Ask the expert: What to know about redistricting battle in Texas
The issue of states redistricting their congressional maps to increase partisan seats in the U.S. House of Representatives has become front and center ahead of the 2026 midterm elections.
After state Democratic Texas lawmakers fled the state to avoid holding a vote on a redistricting map that would increase Republican U.S. House seats, California’s Gov. Gavin Newsom has vowed to create a more favorable map to increase Democrat U.S. House seats. Meanwhile, President Donald Trump continues to pressure state lawmakers in Republican states to follow Texas’ example to ultimately retain a Republican majority in 2026. However, these actions have led to legal questions as well as lawsuits.
Texas Gov. Greg Abbott and Attorney General Ken Paxton are trying to expel these Texas lawmakers, and the state’s Supreme Court has taken up the case. A ruling is expected to come in September and could reshape the power of minority parties in state legislatures.
Here, Michigan State University 1855 Professor of Law and Democracy Quinn Yeargain, who also serves as an associate professor at the College of Law, provides insights about redistricting, partisan gerrymandering, and why there are questions about the basis of these lawsuits in Texas.
Some responses and excerpts are from an article in State Court Report.
Why do states redraw congressional maps?
Every ten years, the U.S. census shows which parts of the United States have gained and lost population. Under the U.S. Constitution’s Equal Protection Clause, congressional districts within a state are required to be composed of mathematically equal populations, so the shifting populations shown by the census require that districts be redrawn every 10 years. What is taking place right now, however, is not to account for population changes, but instead a partisan effort by Republicans to redraw congressional districts for their own partisan advantage in the leadup to the 2026 midterm elections. This level of coordinated mid-decade redistricting is without precedent in American history and represents a unique threat to the legitimacy of American democracy.
What is the basis of the lawsuits against Texas Democratic lawmakers?
The lawsuits center around the issue of abandonment of office. After Texas Democratic members of the Texas House of Representatives fled the state, Gov. Greg Abbott filed a lawsuit last Tuesday in the Texas Supreme Court asking the justices to declare that state Rep. Gene Wu had “abandoned” his seat and seeking to have Wu’s seat vacated. That Friday, Texas Attorney General Ken Paxton filed his own lawsuit asking the court to expel 13 Democratic lawmakers who had left the state. (Paxton said in a letter to the court on Aug. 5 that the Texas Constitution and state court precedent allow only the attorney general to bring the suit, not the governor.)\
Abandonment, as Texas courts have noted, requires “the failure to perform the duties pertaining to the office . . . with actual or imputed intention on the part of the officer to abandon and relinquish the office.” Paxton parrots this standard in his filing but fails to demonstrate how it’s met here.
To be clear, while abandonment certainly can be a cause for vacancy, its invocation has historically been in much more colorful circumstances — like where a public official responsible for state funds embezzled the funds and then absconded from the state.
It’s absurd to suggest that the Democratic lawmakers are intending to relinquish their offices. Instead, they are deliberately using the powers of their office to “defend their constituents’ representation.” Suggesting that they have, by doing so, evinced any intent to relinquish their offices is nonsensical.
It’s unclear there is any precedent in any state for the argument Abbott and Paxton are making, and they don’t cite any. For example, Paxton relies on a 19th-century treatise on public officers, which establishes the broad proposition that abandonment can be a cause of a vacancy. But the treatise deliberately distinguishes cases involving “temporary” refusals to perform duties — which Paxton hasn’t even established would include breaking a quorum — and refusals for “so long a period” that they “warrant the presumption that [the officeholder] does not desire or intend to perform the duties of the office at all.”
How does the lawsuit lack a textual basis?
Gov. Abbott suggests that by leaving “the state for an indefinite period of time,” Wu has effectively “removed” himself from the state and ceased to be a resident. The facts certainly don’t support such a bizarre assertion. Again, Abbott cites no law for this proposition.
Gov. Abbott’s final meritless assertion is that Rep. Wu has been bribed and could be charged under state law. He points to a provision in the Texas Constitution that disqualifies state legislators who have been bribed. He argues that Wu “demonstrably accepted ‘things of value’ — including an expensive trip on a private jet — to facilitate the ‘withholding of’ his vote from the Texas House by effectuating his out-of-state absence” and that “he did all of that in exchange for his failure to perform the most basic of duties placed upon him — showing up for meetings of the Legislature when convened by the Governor.”
