Two Partisan Hacks Ignored Supreme Court Precedent to Claim the Texas Redistricting Map Was Illegal.
Judge Smith Dissents

And what a dissent.

Jerry E. Smith, Circuit Judge, dissenting:

"Fasten your seatbelts. It's going to be a bumpy night!"

I dissent from the entirety of Judge Brown's opinion granting a
preliminary injunction.

* * * * *
PRELIMINARY STATEMENT

I append this Preliminary Statement to dispel any suspicion that I'm
responsible for any delay in issuing the preliminary injunction or that I am or saw
slow-walking the ruling. I also need to highlight the pernicious judicial
misbehavior of U.S. District Judge Jeffrey Vincent Brown.

In my 37 years on the federal bench, this is the most outrageous conduct
by a judge that I have ever encountered in a case in which I have been involved.

In summary, Judge Brown has issued a 160-page opinion without giving
me any reasonable opportunity to respond. I will set forth the details. The
readers can judge for themselves.

This three-judge district court held a nine-day evidentiary hearing/trial
on the motion for preliminary injunction. That hearing was concluded Friday
October 10. The judges immediately retired to confer. Judges Brown and
Guaderrama voted to grant the preliminary injunction. I voted to deny. It was
understood that the majority judges would begin putting together an opinion.
During the next 26 days, there was silence--nary a word from either
judge.

On Wednesday November 5, Judge Brown sent me a 13-page outline of
the expected majority opinion "so that you and your chambers might be able to
begin preparing your dissenting opinion."

Nothing else for a week.

On Wednesday November 12, Judge Brown sent a message stating, "We
currently anticipate issuing our injunction on Saturday, November 15. We will
endeavor to get you a draft before we issue it. Sadly, we do not believe we can
wait for a dissenting opinion before we rule--the fuse is simply too short in light
of Purcell. We will, however, note on the opinion that you are dissenting. We are
not trying to cut you out, we just don't have the time. Ideally, of course, we'd
have liked to have seen your dissent before we issue our opinion, but that will
also be impossible."

So, in other words: They withheld their corrupt and lawless decision from him so that he couldn't construct a dissent, and then rushed out the ruling claiming there was suddenly a big hurry that would not permit him to review it.

Yes, you heard it right. To summarize, in case the reader doesn't get the point: Judge Brown was announcing that he would issue an opinion three days later--an opinion that I hadn't even seen and might not be furnished before its issuance. That is unthinkable, but it occurred--and not accidentally.

I'm omitting further details about this game of hide-the-salami the other judges played with the dissenting judge. See the actual dissent for those details. I want to get to the forest without seeing each stalk of bamboo one-by-one.

This outrage speaks for itself. 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 my dissent, or they could have waited for the dissent in order to join issue with it.

What indeed are they afraid of?

Judges on multi-judge courts understand how important is the
deliberative process to fair and accurate judicial decisionmaking. As I say later
in this dissent, judges get paid to disagree as well as to find common ground.
Judges in the majority don't get to tell a dissenting judge or judges that they can't
participate. If the two judges on this panel get away with what they have done,
it sets a horrendous precedent that "might makes right" and the end justifies the
means.

...

When I was a newer on the bench, a friend asked me, "Now that you've
been a judge for a few years, do you have any particular advice?" I replied,
"Always sit with your back to the wall."

Now Judge Smith names names -- specifically, George and Alexander Soros, who are funding this lawsuit and many other lawsuits challenging Republican redistricting.

The main winners from Judge Brown's opinion are George Soros and Gavin Newsom. The obvious losers are the People of Texas and the Rule of Law. I dissent.

..

The resulting dissent is far from a literary masterpiece. If, however, there
were a Nobel Prize for Fiction, Judge Brown's opinion would be a prime
candidate.

Judge Brown could have saved himself and the readers a lot of time and
effort by merely stating the following:

I just don't like what the Legislature did here. It was unnecessary, and it seems unfair to disadvantaged voters. I need to step in to make sure wiser heads prevail over the nakedly partisan and racially questionable actions of these zealous lawmakers. Just as I did to the lawmakers in Galveston County in Petteway, I'm using my considerable clout as a federal district judge to put a stop to bad policy judgments. After all, I get paid to do what I think is right.

