UPDATE: Justice Alito Grants Administrative Stay: Texas Files Emergency Supreme Court Motion to Stay District Court Order Throwing Out 2026 Gerrymandered Maps for Congressional Elections; Justice Alito Asks for Response by Monday at 5 pm ET: What Should We Expect at SCOTUS and When?
The State of Texas, as expected, has filed an application for a stay at the Supreme Court of the 2-1 racial gerrymandering decision issued earlier this week (over a fiery dissent by Judge Smith). Justice Alito has already requested a response by 5 pm Monday and will almost certainly refer the question to the entire court.
Also as expected, Texas makes two primary arguments: first, this case comes too late under Purcell, with candidates filing for office under the 2026 lines now and the filing deadline coming December 8. If the Supreme Court does not intervene, it’s possible the timing of Texas primaries could be pushed back. The second argument is that this was all about politics to help Republicans, not race, and therefore the Texas legislature did not have the intent to do a racial gerrymander.
If I had to bet, I think the Court will likely put the district court ruling on ice, for three reasons. First, the election season is already underway, and the Court in cases like Milligan put the lower court ruling on hold when the election was even further away. Second, there’s a fair chance a majority of Justices see this as politics, not race, that predominates. Third, Judge Smith’s dissent may convince some of the more conservative justices that the majority did not give the dissent a chance to make a fair case, and that the ruling was rushed and should be reversed.
I also think we will hear something soon, maybe even before Thanksgiving.
Nothing is for certain, of course. And if the Texas ruling comes too late for the 2026 elections, this could well be true for the California maps enacted via Prop. 50 that are a Democratic gerrymander, which has been challenged by California Republicans.
Stay tuned.
UPDATE: Justice Alito, not unsurprisingly, has granted an administrative stay, which keeps the 2026 maps in place until the full court can decide what to do on the request for a stay. I would not read too much into it on the merits, but as I said above, I think there’s a good chance of a stay being issued when the full court considers the case.
