The Gerrymandering Crisis

A report by Protect Democracy found that one in 10 Americans live in a different congressional district now than during the 2024 elections. There has been an unprecedented surge in mid-decade redistricting prior to the upcoming 2026 midterms. The 2026 midterms are especially consequential considering all 435 seats in the House of Representatives are up for election. The Republican Party holds a narrow majority in the House, and the Democrats would need a net gain of four seats to take control. Both parties have engaged in mid-decade redistricting in an attempt to accumulate more seats for their respective party.

States are required to redistrict every 10 years according to new census data, and typically remain unchanged. Mid-decade redistricting was uncommon during the 20th century, but it reappeared following the 2000 census. In 2003, the Texas state legislature attempted to override a previously court-drawn map and redistrict mid-decade. They were sued in the case League of United Latin American Citizens (LULAC) v. Perry (2006) where the Court ruled that, while their map did not violate the Constitution, aspects of it violated the Voting Rights Act of 1965 (VRA). Notably, Justice Anthony Kennedy wrote that neither the Constitution nor federal law prohibits the act of mid-decade redistricting. Other states, including Georgia and Colorado, attempted similar redistricting, leading to Congress proposing 70 bills prohibiting it, none of which passed.

According to Ballotpedia, prior to 2025, "only two states had conducted voluntary mid-decade redistricting since 1970." Since the summer of 2025, ten states have undergone congressional redistricting activity, highlighting a broader trend towards increasingly polarizing politics in America. These ten states are Alabama, Louisiana, Tennessee, Florida, Utah, California, Ohio, North Carolina, Missouri and Texas. Of these ten states, four were required by law or through litigation to redistrict. California, Florida, Missouri, North Carolina, Tennessee, and Texas all engaged in voluntary redistricting.

This redistricting battle accelerated after President Trump urged Texas to redraw their maps to reinforce the Republican Party's House majority. LULAC sued Governor Greg Abbott under the Voting Rights Act. Initially, a district court blocked the proposed map, but the Supreme Court later granted a stay, allowing Texas to use the map. These acts are known as political gerrymandering which is the act of redistricting with partisan motivations. The new map in Texas aimed to give Republicans as many as five more seats in the House. In California, residents approved a redistricting plan known as Proposition 50, which would give Democrats as many as five more seats in the House. The estimates of the effects of the maps vary, with some estimating Republicans to gain a net of nine seats.

States currently impose restrictions on aspects of redistricting, including timing. Congress does have the authority, per Article I, Section 4 of the US Constitution, to override "state laws to regulate federal elections." There are federal restrictions on the basis for redistricting, however. For example, the 14th Amendment requires courts to review any map that uses race as a dominant factor with "strict scrutiny." The Voting Rights Act of 1965 furthers this, prohibiting "discrimination based on race, color, or language-minority status in registration and voting nationwide." However, partisan gerrymandering is treated differently under federal law. In Rucho v. Common Cause (2019), the Supreme Court held that partisan gerrymandering is not justiciable.

This is demonstrated in the recent Court case Louisiana v. Callais, where a Louisiana map was struck down on the basis that it was created with race as a dominant factor. Louisiana believed that Section 2 of the VRA required the creation of a second majority-minority district, but the Court ruled that it constituted an unconstitutional racial gerrymander. According to political scientist and Harvard Professor Maya Sen, this weakened the remedies available through the VRA as it made it near impossible to create majority-minority districts. It also brought up key questions about political gerrymandering that were underscored in LULAC v. Perry. Since race and political affiliation can be intertwined, courts are faced with the difficult task of distinguishing constitutionally permissible political gerrymandering from unconstitutional racial gerrymandering. The Courts have generally avoided answering this directly, and it is one of many unresolved questions about the constitutionality of gerrymandering.

A map proposed by the Missouri legislature faced a referendum after citizens gathered enough signatures to challenge it. The Missouri Supreme Court ruled in favor of the referendum, which stopped the map from proceeding. However, in a separate case, a federal district judge ordered the map to be used, a decision that was taken to the Supreme Court. The Court overturned the federal district judge's ruling, rejecting the proposed map that would have eliminated one Democrat-held seat from being used in the 2026 election. Missouri is currently set to use its 2022 map for the upcoming elections. This case highlights the independence states receive in terms of redistricting. Unlike in Callais, the Court did not comment on the merits of Missouri's proposed map and the Court has made it clear it will take a less involved approach to gerrymandering.

Not every attempt at redistricting has succeeded, however. In Indiana, for example, the Senate rejected its proposed maps. Additionally, the Virginia legislature has attempted to pass an Amendment that would permit mid-decade redistricting. While it had success in the Virginia House and Senate and among voters, the Virginia Supreme Court ultimately blocked it. This nevertheless highlights how when one party begins gerrymandering, the other follows suit, prompting a domino effect. To complicate matters, the Supreme Court’s ruling appears to depend on the specific constitutional questions being asked. In the Missouri and Texas cases, although both involved Republican-backed mid-decade maps, the cases produced opposite results. In Texas, the Republican-favoring map passed, but in Missouri the Court struck down a Republican favoring map, demonstrating, though they were decided with different legal reasoning, that there may not be a partisan reasoning behind its decisions.

As the 2026 midterms approach, mid-decade redistricting has gone from rare to a crucial part of elections. The new maps, which are expected to give Republicans advantages in several districts, may well be the reason for the Republican Party's majority. While there are still present legal challenges, the Supreme Court has reached inconsistent decisions on key cases and narrowed the remedies available under the Voting Rights Act. Both parties have demonstrated that they are willing to redraw maps when beneficial, setting a precedent unlikely to go away anytime soon.