Is mid-decade redistricting legal? Indiana Democrats prepare court challenge

Republicans pushing an unusual mid-decade redrawing of Indiana’s congressional districts this year aren’t entirely breaking new ground.

Thirty years ago, GOP leaders floated a similar mid-cycle plan to reconfigure the state’s legislative districts, only to abandon it after swift public backlash and lingering questions about the legality of such a move.

The legal arguments raised then—including that the state constitution could be interpreted as forbidding maps to be redrawn more than once a decade—may offer a roadmap for Democrats and other opponents now preparing to challenge the effort in court.

But Republican legal leaders, such as Indiana Attorney General Todd Rokita, already have declared a redraw “perfectly legal,” writing on social media earlier this month that the attorney general’s office is ready to defend new maps from whatever challenge is brought against them.

Indiana Gov. Mike Braun has indicated publicly that a November special legislative session to redraw the maps could be called, but whether that occurs may largely depend on whether enough GOP state lawmakers can be persuaded to support the move.

The state’s GOP leaders are under pressure from President Donald Trump’s Republican administration, which has been calling for rare mid-decade redistricting in key Republican states as a way to prevent Democrats from winning control of the U.S. House of Representatives in 2026.

Texas and Missouri already have answered the call. The new Texas maps were drawn to flip as many as five additional seats to Republican control. In response, California Democrats are trying to persuade voters to let them redraw maps to put more seats in their column.

In Indiana, some of the loudest GOP proponents for redistricting are calling for a map that would completely deny Democrats any of the state’s nine congressional seats. Republicans already hold a 7-2 advantage, with Democrats currently controlling seats centered in Indianapolis and Lake County near Chicago.

“Democrats haven’t won the support of everyday Hoosier voters for more than a decade, and they have no business representing us in Washington” state Rep. Andrew Ireland, an Indianapolis Republican, recently posted on X, referring to his party’s control of every statewide elected office and both chambers of the Indiana General Assembly.

Democrats are betting the judiciary won’t agree and are gearing up for an all-out court fight because their small numbers in the Indiana General Assembly give them virtually no power to block any move by the Republican majority in the Legislature.

“I will tell you right now that those (court) challenges are coming,” said Karen Tallian, chair of the Indiana Democratic Party. “They’re already being prepared.”

Only once a decade?

Although redistricting in and of itself is a normal and required practice once a decade, it is rare for states to go back to their drawing boards a second time following the national decennial census.

In fact, a majority of mid-cycle redraws are court-ordered or court-imposed because the previous map had violated state or federal law. According to the Pew Research Center, states have voluntarily redrawn their congressional districts only three times since 1970.

Thirty years ago in Indiana, with Republicans controlling the House, then-Speaker Paul Mannweiler pushed for mid-cycle legislative redistricting to remove a seat from the 100-member chamber.

His spoken reason was to prevent another 50-50 tie like the one that occurred in 1988 and resulted in a strained power-sharing agreement between Democrats and Republicans. But a redraw also would have given the GOP an opportunity to create districts more favorable for the party’s candidates.

“It’s hardball politics,” attorney John Gregg, the House Democratic leader in 1995, said in a recent interview. “I can’t say that I like it, and I don’t think it’s good for the system. I think it’s changing the rules after the fact.”

Gregg and his colleagues answered Mannweiler’s attempt in 1995 with a Democratic walkout to kill the GOP legislative agenda.

In the end, nothing happened. According to a 1995 Associated Press report, no redistricting bill was filed before the deadline in the House, and none was offered at the amendment stage, either in committee or on the House floor.

During the rising pressure over the proposed redraw, Gregg and his colleagues had raised questions about the constitutionality of redrawing a map a second time in a decade following the census.

According to Article 4, Section 5 of the Indiana Constitution, “The General Assembly elected during the year in which a federal decennial census is taken shall fix by law the number of Senators and Representatives and apportion them among districts according to the number of inhabitants in each district, as revealed by that federal decennial census.”

Former Indiana Attorney General Pamela Carter, a Democrat, said in an advisory opinion addressed to Gregg in 1995, that she considered the state constitution as clear evidence that “mid-term redistricting is constitutionally forbidden.”

At the heart of her opinion was a 1895 state supreme court case, Denny, Clerk, et al. v. The State, ex rel. Basler, which stated, “A valid apportionment can be made only after the taking of such an enumeration; and that when such valid apportionment is once made, it should stand until after the making of the next enumeration.” The court also said in the case that after an enumeration (or population count) that the process would not “be repeated, in whole or in part,” until the next enumeration period.

Indiana Democrats are aware of that opinion and are also preparing to argue that current Indiana Code is clear that redrawing the maps may only be done once a decade.

According to Indiana Code, statute 3-3-2-1, “Congressional districts shall be established by law at the first regular session of the general assembly convening immediately following the United States decennial census.”

One legal expert who spoke privately to The Lawyer noted, however, that Carter’s opinion was written to address a redrawing of state legislative districts, so it’s not entirely clear if the same legal arguments would apply to congressional districts.

Carter could not immediately be reached to discuss what her broader interpretation might be.

Also, Indiana Code laying out the rules for redistricting could be swiftly changed to allow for new maps if the Legislature is called into special session for a redraw.

A U.S. Supreme Court decision from 2006 also held that mid-decade redistricting in and of itself is no sure indication of unlawful political gerrymandering.

The opinion written by then-U.S. Supreme Court Justice Anthony Kennedy, in the case of League of United Latin American Citizens et al. v. Perry, Governor of Texas, et al., found that the Constitution’s text and structure and the high court’s previous opinions did not indicate that there was anything “inherently suspect about a legislature’s decision to replace mid-decade a court-ordered plan with one of its own.”

