Why GOP Challenges Finally Have Teeth Against California’s Discriminatory District Lines

The central puzzle of American redistricting is simple to state. For decades, courts struck down Republican maps as racial vote dilution, while similar claims against Democrat maps almost never prevailed because federal law did not recognize a right to partisan balance. There is no constitutional protection for Republicans as Republicans. There is, however, a constitutional ban on separating citizens by race unless that separation is strictly required by law. The first rule regularly hurts Republicans; the second rule is now poised to hurt Democrats in California. The reason is a doctrinal turn. If the Supreme Court limits or invalidates Section 2 of the Voting Rights Act, then California’s race-conscious districting, including its many coalition districts, loses its legal shelter and must face strict scrutiny without a compelling interest to support it.

Two distinctions set the stage. Partisan gerrymandering is non-justiciable in federal court after Rucho, so a court will not remedy a map because it helps Democrats more than Republicans. Racial gerrymandering, by contrast, is justiciable, and when race predominates, strict scrutiny applies. The Equal Protection Clause and the Fifteenth Amendment forbid allocating voters to districts on account of race unless the state can show a compelling interest and narrow tailoring. Compliance with Section 2 has been recognized as such an interest, but only when the state has a strong basis in evidence that, without race-conscious drawing, a minority group’s votes would be unlawfully diluted. Courts have repeated this formula since Shaw and Miller. The burden is real. The state must prove necessity, not preference, and it must tailor its use of race closely to that necessity.

California’s present and proposed congressional maps were drawn in an openly race-conscious environment. The 2021 Citizens Redistricting Commission acknowledged its duty to comply with the Voting Rights Act, and it generated a map with extraordinary racial features. Forty-four of the state’s fifty-two districts are majority minority, and only eight are majority white. Sixteen districts are majority Latino, which is plausible given population concentration. The remaining nonwhite majority districts are achieved through coalition, that is, the combination of two or more distinct minority communities into a single district where together, not separately, they form a majority. More recently, Proposition 50 authorized a new round of map drawing by the legislature, which kept, and in places deepened, these race-conscious structures to preserve or increase Democratic advantage. Public analysis of Proposition 50 openly celebrates expanded Latino influence districts and the maintenance of a fixed number of Latino majority districts, even where candidates of choice were already winning under the prior lines.

Readers may wonder whether this is unlawful if the goal is minority representation. The answer requires care. The Constitution does not forbid every use of race. It forbids the predominance of race absent a compelling interest and narrow tailoring. For three decades, the common justification has been Section 2. That justification is now in doubt on two fronts. First, several circuits, including the Fifth in Petteway v. Galveston County, the Sixth, the Eleventh in older cases like Nipper, and the Second, have rejected the notion that Section 2 requires creation of coalition districts by aggregating distinct minority groups into a single protected unit. Where no single minority group is large and compact enough to satisfy the Gingles preconditions on its own, courts have been unwilling to treat a coalition as a protected group. Second, the Supreme Court is actively reconsidering the permissibility of intentional race-based line drawing, even for remedial aims, and may limit or invalidate Section 2 altogether. If that happens, California’s stated rationales collapse, because the state would no longer be able to say that Section 2 required what it did.

To see why this matters, recall the core holdings of the racial gerrymandering cases. In Shaw, the Court held that bizarre shapes were not the test, but the predominance of race was. In Miller, the Court struck down Georgia’s third majority Black district because the evidence showed that two such districts satisfied federal law and that the third was an effort to maximize rather than to remedy. In Cooper v. Harris, the Court invalidated North Carolina districts where the legislature increased Black voting age population above 50% despite Black preferred candidates winning comfortably with lower numbers. The lesson is constant. Using race beyond what law compels violates equal protection. It is no answer to say that the motive is partisan, since race and party correlate in many places and the Court will not allow race to be used as a proxy for party.

Apply the lesson to California. The state, by its own public accounts, treated the number of Latino majority districts, and the spread of Latino influence districts, as targets to hit. That is race as a predominant criterion. The state did so even where candidates of choice already prevailed, which undermines any claim of necessity. And where it created nonwhite majority districts by combining disparate minority communities into coalition districts, the state relied on a contested, and in the Fifth Circuit rejected, interpretation of Section 2. California, in short, pursued maximization, not remedy, and did so by using race as a lever. That is exactly what Miller and Cooper forbid unless the state can make a tight showing that the use of race was strictly necessary under federal law.

