Inverse Critical Race Theory

Why did Texas redistrict?

Texas holds 38 seats in the House of Representatives. In 2024, Texans elected 25 Republicans and 13 Democrats to those seats. In August 2025, Texas enacted a new congressional map which, if it becomes effective, will likely result in 30 Republicans and 8 Democrats being elected in 2026.

Because this is America, litigation ensued. The plaintiffs argued that Texas redistricted because of race and that the new map was hence unconstitutional. Texas argued that it redistricted because of partisanship and that the new map was hence perfectly fine.

A three-judge court heard the case. Two of the judges agreed with the plaintiffs and granted a preliminary injunction, accompanied by a 160-page opinion by Judge Jeffrey Brown. The third judge, Judge Jerry Smith, opined in his 104-page dissent that “the main winners from Judge Brown’s opinion are George Soros and Gavin Newsom.” Texas has sought a stay from the Supreme Court, with a decision expected imminently.

Who’s right? Read on to find out.

Factual, legal, and typographical errors

To understand the plaintiffs’ theory that Texas redistricted because of race, you need to know the timeline.

• June 9: New York Times publishes an article saying that President Trump’s team was pushing Texas to redistrict for partisan reasons, but Texas Republicans weren’t interested.

• June 23: Governor Abbott announces that he is calling a special legislative session and lists several agenda items, but redistricting isn’t among them.

• July 7: Harmeet Dhillon, the head of the Civil Rights Division at the Department of Justice, sends a letter to Governor Abbott expressing the view that four Texas congressional districts “currently constitute unconstitutional ‘coalition districts’” and “urg[ing] the State of Texas to rectify these race-based considerations from these specific districts.”

• July 9: Governor Abbott issues a formal proclamation calling a special session which includes the following item: “Legislation that provides a revised congressional redistricting plan in light of constitutional concerns raised by the U.S. Department of Justice.”

Thus, Governor Abbott’s public rationale for adding redistricting to the agenda was DOJ’s letter. So let’s take a look at the letter.

There’s a backstory here that I’ll simplify mercilessly. It’s generally unconstitutional to draw district lines based on race. But, sometimes, at least for now,¹ the Voting Rights Act requires that if a reasonably-configured majority-minority district can be drawn, then it must be drawn to avoid excessively diluting the votes of minority voters. (It’s more complicated than that, but close enough.²) And drawing majority-minority districts requires being conscious of race in drawing district lines. So, summing things up, drawing district lines based on race is unconstitutional unless it’s mandatory to satisfy the Voting Rights Act.

In 1988, in a case called Campos, the Fifth Circuit (which covers Texas) held that the Voting Rights Act sometimes requires “coalition” districts to be drawn, i.e., districts that are majority-minority when all minority groups are combined together.³ So, for example, if it’s possible to draw a reasonably-configured district that is 30% Hispanic and 25% Black, Campos held that the Voting Rights Act sometimes obligated the state to draw such a district. In 2024, in a case called Petteway, the Fifth Circuit overruled Campos. It held that the Voting Rights Act doesn’t kick in unless it’s possible to draw a reasonably-configured single-minority-majority district—i.e., 50%+ Hispanic or Black.

To simplify even more mercilessly: before Petteway, Texas was sometimes legally obligated under the Voting Rights Act to intentionally draw coalition districts. After Petteway, that is no longer the case.

Back to the DOJ letter. Judge Brown’s opinion states that “[i]t’s challenging to unpack the DOJ Letter because it contains so many factual, legal, and typographical errors.” This is a bit uncharitable in my view, but the letter was not the DOJ’s finest hour.

The gist of the DOJ letter is that, when Texas redistricted in 2020, it created coalition districts because it thought it had to under Campos. But Petteway overruled Campos. So, it turns out, Texas actually didn’t have to draw those districts. So that leaves Texas with a bunch of coalition districts that it didn’t have to draw. But wait. Texas considered race in drawing those districts. And when the Voting Rights Act doesn’t require consideration of race, the Constitution prohibits consideration of race. Ergo, the coalition districts are unconstitutional and Texas has to get rid of them.

