Texas GOP Had A Legal Path To Gerrymander. Trump’s DOJ Ordered Them To Take The Blatantly Illegal Path Instead

Legal Issues

from the the-meritocracy-at-work dept

Let’s say, hypothetically, you want to gerrymander some congressional districts to help your party win more seats. Here are a couple of options:

1. Do blatant partisan gerrymandering, which is cynical and corrupt but in most cases (tragically and unfortunately) perfectly legal under current US law.
2. Do racial gerrymandering, which will definitely get you sued and probably lose in court for violating the fairly clear Voting Rights Act restrictions on racial classifications.

Which do you choose? If you said “obviously option 1,” congratulations, you understand the law better than the Trump administration’s Department of Justice. Because the Trump administration just got legally smacked down for picking option 2.

Trump’s broader redistricting push kicked off partisan gerrymandering efforts across the country, including in California where voters overwhelmingly passed a ballot measure (Prop 50) to temporarily redistrict solely to counteract Texas’ gerrymandering. That measure originally included a provision that it would only go into effect if Texas went through with its plan, but that provision was removed before the vote. The (unlikely, but suddenly possible) end result now might be that California gerrymanders, while Texas doesn’t. Oops.

When Trump first demanded that Texas redistrict to stop Democrats from winning seats in the House, Texas Republicans initially balked. This is now long-forgotten history, but it’s true. They were a bit worried about how all this would go over.

The push from Washington has unnerved some Texas Republicans, who worry that reworking the boundaries of Texas House seats to turn Democratic districts red by adding reliably Republican voters from neighboring Republican districts could backfire in an election that is already expected to favor Democrats.

But then Trump’s team of legal geniuses found an innovative solution: they reframed their partisan gerrymandering as a civil rights imperative, thereby transforming a legal (if obnoxious) political maneuver into an illegal racial classification scheme.

The mastermind behind this strategy was Harmeet Dhillon, Trump’s choice to run the DOJ’s Civil Rights Division. (You might remember Dhillon from her previous career filing lawsuits on behalf of aggrieved conservatives who felt insufficiently appreciated.) But her letter to Texas officials demanding race-based redistricting represents a new level of culture war-driven legal incompetence.

It’s really worth appreciating just how stupid and counterproductive this letter was, as is laid out by the judge in this case.

Judge Brown—who clerked for current Texas Governor Greg Abbott when Abbott was on the Texas Supreme Court and who previously blocked Biden’s COVID vaccine mandate—is hardly what anyone would call an “activist leftist judge.” Which makes his scathing assessment of the Trump administration’s approach all the more damning.

Because those Texas legislators were so hesitant, Dhillon sent them a letter trying to argue that the state was violating civil rights laws if they didn’t redistrict along racial lines, and that apparently kicked off all this nonsense.

Judge Brown pointed out how absurd all this is:

Earlier this year, President Trump began urging Texas to redraw its U.S. House map to create five additional Republican seats. Lawmakers reportedly met that request to redistrict on purely partisan grounds with apprehension. When the Governor announced his intent to call a special legislative session, he didn’t even place redistricting on the legislative agenda.

But when the Trump Administration reframed its request as a demand to redistrict congressional seats based on their racial makeup, Texas lawmakers immediately jumped on board. On July 7, Harmeet Dhillon, the head of the Civil Rights Division at the Department of Justice (“DOJ”), sent a letter (“the DOJ Letter”) to the Governor and Attorney General of Texas making the legally incorrect assertion that four congressional districts in Texas were “unconstitutional” because they were “coalition districts”—majority-non-White districts in which no single racial group constituted a 50% majority. In the letter, DOJ threatened legal action if Texas didn’t immediately dismantle and redraw these districts—a threat based entirely on their racial makeup. Notably, the DOJ Letter targeted only majority-non-White districts. Any mention of majority-White Democrat districts—which DOJ presumably would have also targeted if its aims were partisan rather than racial—was conspicuously absent.

So let’s be clear about what happened here. Texas Republicans were reluctant to do a straightforward partisan gerrymander. Then the Trump DOJ came along and said “actually, you have to do this because of race,” and suddenly everyone was enthusiastic. The racist incompetence is staggering.

Once Dhillon gave them the racial justification, Texas immediately jumped on board:

Two days later, citing the DOJ Letter, the Governor added redistricting to the special session’s legislative agenda. In doing so, the Governor explicitly directed the Legislature to draw a new U.S. House map to resolve DOJ’s concerns. In other words, the Governor explicitly directed the Legislature to redistrict based on race. In press appearances, the Governor plainly and expressly disavowed any partisan objective and instead repeatedly stated that his goal was to eliminate coalition districts and create new majority-Hispanic districts.

Incredibly, the MAGA GOP just kept admitting over and over again that they did this for racial reasons:

The bill’s sponsors’ statements suggest they adopted those changes because such a map would be an easier sell than a purely partisan one. The Speaker of the House also issued a press release celebrating that the bill satisfactorily addressed DOJ’s “concerns.” Other high-ranking legislators stated in media interviews that the Legislature had redistricted not for the political goal of appeasing President Trump nor of gaining five Republican U.S. House seats, but to achieve DOJ’s racial goal of eliminating coalition districts.