Abbott’s characterization of the facts is only thinly supported, and he cites no case law to support his contention that these allegations, if true, would amount to a bribe. The sources he does cite — the state constitution and Texas’s Penal Code — undermine his argument. The constitution requires that Wu must have “solicit[ed], demand[ed], or receive[d], or consent[ed] to receive” any “thing of value” in exchange “for his vote or official influence, or for withholding the same.” Likewise, the Texas Penal Code requires that an officeholder accept “any benefit as consideration for the recipient’s decision.”
Abbott’s argument, apparently, is that Wu agreed to withhold his vote in exchange for a plane trip to a location where he could withhold his vote, yet the entire first part of his brief argues that Wu was purposely withholding his vote to deny a quorum. To say that he did it for a trip . . . which he only went on so that he could deny quorum . . . is paradoxical.
Rep. Wu’s response to the lawsuits points out that Abbott’s allegations are unproven and don’t support a conclusion that he has “abandoned” his office. Wu argues that Abbott has presented no proof that Wu or the other Democrats had unequivocally intended to relinquish their offices, as Texas case law requires. He maintains that he is “exercis[ing] a power granted his office by the Texas Constitution” and upholding his oath to the federal and state constitutions by “exercis[ing] independent judgment” as to the legality of the maps proposed.
Should the Texas Supreme Court even hear the case?
Probably not. As if the suits weren’t bad enough on the merits, they should also fail procedurally. There are multiple reasons why the Texas Supreme Court shouldn’t hear them at all.
Ordinarily, cases are filed with trial courts. But most state supreme courts have exceptions to that usual practice in special cases. The Texas Constitution grants the state supreme court has the power “to issue writs of quo warranto and mandamus in such cases as may be specified” by the legislature. Quo warranto is a Latin phrase that means, basically, “by what authority,” and it’s used to question the legal basis that an officeholder has for their office.
But Abbott ignores the fact that, for over a century, the state supreme court’s interpretation of “officer of state government” directly contradicts what he’s arguing here. As the court explained in a 1999 case, In re Nolo Press/Folk Law: “We have construed this phrase to refer, not to every State official at every level, but only to chief administrative officers — the heads of State departments and agencies who are charged with the general administration of State affairs.”
In Texas, as in most states, there is a separate process for removing a state legislator from office. The state constitution delegates to each chamber of the state legislature the power to “judge of the qualifications and election of its own members,” and separately, the power to “punish members for disorderly conduct” and “expel” them for misconduct. As a result, there’s a powerful argument that this lawsuit is improper and that the court does not have jurisdiction to issue a writ of quo warranto.
What has occurred previously in other states?
The Texas Constitution requires a quorum for the legislature to conduct business and contains no provision — other than allowing the state legislature to attempt to compel the attendance of absent legislators — that supports Abbott and Paxton’s arguments in this situation. If Texans want fleeing the state to prevent a quorum to constitute abandonment, or if they want to attach any other consequences to such actions by legislators, they can amend the constitution.
This idea is not unprecedented. In 2022, following several legislative sessions in which Republican state senators in Oregon purposely denied quorum, voters ratified a constitutional amendment disqualifying legislators from seeking reelection after accruing 10 or more unexcused absences. The Oregon Supreme Court applied the provision to absent legislators last year, holding that 10 senators who boycotted a legislative session for 6 weeks in 2023 to stall bills related to abortion access, transgender rights and gun restrictions could not run for reelection.
Will California have success in creating more Democratic districts?
In response to efforts by Texas (and other Republican-led states) to redraw their congressional districts, several Democratic governors — including California Gov. Gavin Newsom — have suggested that they will retaliate by redrawing districts in their own states. The problem in California, however, is that the legislature does not have the power to draw new districts. In the late 2000s, voters in California created an independent redistricting commission, which is responsible for redrawing the districts. So, Newsom has proposed a constitutional amendment — which will appear on the ballot this November — that will allow the legislature to adopt its own congressional districts if another state conducts mid-decade redistricting. In other words, there is a trigger provision allowing the legislature to sidestep the independent commission if another state redraws its districts. Because Texas has already done so, this provision will automatically come into effect.
What ruling is expected from Texas, and could the case go to the Texas Supreme Court?
Because state constitutions normally delegate the power to resolve intra-legislative disputes to the legislature itself, courts are generally reluctant to intervene in matters relating to alleged legislative misconduct. As a result, it would not be surprising if the Texas Supreme Court held that the lawsuits presented non-justiciable political questions and refused to hear the case. If the court sided with Abbott and Paxton, it would be unprecedented in American history — and a further attack on the rule of law.
The Texas Supreme Court this week consolidated Abbott and Paxton’s cases and set a schedule that concluded briefing by Sept. 4. That means we will not have a ruling in the matter until later in September at the earliest.