Here’s the actual discussion in the letter:

It is well established that so-called “coalition districts” run afoul the Voting Rights Act and the Fourteenth Amendment. … In [Petteway] , the en banc Fifth Circuit Court of Appeals made it abundantly clear that “coalition districts” are not protected by the Voting Rights Act. This was a reversal of its previous decision in [Campos] …

It is the position of this Department that several Texas Congressional Districts constitute unconstitutional racial gerrymanders, under the logic and reasoning of Petteway. Specifically, the record indicates that TX-09 and TX-18 sort Houston voters along strict racial lines to create two coalition seats, while creating TX 29, a majority Hispanic district. Additionally, TX-33 is another racially-based coalition district that resulted from a federal court order years ago, yet the Texas Legislature drew TX 33 on the same lines in the 2021 redistricting. Therefore, TX-33 remains as a coalition district.

Although the State’s interest when configuring these districts was to comply with Fifth Circuit precedent prior to the 2024 Petteway decision, that interest no longer exists. Post-Petteway, the Congressional Districts at issue are nothing more than vestiges of an unconstitutional racially based gerrymandering past, which must be abandoned, and must now be corrected by Texas.

These coalition districts elect Democrats, so getting rid of them would help Republicans. Perhaps that’s the subtext here. But it isn’t the text. The DOJ letter says nothing about partisanship and talks only about race.

Dear Texas, Please Discriminate

There’s a problem here.

The premise of the DOJ Letter is that Texas considered race in drawing the coalition districts—that is, it intentionally drew coalition districts to comply with the Voting Rights Act.

As it turns out, however, Texas insists that’s not true. Texas says that it didn’t consider race in drawing those lines, and those districts just happened to end up being coalition districts.

Hold the phone.

The DOJ Letter exhorts Texas to target coalition districts for destruction. It urges Texas to redraw district lines because of the racial composition of those districts. That’s unconstitutional! Indeed, the whole premise of the letter is that it’s unconstitutional to draw district lines based on race! Maybe if the districts were originally drawn for race-based reasons, it would make sense to redraw them. But if the districts weren’t originally drawn for race-based reasons, then the DOJ Letter would effectively be telling Texas: “Dear Texas, please redistrict in order to racially discriminate against Black and Hispanic voters.”

Or, put more concisely, we are currently living in a timeline in which the DOJ announces that race-based redistricting is unconstitutional, and then demands that Texas do that very unconstitutional thing, in the span of a single two-page document.

The DOJ filed an amicus brief in the Supreme Court case trying to explain away the statements in the letter. Importantly, the amicus brief doesn’t suggest that the coalition districts were originally drawn for racial reasons. Instead, the amicus brief says that DOJ wasn’t encouraging Texas to redistrict for racial reasons: “And the letter certainly did not demand that Texas redraw the districts in a manner that was race-predominant rather than race-neutral: racial gerrymandering was itself the problem that the DOJ letter asserted regarding the districts, and a State obviously can remedy racial gerrymandering without engaging in more racial gerrymandering.” I don’t understand this. The DOJ letter specifically urged Texas to target districts because of their racial composition. If Texas followed DOJ’s lead, how can that be anything other than race-based redistricting?

And remember that Governor Abbott’s proclamation for the special session urged “legislation that provides a revised congressional redistricting plan in light of constitutional concerns raised by the U.S. Department of Justice.” So Governor Abbott was urging legislators to redistrict based on DOJ’s rationale—and if those legislators were following Governor Abbott’s lead, they would be redistricting for an unconstitutional reason.

It wasn’t just the proclamation. Governor Abbott’s public statements were laser focused on race. Check out this transcript of Governor Abbott’s interview with CNN’s Jake Tapper, which occurred after the legislature proposed the new map (emphasis added):

ABBOTT: … [O]ne thing that spurred all of this is a federal court decision that came out last year. By the way, a case that was filed by Democrats, the federal court decision that came out last year said that Texas is no longer required to have coalition districts.