In 37 years as a federal judge, I've served on hundreds of three-judge
panels. This is the most blatant exercise of judicial activism that I have ever
witnessed.

There's the old joke: What's the difference between God and a federal
district judge? Answer: God doesn't think he's a federal judge. Or a different
version of that joke: An angel rushes to the head of the Heavenly Host and says,
"We have a problem. God has delusions of grandeur." The head angel calmly
replies, "What makes you say that?" The first angel whispers, "He's wearing
his robe and keeps imagining he's a federal judge."

Only this time, it isn't funny.

I'm omitting another long passage, in which Smith establishes that Judge Brown loves claiming that any Republican redistricting efforts are necessarily racist, and they all must therefore be stopped.

Smith previously dissented in another case of leftwing judges invalidating legislators' redistricting decisions, and the reviewing court found that he was right and the leftwing judges were wrong.

Speaking of fortune: Just a few weeks ago, the Fifth Circuit answered the
main question at hand, holding that "[t]he most obvious reason for mid-cycle
redistricting, of course, is partisan gain.3 The question for this three-judge
district panel is whether the Texas Legislature did its mid-decade congressional
redistricting to gain political advantage or, instead, because the main goal of
Texas's Republican legislators is to slash the voting rights of persons of color.

Once again, here we go again: Criticizing the behavior of DOJ lawyers in
last decade's redistricting battle, I noted the following:

It was obvious, from the start, that the DoJ attorneys viewed state officials and the legislative majority and their staffs as a bunch of backwoods hayseed bigots who bemoan the abolition of the poll tax and pine for the days of literacy tests and lynchings. And the DoJ lawyers saw themselves as an expeditionary landing party arriving here, just in time, to rescue the state from oppression . . . . The [DoJ] moreover views Texas redistricting litigation as the potential grand prize and lusts for the day when it can reimpose preclearance via Section 3(c).[4]

"Preclearance" is the old regime in which southern states -- states of the former Confederacy -- could not change their election laws at all without prior approval -- "pre-clearance" -- from the federal government. This regime was finally ended about ten years ago-- but leftwing judges are trying to bring it back through the back door.

...

Because the "obvious reason" for the 2025 redistricting "of course, is
partisan gain," Judge Brown commits grave error in concluding that the Texas
Legislature is more bigoted than political.

...

It's all politics, on both sides of the partisan aisle. George and Alex Soros
have their hands all over this.

One of the plaintiffs' top experts is Matt Barreto. He is a paid Soros
operative and does not attempt to hide it. His CV confirms it. He expects to
receive $2.5 million6 from George and Alexander Soros. Nor is this something
new. Soros has been pumping money into Barreto's UCLA Voting Rights
Project for years.8 And this steady supply of money won't stop until 2026, at the
earliest. Unsurprisingly, Barreto has been on quite a road show for years,
parading across the country opposing Republican redistricting.

That is the tip of the iceberg. The lawyers are involved as well.

...

To his credit, the lead counsel for plaintiffs does not try to hide it, either.
Chad Dunn acknowledged so in open court--he works with Barreto at the same
Voting Rights Project11 that receives Soros funding. Dunn is a respected attorney
in Texas election law cases, most recently serving as counsel in the Jackson
case,12 in which the Fifth Circuit squarely declared the political nature of mid-
decade redistricting. Mr. Dunn, along with his Voting Rights Project colleague
Sonni Waknin, also represented the plaintiffs before Judge Brown in the Petteway
case, which was overturned by the en banc Fifth Circuit.

Mark Gaber also appeared in Petteway and Jackson. He is the Senior
Redistricting Director at Campaign Legal Center, a Soros-funded group.

