Texas at the Crossroads: The Constitutional Madness of Racial Redistricting

On July 9, 2025, Texas Governor Greg Abbott issued a proclamation convening a special legislative session for July 21, with item 15 on the agenda directing lawmakers to revise the state’s congressional redistricting plan "in light of constitutional concerns raised by the U.S. Department of Justice." This came on the heels of pressure from former President Donald Trump and heightened scrutiny from the DOJ over allegations of racial gerrymandering. In response, we must ask an obvious but largely unspoken question: does it make sense to racially gerrymander in the first place?

Begin with a premise that sounds absurd. A state draws legislative districts using race, and the courts strike it down. The state then redraws the lines avoiding race, and the courts strike it down again. This is not satire. It is not Kafka. It is the Voting Rights Act, and the constitutional paradox the Supreme Court has spent three decades avoiding. States must race to comply, and then pretend they never considered race at all. The demand is metaphysical: shape districts with racial awareness, but not racial intent, achieve racial outcomes, but without racial designs. One must believe race matters just enough, but never too much. Such is the jurisprudential tightrope the modern state walks, trembling under the weight of a doctrine that contradicts itself in form and in fact.

At the center of the problem is a collision between the Equal Protection Clause of the Fourteenth Amendment and Section 2 of the Voting Rights Act. The Constitution prohibits racial classifications unless narrowly tailored to achieve a compelling government interest. Yet Section 2, as currently interpreted, requires states to consider race in drawing districts so that minority voters have a fair opportunity to elect candidates of choice. This is the "Goldilocks problem" as it is commonly known. The state must not use race too much, lest it violate the Constitution. Nor too little, lest it violate federal statute. It must get it "just right," though what constitutes "just right" has never been, and cannot be, coherently defined.

Consider the judicial doctrine that attempts to mediate this contradiction. In Shaw v. Reno (1993), the Court held that race cannot be the predominant factor in redistricting. But what exactly is "predominant"? In Miller v. Johnson (1995), the Court attempted to clarify: a district is unconstitutional if race "subordinated traditional race-neutral districting principles." This is less helpful than it sounds. It is a standard of motive, not of effect. It places the court in the position of a mind-reader, divining legislative intent through cartographic aesthetics and committee memos. It is a test, in other words, of sincerity. Did the mapmakers really prioritize compactness, or was that a cover for racial targeting? Was the chosen boundary rational or racially motivated? In this regime, the crime is not the outcome, but the candor.

The most honest accounts of this system come from its critics. Justice Clarence Thomas has been a persistent voice of dissent. In his opinion in Allen v. Milligan (2023), he wrote that Section 2 "requires the very racial sorting the Constitution forbids," and that the Court's results-oriented reasoning transforms the Voting Rights Act into a de facto mandate for racial gerrymandering. Thomas’s concern is not merely theoretical. The Court's insistence on a "race-conscious but not race-determinative" framework forces states to draw districts that produce minority representation while feigning colorblindness. It rewards those who hide their racial motives behind neutral rationales and punishes transparency. If that seems backwards, it is.

Indeed, the Louisiana litigation demonstrates the point with agonizing clarity. For over thirty years, the state has been whipsawed between two legal obligations. Draw a second majority-Black district, said one court, or you will violate the Voting Rights Act. Then came another: your use of race was too overt, and so your map is unconstitutional. The state, seeking to obey both commands, found it had obeyed neither. Its mapmakers were rebuked for considering race and for failing to consider race. This is not a solvable puzzle. It is a structural contradiction.

The problem deepened when, in 1982, Congress amended Section 2 to permit liability for mere disparate impact, removing the requirement of discriminatory intent. This opened the door to what Abigail Thernstrom once described as "racial proportionality through the back door." While the statute disclaims any right to proportional representation, the Supreme Court's test in Thornburg v. Gingles (1986) effectively requires it. The Court established three preconditions for a successful Section 2 claim: minority group compactness, political cohesion, and white bloc voting sufficient to defeat the minority candidate of choice. These criteria may sound modest, but in practice, they function as a demand for proportionality—without calling it that. If minority voters are not electing representatives in proportion to their numbers, the system is presumed flawed, regardless of intent or context.

Yet proportionality by race cannot coexist with constitutional colorblindness. This is the tension the Court has never resolved. Instead, it has created a jurisprudence of euphemism. Race may be "considered," but not "predominant." Districts must ensure minority opportunity, but cannot be drawn on that basis alone. The courts are not to count heads by race, but if the numbers fall short, the map fails. Thus, the state is placed in a Catch-22. Compliance with Section 2 often requires creating majority-minority districts, but doing so requires attention to race that the Constitution appears to forbid. This is not law. It is theater.

Nor is it sustainable. The judicial demand for racial consciousness cloaked in race-neutrality creates a culture of legal artifice. States must invest in consultants who can reverse-engineer demographic outcomes using proxies and data veils. Political actors, well aware of the racial game being played, simply learn to speak in code. A district is described as preserving "communities of interest," which everyone knows means race. The irony is thick: in the name of preventing racial division, the law incentivizes it.

Some will ask: but does this not serve a higher good? Does it not ensure minority voices are heard in the halls of power? But this is precisely the danger. The Constitution’s bar on racial classifications is not a trivial abstraction. It reflects a moral commitment to individualism, to judging citizens as equal participants in the polity, not as representatives of genetic constituencies. Once we begin assigning political power based on racial affiliation, we abandon the principle of one person, one vote, and move toward a system of racial apportionment.

That such apportionment is often disguised does not make it less real. In Cooper v. Harris (2017), the Court struck down North Carolina’s congressional districts for being too race-conscious. The districts were nearly identical to earlier court-approved maps drawn to comply with Section 2. The Court said the difference was in motive. The lines were acceptable when drawn to preserve political advantage, but not when drawn for racial balance. Thus, the legality of a district can hinge not on what it does, but on why it was done. This is unworkable.

It is also corrosive. The present regime undermines respect for the rule of law. Legislators cannot comply with a doctrine that is internally incoherent. Courts cannot police a standard that shifts with judicial mood. Citizens cannot believe in a system that tells them race is both paramount and irrelevant. This is what has driven legal scholars like Richard Pildes to label the current jurisprudence a "legal fiction," and Justice Alito to warn that Section 2 and the Constitution are "on a collision course."

There is, perhaps, a way forward. Justice Thomas has proposed that Section 2 be reinterpreted to prohibit only intentional discrimination, restoring it to its original meaning. Others have argued for replacing the current test with one that focuses on equal opportunity without resorting to racial benchmarking. Whatever the solution, the premise must be this: race cannot be both the problem and the solution. A law that demands race consciousness in secret, and punishes it in public, is not a rule of law. It is a ritual of evasion.

States should no longer be asked to perform this charade. Texas, now ordered to revisit its congressional maps in light of supposed constitutional infirmities, finds itself at the center of this doctrinal absurdity. It must redraw lines that reflect racial realities without acknowledging racial motives, guided by statutes that demand racial consciousness and constitutional doctrines that punish it. The time has come to confront this paradox and resolve it with clarity. Racial redistricting, as it now exists, is a house built on contradiction. It asks legislatures to lie about their motives, judges to guess at their sincerity, and citizens to accept that the law means whatever a federal court decides it meant that day. That is not equal protection. It is not justice. It is madness.

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