Texas

The majority opinion is short and unsigned. It makes essentially two points:

The district court made two legal errors in preliminarily evaluating the merits. First, the district court should have presumed more good faith on Texas’s behalf when they drew the maps, and the failure of the plaintiffs to produce alternative maps (that could achieve the same partisan goals without as much racial sorting) was a “dispositive” or “near dispositive” reason to lose on the merits.

In looking at the other factors for granting a stay, including balancing the hardship of the parties, the Court, without naming Purcell, invokes the Purcell principle on timing. “The District Court improperly inserted itself into an active primary campaign, causing much confusion and upsetting the delicate federal-state balance in elections.”

Justice Alito, for himself and Justice Gorsuch briefly concurred to respond to two points in the dissent. It is interesting that he characterizes California’s gerrymander also as a partisan gerrymander, which seems to send a signal to the lower court in that case: “the dissent does not dispute—because it is indisputable—that the impetus for the adoption of the Texas map (like the map subsequently adopted in California) was partisan advantage pure and simple.” (Disclosure: I have filed this amicus brief in the California case).

The dissenters make a number of arguments on the merits, and on the proper deferential standard of review that is says should apply to a finding of racial predominance, but the timing point is surely right, and I fear that even more re-redistricting will be on the way, perhaps even later in the year if the Supreme Court waters down or kills Section 2 of the Voting Rights Act in the Callais case.