It does not stop there. The Elias Law Group draws from the Soros
coffers, too. Counsel for the instant Gonzales plaintiffs, David Fox, is a partner
at Elias, which "has collected more than $104 million" from Democrat Party
committees and donors, including Mr. Soros.15 Firm Chair Marc Elias formed
entities, "tucked inside large existing nonprofits," that "raised tens of millions
of dollars from some of the richest donors on the left--including from
foundations funded by Mr. Soros."

On a silver platter, Judge Brown hands Soros a victory at the expense of
the People of Texas and the Rule of Law. Judge Brown won't tell you that. I
just did.

Relatedly, Gavin Newsom took a victory lap in Houston to celebrate the
Democrat redistricting win with Proposition 50.19 Indeed, he did so "on rival
Gov. Greg Abbott's home turf Saturday and called on other blue states to push
back on a GOP effort to retain control of the U.S. House." And after the
improperly premature issuance of Judge Brown's opinion, the Houston Chronicle
pointed out that Governor Newsom quickly tweeted, "Donald Trump and Greg
Abbott played with fire, got burned -- and democracy won . . . This ruling is a
win for Texas, and for every American who fights for free and fair elections."21
That tells you all that you need to know--this is about partisan politics,
plain and simple.

...

Regardless of one's political slant, it's obvious what Texas is trying to do in 2025. The Republicans' national margin in the House of Representatives is LULAC
so slim that squeezing out a majority might even depend, day-to-day, on whether
some seats are vacant because of deaths or resignations.

In 2021, the Texas Legislature, with both houses controlled by
Republicans, devised a strategy of creating safe seats for both Republicans and
Democrats, but with a decided majority of the state's delegation still Republican.
Whether (as a matter of political clout) that was the wisest strategy is disputed
and indeed was fulsomely debated in 2021.

In mid-2025, the strategy changed: The new plan was to make more seats
winnable for Republicans by moving some Democrats incumbents from their
districts and rendering other districts unwinnable by Democrats. That sacrificed
the wider margins in some of the old districts. The tradeoff is obvious.

There is some speculation that this new strategy will backfire on
Republicans in 2026 because, if they do poorly in the mid-terms, the new
Republican seats created in 2025 will be a Pyrrhic victory, because they will lose
elections in the closer districts. That is purely a matter of political strategy that
federal judges have no business touching.

Apparently, the plaintiffs -- funded by George Soros -- argued that creating fewer but safer Republican seats, as they did in 2021, is obviously the correct political choice for Republicans, so that now that they've decided to go for the incorrect choice -- more seats, but each less defensible -- it can be for no other reason than RACISM.

Not changing political fortunes or strategies. No, it must be Racism. There is no other explanation.

The challenge faced by these plaintiffs The challenge faced by these plaintiffs and Judge Brown is to explain how it could be that the Republicans would sacrifice their stated goal of political gain for racial considerations. It makes no sense to advance the notion that the Republican Legislature would draw districts for the purpose of disadvantaging racial and ethnic minorities if, by doing so, they lessen the number of new Republican seats they might gain.

The plaintiffs' theory is both perverse and bizarre. They actually
contend that if the Republicans are sincere about gaining more seats, they could
have drawn not five, but six, seven, or eight additional seats and that the reason
they did not is that the real reason is racial animus. The absurdity of that notion
speaks for itself. Yet it's all that the plaintiffs and Judge Brown have to offer to
defeat the State's claim that the 2025 lines were drawn for the sake of politics
and not race.

Smith now points out that the Supreme Court seems likely to blow up the whole idea that minorities get special protection in redistricting -- but rather than wait for that coming ruling, the liberals rush to get last licks in.

Judge Brown rushes to issue this injunction before the tension between Section 2 of the Voting Rights Act and racial-gerrymandering jurisprudence is resolved by the Supreme Court in the currently-pending Callais case. Given Judge Brown's creative read of the facts and novel approach to the law, he should have considered denying this injunction for that reason alone, recognizing that a fundamental shift in voting-rights jurisprudence is not unlikely. Because the power to stay proceedings "is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants," it would have been well within the authority of this three-judge court.