A skeptical reader might ask whether majority minority counts in a diverse state prove predominance. Numbers alone do not. Demography matters. California is a majority minority state after all. But the record here contains more than demographics. Public facing analyses describe the aim to expand Latino opportunity and to protect minority influence across a wider set of districts. Legislative sponsors under Proposition 50 signaled partisan intent serviced by race conscious design. The prior commission map already contained sixteen Latino majority districts, and yet the new process sought to preserve that number and supplement it through influence districts rather than ask whether the Gingles preconditions actually demanded such a configuration in each locale. These features show that race was not incidental to neutral criteria like contiguity, compactness, and communities of interest, it was a guiding constraint.

Consider coalition districts more closely, since they account for a large share of California’s majority minority count. The Gingles framework requires a minority group to be sufficiently large and compact to form a majority in a single member district. Coalition theory evades that requirement by allowing a court to combine distinct minority groups into a synthetic unit so that, together, they pass the threshold. The Fifth Circuit has declined to recognize this move, and so have other circuits, because it departs from the text and structure of Section 2. The statute protects members of a class of citizens and speaks of political cohesion within that class. It does not instruct courts to manufacture a class by adding groups with different histories, geographies, and political preferences. Even where such coalitions are real on the ground, they pose unique equal protection risks. The state must draw lines with knowledge and intent about the racial composition of two or three different communities, and it must do so to aggregate them into a district where race determines the majority. That is racial sorting at its apex.

If Section 2 is cut back or removed, the analysis becomes even more straightforward. The state would be left with the Constitution alone, which permits no racial allocation of voters unless another federal command compels it. Without Section 2, there is no such command. California would then face strict scrutiny without a compelling interest, and many districts, including the sixteen Latino majority districts and a larger set of coalition districts, would be vulnerable. Courts will ask whether these districts can be justified by neutral criteria alone. Without the crutch of Section 2, the answer will often be no, because the lines were calibrated to racial targets that do not follow organically from geography or traditional districting principles.

It is important to anticipate an objection. Might striking down these districts harm minority representation and thereby undermine the promise of the Fifteenth Amendment. The Fifteenth Amendment forbids abridgment of the right to vote on account of race. It does not guarantee race proportional representation or race engineered districts. The antidote to race discrimination in voting is to forbid race discrimination in law. The Supreme Court has consistently warned that racial line drawing, even for benign ends, balkanizes and entrenches the view that citizens vote as racial blocs. Equal protection, as the Court has said, is a personal right. It seeks a politics where race does not determine the weight of a ballot. A decision that withdraws federal permission to use race would move the law toward that ideal, not away from it.

Where does this leave Republican litigants in California. In a better position than ever before. For years, Republican challenges to Democrat maps failed because those challenges sounded in partisanship, which federal courts will not police. Today, the strongest challenges sound in equal protection, which courts must police. California has made itself vulnerable by repeatedly announcing that race shaped its lines, by preserving a fixed inventory of Latino majority districts even where no legal necessity has been shown, and by building a superstructure of coalition districts that depend on a shaky reading of Section 2. The state can no longer hide behind the shield that any racial sorting is justified by the Voting Rights Act.

The path forward is precise. Plaintiffs should identify districts where candidates of choice already prevailed under lower minority voting age percentages, since Cooper shows that pushing those percentages above 50% without need is unconstitutional. Plaintiffs should target coalition districts in circuits that reject coalition claims, and they should force California to concede that many of these districts were engineered to combine populations who are not a single protected class. Plaintiffs should press the narrow tailoring requirement, asking, district by district, whether traditional criteria could have produced lines that respect communities of interest without race as a controlling variable. Finally, plaintiffs should remind courts that even if partisanship lurks in the background, the Constitution prohibits the use of race as a proxy to achieve partisan ends.

Some will say that these arguments are abstract. They are not. They are anchored in facts on the ground. California has forty four majority minority districts out of fifty two, with only eight majority white. It has sixteen Latino majority districts preserved as a constant across cycles. It has layered on Latino influence districts by design. It has used coalitions of disparate minority groups to generate nonwhite majorities where no single group could meet Gingles. Each of these is a choice to sort voters by race. Each of these choices demands a justification that extends beyond preference and beyond politics. With Section 2 in doubt, those justifications are eroding.

The Supreme Court does not guarantee that Republicans win seats. It guarantees that states cannot allocate political power by race unless the law leaves them no alternative. That principle, applied candidly, breaks the asymmetry of the past. Republican maps were frequently struck for violating the racial sorting rule. Democrat maps, which embedded racial sorting to create and protect coalitions, survived because Section 2 was read to require them or because courts hesitated to disentangle race from partisanship. The moment for hesitation has passed. Strict scrutiny has bite again. California’s maps should be redrawn without racial targets, and the same rule should apply nationwide. The remedy is a return to traditional criteria applied neutrally. Communities of interest, compactness, contiguity, political subdivisions, and natural geography can and should do the work that race has been made to do. Voters are individuals. The law should treat them that way.

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