And as a result, we had drawn maps with coalition districts in it. Now we wanted to remove those coalition districts and draw them in ways that in fact, turned out to provide more seats for Hispanics. For example, [four of] the districts are predominantly Hispanic. It just coincides it’s going to be Hispanic Republicans elected to those seats.

One thing that’s happened in the state of Texas is the Hispanic community, a lot of it, have decided they’re no longer with the Democrats who believe in open border policies, who believe in going against our law enforcement, who believe that men should play in women’s sports. And they instead align with Republicans. What we want to do is to draw districts that give those Hispanics and African- Americans in the state of Texas the ability to elect their candidate of choice.

TAPPER: That’s not really -- I mean, you’re doing this to give Trump and Republicans in the House of Representatives five additional seats, right? I mean, that’s the motivation, is to stave off any midterm election losses.

ABBOTT: Again, to be clear, Jake, that the reason why we’re doing this is because of that court decision. Texas is now authorized under law that changed that was different than in 2021 when we last did redistricting.

He’s explicitly denying that the impetus for redistricting is partisan! He’s saying that the partisan outcome is a coincidence!

The irony here is that if Governor Abbott had simply said, “let’s redistrict because we hate Democrats and want to keep them out of power,” this would be an amulet against any lawsuit: the Supreme Court held, in the controversial case of Rucho v. Common Cause, that partisan gerrymanders can’t be challenged in federal court. But instead, Governor Abbott, following DOJ’s lead, insisted that redistricting should occur because of race. This is yet another illustration of the chief problem that has plagued both the Trump and the Abbott Administrations: insufficient partisanship against Democrats.

Inverse critical race theory

And now back to the litigation. The plaintiffs’ basic theory, which the majority adopts, is that the Texas legislature redistricted for the reason advocated by the governor, which would make the new map unconstitutional.

Judge Smith’s dissent has gotten a lot of attention for accusing the plaintiffs’ lawyers of accepting money from George Soros. There are some intriguing points there, but as a nerd who cares about the legal arguments, I’ll skip that part and turn to the substance of the dissent, which reveals a surprising amount of common ground with the majority. Judge Smith doesn’t dispute that the coalition districts were drawn for innocent reasons. He doesn’t dispute that if the legislators redistricted based on the rationale in the DOJ Letter, then the new map would be an unconstitutional racial gerrymander.

Instead, Judge Smith’s thesis is that Texas’s legislators didn’t care what the DOJ or Governor Abbott said, and that their true rationale for redistricting was to ensure that more Republicans get elected. Call it inverse critical race theory: even though figures as powerful as the head of the DOJ’s Civil Rights Division and the Governor of Texas were explicitly and publicly urging legislators to redistrict for racial reasons, legislators were privately acting based on anti-racist motives.

And his thesis might be right! Texas Republicans do indeed hate Texas Democrats, so it is not altogether implausible that Texas Republicans might be motivated by the goal of defenestrating them.

If we’re being honest, it’s virtually certain that Republican legislators were motivated by both race and partisanship: they thought both that (A) it would be great if Republicans kept winning and (B) if DOJ is telling us that the Constitution requires us to blast coalition districts into oblivion, then, well, who doesn’t love the Constitution? Or maybe some Republican legislators thought (A), some thought (B), some thought both (A) and (B), and some (most?) just figured they’d do what everyone else was doing. In this situation the Supreme Court has declared that courts must assess whether race was the “predominant factor motivating the legislature.” Good luck, courts!

Dog’s breakfast

Neither Harmeet Dhillon nor Greg Abbott is a member of the Texas legislature. The fact that they endorsed race-based redistricting does not necessarily imply that Texas legislators redistricted for that reason. And so most of the 264 pages of opinions is devoted to sifting through the dog’s breakfast of an evidentiary record to figure out what the legislators were really thinking.

There are four categories of evidence at issue.

The actual enacted map. DOJ’s letter identified three purportedly unconstitutional coalition districts: TX-09, TX-18, and TX-33.

In the old map, TX-9 was a coalition district that was 45.0% Black and 25.6% Hispanic. In the new map, it’s barely majority-Hispanic: 50.3% to be exact.

