A federal judge has issued a blistering dissent after two other judges on the same panel blocked Texas’ congressional redistricting map from taking effect next year. The case has major ramifications for whether Republicans retain control of the House and for the future of Donald Trump’s presidency.
U.S. Circuit Judge Jerry E. Smith was the lone dissenting judge in the two-to-one ruling, which enjoined the redistricting map the Texas Legislature passed in late summer under pressure from President Donald Trump and Gov. Greg Abbott. Smith blasted his colleagues, U.S. District Judge Jeffrey V. Brown and U.S. Senior District Judge David C. Guaderrama, in a more-than-100-page dissent.
Smith, an appointee of President Ronald Reagan, reserved his sharpest criticism for Brown, the author of the redistricting opinion and a Trump appointee. Smith said that Brown had rushed his ruling through without giving Smith sufficient time to review it, let alone prepare his dissent.
“This outrage speaks for itself,” Smith wrote. “Any pretense of judicial restraint, good faith, or trust by these two judges is gone. If these judges were so sure of their result, they would not have been so unfairly eager to issue the opinion sans [without] my dissent, or they could have waited for the dissent in order to join issue with it. What indeed are they afraid of?”
Smith argued that the big winners in the case are liberal activists and politicians, specifically name-checking liberal philanthropist George Soros no fewer than 17 times. Further, he argued that the decision itself was rife with errors and falsehoods.
“In 37 years as a federal judge, I’ve served on hundreds of three-judge panels,” Smith said. “This is the most blatant exercise of judicial activism that I have ever witnessed.”
South Texas College of Law Houston professor Josh Blackman said Smith made a strong case for the U.S. Supreme Court to intervene to stay Brown and Guaderrama’s ruling.
“It’s unusual for a judge to talk about politics so much, but the basic claim is this is about politics, and under the controlling precedent of the circuit, gerrymandering is permissible for political reasons, even if not for racial reasons,” Blackman said.
At the heart of the debate between Smith on the one side and Brown and Guaderrama on the other is a legal concept known as the Purcell principle, the idea that courts should not change election rules during a period of time just prior to an election. Smith argued that’s exactly what Brown and Guaderrama had done with their injunction.
“I think what’s significant is that the period for candidate registration is already ongoing,” Blackman said. “You can’t drive down the road or look at a sign on a billboard without seeing people running for various offices. If Judge Brown’s ruling were to go into effect, all that would be turned around, and we [would] have to revert to the old [2021 congressional] maps, which would completely rejigger the political process.”
But David Froomkin, an assistant professor of law at the University of Houston Law Center, said it’s Smith – and by extension, Gov. Greg Abbott and the Texas Legislature – who is attempting to violate the Purcell principle.
“Applying Purcell in a case like this would create a perverse incentive for states to change rules on the eve of an election in order to evade judicial review and deny voters their constitutional rights,” Froomkin said.
With that in mind, Froomkin argued the U.S. Supreme Court would not want to intervene to reverse Brown and Guaderrama’s injunction, as Abbott and Texas Attorney General Ken Paxton have asked. He said Smith’s sharply political language could backfire if the intent was to encourage the high court to do so.
“The Roberts Court will not want a stay to be perceived as a partisan intervention,” Froomkin said, “And the rhetoric of Judge Smith’s dissenting opinion increases the likelihood that a stay from the Supreme Court would be understood as a partisan intervention.”
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