Republicans started this key battle in the states but they should beware the backlash

When the Indiana state Senate recently rejected a mid-cycle partisan redistricting of its congressional delegation, it was not only a rebuke to President Donald J. Trump. It also upheld a norm that has guided American democracy for more than a century.

Since the early 1900s, states have almost never redrawn congressional maps outside the decennial census, except to comply with court orders or to make minor technical corrections. That restraint has served an important stabilizing function.

History suggests that midcycle gerrymanders lead to greater division and polarization, and more volatility in the Congress. And the impact may hit closer to home, if Virginia voters uphold Democratic legislators’ current effort to reshape the state’s political maps.

Earlier fights

America has experienced mid-decade redistricting battles before, including a failed attempt in Virginia’s legislature by GOP leaders in 2013 but they have largely been confined to the 19th century. Between 1870 and 1896, mapmaking became a weapon in a relentless partisan war. And the federal courts largely ignored review of these plans.

During this period, “partisan gerrymandering” was indistinguishable from “racial gerrymandering,” as Black voters were a monolithic Republican voting bloc targeted by Democrats, primarily in the South, which was rebuilding after losing the Civil War and facing scores of newly franchised voters who had previously been enslaved. Democrats in Alabama redrew congressional maps in the mid-1870s to pack nearly all Black Belt counties into a single district to reduce Republican seats.

Ohio was the biggest culprit in the 19th-century redistricting wars. It had the third-largest congressional delegation at the time behind New York and Pennsylvania. As control of the state’s General Assembly flipped between Republicans and Democrats between 1876 and 1892, partisans in the legislature redrew maps seven times, creating massive swings in the makeup of their congressional delegation, and influencing which party had the majority in the U.S. House.

Like today, the impetus for these state actions came from national leaders. In 1878, the Democratic Speaker of the House implored Ohio and Missouri to act to save their majority. The two states complied, flipping nine seats to the Democrats and preserving their slim majority in the House.

Because the U.S. House was smaller then (293 members in 1878 versus 435 today), small swings in congressional delegations had greater impact. And, like today, small party majorities in the House made partisan gerrymanders attractive options to gain an advantage or fight the opposition.

In 1888, for example, Republicans in Pennsylvania responded to Ohio’s efforts by carving 21 pro-Republican districts out of 28 statewide, just enough to move the House into GOP hands.

The era was marked by shifting majorities, rapidly redrawn maps, and sudden swings in the size and orientation of state delegations. There were fewer states, no “one person, one vote” standard, no independent commissions and virtually no judicial review. Redistricting was a political free-for-all. Party leaders gradually concluded that midcycle redistricting was creating too much chaos, and their numbers dramatically decreased after 1896.

For more than a century, we believed we had left this chaos behind.

Why Texas matters

Apart from Texas in 2003 and Georgia in 2005, recent mid-cycle revisions have been rare and used mainly to correct errors or comply with court orders.

The 2025 Texas mid-cycle gerrymander marks a return to this earlier era and has opened a new front in our partisan conflict. Conservative legislatures in Missouri and North Carolina quickly joined this Trump-supported effort to influence the midterms by passing new maps.

Democrats felt they had no option and moved forward with their own plans. California voters have now authorized a new Democratically flavored map for 2026, and Virginia Democratic state legislators proclaim their desire to create a 10-1 Democratic congressional majority in a state where Republicans received 42.2 percent of the vote in the last gubernatorial election. New York and Illinois may soon follow.

States race to outmaneuver rivals, each pushing the envelope of partisan advantage. The redistricting process risks becoming a rolling, perpetual conflict rather than a once-a-decade recalibration.

Supreme Court retreat

The Supreme Court’s role is central to this shift. The court, led by Chief Justice John Roberts, has been eroding 50 years of federal court redistricting oversight since landmark cases like Baker v. Carr (1962), which established the “one person, one vote” principle and forced states to draw districts of equal population size.