In the old map, TX-18 was a coalition district that was 38.8% Black and 30.4% Hispanic. In the new map, it’s barely majority-Black: 50.5% to be exact.

There’s also another district that DOJ didn’t mention, TX-30, which was a coalition district under the old map: 46.0% Black and 24.5% Hispanic. In the new map, it’s barely majority-Black: 50.2% to be exact.

Verrrry suspicious. On the other side of the ledger, however, the third district that DOJ mentions, TX-33, remained a coalition district after the redistricting, going from 43.6% Hispanic/25.2% Black to 38.2% Hispanic/19.6% Black.

Also, DOJ’s letter complains about TX-29, which was a majority-Hispanic district under the old map. In the new map, the share of Hispanics in that district drops from 63.5% to 43.3%. Make of that what you will.

Not that you asked, but I construe this evidence as strong, but not conclusive, evidence supporting the plaintiffs. The dissent seems to think that the legislature’s failure to extinguish TX-33 proves that it didn’t care about what DOJ and Governor Abbott said. I don’t agree. If a governor announces a special session saying “Please do these three things for racial reasons,” and the legislature dutifully does two of the three things but not the third thing, wouldn’t you still think the legislature did the two things for racial reasons?⁴

Legislator statements. Most legislators didn’t say anything. The majority tries to infer what they were thinking based on the statements of powerful Republican legislators. This makes a certain kind of sense—back-benchers probably were following the lead of front-benchers—but you can debate that.

The plaintiffs offer the following evidence:

• The Speaker of the Texas House, Dustin Burrows, issued a press release that starts by referring to the “constitutional concerns raised by the Department of Justice,” but then declares that the new map “has ushered in a new chapter of Republican unity.”

• The Chair of the House Republican Caucus, Tom Oliverson, conducted an interview that seems to say that redistricting occurred because of Petteway, while also noting that partisan redistricting is permitted.

• Representative Todd Hunter, who introduced the redistricting bill, made various statements on the House floor regarding the racial composition of the new districts while also making partisan statements.

• Representative Steve Toth also gave a press interview in which he mentioned Petteway but also partisanship.

And on the defendants’ side:

• Representative Cody Vasut, the Chairman of the House Select Committee on Congressional Redistricting, made multiple contemporaneous statements, both on and off the floor, that the legislature was redistricting for partisan rather than racial reasons. He also testified at the preliminary injunction hearing to the same effect.

• Two state Senators, Phil King and Adam Hinojosa, testified at trial that the redistricting occurred for partisan rather than racial motives. It does not seem that they had significant roles in the redistricting process beyond casting their votes.

My take: The plaintiffs don’t have any smoking guns, but the statements from Representatives Burrows and Oliverson are good-ish for the plaintiffs. Representative Vasut’s statements are excellent for the defendants.

Adam Kincaid. The person who actually drew the map was not a state legislator. It was a Republican operative named Adam Kincaid. Mr. Kincaid’s testimony makes him out to be a map-drawing supergenius, able to draw maps that marry aesthetic splendor with surgical precision in ruthlessly annihilating Democratic seats.

He testified at length regarding why the map was drawn the way it was, and he had partisan explanations for everything. He didn’t hide the extreme partisanship underlying the new map—for example, he testified that he prioritized protecting Republican incumbents and core retention in Republican districts, while giving zero consideration to Democratic incumbents and core retention in Democratic districts.

Judge Smith takes the view that Mr. Kincaid “courageously spoke the truth” and that his testimony was “irrefutable.” The majority disbelieves Mr. Kincaid, finding it “extremely unlikely that Mr. Kincaid could have created so many districts that were just barely 50%+ … by pure chance.” The majority also notes that Mr. Kincaid discussed the DOJ letter with key White House and DOJ officials before it was released.

