Redistricting: The Legislature's Purview, Period.
AustinLiberator
At the highest level, the law starts from this premise: if the legislature redraws the map, that map is presumptively valid and entitled to deference—but only so long as it actually cures any prior illegality and does not itself violate the Constitution or the Voting Rights Act. Justice Alito’s injunction is very much operating in that framework.
Below is a structured walk-through, in the order you asked for.
I. Supreme Court – core doctrines on legislatively redrawn maps
1. Legislative primacy and the right to replace court-drawn plans
The Court has said repeatedly that redistricting is primarily a state legislative task:
- In Growe v. Emison, the Court held that “States have the primary duty and responsibility” for redistricting, and federal courts must defer when a state, through its legislative or judicial branch, is timely addressing the issue. Justia Law+1
- In League of United Latin American Citizens (LULAC) v. Perry, the Court said there is “nothing inherently suspect about a legislature’s decision to replace mid-decade a court-ordered plan with one of its own,” making clear that a state may discard a court-imposed remedial map and enact its own map, even mid-cycle, so long as it complies with federal law. Justia Law+1
That is the fundamental rule: validity doesn’t turn on the fact that the map is a legislative redraw (even after a court has acted). The map is valid unless and until plaintiffs show it violates the Constitution or the VRA.
2. Legislative vs. court-ordered plans: different standards and deference
Several cases draw a sharp distinction between legislative plans and court-ordered plans:
- Wise v. Lipscomb and Connor v. Finch:
- Court-drawn plans are a “last resort” and must meet especially strict standards of population equality and racial fairness.
- Because federal courts are “not equipped to make the broad-scale policy decisions” that legislatures make, a court plan should be temporary and limited, and the legislature remains free to adopt its own plan later. CaseLaw+1
- Upham v. Seamon (Texas congressional plan): when a court crafts an interim plan, it must defer to legislative policy choices as much as possible, altering only those parts necessary to cure a federal violation. Justia Law+1
- Perry v. Perez (Texas, again): the Court reversed a three-judge court that had drawn interim maps without giving adequate deference to Texas’s legislative plans, reiterating that courts must start from the state’s map and modify it only to the extent necessary to avoid likely violations. LawPipe+1
Taken together: a legislatively redrawn map is the “first-class citizen”; a court map is a stopgap. Courts should let the legislature retake the field—even after judicial intervention—so long as the new map is lawful.
3. Presumption of legislative good faith and the burden of proof
The modern centerpiece here is Abbott v. Perez (Texas’s 2013 maps):
- The Court held that in redistricting cases, “the good faith of [the] state legislature must be presumed”, citing Miller v. Johnson, and that a prior finding of discrimination does not flip this presumption or shift the burden. Past discrimination is just one evidentiary factor under Arlington Heights, not automatic “taint” that invalidates new legislation. Supreme Court+2Justia Law+2
- The district court erred by essentially requiring Texas to prove the 2013 plan had purged the “taint” of the 2011 plan; the Supreme Court said plaintiffs still bear the burden to prove discriminatory intent for the new map itself. Justia Law+1
More recently, Alexander v. South Carolina State Conference of the NAACP doubled down on this: the Court set a high bar for inferring that race, rather than partisanship, was the predominant motive in drawing districts, emphasizing deference to the legislature’s claimed partisan objectives. Supreme Court+1
So for a legislatively redrawn map:
- Presumption: the legislature acted in good faith;
- Burden: challengers must show that
the new map itself either:
- uses race as the predominant factor without satisfying strict scrutiny (the Shaw/Cooper line), or
- has the discriminatory purpose and effect of diluting minority votes (Arlington Heights + City of Mobile v. Bolden). Justia Law+2Justia Law+2
4. When a new legislative remedy is not valid
A legislative redraw still fails if it doesn’t actually fix the violation or creates a new one:
- Under Section 2 of the Voting Rights Act, Allen v. Milligan illustrates that a map that deprives a sufficiently large, cohesive minority population of an equal opportunity to elect prefers candidates is invalid—even if the map is legislative and even if it looks facially neutral. Justia Law+1
- In LULAC v. Perry, the Court struck down only District 23 of Texas’s mid-decade congressional plan because the changes were made to blunt the growing electoral power of Latino voters, violating Section 2, even though the legislature was otherwise free to redraw mid-cycle. Justia Law+1
- In Cooper v. Harris, the Court held that when race is the predominant reason for redrawing districts, strict scrutiny applies; compliance with the VRA can justify race-conscious districting only when the state has “good reasons” to think race-based lines are needed. Justia Law+1
So, legislative control does not insulate a map from merits review. It just sets the starting presumption and the allocation of burdens.