Their own flimsy excuse transformed what would have been legal (if cynical) partisan gerrymandering into illegal racial gerrymandering, violating the Voting Rights Act. They literally were so desperate to lie about the unpalatable reasons for their gerrymandering that they moved from the obnoxious and corrupt version to the blatantly illegal justification. And didn’t even stop to think that might sink the entire enterprise.

You know how they say “the coverup is worse than the crime?” Well, here, it’s basically just the coverup that is the crime. If they had just done this for the real reasons they were likely doing this (to stifle Democrats), it had a much higher chance of passing judicial muster.

Judge Brown, for his part, seems almost personally offended by the quality of Dhillon’s legal work. He publishes her entire letter in the ruling, and then writes:

It’s challenging to unpack the DOJ Letter because it contains so many factual, legal, and typographical errors. Indeed, even attorneys employed by the Texas Attorney General—who professes to be a political ally of the Trump Administration—describe the DOJ Letter as “legally[] unsound,” “baseless,” “erroneous,” “ham-fisted,” and “a mess.”

Don’t hold back now.

The judge walks through every bit of the letter and just how ridiculous it is. Here’s just a snippet, but it goes on like this for a while:

Legally and factually, DOJ had no valid argument that the Legislature should restore the House map to some preexisting racial equilibrium since Petteway supplanted Campos. Far from seeking to “rectify . . . racial gerrymandering,” the DOJ Letter urges Texas to inject racial considerations into what Texas insists was a race-blind process.

But what about DOJ’s assertion that “TX-33 is [a] racially-based coalition district that resulted from a federal court order years ago”? If a court forced Texas to draw CD 33 as a coalition district based on Campos’s discredited interpretation of VRA § 2, can’t the Legislature redraw that district now that VRA § 2 no longer requires coalition districts?

The short answer is that this is another one of the DOJ Letter’s many inaccuracies.

As the Judge explains, if Dhillon and the Trump administration had just told them to go for blatantly partisan redistricting, it might have worked. But they didn’t.

Here too, if the Governor had explicitly directed the Legislature to amend the congressional map to improve Republican performance, the Plaintiff Groups would then face a higher burden to prove that the motivation for the 2025 redistricting was racial rather than political. Instead, by incorporating DOJ’s race-based redistricting request by reference, the Governor was asking the Legislature to give DOJ the racial rebalancing it wanted—and for the reasons that DOJ cited.

Think about the strategic incompetence here. Everyone involved was apparently so desperate to avoid saying “we’re doing partisan gerrymandering” that they kept loudly announcing “we’re doing racial gerrymandering instead!” They traded a probably legal (if obnoxious) justification for an obviously illegal (and still awful) one.

When given an opportunity to publicly proclaim that his motivation for adding redistricting to the legislative agenda was solely to improve Republicans’ electoral prospects at President Trump’s request, the Governor denied any such motivation. Instead, the Governor expressly stated that his predominant motivation was racial: he “wanted to remove . . . coalition districts” and “provide more seats for Hispanics.” The fact that the racially reconfigured districts would happen to favor Republicans was, to paraphrase the Governor’s own words, just a fortuitous coincidence.

The most remarkable part of all this? Texas Attorney General Ken Paxton actually tried to save them. He sent a letter to the Trump administration essentially pushing back on Dhillon’s demands, while saying “hey, you know we could just do this for partisan reasons, right? That would be legal?” But they were so bought into the racism that nobody listened.

At the same time the Governor was announcing the 2025 Map’s racial objectives to the press, the Attorney General of Texas was saying the opposite. Just two days after the Governor added redistricting to the legislative agenda based on DOJ’s “constitutional concerns,” the Attorney General sent DOJ a response to its letter. That response said essentially the same thing we say above—that the change in law effected by Petteway cast no doubt on the legality of the 2021 Map, since there’s no indication that the 2021 Legislature drew any coalition districts for legal-compliance reasons that it wouldn’t have drawn anyway for race-neutral reasons like partisanship. Although the Attorney General doesn’t say so explicitly, the purpose behind his letter appears to have been to refocus the redistricting dialogue toward permissible considerations like partisanship, politics, and traditional districting criteria—and away from legally fraught considerations like race.

If that was the letter’s purpose, it didn’t work.

Just a fantastic level of failure all around.

Again, this isn’t some “activist leftist judge” as MAGA would have you believe—we’ve already established Brown’s conservative credentials.

Now, the case goes straight to the Supreme Court (skipping the Fifth Circuit), and Paxton has already announced plans to appeal quickly. He’s claiming the map is “entirely legal,” which is a bold stance given that his own office tried to warn everyone this was illegal. But Paxton’s capacity for hypocrisy has never been his limiting factor.

Will the Supreme Court overrule Judge Brown? It’s entirely possible—perhaps likely. The Court has spent much of the past year rubber-stamping Trump administration priorities, often without much explanation. But Judge Brown clearly wrote this opinion with the Supreme Court in mind, and specifically with Chief Justice John Roberts in mind. He opens the entire ruling by quoting Roberts’ own 2007 opinion about race-based classifications:

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Will that convince any of the motivated SCOTUS Justices to admit to what’s going on here? Perhaps not, but they’ll have to bend over backwards to ignore what’s happened here, given that the Trump administration served up the illegal basis for this decision on a silver platter for all involved.

Filed Under: donald trump, gerrymandering, greg abbott, harmeet dhillon, jeffrey brown, ken paxton, on the basis of race, texas, voting rights act