To me it seems plausible that Mr. Kincaid, by all accounts a hardcore Republican partisan, drew the maps to help Republicans and didn’t care about minority percentages one way or the other. On the other hand, it seems unlikely that Mr. Kincaid wouldn’t have kept his eye on the goal that the Justice Department and Governor Abbott publicly set out to achieve. If we call that a wash, I’m more persuaded by another conclusion reached by the majority: “Mr. Kincaid’s professed lack of racial motive isn’t attributable to the legislature.” If the legislature thought it was faithfully implementing Governor Abbott’s directive, why does it matter what lay in the heart of Mr. Kincaid? If a tree falls in a forest and no one hears it, does it make a sound?

The lack of an alternative map. The plaintiffs’ goal was to demonstrate that the legislature acted for racial rather than partisan reasons. To make that showing, the plaintiffs could have proposed an alternative map that would have allowed the legislature to achieve its partisan criteria while not hitting racial targets. This would have supported the inference that the legislature’s choice of this particular map was motivated by race rather than partisanship.

Here, however, the plaintiffs did not introduce an alternative map into evidence. Of note, in Alexander v. South Carolina State Conference of the NAACP, the most recent Supreme Court case about racial gerrymandering, the Supreme Court stated, in pretty strong language, that an adverse inference is warranted when the plaintiff doesn’t propose an alternative map:

The evidentiary force of an alternative map, coupled with its easy availability, means that trial courts should draw an adverse inference from a plaintiff ’s failure to submit one. The adverse inference may be dispositive in many, if not most, cases where the plaintiff lacks direct evidence or some extraordinarily powerful circumstantial evidence such as the “strangely irregular twenty-eight-sided” district lines in Gomillion v. Lightfoot, 364 U. S. 339, 341 (1960), which betrayed the State’s aim of segregating voters on the basis of race with “mathematical” precision, ibid.

Texas scores points based on this language. On the other hand, this case differs from Alexander. Demanding an alternative map makes sense when the plaintiff argues: “racial minorities are packed into a small number of districts, that must mean that there was racial discrimination,” and the state responds, “the reason we packed those voters isn’t because we cared about race—it’s because we couldn’t have achieved our partisan goals any other way.” If the plaintiff can’t then show that the state could have achieved its partisan goals another way, this backs up the state’s defense. And that’s essentially what happened in Alexander. Here, though, the plaintiffs’ case hinged primarily on direct evidence of racial intent—specifically, evidence that the DOJ’s letter precipitated redistricting. The lack of an alternative map doesn’t make this evidence go away.

Dystopia

What’s my take on all this?

This is the type of case in which it’s particularly easy to fall victim to motivated reasoning—that is, convincing yourself that the plaintiffs’ or defendants’ legal arguments are more persuasive because you’re rooting for the Democrats or Republicans to win the House of Representatives. Courts have occasionally been known to engage in motivated reasoning, and indeed I frequently read commentary suggesting that we are doomed to a judicial dystopia in which all cases split on party lines until the end of time. Let’s hope not. But regardless of how this particular case is resolved, you, reader, should try to formulate your views without regard to partisan impulses.

There is something to be said for the view that the entire enterprise of trying to infer the mental states of legislators is misbegotten. Justice Thomas articulates that view in a characteristically thoughtful concurrence in the Alexander case.

If you are a Democrat, it is easy to find this position annoying. Racial-gerrymandering claims originated in the 1990s, when Republicans argued that Democratic legislators were shifting Black voters for racial reasons while Democratic legislators argued that they were merely being partisan. At the time, the Supreme Court’s conservative wing was solicitous of such claims while the progressives endorsed deference to state legislatures. Take a look at the dueling opinions in Easley v. Cromartie, 532 U.S. 234 (2001), which feel like they are from an alternative reality. Now that Democrats have started bringing these claims, it is irritating to Democrats that judicial conservatism has suddenly heard the gospel of deference to legislative good faith. Conversely, it is equally irritating to Republicans that they have to defend against these claims after being lectured by Justice Breyer in Easley that “courts must ‘exercise extraordinary caution in adjudicating claims that a State has drawn district lines on the basis of race,’” especially where “the State has articulated a legitimate political explanation for its districting decision, and the voting population is one in which race and political affiliation are highly correlated.”

