Ninth Circuit Dissent: California’s New Congressional Map May Have Racial-Discrimination Issues

Democrats are bullish about reclaiming the U.S. House and naming Rep. Hakeem Jeffries (D-N.Y.) Speaker after the midterms, in part because California’s newly drawn congressional map appears to create a roughly five-seat cushion. But a prominent Ninth Circuit judge says one district on the map may have been drawn with race as a central consideration.

Judge Kenneth Lee dissented this week from a ruling that upheld the new California congressional lines. His lengthy dissent focuses on Congressional District 13 and alleges that the plan’s principal architect used explicitly race-based criteria when drawing multiple districts — a claim that, if accepted, could prompt further review up to the Supreme Court.

What Lee Found

Lee opens by quoting Chief Justice John Roberts: "It is a sordid business, this divvying us up by race." He argues that while partisan mapmaking is a longstanding political practice, mapping that relies on race raises constitutional concerns. Lee emphasizes statements by Paul Mitchell, a redistricting consultant who, according to court filings, was paid by Congressman Hakeem Jeffries, House Majority PAC and the DCCC to help craft California’s map.

"Race-based interest groups wanted certain racial outcomes out of the process. He happily delivered," Lee wrote, citing Mitchell's public remarks that prioritizing a "Latino majority/minority district" was among his top considerations.

Lee also notes a potential factual tension: district descriptions in the court record place District 13 in the Central Valley, while some of Mitchell’s public comments discussed creating Latino-majority districts in Los Angeles and elsewhere. Lee argues that public statements like Mitchell's are probative of motive and cannot be ignored.

Counterarguments and the Lower Courts

The district map was upheld by U.S. District Judges Josephine Staton and Wesley Hsu, who found credible testimony from redistricting scholars — including Dr. Bernard Grofman and Dr. Jonathan Rodden of the Hoover Institution — that political considerations, not race, primarily drove the line-drawing. The majority also emphasized a presumption that mapmakers act in good faith.

Lee counters that the presumption of good faith has limits. He points out that Mitchell largely refused to answer questions under oath about his motives, despite having discussed his approach publicly beforehand. In Lee’s view, where the mapmaker publicly credits race as a consideration and declines to explain his motives in court, a factfinder should weigh those public statements rather than ignore them.

Why This Matters

The case intersects with broader litigation over the Voting Rights Act and the use of race in redistricting. The Supreme Court is considering challenges to Section 2 of the Voting Rights Act that could narrow or change how courts evaluate race-conscious districting. If the high court tightens limits on race-based redistricting or places greater emphasis on statements of intent, Lee’s observations could gain significance.

Lee’s dissent raises a practical question for courts weighing redistricting challenges: how much weight should be given to a map-drafter’s public statements about racial goals when evaluating whether race unlawfully drove the drawing of lines? Lee warns that refusing to confront those statements risks turning a presumption of good faith into willful blindness to potential discrimination.

Jonathan Turley, the author of the original opinion, is a law professor and the author of the forthcoming book Rage and the Republic: The Unfinished Story of the American Revolution, due Feb. 3 for the Declaration of Independence’s 250th anniversary.

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