A new Supreme Court gerrymandering case is nightmare fuel for Democrats

Every now and then, a judge hands down a decision that is so ill-advised that it is impossible to read without burying your face in your palm. New York State Judge Jeffrey Pearlman’s opinion in Williams v. Board of Elections of the State of New York is such a case. 

Pearlman’s opinion is so out of step with the current US Supreme Court’s approach to racial gerrymandering cases — the Court’s Republican majority opposes nearly all laws that are race-conscious in any way — that it is hard to imagine it surviving on appeal. 

But the case also gives the Supreme Court’s Republican majority a vehicle that they could potentially use to accelerate one of their major policy initiatives — eliminating the federal Voting Rights Act’s safeguards against gerrymandering, and permitting Southern red states to draw GOP-friendly maps that are currently still illegal.

For four decades, the Supreme Court has read the Voting Rights Act to sometimes require states where racial minority groups have little representation in Congress or the state legislature to draw new legislative maps that will elect more candidates of color.

The rules governing when states must redraw their maps, which were first laid out in the Supreme Court’s decision in Thornburg v. Gingles (1986), are sufficiently complicated that they cannot be summarized concisely. But, as a general rule, Gingles kicks in when a state is residentially segregated by race, and when voters in that state are racially polarized — typically meaning that white voters strongly prefer candidates from one party, while nonwhite voters prefer candidates from the other party. 

In those circumstances, Gingles can require a state to draw additional districts where a racial minority group is in the majority, to ensure that group has adequate representation.

The practical effect of Gingles is that red states with a white majority sometimes have to draw additional Black or Latino districts that elect Democrats. Unsurprisingly, Gingles is not beloved by the Supreme Court’s Republican majority. The Court is widely expected to toss out Gingles in a case known as Louisiana v. Callais, which the justices heard last October. 

Yet, because the Court typically does not release its most contentious decisions until late June, Callais will most likely not come down until well after the 2026 midterm election cycle has already begun. So red states that want to draw new, more Republican maps — but that have been prevented from doing so by Gingles — may not be able to draw those maps until the 2028 election cycle.

However, the Williams case presents a very similar legal question to Callais. And, unlike Callais, Williams reached the Supreme Court on its “shadow docket,” a mix of emergency motions and other matters that the justices often decide on a very tight timeframe.

By ordering a Republican congressional district redrawn, in other words, Pearlman gave the Supreme Court’s Republican majority a case they can potentially use to get rid of Gingles several months ahead of schedule — potentially giving several red states the time they need to redraw their maps before the 2026 midterms get fully underway.

In her brief to the justices, Rep. Nicole Malliotakis (R-NY), whose district is at the center of Williams, also urges the Supreme Court to embrace a dubious legal theory that would give the Republican justices sweeping authority over federal election-related legal disputes that arise under state law. Currently, questions of state law are decided by state courts, not the US Supreme Court. 

So what is the specific legal issue in Williams?

Malliotakis’s district includes Staten Island and some parts of southern Brooklyn. The district leans significantly to the right — Malliotakis won her 2024 race with 64 percent of the vote — but Democrats can win it in an unusually strong election year. Former Rep. Max Rose (D-NY) won the district in 2018, but lost his reelection bid in 2020 to Malliotakis.

Pearlman’s opinion concludes that this district must be redrawn by the state’s redistricting commission because, as it is currently configured, the district violates a provision of the New York Constitution that closely tracks the federal Voting Rights Act.

But Pearlman interpreted this provision of the state constitution more aggressively than the Supreme Court had interpreted the Voting Rights Act, even back when the Court had a pro-Gingles majority. In Bartlett v. Strickland (2009), the Supreme Court held that Gingles does not require states to draw new “crossover districts,” where minority voters are able to combine their votes with similarly minded white voters to elect their candidate of choice.

Nevertheless, Pearlman held that New York’s constitution goes further than the Voting Rights Act, and that Malliotakis’s district must be redrawn as a crossover district. The practical effect of this decision would be to convert this fairly red district into one that leans toward Democrats, because voters of color in New York tend to prefer Democratic candidates to Republicans.

But even if Pearlman is correct that New York law requires crossover districts, even when federal law does not, his decision has little chance of surviving contact with the Supreme Court. The Court’s Republican majority is broadly skeptical of any legal theory that requires legislative districts to be redrawn in order to change their racial makeup — that’s why they are expected to toss out Gingles in the Callais case. The premise of Pearlman’s decision is that New York law requires state courts to redraw at least some legislative districts for racial reasons, even when federal law does not require that outcome. It is difficult to imagine a legal argument better calibrated to provoke the Supreme Court’s Republican majority.

There is a chance that New York’s own courts will make the Williams case go away before the Supreme Court decides it. Malliotakis has also asked a state appeals court to intervene, and if that court blocks Pearlman’s order, there will be no need for the federal justices to get involved. 

But if the state courts do not act quickly — Malliotakis asked the Supreme Court to weigh in by February 23 to prevent Pearlman’s order from disrupting the upcoming primary and general elections — then it is very likely that this Supreme Court will reject Pearlman’s approach. In the worst-case scenario for Democrats, that Supreme Court decision could also repudiate Gingles, which would free up many red states to draw gerrymandered maps for the 2026 election that are illegal under current law.

A New York judge’s decision that would increase Democratic representation in Congress, in other words, could have the ironic effect of increasing Republican representation in the US House.

Malliotakis also asks the Court to embrace a repeatedly rejected legal theory

Malliotakis’s brief to the justices also proposes a different way to resolve Williams that would significantly expand the Republican Party’s control over federal elections. The Supreme Court has rejected this theory, which is known as the “Independent State Legislature” theory, many times over  more than a century. 

It most recently did so in Moore v. Harper (2023), after retired military leaders warned the justices not to embrace the Independent State Legislature theory because it “undermines election integrity and exacerbates both domestic and foreign threats to national security.” 

Yet, while Moore largely put the Independent State Legislature theory to bed, the Moore opinion also included an ominous line suggesting that the Supreme Court could assert greater authority over federal elections at some future date. That line claims that “state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures.” Malliotakis claims that Pearlman’s decision misinterpreted New York’s constitution so badly that the Supreme Court should invoke Moore and reject Pearlman’s reading of New York law.

If the Court did that, it would be a constitutional earthquake. Normally, each state’s highest court has the final word on questions of state law. Overruling a state court on such a question would eliminate that check on federal power and transform the justices into the final arbiter of virtually any dispute involving federal elections.

The Supreme Court’s Republican majority — the same Republicans who ruled that President Donald Trump enjoys broad immunity from criminal prosecution — could potentially override state election procedures or even second-guess the outcomes of federal elections decided under state law.

Democrats should hope that New York’s appellate courts make Williams disappear. By handing down a questionable decision benefiting Democrats, Pearlman gave a Republican Supreme Court a powerful weapon it could use to elect more Republicans.