So it’s tempting for Democrats / Republicans to conclude that cosmic justice requires supporting the Democrats / Republicans, and then to start believing the Democrats’ / Republicans’ legal arguments. Don’t succumb! Motivated reasoning is bad. It doesn’t matter what happened in the 1990s, we should just try to figure out the right answer.

Cryostorage

The ideal judge for this case would be one who was just awakened from cryostorage and knew nothing about whether the Democrats or the Republicans were plaintiffs. Locating such a judge unfortunately presents logistical difficulties. So, the second-best solution is for an actual judge to fanatically apply neutral principles and extirpate all partisan thoughts. The ideal judicial decision here is a boring, rote application of hornbook principles of civil procedure.

I am as tormented by the temptation of motivated reasoning as anyone else, but the blandest and most mid legal answer I can think of is: (1) Racial-gerrymandering claims should prevail rarely but not never, and (2) The case should turn on the deferential standard of review.

On the first point, to me, it is treacherous to try to infer the mental states of legislators unless there’s a bizarre fact pattern in which high-level officials inexplicably declare that they’re motivated by race. Like, say, the governor calling a special session and requesting that the state legislature redistrict for racial reasons while disclaiming any partisan intent on TV.

The governor, it is true, is not the legislature. But as a matter of common sense, if the governor calls a special session for the stated purpose of getting rid of coalition districts, it is reasonable to infer that legislators who heeded the call, and indeed got rid of multiple coalition districts, were also motivated by the goal of getting rid of coalition districts.

There was other evidence supporting the plaintiffs, and also evidence going the other way. You can debate every individual piece of evidence, and hoo boy, do the majority and the dissent ever. But—turning to the second point—the majority made a factual finding here that can’t be reversed unless there’s clear error.

If this record isn’t enough to withstand clear-error review, then racial-gerrymandering claims are dead. Which, per Justice Thomas, maybe they should be! But the case law on the books says that racial-gerrymandering claims are alive, and I wouldn’t use this particular case as a vehicle to move the law.

Texas urges that the district court gave insufficient weight to the lack of an alternative map and to the presumption of legislative good faith. Texas claims these were errors of law rather than fact. But the district court acknowledged the lack of an alternative map, acknowledged the presumption of legislative good faith, and found them outweighed by the rest of the evidence. I am confident that our awakened-from-cryostorage judge would conclude that Texas’s disagreements with how the trial court weighed the evidence present a question of fact, not law.

A different three-judge court undoubtedly could have reached a different conclusion and that also would not have been clear error. It seems strange that Texas’s congressional map should turn on the random selection of three judges. But that’s the system we have. Maybe there’s a philosophical case to be made that our legal system shouldn’t function this way. But in a case like this, one yearns for neutral principles, and one neutral principle is that the decisions of randomly-selected trial courts are reviewed for clear error. This is a boring, lawyerly analysis, and there is no better time to apply boring, lawyerly analyses than highly-politicized racial-gerrymandering claims.

The Empire State Building

The last topic I’ll tackle is the so-called Purcell principle: courts generally shouldn’t enjoin election laws in the period close to an election. Texas argues that we’re too close to the November 2026 election, so the Purcell principle should kick in, Texans should elect 30 Republicans in 2026, and the litigation should focus on 2028. The plaintiffs disagree.

Let me make a few observations here.

First, the plaintiffs sued as quickly as they could—before the law was even signed, in fact. Also, in an effort to get a ruling as quickly as possible, they didn’t take discovery, which prevented the plaintiffs from learning the state’s redistricting criteria before the hearing and hence (according to the plaintiffs) is the reason they couldn’t introduce an alternative map.

Texas says that the plaintiffs are responsible for delay because Democratic legislators temporarily left the state in an unsuccessful effort to prevent the new map from passing. The implicit premise of this argument is that the plaintiff organizations and Democratic state legislators form a kind of left-wing hive mind, such that if Democratic legislators don’t cooperate with Republican legislators, it is the League of United Latin American Citizens’ fault. I do not agree.

