Mid-Decade Redistricting: Why State Courts Should Be Suspicious

Democracy is rigged when the politicians decide who wins before any vote is cast. But that is precisely what is happening in several states that are redrawing their congressional districts only a few years after they enacted maps based on the 2021 census. Ordinarily, states redraw maps once a decade, after the census, to ensure each district has roughly equal population. This process satisfies the doctrine of one person, one vote. Of course, many states gerrymander to favor one party, but at least the timing is tethered to a legal obligation: adjusting districts once every ten years. Now, states are breaking that norm with mid-decade redistricing.

Texas, encouraged by President Trump, redrew its congressional lines last month to tilt the 2026 midterms—flipping five Democratic-leaning districts into Republican ones. California, in response, put a measure on the ballot for this November to change its own map—drawn by an independent redistricting commission—to create five stronger Democratic districts. The Missouri legislature just passed a new map splitting the Kansas City area into several districts to weaken Democratic strength and likely pick up a Republican seat. Other states, such as Illinois and Nebraska, are also considering mid-decade redistricting. It’s a race to the bottom with partisan gerrymandering running rampant.

When Texas attempted a similar ploy in 2003, the U.S. Supreme Court ruled that nothing in the U.S. Constitution or federal law prohibited a mid-decade districting. (However, the Court struck down the map on other grounds.) The Court then abdicated its role to ensure fairness in its 2019 Rucho v. Common Cause decision, stating that federal courts cannot hear partisan gerrymandering cases. The new mid-decade maps might violate Section 2 of the Voting Rights Act, as plaintiffs in Texas have already argued in a new lawsuit. Still, the Court has signaled that it might invalidate or severely hamper that provision in its upcoming case out of Louisiana.

That leaves state courts as the only real backstop. State courts committed to upholding the ideals of democratic representation within their state constitutions should adopt a presumption of unlawful partisanship for a mid-decade redistricting and invalidate these maps.

Three aspects of state constitutions support a presumption of unlawful partisanship.

First, nearly every state constitution includes a commitment to democracy and popular sovereignty. As law professors Miriam Seifter and Jessica Bulman-Pozen have shown, these state constitutional provisions express a commitment to the people as supreme. A mid-decade redistricting, conducted solely to achieve a partisan end, flips that principle on its head. Politicians are punishing the people for their previous choices by changing the maps. These states have no legal compulsion to do so, as they are not responding to a court order about an earlier map and do not need to adjust the lines to fix population inequality. They simply want to skew the results.

Second, some state constitutions tie the timing of redistricting to the census. For example, Missouri’s Constitution says that the legislature shall draw congressional districts after “each census . . . is certified to the governor.” The Missouri Supreme Court, in a case called Preisler v. Doherty in 1955, ruled that this provision means that redistricting may occur only once per decade following the census “because the decennial census is made the basis of reapportionment.”

Plaintiffs have already filed suit in state court against the Missouri map, invoking this provision. The Missouri courts should apply the state constitutional language to invalidate the map. Other state constitutions, such as those in Illinois and Texas, tie state legislative redistricting to the census without addressing the timing of congressional redistricting, yet the same principle could apply.

Finally, mid-decade redistricting inherently violates the principle of one person, one vote and the requirement of equal population between districts. States use census data to draw new lines, and of course, those districts will become less equal throughout the decade as people are born, die, and move. Yet the new maps rely on outdated census numbers, making them unequal.

Creating a map with population equality right after the census is one thing, even though the map will become outdated as populations shift. Using data from 2021 to draw a new map in 2025 is quite different. These maps are not equal at their start, violating many state constitutional provisions that demand elections to be “free and equal.” 

A state court should therefore apply a presumption of unlawful partisanship any time a state passes a second map before the next census, as is happening right now. Importantly, this standard would mean that courts would not have to measure the partisan effect of the new map or make a judgment about when politics was “too much” in the line-drawing process, which was the Supreme Court’s primary concern when it removed itself from policing partisan gerrymandering in the Rucho case. The partisan effect of the new map is irrelevant because there should already be a presumption of partisan intent.

A state would need to provide a non-political justification for changing its map in the middle of the decade. Perhaps a natural disaster caused a major population shift, and the districts are woefully unequal, causing skewed representation for the rest of the decade (though the state would need accurate data on population shifts to better comply with population equality). Maybe a state enacts an independent redistricting commission and wants to have that commission redraw a previous legislatively-drawn gerrymander. Most of the time, however, this presumption should lead a court to invalidate a mid-decade redistricting, which will hopefully discourage states from engaging in the practice in the first place.

There is, however, a practical problem: what if the California court strikes down its gerrymander but the Texas court upholds its map, even though the two state constitutions are substantially similar? Given that the California legislature acted explicitly to counter the Texas gerrymander, the court in California should follow the Texas court’s lead. This is not a question of constitutional law but of practical import given the nature of the re-redistricting currently taking place. It is a bad solution, to be sure, as each court should analyze its state constitution consistently with its own history, tradition, and precedent, not based on what a court in another state has done. Maybe conflicting rulings from different states on the same issue is the price to pay for our system of federalism. It would be best for each state court to rule independently that the principles from its state constitution support a presumption of unlawful partisanship for a mid-decade redistricting.

Given Supreme Court jurisprudence, which has made it harder for plaintiffs to challenge state election laws on numerous levels, state courts must fill the void. State constitutions are more explicit in offering robust protections for voters. State courts should invoke these provisions to adopt a presumption of unlawful partisanship whenever a state undertakes a mid-decade redistricting. By striking down these new maps, the 2026 midterm elections will allow voters—not politicians—to decide who controls Congress.

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