5. Legislatively redrawn maps under court supervision
McDaniel v. Sanchez deals directly with a legislature submitting a remedial plan to a federal court after a prior plan was found unconstitutional:
- A reapportionment plan prepared by a local legislative body and submitted to a federal court in response to a judicial finding of unconstitutionality remains a “legislative plan”, not a court plan, for purposes of the (then-applicable) Section 5 preclearance requirement. Justia Law+1
- The Court emphasized that whenever a covered jurisdiction advances a proposal “reflecting the policy choices of the elected representatives of the people,” it is treated as legislative—even if it is crafted in the shadow of a federal injunction. Original Sources
That logic carries over conceptually post-Shelby County: a remedial map is still legislative if it reflects legislative policy choices, and courts review it under the ordinary constitutional/VRA standards, with the usual presumption of good faith.
6. Timing and the Purcell principle (why the stay matters now)
Finally, on timing: Purcell v. Gonzalez tells federal courts not to alter election rules too close to an election, to avoid voter confusion and administrative chaos. Justia Law+1
In this Texas case, the lower court blocked the 2025 congressional map and threatened to revert to an earlier map just weeks before the December 8 candidate-filing deadline, prompting Alito’s temporary stay. Statesman+1 The stay doesn’t say the new legislative map is valid; it simply preserves it for now under the Purcell logic while the Court decides whether it is valid under the doctrines above.
II. Federal Courts of Appeals – especially the Fifth Circuit
Courts of appeals mostly apply the Supreme Court framework, but a few themes are worth flagging (especially in the Fifth Circuit, which covers Texas):
1. Reaffirming legislative primacy, even after a violation
Recent Fifth Circuit opinions collect and restate the SCOTUS rule that “redistricting and reapportioning legislative bodies is a legislative task which the federal courts should make every effort not to pre-empt,” even after a federal court has found a plan unconstitutional. They cite McDaniel, Wise, Connor, and Covington for that proposition. Fifth Circuit Court
In other words, even once a three-judge court finds a violation, it should give the legislature the first opportunity to enact a remedial map; any judicial plan is interim and yields once a valid legislative map is enacted.
2. Standards for intent and mixed motives in redistricting
In Jackson v. Tarrant County (2025), a Fifth Circuit case about a mid-decade county-level redraw in Texas, the court:
- Carefully separated Shaw-type “predominant race” claims from intentional vote-dilution claims.
- Applied Arlington Heights’ mixed-motive framework to intentional discrimination: racial discrimination need only be one purpose; once plaintiffs show race was a motivating factor, the burden shifts to the defendant to prove the same decision would have been made absent race. Justia Law+1
That’s important for a remedial legislative map: if challengers can show race was one motive in a dilution-style claim, Arlington Heights can shift the burden despite the general presumption of good faith (Abbott v. Perez doesn’t erase that; it just says the presumption isn’t flipped by history alone).
3. Application to Section 2 and remedial maps
The Fifth Circuit has also stressed that:
- Voting-rights claims based on race remain justiciable, even though pure partisan gerrymandering claims are not, distinguishing Rucho from racial claims in cases like Mi Familia Vota and Jackson. Justia Law
- When a legislature enacts a remedial map after a Section 2 finding, the court will look closely at whether the new plan satisfies the usual Gingles preconditions and totality-of-circumstances analysis, but still starts from respect for legislative policymaking. Fifth Circuit Court+1
III. Federal District Courts – Texas redistricting examples
District courts (often three-judge panels) are where the rubber meets the road on remedial maps. Two Texas-specific strands:
1. Terrazas v. Slagle (1992) – interim plans and deference to later legislative action
In Terrazas v. Slagle, a three-judge court drew interim Texas House/Senate maps after the legislature’s plans raised serious VRA concerns. The majority emphasized:
- The court sought “to adhere to the legitimate districting intent of the state legislature” and to give effect to that intent where not barred by federal law. Justia Law
- A dissenting judge stressed that once the legislature was called into special session to redistrict, any court-ordered interim plan should automatically yield if the legislature enacted, precleared (then required), and passed judicial review of an alternate plan in time—“required by deference to the legislature in these matters,” citing McDaniel v. Sanchez. Justia Law+1
This is an early but very clear statement that a legislative remedial map replaces an interim court plan by default, unless it’s independently unlawful.
2. LULAC v. Abbott (W.D. Tex. 2022–present)
The ongoing multi-plaintiff Texas redistricting litigation over the 2021 maps (LULAC v. Abbott, 601 F. Supp. 3d 147, among others) has:
- Applied Shaw/Cooper and Arlington Heights to examine whether the legislature’s new districts are racially discriminatory.
