Redressability and Irreparable Harm in the Texas Gerrymandering Case

The briefing has now concluded in Abbott v. LULAC. Texas’s reply brief contends that a stay would not harm the plaintiffs. Here, the District Court ordered that Texas must use the 2021 map–the same map that the plaintiffs previously argued was unconstitutional.

Finally, Plaintiffs fail to demonstrate that a stay would harm them. Plaintiffs contend that allowing the election to be held under the 2025 map would cause them the irreparable harm of being “forced to vote under a racially discriminatory map that violates their constitutional rights.” NAACP Resp. 26; MALC Resp. 38–39; Gonzales Resp. 39–40; LULAC Resp. 27; Brooks Resp. 41. But according to Plaintiffs, the preliminary injunction would not prevent this harm because they allege that the 2021 map is also an unconstitutional racial gerrymander: “[T]he Texas Legislature engaged in intentional racial discrimination and racial gerrymandering in the drawing of [CD9, CD18, and CD30 in the 2021 map.]” ECF 983 at 1 (Plaintiff-Intervenors); see also ECF 981 at 4 (NAACP Plaintiffs); ECF 985 at 7 (LULAC Plaintiffs); ECF 975 at 4 (MALC Plaintiffs).

Plaintiffs’ newfound embrace of the 2021 map, which they challenged for years of litigation, is explained by their preference for the politics of the 2021 map compared to the politics of the 2025 map. They seek “to transform federal courts into weapons of political warfare that will deliver victories that eluded them in the political arena.” Alexander, 602 U.S. at 11 (quotation marks omitted).

Let me unpack this argument.

First, Alexander v. S.C. State Conf. of the NAACP found that when a plaintiff asserts there is a racial gerrymander, the plaintiff will usually have the evidentiary burden to introduce an alternate map that the state could have adopted that would achieve comparable partisanship without a racial gerrymander. The Supreme Court observed that “if a sophisticated plaintiff bringing a racial-gerrymandering claim cannot provide an alternative map, that is most likely because such a map cannot be created.” This evidentiary burden make sense. Requiring the plaintiffs to submit an alternative map provides something concrete for the parties and the court to test. In the Texas case, however, the sophisticated plaintiffs did not produce an alternative map. This was likely a strategic choice, and one they should be held to.

Second, because the plaintiffs did not submit an alternative map, the district court was in an awkward spot. Having found a racial gerrymander, the district court had to issue some remedy. The conventional remedy would be to invalidate the maps, and give the Texas legislature the opportunity to draw new maps. But given that the deadline for candidate registration is ongoing, there would never be enough time to go down that route for the 2026 elections. If Purcell has a short fuse, requiring the Governor to call a special session would be impossible. Had the plaintiffs submitted an alternate map, the court could have chosen that remedy. But again, there was no map to adopt. Instead, the District Court reverted to the 2021 map.

Third, the same plaintiffs have spent nearly four years arguing that the 2021 map was an unconstitutional racial gerrymander. The record is replete with page after page alleging racial gerrymandering. The plaintiffs also argued that the 2025 map was an unconstitutional racial gerrymander. The only difference between the maps is that Democrats had more seats under the 2021 map than the 2025 map. This is politics all the way down. The asymmetry is clear: Democrats can challenge Republican maps but Republicans cannot challenge Democratic maps.

Texas framed this turnabout in terms of irreparable harm. The Plaintiffs have already told the court the racial gerrymander in the 2021 map will irreparably harm them. How can it be a viable remedy to then impose the very same map that would inflict irreparable harm?

Let me use an example. Imagine a class of plaintiffs brings a suit against a police department, alleging that a particular pattern or practice adopted in 2021 violates the Fourth Amendment. While the case was pending, the police department adopted a new pattern or practice in 2025 that is also alleged to violate the Fourth Amendment. The Super Bowl is coming to town, and there is some question which police practice will be enforced. The plaintiffs bring a new suit, and seek emergency injunctive relief, but they don’t propose what would be a valid practice. The city will soon host the Super Bowl, which entails massive police activity, and there has to be some certainty over which policies should be in place. On the eve of the Super Bowl, could a court enter a preliminary injunction, and order the police department to implement the 2021 policy? I don’t think so–especially where the plaintiffs never asked for the 2021 policy to be reimplemented, and the plaintiffs argued to 2021 policy was unconstitutional. I tend to think this order would be vacated by a court of appeals very quickly. Sometimes, the answer may be that in advance of a massive and complex operation, the district court is unable to fashion a remedy out of whole cloth that the plaintiffs did not propose, and indeed previously argued was unconstitutional. It cannot be repeated enough: district court judges are not gods.

An analogy could also be made to the redressability prong of standing law. If the courts are unable to issue a remedy that redresses the plaintiff’s injury, then the court lacks Article III standing. I could cite California v. Texas, Brackeen, and Murthy as recent precedents to this effect. Of course the Texas court could have issued a valid remedy, but it chose not to. Indeed, there may be no actual remedy that would redress their harms for purposes of a preliminary injunction. The plaintiffs didn’t offer a map, and the court failed to provide one. Enforcing the 2021 maps may have seemed like the most logical, or even the most effective remedy. But it doesn’t actually redress the alleged harm. The plaintiffs are still stuck with a racial gerrymander, albeit one that is more favorable to Democrats.

Ultimately, I think the most likely path forward is that the Court grants a stay, notes probable jurisdiction, and hears the case in February. Or the Court could grant a stay, and hold the decision pending Callais.

A colleague asked why I thought Callais, a VRA case, would have any impact on the Texas 14th Amendment case. The amicus brief from America First Legal Foundation speaks to this issue:

The resolution of Callais will likely clarify, if not fundamentally reshape, the legal framework governing Plaintiffs’ claims against Texas. The appellants in Callais argue that the Constitution mandates color-blindness, asserting that race-based redistricting, even in the name of Voting Rights Act compliance, is unconstitutional and violates the principle that “[e]liminating racial discrimination means eliminating all of it.” Id. at 2 (quoting Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 206 (2023)). Louisiana contends that the current jurisprudence forces sovereign States into a no-win, goldilocks scenario where they must consider race but “perennially suffer the indignity of … being sued for considering race too much or too little,” putting the federal judiciary in the position of having to “pick winners and losers” in this racial calculus. Id. at 2.

Texas is caught in this precise predicament. The majority opinion below invalidates the State’s 2025 map, concluding that the Texas Legislature’s actions constituted impermissible racial gerrymandering. App.2–3. Texas maintains its actions were driven by permissible partisan objectives. Emergency.Appl.for.Stay.1. As Judge Smith’s dissent below aptly explained, this “tension between Section 2 of the Voting Rights Act and racial-gerrymandering jurisprudence” will likely be resolved by Callais. App.173 (Smith, J., dissenting).

Judge Brown’s opinion will be untenable if Louisiana prevails in Callais. And I think this will be the case even if Shaw v. Reno is not revisited.