Six years ago, when the U.S. Supreme Court drew highly partisan electoral maps for North Carolina and Maryland, one of the court’s liberal justices warned that federal courts could not prevent states from drawing maps that favored one party over the other.
“If left unchecked, gerrymandering like the one here can cause irreparable damage to our system of government,” Associate Justice Elena Kagan wrote in a dissenting opinion.
Kagan argued that the North Carolina Republican Party and the Maryland Democratic Party — two examples before the court — rigged the election in a way that “deprived the people of their most fundamental constitutional rights,” “degraded and defamed our democracy,” and “upended America’s core idea that all government power comes from the people.”
“Ask yourself: Is this what American democracy is supposed to be like?” Kagan said, recounting what happened in each state.
That’s the question Californians are currently considering as they decide how or whether to vote on Proposition 50, Gov. Gavin Newsom’s plan to scrap the state’s independent redistricting commission-drawn congressional maps and replace them with maps drawn by Democratic-favored lawmakers through 2030.
Democrats do not deny that the measure is a deliberate attempt to weaken Republican voting power.
They have argued from the beginning that the purpose of redistricting is to weaken Republican voting power in California, but they have justified the move as a temporary measure meant to offset similar partisan gerrymandering by the Texas Republican Party. This summer, President Trump upped the ante and pressured Texas to readjust its maps to strengthen Republicans’ narrow House majority for the 2026 election.
Experts say Prop. 50’s opponents have no viable federal legal challenge to the new map because it would disenfranchise the majority of California Republicans. Since the 2019 U.S. Supreme Court decision Lucho v. Common Cause, charges of partisan gerrymandering have not been brought to federal court.
Richard L. Hasen, a law professor at UCLA School of Law and director of the Democracy Protection Project, said Prop. 50 has already survived challenges in state courts, and even if it passes, challenges are unlikely to be successful.
“If you’re a Republican in California or a Democrat in Texas, you’re going to have significantly less representation in Congress,” Hasen said. “I don’t think there’s anything you can do about it.”
If Californians vote yes on the bill on Tuesday, the number of Republicans in the state House of Representatives (9 out of 52) would likely drop by five. This could mean that even if Trump wins 38% of the vote in 2024, fewer than 10% of California’s state legislature will be Republican.
“All of this is unconstitutional, but the federal courts aren’t going to help,” said Justin Levitt, a law professor at Loyola Law School.
“Every time we redraw districts to protect certain candidates and punish others, voters shouldn’t have to consider whether they think the candidates are doing a good job,” Levitt said.
Possible legal options
But even if the issue of partisan gerrymandering is blocked in federal court, there are other potential legal avenues to challenge California’s new legislative map.
One way is to argue that Proposition 50 violates the California Constitution.
David A. Carrillo, executive director of Berkeley Law’s California Constitution Center, said if Prop. 50 passes, there will be a barrage of lawsuits “to see what sticks” raising California’s constitutional claims. There is little chance of success, he said.
“Voters established a redistricting commission,” he says. “What voters create can be changed or abolished.”
Carrillo also said lawyers may file a racial discrimination lawsuit in federal court alleging that California lawmakers used partisan affiliation as a racial pretext in drawing maps to disenfranchise certain racial groups. Under current law, such claims are highly fact-dependent, he said.
Lawyers are already prepared to sue if the referendum passes.
Mark Muser, a conservative lawyer who filed a state complaint this summer seeking to block Prop. 50, said he is prepared to file a federal lawsuit on the grounds that the new maps violate the Equal Protection Clause of the 14th Amendment.
“We’re saying race was a major factor in drawing the line,” Muser said. “Where race is the primary factor in drawing lines without a compelling vested interest, rigorous scrutiny will mandate map erasure.”
Some legal experts think that would be difficult to prove.
“Indeed, the new map appears to be primarily centered around politics, not race,” Levitt argued. “And they’ll say race is a major factor in drawing the line, but that’s very, very, very different from proving that. It’s an uphill climb to climb based on these facts.”
Some experts believe the new maps are unlikely to cause major problems with the Voting Rights Act.
Eric McGee, a senior fellow at the Public Policy Institute of California who specializes in elections, said the new districts appear to have been carefully created to preserve Latino and black-majority districts.
McGee noted there are always new legal arguments and said there is a chance the challenge could be successful. “Only the big ones are considered the most obvious, and the most traditional ones are pretty closed,” he said.
The Supreme Court is coming
Ultimately, legal experts agree that the fate of California’s map, as well as other maps in Texas and across the country, will depend on the Supreme Court’s future decision on the Louisiana redistricting case.
Last month, conservative Supreme Court justices indicated they were considering regulating key parts of the landmark 1965 Voting Rights Act, which prohibits voting practices and procedures that discriminate on the basis of race, color or membership in linguistic minority groups.
“Whatever happens with Prop. 50, whether it passes or not, matters little in the grand scheme of things,” Carrillo said, noting that the Supreme Court could use the Louisiana case to challenge Section 2 of the Voting Rights Act. “In almost any scenario, there’s going to be a big lawsuit storm.”
Levitt agreed that a Supreme Court ruling on the Voting Rights Act could come between now and June and could change the current law. But he stressed that it was impossible to predict how far-reaching the ruling would be.
“Whether that makes any districts in California vulnerable, whether on the current map or the map if Prop. 50 passes, depends entirely on what Scotus says,” Levitt argued. “There are only nine people who actually know what they will say, and there are many possibilities, some of which could have a pretty big impact on the map of California, and some that are unlikely to have any impact on the map of California at all.”
Will Congress intervene?
As redistricting battles unfold across the country, with Democratic and Republican states looking to follow the lead of Texas and California, Democrats could end up at a disadvantage. If the overall tilt is in favor of Republicans, Democrats would need to win more than 50% of the vote to win a majority of seats.
Congress has the power to prevent partisan gerrymandering in the drawing of congressional maps. But previous attempts to pass zoning reform have failed.
In 2022, the House passed a bill that would ban mid-decade redistricting and prevent partisan gerrymandering of congressional maps. But Republicans were able to do so despite having majority support, thanks to the chamber’s filibuster rules.
The other option is a narrower bill proposed this summer by Republican Rep. Kevin Kiley, who represents suburban Sacramento and parts of Lake Tahoe, and could lose his seat if Prop. 50 passes. Kiley’s bill, like similar bills introduced by California Democrats, would prohibit redistricting in the middle of the decade.
“That would be the cleanest way to deal with this particular scenario that we’re facing right now, because it would invalidate all of these new plans that have been developed so far,” McGee said.
But with Congress so deadlocked, Kiley’s bill has little chance of passing.
“Things may have to get much worse before they get better,” Hasen said.
Hasen said that if the redistricting wars are not resolved, the race to the bottom will continue, especially if the Supreme Court weakens or repeals Section 2 of the Voting Rights Act.
Mr. Hasen’s alternative scenario, he argued, is for Democrats to regain control of Congress and the president, overcome filibuster rules, and pass redistricting reforms.
If that doesn’t happen, Levitt said, the ultimate power lies with the people.
“If you want to tell your representatives that you’ve had enough, you can do that,” Levitt said. “There’s a lot of things vying for voters’ attention. But that doesn’t mean we don’t have authority here.”