The fact that Callais may fundamentally change the nature of this case
also weighs in favor of a stay. It is reckless for this court to proceed with opining
on the merits, which amounts to nothing more than a general guess as to whether
existing voting-rights jurisprudence will survive Callais.

* * * * *

Judge Brown has a lingering habit. He correctly recites part of a legal
principle, then veers off track along a spectrum--intentionally misleading at best
to false at worst. The opinion is replete with selectively copying and pasting parts
of legal rules or standards. Beyond that, things get dicey.

This holds especially for Judge Brown's discussion of the standard for
preliminary injunctions.

He points out that Brown first correctly states the first criterion for an injunction -- a "substantial likelihood of success on the merits" (after a full trial)-- but then immediately omits the "substantial" part and just rules that the Soros plaintiffs are merely likely to win.

A modifier like "substantial" is meant to limit injunctions to only cases where the outcome is barely arguable, and the ultimate ruling mostly fore-ordained.

Instead, Brown just says he thinks one side will probably win and boom, there's your injunction.

...

He should give less consideration to the omission and more consideration
to the actual words on the page. Judge Brown accurately cuts and pastes the
following: A preliminary injunction is "an extraordinary and drastic remedy
which should not be granted unless the movant clearly carries the burden of
persuasion," and the likelihood of success on the merits is "the most important"
factor of the framework.

But the cut-and-paste job is selective. Judge Brown left out the fact that,
giving attention to the relevant cases cited in Jackson, "the most important" factor
language in Jackson27 is a direct quote from Mock v. Garland.28 And any cursory
reading of Mock easily reveals that the word "substantial"29 (the word Judge
Brown tries to avoid) is part of the first factor in no uncertain terms: "a
substantial likelihood of success on the merits."

Judge Brown doesn't tell you that. I just did.

The opinion is caught in an illogical straitjacket from which it cannot
escape.

...

This is intentionally misleading at best, disingenuously false at worst.

There he goes again.

...

If this is not judicial activism, I am not sure what would be.

...

If this were a law school exam, the opinion would deserve an "F."

Remember that recent Fifth Circuit redistricting case, the one that Judge
Brown said was procedurally and factually analogous to the instant one. Judge
Brown conveniently omits the key sentence in that mid-decade redistricting
case: The "most obvious reason for mid-cycle redistricting, of course, is partisan
gain." Judge Brown doesn't even pretend to grapple with Justice Stevens's
relevant quote. It is far from a mere coincidence that the opinion goes to the
mats over the omission of one word, when it suits the results-driven outcome,
but overlooks the most significant sentence about the most obvious reason for
mid-decade redistricting, which is partisan gain.

The combined weight of the procedural and substantive law is against
what these plaintiffs and Judge Brown are trying to do. Not only do plaintiffs
have to show clearly that they are entitled to the drastic and extraordinary remedy
of an injunction, but they must also do so when Supreme Court and Fifth Circuit
precedent is stacked against them. Nothing in any bag of results-oriented tricks
can save that wished-for result.

Judge Brown is an unskilled magician. The audience knows what is
coming next.

...

This panel decides both law and fact. The salient issue of fact is whether
the Legislature drew the new lines on account of race. The answer is easy: It
did not. And that question is not even close.

Did I forget to mention: "The most obvious reason for mid-cycle
redistricting, of course, is partisan gain."

He notes the testimony of the man who used statistical analysis to redraw the maps -- and his testimony is that the maps are based on R vs. D partisan analysis, not race.

Judge Brown ignores all of this to find the "fact" that the maps are based on race.

This order, replete with legal and factual error, and accompanied by naked procedural abuse, demands reversal.

* * * * *

Darkness descends on the Rule of Law. A bumpy night, indeed.

My take? Judge Smith's argument is sturdy and strong, built from the tallest, straightest bamboo.

The fire in this dissent, and the revelation that the other judges are naked partisans who never find a Republican election move they can't overrule, gives me some hope that the Supreme Court will stay this lawless injunction -- again -- and deal the Soroses a well-deserved loss.

posted by Ace at 05:50 PM

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