Texas and Louisiana maps pose test for Roberts Court

SCOTUS scholar Leah Litman says it would show "immense hypocrisy" to uphold Texas maps, but void the Bayou State's.

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As the Supreme Court appears primed to gut the remnants of the Voting Rights Act, the conservative justices have been asked to reinstate racially gerrymandered maps intended to add five Republican seats in Texas.

University of Michigan law professor Leah Litman, the author of the book “Lawless,” said that there is no intellectually consistent way to check off both boxes from the MAGA wish list. The Roberts Court is widely expected to find so-called “opportunity districts” unlawful in the case Louisiana v. Callais, which alarmed voting rights advocates following oral arguments last month.

“I think it would be basically impossible to come up with a justification for the Supreme Court to invalidate the Louisiana map, but not invalidate the Texas map,” Litman said, adding that such a ruling would show “immense hypocrisy.”

“That would just be completely outlandish because in Louisiana’s case, the districts were drawn to comply with the Voting Rights Act, and to use race in a way that ensures that different groups of voters are all represented,” Litman said. “In Texas’s case, by contrast, literally the Department of Justice’s letter to Texas says, you need to erase these districts where racial minorities are in the majority.”

“The way to stop discrimination”

Redistricting Texas maps has been a key part of the MAGA Republican strategy to retain control of the House following next year’s midterm elections.

Donald Trump demanded that Texas Gov. Greg Abbott (R) redraw the maps, and Abbott obliged, claiming that the growing conservative streak among Latino voters showed that they would be better represented in redder districts.

That strategy backfired earlier this month before Trump-appointed U.S. District Judge Jeffrey Brown, who voided the new Texas maps in an opinion that started with an epigraph quoting Chief Justice John Roberts.

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

Brown’s ruling began: “The public perception of this case is that it’s about politics. To be sure, politics played a role in drawing the 2025 map. But it was much more than just politics. Substantial evidence shows that Texas racially gerrymandered the 2025 map.”

Conservatives have claimed the mantle of colorblind map-making to gut statutory protections against the dilution of Black and Latino voting power.

“For the last 40-plus years, the right wing legal movement has been harping on this idea that any and all consideration of race when drawing districts is impermissible, and they have used that theory to bludgeon the Voting Rights Act,” Litman said. “So they are the ones that have been developing this jurisprudence and on the cusp of getting this monumental Supreme Court opinion that is likely going to say any and all uses of race in redistricting are impermissible even when you are attempting to comply with the federal civil rights law.”

In a vituperative dissent, Reagan-appointed Judge Jerry Smith attacked his colleagues in deeply personal terms for voiding the map, accusing his Trump-appointed colleague of pro-Democratic partisanship.

“The main winners from Judge Brown’s opinion are George Soros and Gavin Newsom,” Smith wrote, in one of the 104-page dissent’s 17 separate mentions of the Soros family.

But Brown cited conservative legal principles in his majority opinion coupled with extended quotations of Abbott’s public statements that the revised maps were about conservative Latino voting trends.

“Five additional seats”

During an interview in August, CNN’s Jake Tapper cornered Gov. Abbott on the political objectives of the revised maps.

“I mean, you are doing this to give Trump and Republicans in the House of Representatives five additional seats, right?” Tapper asked Abbott. “I mean, that’s the motivation, is to stave off any midterm election losses.”

Abbott insisted that a “court decision” had “authorized” Texas to adopt a new redistricting approach.

“Under new law, as well as new facts that served us in the aftermath of the Trump election, showing that many regions of the state that historically had voted Democrat that were highly Hispanic now chose to vote Republican and vote for Trump as well as other Republican candidates,” Abbott said.

Judge Brown quoted the exchange at length in his majority opinion.

Now, in order to secure the Supreme Court’s blessing, Abbott is claiming that the gerrymander wasn’t racial at all, only partisan.

Professor Litman noted that “progressives have always been arguing that it is permissible to use race if you are actually trying to ensure a diverse inclusive equitable set of maps.”

“There’s no theory in which Texas is trying to do that,” she added. “They were trying to use race so as to erase those districts where racial minorities actually did have political opportunities. Even under a theory of the equal protection clause and racial discrimination that says it’s sometimes permissible to use race when you’re doing so again to increase diversity, Texas’s attempt to use race would still be wildly illegal.”

Justice Samuel Alito administratively paused the order voiding redistricted Texas maps pending a ruling on a longer stay, which remained pending by press time.

Look out for a full video of the interview with Professor Litman soon on Legal AF.