The Burden of Proof: Abbot v. LULAC and its Implications for Future Racial Gerrymandering Plaintiffs
Published April 16, 2026
By Sadie Bostwick
In its stay order in Abbott v. League of United Latin American Citizens, the Supreme Court of the United States shifted how racial gerrymandering claims may be evaluated by elevating the presumption of legislative good faith and belaboring plaintiffs’ failure and inability to provide alternative maps. Although the order does not formally overturn existing racial gerrymandering doctrine, it does suggest a systemic adjustment that could increase evidentiary burdens and narrow the practical role race-conscious analysis places in districting review.
Traditionally, racial gerrymandering doctrine requires plaintiffs to show that race was the dominating factor in redistricting criteria and that the use of race was not narrowly tailored to a compelling interest (1). This framework, rooted in the language of the Equal Protection Clause, allows courts to closely consider legislative intent and circumstantial evidence to determine whether race was the primary factor in the drawing of district lines. Using this approach, courts have been willing to infer racial bias from legislative records, demographic outcomes, and oddly shaped district outcomes without requiring plaintiffs offer a replacement map they deem is better (2). The doctrine primarily focuses on how the legislature used race, whether permissibly or otherwise, rather than on whether plaintiffs are able to produce a better plan.
The stay order in Abbott v. LULAC complicates the guide laid out by this doctrine by reinforcing the assumption that legislatures always act in good faith and by criticizing the lower court for its failure to view plaintiffs unfavorably due to their inability to produce better alternative maps. The Court suggested Texas was likely to succeed in arguing that the district court did not properly respect legislative good faith and placed far too little weight on plaintiffs’ lack of alternative proposal (3). Thus, the attention is shifted away from legislative intent and toward plaintiffs’ capacity to do a better job than the state.
This shift matters because it reframes what is considered ‘persuasive’ evidence in racial gerrymandering litigation. If plaintiffs must begin to rely on alternative maps to demonstrate whether or not racial predominance or discrimination is the motivating factor, litigation potentially risks becoming more about who the map-drawing expert is as opposed to what the Constitution says. In practice, producing alternative maps requires access to sophisticated software, demographic data, and expert witnessess—essentially, resources not every litigant has access to. This emphasis on alternative maps therefore risks privileging well-funded plaintiffs while continuously raising the barriers for resource-constrained or less fortunate opposing parties.
Further, emphasizing alternative maps blurs the line between racial gerrymandering claims and vote dilution claims under Section 2 of the Voting Rights Act. Racial gerrymandering doctrine is supposed to focus on the intent of the legislature and the role it plays in designing districts. Vote dilution claims, on the other hand, usually require plaintiffs to demonstrate that an alternative districting formation could provide minority voters with an equal opportunity to have their voice heard (4). By overlapping these two, the Court risks depriving these separate clauses of their historically served constitutional purposes.
The stay order also strengthens the presumption of legislative good faith in ways that may be difficult for plaintiffs to fight against. Historically, courts have recognized legislative good faith while still allowing plaintiffs to rebut that presumption with evidence—simply put, plaintiffs still had a chance (5). However, the implications of Abbott v. LULAC suggests courts may require stronger or more direct (as opposed to circumstantial) evidence before even questioning the motives of the legislature. Because direct, non-circumstantial or speculative evidence of discrimination is rare, this shift may further protect legislatures that have mastered the art of strategically blending political (partisan) and racial motivations in map design.
Perhaps most importantly, the procedural status of the case - a stay pending appeal - means the court did not issue a final merits ruling. However, stay orders are typically indicative of how the Court might evaluate a case later, usually when the Court explains why one party might succeed on the merits. In the present case, the Court’s reasoning indicates skepticism towards the lower court’s accusation of racial predominance that relies on circumstantial evidence and inferences rather than tangible, concrete demonstration.
Ultimately, the stay order reflects a broader trend in the judiciary toward constraining race-based constitutional claims by raising the burden of proof. If lower courts internalize the conclusion from Abbott v. LULAC, plaintiffs bringing racial gerrymandering claims may need to create a new intent-evidence-and-sophisticated-map fusion, a fundamental change in how these cases have historically been litigated.
Shaw v. Reno, 509 U.S. 630, 642–49 (1993).
Miller v. Johnson, 515 U.S. 900 (1995).
Abbott v. League of United Latin American Citizens, No. ___ (U.S. 2025)
Thornburg v. Gingles, 478 U.S. 30 (1986).
Abbott v. Perez, 585 U.S. 579 (2018)