Second, the district court also hustled. It issued its 160-page opinion weeks after the hearing. And to further move things along, the majority released its opinion ahead of the dissent.⁵

Third, the district court, recognizing that there wasn’t sufficient time for the Texas legislature to enact a new map, chose the least intrusive possible remedy: a preliminary injunction that directed Texas to use the prior map for the 2026 election. This map was enacted by the Republican legislature and was already a Republican gerrymander (even under the old map, 66% of the seats went to Republicans, compared to 56% of Texans who voted for Donald Trump in 2024), so it’s not as though the court was foisting some Soros-drawn map on Texans. The dissent spends several pages arguing that the injunction exceeded the court’s equitable discretion, but I don’t understand the dissent’s argument. Having enjoined the old map, the court couldn’t just leave Texas map-less. In the absence of a legislative solution, an injunction returning Texas to the status quo ante was the reasonable thing to do.

Fourth, it’s not like the injunction disrupted any reliance interests. The nanosecond the new map was passed, everyone knew a lawsuit was coming. There’s confusion right now about whether Texas will use the old map or the new map, but it’s not like an order denying a stay would be any more disruptive than an order granting a stay.

Texas emphasizes that the candidate filing period has already begun. Fine. The election is over 11 months away. There is enough time to adjust to using the maps that were already being used. The Empire State Building was completed in 13 months. Disneyland opened for business one year after construction began. We can do it.

At the end of the day, Texas’s argument boils down to the proposition that there’s simply nothing a court can do in this situation. If Texas enacts a new map in mid-2025, it doesn’t matter if the new map reflects intentional racial discrimination. Under Purcell, it’s just too bad, so sad for Hispanic and Black voters, who have to let themselves be discriminated against for a voting cycle and hope for better luck next time.

I cannot agree that our judicial system is as dysfunctional as that. If a state legislature enacts a racially discriminatory map 15 months before an election and plaintiffs sue instantly, our judicial system should be capable of vindicating the plaintiffs’ claims in time for the election. Our awakened-from-cryostorage judge would combine jurisprudential blandness with a can-do spirit.

1. There’s a pending Supreme Court case called Louisiana v. Callais that will probably change the law on this.

2. This isn’t quite right. Here’s the more precise description: Under the Voting Rights Act, states must, in some circumstances, draw districts designed to ensure that racial minorities can elect their candidates of choice. If a plaintiff thinks that a map violates the Voting Rights Act, the plaintiff can file a lawsuit challenging the map. To prevail, the plaintiff must show, among other things, that a minority group is “sufficiently large and geographically compact to constitute a majority in a reasonably configured district.” This doesn’t necessarily mean, however, that the ultimate map has to include such a district. If you’re the sort of person who is reading this footnote, you probably know all of that already.

3. More precisely, that a plaintiff could satisfy the requirement of showing it’s possible to draw a reasonable-looking majority-minority district by drawing a proposed district in which minorities, when combined together, form a majority.

4. The plaintiffs also offered expert testimony showing that it would have been statistically implausible that the legislature would have generated this map unless they were aiming for racial targets. The dissent offers a lengthy recitation of the expert’s purported methodological errors. I didn’t understand the bulk of the dissent’s concerns but perhaps I’m not smart enough. Let’s call this issue a draw.

5. The dissenting judge characterized the early release of the opinion as “pernicious judicial misbehavior” and “outrageous conduct” on the majority’s part. But without commenting on this specific dispute, I’d note it’s not uncommon for courts to release opinions ahead of dissents in time-pressured situations. For example, earlier this year, in the Alien Enemies Act litigation, the Supreme Court issued a late-night injunction with the following note: “Statement from Justice Alito to follow.” Similarly, before the 2020 election, the Supreme Court issued an order addressing an election-related stay request and noting “additional opinions may follow,” although the additional opinions didn’t ultimately materialize. As another example, in a 2019 death penalty case, the Supreme Court issued a stay order on March 28, with Justice Alito publishing his dissent on May 13. The same thing has happened in the Fifth Circuit: here’s an opinion by Judge Ho, in a case that doesn’t seem that time-pressured, with a footnote noting, “Chief Judge Owen dissents and will file a forthcoming dissenting opinion.” The opinion was later re-released when the dissent was completed.