Proposition 50 disenfranchises Republican voters in California. Will it survive a legal challenge?

Six years ago, when the United States Supreme Court confirmed highly partisan electoral maps of the states of North Carolina and Maryland – decision that federal courts cannot prevent states from drawing maps that favor one party over the other — one of the court’s liberal justices issued a warning.

“If left unchecked, gerrymanders like these could irreparably damage our system of government,” Justice Elena Kagan wrote in a dissenting opinion.

Kagan argued that North Carolina Republicans and Maryland Democrats – the two examples presented before the Court – rigged the election in a way that “deprived citizens of their most fundamental constitutional rights,” “debased and dishonored our democracy” and “upended the fundamental American idea that all governmental power derives from the people.”

“Ask yourself,” Kagan said as he recounted what happened in each state: “Is this how American democracy is supposed to work?”

That’s the question Californians are asking now as they decide how or if they will vote on Proposition 50, Gov. Gavin Newsom’s plan to abandon congressional maps drawn by the state’s independent redistricting commission and replace them with maps drawn by lawmakers to favor Democrats through 2030.

Democrats do not deny that the measure is a deliberate attempt to dilute the voting power of the Republican Party.

From the start, they have argued that the goal of redistricting is to weaken Republican voting power in California — a move they justify by arguing that it is a temporary solution to offset similar partisan gerrymandering by Texas Republicans. This summer, President Trump upped the ante, pressing Texas to reshuffle the maps in order to solidify the Republican Party’s narrow majority in the House before the 2026 elections.

Experts say opponents of Proposition 50 have no viable federal legal challenge to the new maps on the grounds that they disenfranchise a large portion of California Republicans. Even since the 2019 U.S. Supreme Court decision, Rucho vs. Common Cause, partisan gerrymandering claims have no path in federal courts.

Proposition 50 has already survived challenges in state courts and is unlikely to be successfully challenged if passed, said Richard L. Hasen, a law professor and director of the Safeguarding Democracy Project at UCLA Law School.

“If you’re a Republican in California or a Democrat in Texas, you’re about to get a lot less representation in Congress,” Hasen said. “I don’t think there’s anything you can do about it.”

If Californians vote for the measure on Tuesday, the number of Republicans in the state’s House of Representatives — nine out of 52 total members — would likely be reduced by five. That could mean Republicans hold less than 10% of California’s congressional representation, even though Trump won 38% of the vote in 2024.

“All of this is unconstitutional, but the federal courts are not available to help,” said Justin Levitt, a law professor at Loyola Law School.

“Any time you redraw a district specifically to protect some candidates and punish others,” Levitt said, “what you’re basically saying is that it shouldn’t be up to voters to determine whether they think the candidates are doing a good job or not.”

Possible legal avenues

But even if the issue of partisan gerrymandering is stuck in federal courts, there are other potential legal avenues to challenge California’s new legislative maps.

One solution would be to claim that Proposition 50 violates the California Constitution.

David A. Carrillo, executive director of the California Constitution Center at Berkeley Law, said that if Proposition 50 passes, he expects a barrage of lawsuits to “see what sticks” raising constitutional claims in California. They are unlikely to succeed, he said.

“The voters created the redistricting commission,” he said. “What voters have created, they can modify or abolish. »

Lawyers could also file a racial discrimination suit in federal court, alleging that California lawmakers used partisan affiliation as a pretext to invoke race in drawing maps aimed at disenfranchising one racial group or another, Carrillo said. Under current law, he said, such allegations are highly fact-dependent.

Lawyers are already ready to file a complaint if the referendum is successful.

Mark Meuser, a conservative lawyer who filed a lawsuit this summer to block Proposition 50, said he was prepared to file a federal lawsuit on the grounds that the new maps violated the equal protection clause of the 14th Amendment to the U.S. Constitution.

“We say race was a predominant factor in drawing the lines,” Meuser said. “Where race is a predominant factor in the drawing of lines without compelling interest, careful review will require that the maps be removed.”

Some legal experts say it would be a difficult case to prove.

“It does appear that the new map is primarily geared toward politics and not race,” Levitt argued. “And even if they would say that race was a predominant factor in drawing the lines, that’s very, very, very different from proving that. It’s a tough mountain to climb based on those facts.”

Some experts think the new maps are unlikely to raise serious Voting Rights Act issues.

Eric McGhee, a senior fellow at the Public Policy Institute of California who specializes in elections, said the new districts appear to have been carefully carved out to preserve precincts that are majority Latino or black.

A successful challenge is possible, McGhee said, noting that there are always new legal arguments. “These are the big projects that you would think of, that are the most obvious and the most traditional ones are quite closed,” he said.

The Supreme Court occupies an important place

Ultimately, legal experts agree that the fate of California’s maps — and other maps in Texas and across the country — would hinge on the Supreme Court’s upcoming decision on a Louisiana redistricting case.

Last month, conservative Supreme Court justices suggested in a audience that they were considering curbing a key part of the landmark Voting Rights Act of 1965, which prohibits discriminatory voting practices or procedures on the basis of race, color or membership in a minority language group.

“Whatever happens with Proposition 50 — success or failure — is almost irrelevant in the grand scheme of things,” Carrillo said, noting that the Supreme Court could use the Louisiana case to strike down Section 2 of the Voting Rights Act. “A big storm of litigation is coming in almost every scenario. »

Levitt agreed that the Supreme Court’s ruling on the Voting Rights Act, which could come any time between now and June, could change current law. But he stressed it was impossible to predict how big the decision might be.

“Whether this makes any of California’s districts vulnerable — whether on the current map or on the map if Proposition 50 passes — depends entirely on what Scotus says,” Levitt argued. “There are only nine people who know what they are actually going to say, and there are many possibilities, some of which could affect the map of California quite substantially, and others of which are unlikely to affect the map of California.”

Will Congress intervene?

As the redistricting battle expands across the country and Democratic and Republican states seek to follow Texas and California, Democrats may ultimately find themselves at a disadvantage. If the majority of votes went to the Republicans, the Democrats would have to win more than 50% of the votes to obtain the majority of seats.

Congress has the power to block partisan gerrymandering when drawing congressional maps. But so far, attempts to pass redistricting reform have failed.

In 2022, the House passed the Free Voting Act, which would have banned mid-decade redistricting and blocked partisan gerrymandering of congressional maps. But the Republicans were able block the bill in the Senateeven though it had majority support, due to that chamber’s filibuster rules.

Another option is a narrower bill proposed this summer by Republican Kevin Kiley, who represents parts of suburban Sacramento and Lake Tahoe and could lose his seat if Proposition 50 passes. Kiley’s bill, along with similar legislation introduced by California’s Democratic representatives, would ban redistricting by mid-decade.

“That would be the cleanest way to address the particular scenario that we find ourselves in now, because all of these new plans that have been made would become null and void,” McGhee said.

But in a deadlocked Congress, Kiley’s bill is unlikely to succeed.

“It may have to get worse before it gets better,” Hasen said.

If the redistricting war is not resolved, Hasen said, there will be a continual race to the bottom, particularly if the Supreme Court weakens or strikes down Section 2 of the Voting Rights Act.

Another scenario, according to Hasen, would be for Democrats to regain control of Congress and the presidency, overcome the filibuster rule and pass redistricting reform.

If that doesn’t happen, Levitt said, the ultimate power lies with the people.

“If we want to tell our representatives that we have enough, we can,” Levitt said. “There are a lot of things competing for voters’ attention. But that doesn’t mean we don’t have agency here.”