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It’s so far unclear if Gov. Mike Braun will call a special session to redraw the state’s congressional maps mid-decade to help shore up the Republican party’s U.S. House majority in the 2026 midterm elections.

But is it constitutional?

Experts in constitutional law and gerrymandering contacted by IndyStar said they believe mid-decade redistricting attempts would pass muster with courts. But they’re expecting litigation anyway if Indiana Republicans go forward with the idea now that Vice President J.D. Vance has visited Indiana to make the case to top Republicans.

“It is constitutional for states to redistrict more than once in a ten-year period, or really anytime they want to,” said Gerard N. Magliocca, a law professor at Indiana University. “It’s less of a legal question than just a political question: Do you think it’s fair to redraw the districts purely for partisan reasons? Now look, will it be challenged? Sure.”

The U.S. Supreme Court established that mid-decade redistricting was allowed in a 2006 ruling in a Texas case after a 2003 redistricting attempt by Republicans there, so there’s not much of a question how a federal case would go, said Shawn Donahue, a political science professor at University at Buffalo in New York who graduated from Indiana University for law school and is well-versed in Indiana politics.

“Under the U.S. constitution, the (Supreme Court) has said it’s not prohibited,” he said. “At the state level, it’s more of a novel question. A lot of states’ (constitutions) are more silent on the issue.”

Colorado’s constitution explicitly bans the practice, Donahue pointed out. In Indiana’s case, it isn’t so clear.

The state constitution says that the Indiana 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.”

That doesn’t explicitly ban other attempts, even though former Indiana Attorney General Pamela Carter argued otherwise back in 1995. Carter wrote then that the language should be interpreted as to ban other redistricting and that the practice is “constitutionally forbidden.”

But Magliocca doesn’t read the state constitution that way. He said the constitution prescribes what must be done — redistricting every ten years after the census — but doesn’t prescribe that redistricting at any other time is out of bounds.

“It doesn’t speak to whether they can do it again,” Magliocca said. “Someone can surely make that claim, but I don’t know that the Indiana Supreme Court is going to accept that.”

Lawsuits on the horizon

If Indiana goes forward, lawsuits will almost certainly be filed, multiple experts told IndyStar. But they said those cases are likely to hinge around other arguments, instead of whether a mid-decade redistricting is unconstitutional.

Magliocca said redrawing maps in a way that takes voters’ races into account in an unacceptable way could trigger a lawsuit under the Voting Rights Act.

“To the extent it’s a legal question, it’s more of a question of if it complies with the Voting Rights Act,” Magliocca said.

Another potential avenue is to argue that a redrawing of the maps for explicitly partisan purposes goes against the Indiana constitution, said retired Faegre Drinker partner Jay Yeager, who was lead counsel in a federal gerrymandering case involving Michigan.

Yeager said although the U.S. Supreme Court punted on issuing an opinion on partisan gerrymandering in the 2019 case Rucho vs. Common Cause, with a majority of justices claiming they are political questions beyond the reach of federal courts, that decision left it open to state courts to do so.

State cases on the topic of partisan gerrymandering have risen since the latest redistricting cycle as a result. State Court Report found at least 19 such cases nationwide, all with varying levels of success for plaintiffs arguing against partisan gerrymandering.

High courts in seven states have either rejected partisan gerrymanders for violating the state constitution, such as in Alaska, or found the claims to be justiciable, such as in Ohio. Three other states have agreed with the U.S. Supreme Court saying it’s ultimately a political matter and out of reach of the court. Indiana hasn’t weighed in recently.

“The (Supreme) Court walked away from it,” Yeager said. “That doesn’t meant the state courts don’t have jurisdiction. That’s an open door. Really what you’re left with in Indiana is whether gerrymandering would be found legal under the state constitution or not.”

Yeager said he wouldn’t be surprised if a lawsuit is filed if new maps are drawn mid-decade, though nothing is on his radar yet since nothing is certain about the prospect of redrawing maps.

He said there’s ample evidence that Indiana already has gerrymandered maps that lean too heavily in favor of Republicans, pointing out that Democrats control two of nine U.S. House districts in Indiana, representing 22% of the seats, even though statewide races suggest about 40% of the state’s voters lean Democratic.

For example, Republican statewide candidates Jim Banks and Mike Braun won with 58% and 54% of the vote, respectively, in 2024.

“That (discrepancy) is a problem on its face,” he said.

Contact senior government accountability reporter Hayleigh Colombo at hcolombo@indystar.com. Sign up for our free weekly politics newsletter, Checks & Balances, by IndyStar political and government reporters.