Op-Ed | Democracy Defender: Texas Hold’em

August. What happened to June and July? – a question we ask ourselves every summer. It’s the month we try to savor, desperately trying to not think about work or school or other obligations after Labor Day.

It used to be that the dog days of summer were a respite from politics, except of course for high-end fundraisers on eastern Long Island. In fact, I am old enough to remember President Richard Nixon trying to emulate the French by taking off all of August so that he and everyone could have a well-needed breather.

Not anymore. With a 24/7 news cycle and the political temperature ratcheted up in the high 90s, there is no respite. So we have a hotly-contested New York City mayoral race that demands everyone’s attention. And then there is Texas – the center of the exploding redistricting campaign initiated by President Trump.

For my generation, Texas means Dallas – which conjures up a vision of the assassination of a young president. But 60 years later, it’s a growing state with 40 electoral college votes, second only to California, and stubbornly Red, with a governor who puts undocumented residents on buses to Blue states. Reliably part of the “Old South” for over a century, from 1872 onward Texans mostly voted for Democratic presidential candidates. The last time was for Jimmy Carter in 1976. For the last twelve presidential elections, the Republican presidential candidates have won.

At the urging of the president, Texas is now the state that is brazenly attempting to redraw their congressional lines for the purpose of capturing more Republican seats in the House. Gerrymandering, of course, is not new. Throughout our history political parties have tried to draw congressional as well as state and local districts to get the upper hand in legislative chambers – and, as many readers know, the term itself, “gerrymander,” is a pejorative characterization derived from a salamander-shaped district drawn by then-Massachusetts Governor Elbridge Gerry in 1812.

All congressional districts are supposed to be drawn by the states every ten years after a new census, and the size of a state’s delegation depends upon its population. But here’s the kicker: the formula is not based upon whether a state’s population has increased or decreased; it is based upon its population relative to the population of the other forty-nine states. This is because, over a hundred years ago, the number of seats in the House of Representatives was capped at 435.

Moreover, the districts are supposed to be almost precisely equal within a state, and are supposed to respect city, town and community boundaries.

Courts have struck down redistricting lines that have racially discriminated, but the United States Supreme Court recently held that partisan considerations are not out of bounds. The court’s reasoning was that the judiciary was not sufficiently able to assess partisan motivation or impact. That said, some states, including New York and Florida, have included in their constitutions requirements to limit such considerations, prohibiting the drawing of lines that favor or disfavor a political party or candidate. Texas law, on the other hand, does not.

The norm, and often a state’s constitution, requires redistricting only after the decennial census. So this attempt by Texas to skew their delegation even more Red in the middle of the decade is highly unusual – and needless to say will face legal challenges. One should remember, however, that Texas has done this before. In 2003, the state re-drew their congressional lines for partisan advantage, and that Republican-led gambit was upheld by the U.S. Supreme Court. In a 5-4 decision, Justice Anthony Kennedy wrote that Texas could draw new lines as many times as it wanted as long as they did so at least once every ten years.

So it remains to be seen whether legal efforts to forestall this power-grab by Texas Republicans will succeed.

Of course, the political response has been swift. Democratic states such as New York, California and Illinois are exploring whether their constitutions and laws permit a mid-decade response. Efforts in New York are already under way to change its constitution to create new congressional lines without having to wait for the 2030 census.

Control of the House of Representatives is the obvious goal here, and what eventually happens in Texas could have a serious adverse impact on the lives of New Yorkers. After all, the House appropriates – or fails to appropriate – funding for many of our state’s social services. New Yorkers must, therefore, be watchful of the legal and political challenges to Texas’s proposed gerrymander.

As always, I welcome your comments and questions, suggestions. and comments. You can contact me at goldfeder@fordham.edu.

Jerry Goldfeder is director of the Fordham Law School Voting Rights and Democracy Project, and author and editor of Goldfeder’s Modern Election Law (7th Edition (2025), www.nylp.com). He is the new chair of the American Bar Association’s Election Law Committee.