Other potential legal claims

Indiana’s current congressional map, which was passed in 2021 following the census, earned a grade “A” from the Princeton Gerrymandering Project’s redistricting report card, meaning the map has good partisan fairness and good geographic features.

A redraw would put that map back on the table and raise many other potential claims under federal law, said Tallian, an attorney who served 16 years in the Legislature and witnessed two different redistrictings.

Some of the common federal legal grounds that have been used against redistricting efforts across the country in the past, according to Michael Pitts, an elections and civil procedure expert at Indiana University, include the concept of one-person, one-vote and allegations of partisan gerrymandering, racial gerrymandering and racial vote dilution.

“One-person, one-vote claims raise concerns about disparities in population between districts, partisan gerrymandering claims raise concerns about politics playing too great of a role in drawing the lines, claims of racial gerrymandering raise concerns about race playing too great of a role in line-drawing, and vote dilution claims raise concerns about the amount of representation provided to minority voters,” Pitts said.

Ever since Baker v. Carr (1962), the U.S. Supreme Court has considered legislative apportionment subject to court action, a change from the court’s previous posture that left such political matters up to the legislative branch.

A few years later, the U.S. Senate passed the Voting Rights Act of 1965, which prohibited racial discrimination in voting, including election-related practices and procedures like redistricting. That act is one federal claim that Tallian is confident would hold up against an Indiana redistricting because it is “obvious.”

According to data from the National Institute of Health, the counties with the most diverse populations are Marion and Lake, which lie within the two currently Democratic-held congressional districts. Over 25% of Marion’s population and over 20% of Lake’s population are Black. Lake also has a higher Hispanic community compared to other parts of the state, accounting for about 20% of the county’s population.

Under the Voting Rights Act, if the legislature moves forward with a new redistricting plan, it must prove that the proposed change has neither a discriminatory purpose nor a potential discriminatory effect, according to the U.S. Department of Justice.

One legal expert compared today’s debate to League of Women Voters of Pennsylvania v. Commonwealth of Pennsylvania, a 2017 Pennsylvania Supreme Court case that struck down the state’s maps as a partisan gerrymander. The ruling was based on that state’s constitutional clause guaranteeing “free and equal elections”—language that also appears in Article 2, Section 1 of Indiana’s constitution.

The American Redistricting Project notes that “Free Elections” clauses, like those in Pennsylvania and Indiana, could provide potential grounds for future litigants to bring partisan gerrymandering claims in state court, though not in federal court. (In 2019, the U.S. Supreme Court ruled in Rucho v. Common Cause that partisan gerrymandering claims are “nonjusticiable” in federal courts.)

Reaction around the state

While the legal debates are ongoing, more than half of Hoosier voters are opposed to mid-decade redistricting, according to a poll last month by left-leaning Change Research.

The poll of 1,662 registered voters found that 52% of respondents oppose a mid-cycle redraw this year, including 43% who are “very opposed.”

That compares with 34% who support it and 15% who are unsure. The poll has a margin of error of plus or minus 2.6 percentage points.

Still, with Braun suggesting a November special session and some Republican lawmakers returning from meetings with Trump officials in Washington, uncertainty remains about whether a redraw will even be attempted.

Indiana House Speaker Todd Huston, R-Fishers, and Senate President Pro Tempore Rod Bray, R-Martinsville, have yet to show their cards. And the opinions of individual Republican state lawmakers are all over the map.

Rep. Julie Olthoff, R-Crown Point, said redistricting is “a huge and expensive undertaking” that would require strong justification, given that Indiana’s 2021 maps earned top marks.

Rep. Jim Lucas, R-Seymour, who initially opposed a redraw, reversed himself after a hospital stay, declaring on social media that he is now a “rock solid HELL YES” for redistricting.

The only sign voters have been given lately is Braun’s radio comments in Fort Wayne, saying he thinks legislators will “come around” to redrawing.

“I’m going to give them time,” he said. “I think eventually we’ll get there.”

In the meantime, Indiana’s Republican congressional representatives have taken to social media to support the move and turn up the heat on the state legislature.

“Hoosiers are fed up with our voice being drowned out by partisan gerrymandering in liberal states like Illinois,” Republican U.S. Rep. Jim Baird said. “Trump won Indiana by nearly 19 points—our congressional map should reflect that.”

U.S. Rep. Jefferson Shreve also backed Trump’s push, framing it as a way to counterbalance blue-state governors.

But Democratic U.S. Rep. Frank Mrvan, who represents the Lake County area and could lose his seat through Republican redistricting, said any attempt to redistrict now is simply an effort to silence the voices of senior citizens, children, people with disabilities, union members, teachers and veterans.

“The Trump Administration has recognized that their harmful policies to benefit wealthy elites at the expense of working families are wildly unpopular,” Mrvan said. “They know that their only hope to maintain control is to pressure the Indiana General Assembly to violate the Indiana Constitution and redistrict U.S. House of Representative seats mid-decade.”

Braun, the only one in the state with the power to call a special legislative session, warned that Indiana could face consequences if it resists Trump’s push.

“If we try to drag our feet as a state on it, probably, we’ll have consequences of not working with the Trump administration as tightly as we should,” Braun said.

Rep. Ed DeLaney, D-Indianapolis, countered that neither the governor nor the GOP majority really wants this fight. He reasons that’s why they haven’t acted as swiftly as Texas to change the maps.

“Nobody in Indiana wanted this,” DeLaney said. “The governor didn’t want it. It’s obvious that the Republican majority does not fully want it. So, we’re just dancing to Mr. Trump’s tune, and he doesn’t play very well.”

If Republicans dance along, it likely will be the courts that ultimately decide whether to stop the music on mid-decade redistricting.•