- Treated the legislature’s maps as the controlling baseline, issuing or denying preliminary injunctions depending on whether plaintiffs showed a likelihood of success on Section 2 or Equal Protection claims. The American Redistricting Project+1
The new 2025 congressional map that Justice Alito just temporarily reinstated is being litigated in that ecosystem: a three-judge district court granted a preliminary injunction, holding the mid-decade map likely relied predominantly on race in violation of the Constitution and Section 2. All About Redistricting+1
Bottom line at the trial-court level: legislative remedial maps are the starting point, but district courts will enjoin them where plaintiffs meet the (increasingly demanding) standards of proof on racial gerrymandering or vote dilution.
IV. Texas Supreme Court – redistricting as a legislative function
The Texas Supreme Court mostly operates on the state-law side, but its doctrine underscores legislative primacy:
- In In re Perry, the court held that the Legislative Redistricting Board (LRB), acting under Article III, § 28 of the Texas Constitution, “stepped into the Legislature’s shoes” when the Legislature failed to redistrict and that its apportionment “shall have the force and effect of law.” Redistricting was described as “clearly a legislative function.” CaseMine
- In the same opinion, the court tied redistricting to legislative immunity, reinforcing that drawing maps is a discretionary policy decision deserving of strong protection from judicial second-guessing, absent clear constitutional or statutory violations. CaseMine
The state-law takeaway: whether a plan is drawn by the Legislature or the LRB, Texas treats redistricting as core lawmaking. Courts can review for legality, but they do not treat redistricting as an ordinary administrative act.
V. What scholars say about legislatively redrawn maps
Academic writing generally agrees on three main points—while sharply disputing how deferential courts should be.
- Legislative primacy plus
robust federal floor
- Scholars describe a stable “legislative primacy” norm in redistricting: courts see their role as enforcing federal floors (one person, one vote; Section 2; anti-racial-gerrymandering rules), while leaving partisan and structural tradeoffs to legislatures. Fifth Circuit Court+1
- Critique of Abbott’s strong
presumption of good faith
- A Harvard Law Review article on “Discriminatory Taint” argues that Abbott v. Perez goes too far in insulating new maps from the history of discrimination: the Court’s rejection of a “taint” theory makes it harder to use past discriminatory conduct to attack successor maps even when they heavily borrow prior lines. Harvard Law Review+1
- Other commentary in Law & Social Inquiry likewise criticizes Abbott for re-allocating burdens in a way that weakens Section 2 enforcement, especially against states (like Texas) with long records of discriminatory redistricting. Cambridge University Press & Assessment
- Purcell and the “shadow
docket” in redistricting
- Recent scholarship in the Virginia Law Review and elsewhere argues that the Purcell principle, as used in emergency stay applications (like Justice Alito’s order), has evolved into a quasi-federalism doctrine that often freezes potentially unlawful maps for an election cycle whenever timing is tight, even if plaintiffs have strong merits claims. Virginia Law Review -+2State Court Report+2
Put bluntly, a lot of the contemporary scholarship says: doctrine formally allows aggressive judicial review of legislative remedial maps, but the presumption of good faith plus Purcell-based stays make it practically harder to dislodge a legislature’s latest map before an election.
VI. Synthesis in your terms
So, answering your core question:
What does the law say about the validity of a legislatively redrawn map?
- A new legislative map is not
“tainted” just because the prior map (or a prior legislature) was found
illegal.
- Past discrimination is evidence, not a legal bar. Plaintiffs must still prove that this map violates the Constitution or Section 2, under Abbott v. Perez and Arlington Heights. Supreme Court+1
- Courts strongly prefer a
legislative remedy over a court-drawn plan.
- Even after a violation, courts should give the legislature first crack at a fix. Court-drawn plans are interim and yield once a lawful legislative plan exists. Fifth Circuit Court+2Justia Law+2
- But legislative remedial maps
must fully cure the violation and avoid new ones.
- If the remedial map still dilutes minority voting strength (Milligan/LULAC) or is a racial gerrymander (Cooper/Alexander), it’s invalid—legislative origin doesn’t save it. Supreme Court+3Justia Law+3Justia Law+3
- The closer you get to an
election, the more likely a questionable legislative map will be left in
place for that cycle.
- Under Purcell, federal courts are reluctant to force map changes close to filing deadlines or elections, which explains (at least structurally) why Justice Alito was willing to issue a temporary stay in the Texas case. Virginia Law Review -+3Statesman+3Politico+3