Just as Governor Newsom and the U.S. Department of Justice (with the California GOP) are gearing up for a December 3 show-down in Federal Court in Los Angeles on the constitutionality of Newsom’s Proposition 50 Democrat gerrymander of California’s 52 Congressional seats, a Federal three-judge panel in Texas has ruled today that the Texas Legislature’s partisan Republican gerrymander, which inspired Proposition 50, (and has lead to the word “Texas” to now appear in the California state constitution) is illegal.
I have written previously here that racial considerations are also quite present in the facts in California as presented in the DOJ’s Complaint in Intervention in the Proposition 50 case. I cannot imagine now that the two cases, California and Texas, will not end up quickly being resolved through the Federal appeals process all the way to the U.S. Supreme Court, which will have ultimate authority to decide the issue, especially if there is a divergence of opinion between the two Federal circuits the states reside in. The SCOTUS will have it’s say, especially to ensure the whatever the law is found to be, it is applied equally in both situations.
The only variation here in the cases will be the facts and how the judges perceive them. I know more about the facts in the California case, especially involving a very problematic map for “District 13” in California, where race was surely a consideration according to evidence in the filings. Will there be a difference in the facts presented to the two Courts regarding how race was considered? Yes, but if race played any role, the lines will have violated the 14th and 15th Amendments and the Voting Rights Act in both states. A prediction will be either both cases stand, or both cases fall. My hunch is that both cases will fall, because to stretch dominant Democrat or Republican districts in either state, it is highly likely that the relevant number crunchers ran a Latino identifying software program, such as a “Latino name file”, against the voter files, and treated a name like “Hernandez” differently from a name like “Smith” in writing the new lines. While this is an unsophisticated presentation of what they likely actually did, you can grasp it this way, and it is illustrative of what the Courts will be looking for if they are to find illegal racial gerrymandering, in either or both states.
But hold on. You might think to yourself - “oh well, if both stand up or both fail, there is no difference” on the partisan advantage hoped to be achieved in Congress in the next election. Let me educate you here. That is surely not the case!
While the Texas maps may be ruled illegal as to the manner in which black and Latino voters were handled, the Texas Legislature will still be able to try again; as they retain the legal power to conduct another reapportionment. Their new try would be one that benefits from and follows the expectations of the ultimate Supreme Court opinion. In other words, Texas still has authority, and time, to fix it’s Republican gerrymander of it’s Congressional seats before the November 2026 election.
In contrast, the California Legislature will have no authority at all to “fix” Proposition 50, because if the lines are ruled unconstitutional, the whole ball of wax fails legally. Restoring the Legislature’s power to write new lines is not “severable.” California then must move back to the lines created in 2021 by the nonpartisan redistricting commission, because voters took away the exclusive power to apportion Congressional districts from the California Legislation 15 years ago, and gave it to a Commission. Proposition 50 could only be fixed by another vote of the people! And for a host of reasons, pulling that off in another special election, or on the June, 2026 ballot, is highly unlikely, especially when the Legislature will have egg on its face for promoting a racially-flawed Proposition 50 in the first place.
So…advantage Republicans.
And if I am right, the word “Texas” will gratefully need to be removed from the California constitution.