In LULAC v. Perry (2005), the Court upheld the practice of mid-decade redistricting for partisan purposes. But its most significant decision was Rucho v. Common Cause (2019), where the Supreme Court held that federal courts should not review partisan gerrymanders, defining such disputes as “political questions.” And, in the recent Texas case, the majority ignored evidence that race was considered by the legislators and upheld the map as a “purely partisan” action — thereby shielding it from federal scrutiny.

Racial gerrymandering remains reviewable under Shaw v. Reno (1993), but the pending case of Louisiana v. Callais could restrict that avenue as well. The erosion of federal oversight returns primary authority to the states — just as in the 19th century.

The gamble

History shows hyper-partisan maps can backfire. In the 1880s and 90s, parties would gain power in state legislatures and proceed to draw new maps with small margins for error. Missouri Democrats in 1892 engineered a 13–2 partisan advantage in its delegation — only to lose eight seats two years later when the national tides shifted and the Republican landslide brought GOP control of the U.S. House.

Texas may face similar risks. The state’s new map relies heavily on 2024 voting patterns. By 2026, an anti-Trump backlash coupled with demographic shifts — especially among Hispanic voters — could make several engineered “safe” seats unexpectedly competitive.

Barriers exist in other states as well. California has provided itself some protection against court challenges because its map enjoys the imprimatur of a constitutional amendment approved by the voters.

Virginia legislators are trying to do the same but will need to convince voters to approve a constitutional amendment before new maps are adopted.

Missouri’s plans are now threatened by a 300,000-signature petition drive that mayplace the GOP’s new maps directly before the public for an up-or-down vote. Expect court challenges to these maps to include arguments they are too late in the cycle to be implemented, a claim that the Supreme Court has found appealing in the past.

Power in the states

As the U.S. Supreme Court withdraws from oversight, state laws and constitutions grow more significant. The problem is that every state has its own constitution, laws and precedents. Today, 11 states restrict mid-decade redistricting, including Colorado, where its Supreme Court struck down a 2003 Republican attempt to redraw congressional districts after the party gained control of the legislature. Several other states permit challenges to partisan gerrymanders.

• In 2022, the Alaska Supreme Court invalidated two state senate districts as constitutional violations of equal protection.
• Michigan and Wisconsin courts have historically shown willingness to engage such claims.
• Oregon and New York constitutions explicitly prohibit map-drawing that favors or disfavors parties or incumbents.
• Courts in New Mexico and Kentucky acknowledge a willingness to evaluate partisan-gerrymander claims, even as they have not yet overturned them.
• State supreme courts in North Carolina and Ohio struck down partisan gerrymanders, only to reverse themselves after political turnover on the bench.

Yet uniformity remains elusive. Courts in Kansas, Nevada, New Hampshire and North Carolina presently embrace the U.S. Supreme Court’s view that partisan gerrymanders are “political questions” better left to legislatures. And the composition of state Supreme Courts can change dramatically, and with it, rulings on the constitutionality of partisan maps. This patchwork ensures that challenges will succeed in some states but not others, deepening an already troubling trend toward national division.

A nation dividing itself

Texas did merely not redraw its congressional lines. It revived an old practice at precisely the moment when federal oversight is diminishing and partisan stakes are growing. The result is a redistricting system that increasingly resembles the volatile 19th-century environment — only now with a larger Congress, more diverse electorate, sophisticated data tools and far more at stake.

If this trend continues, redistricting will shift from a decennial process to a continuous political battlefield, intensifying division among the states and accelerating the geographic, political and cultural split already reshaping the nation.

• David J. Toscano is a practicing attorney in Charlottesville, Virginia, where he formerly served as Mayor. He also served fourteen years in the Virginia House of Delegates, including seven as Democratic Leader. He is the author of "Fighting Political Gridlock: How States Shape Our Nation and Our Lives," and "Bellwether: Virginia’s Political Transformation, 2006-2020," and writes a column called “Fights of Our Lives” at https://deltoscano.substack.com/