Trump administration urges Supreme Court to find California’s redistricting map unconstitutional

The Trump administration on Thursday urged the Supreme Court to block the new congressional map adopted by California voters in November. U.S. Solicitor General D. John Sauer told the justices that the map, which the state says was intended to create five new Democratic seats in the U.S. House of Representatives in response to the creation of five new Republican seats in Texas, “is tainted by an unconstitutional racial gerrymander.”

The filing came just under two months after the Trump administration submitted a brief supporting a request by Texas to be able to implement its new map, after a lower court had ruled that the map unconstitutionally sorted voters based on race. In December, the justices granted Texas’ request, over a dissent by the court’s three Democratic appointees.

A group of Republicans from California came to the Supreme Court earlier this week. They asked the justices to bar the state from using the new map, known as Proposition 50, in this year’s elections. A three-judge district court, which hears challenges to the constitutionality of congressional redistricting, had rejected their contention that the new map relied on race as the primary factor in drawing 16 congressional districts. Instead, a majority of that court emphasized, when voters went to the polls in November to approve the map in a special election, “the pros and cons” of the map “were outlined in purely political, partisan terms.”

In their request to bar the use of the new map, the challengers stressed that they were merely asking for a “narrow injunction” that would preserve the status quo by “temporarily reinstat[ing] the” map that California had used in the last two election cycles. But, they said, “[f]rom the outset of California’s redistricting efforts, the aim of offsetting a perceived racial gerrymander in Texas was explicit.”

In the Trump administration’s brief on Thursday, Sauer acknowledged that “California’s motivation in adopting the … map as a whole was undoubtedly to counteract Texas’s political gerrymander. But that overarching political goal,” he wrote, “is not a license for district-level racial gerrymandering.”

Sauer pointed to public statements by Paul Mitchell, an outside consultant who drew the new map, “in which he expressly acknowledged drawing district lines based on race.” The district court’s conclusion “that California voters approved Proposition 50, thus essentially curing any racial predominance that infected” the boundaries of at least one district, was wrong, Sauer insisted: even if the state’s voters are “the ultimate legislature for purposes of this Court’s racial-gerrymandering precedents,” “that does not license jettisoning the most probative direct evidence of racial gerrymandering: the mapmaker’s own description of the actual process of ‘the drawing of district lines.’”

And unlike the Texas case, Sauer maintained, it is not too late for the court to intervene. The window for candidates to file paperwork declaring their candidacy does not open in California until Feb. 9; by contrast, the lower court’s order barring Texas from using its new map “was issued 10 days after the monthlong candidate filing period had already begun.” “If anything,” Sauer contended, a declaration submitted by a California election official “suggests that an injunction effectively requiring California to return to” its earlier map “would be less disruptive to the State’s election apparatus than allowing the Prop 50 map to go into effect.”

On Thursday, Justice Elena Kagan, who fields emergency appeals from the region that includes California, ordered the state to respond to the challengers’ request by Jan. 29.