling the General Assembly pushed through a plan that ultimately led to GOP supermajorities in both Congress and the House of Delegates. It took years of court fights, but the plan was ultimately found to be an unconstitutional racial gerrymander. With new maps in place, Democrats won a majority of the state’s congressional seats and gained control of both the House of Delegates and the Senate. What few know, however, is that the state narrowly avoided a Texas-style partisan mid-cycle redistricting of its own in 2013.

In 2013, the GOP controlled both the governorship and the House of Delegates, and the Senate was equally divided.

The Commonwealth had a tradition of making off-cycle “technical amendments” to redistricting plans to fix split precincts and make small changes in the lines to correct errors. It was done in the collegial “Virginia Way” and premised on the idea that neither party would do this to gain an advantage. In 2013, the House passed such a technical amendments bill and sent it to the Senate, which had a 20-20 partisan composition at the time. But Republican Senators, seeing that a Democratic colleague was missing on the day of the vote to attend the second inauguration of Barack Obama, saw an opportunity to “game the system” , and amended the bill on the Senate floor to impose a new map for the entire state, which would create GOP advantages for the rest of the decade. As customary, the bill was then returned to the House for its consideration.

Then something remarkable happened. It was clear that the Senate amendment went far beyond the initial legislation and violated the rules of the House. But this would require the Republican Speaker of House, William Howell, to rule the amendment “out of order,” effectively killing the bill. After several days of delay and threats by his caucus to remove him as Speaker, he ruled the measure out of order. Because Republicans enjoyed a 66-32 supermajority, they could have challenged the ruling. They did not do so, and the bill died.

It was a powerful moment. Howell could have ignored the rules and allowed the bill’s passage. Instead, he upheld a principle: that political power should not be used recklessly, even if you have the votes to do it.

Several years later, Virginia voters established, by constitutional amendment, a redistricting commission which, while not perfect, puts a brake on partisan redistricting. In doing so, it joined nine other states with some form of redistricting commission: six Democratic trifecta states, two states with divided government, and two Republican trifecta states.

It is difficult to predict if Virginia will be another state to consider midcycle redistricting for the 2026 election. If Abigail Spanberger wins this fall, and the House remains in Democratic hands, anything could happen. While the state has a redistricting commission, the Constitutional provision guiding it requires that it meet “In the year 2020 and every ten years thereafter”. Would this language permit a legislative redistricting mid-cycle? If so, Democrats could draw districts providing them an advantage in 8 of 11 congressional seats and increase its delegation by two.

REDISTRICTING AS CHAOS

Redistricting multiple times a decade would create chaos. Congressional incumbents would not like it, as it would make their own districts less predictable and increase their chances of losing the next election. Options exist for those who want to avoid more polarization and greater division between the states. First, more states could create nonpartisan redistricting commissions. Second, Congress could pass a federal law prohibiting, absent court instruction, more than one redistricting per decade. More unconventional approaches, such as creating multimember congressional districts, and awarding each party seats based on the percentage of popular vote it receives in that election, are worth consideration.

As Justice Elena Kagan recently opined, partisan gerrymanders, by depriving citizens of rights to participate equally in the political process and choose their political representatives, are undermining the core American idea that all governmental power derives from the people. Texas should follow states like Virginia and abandon this undemocratic scheme.