One day after a Trump-appointed federal judge helped toss out Texas’ redistricting effort, a Reagan-appointed judge penned a heated and invective-filled dissent accusing his fellow jurist of “cherry-picking of the highest order.”
A three-judge panel ruled 2-1 on Tuesday that Texas must set aside the new congressional maps that it drew earlier this year, with Judge Jeffrey Brown writing for the majority that the map — which would create five new GOP-friendly House seats — was an unconstitutional racial gerrymander. The ruling was issued by Brown and Judge David Guaderrama, nominated to the bench by President Trump and former President Barack Obama, respectively. The state of Texas quickly appealed the ruling to the U.S. Supreme Court.
The ruling could upend this year’s nationwide redistricting gambit. Multiple states have followed Texas’ lead and redrawn their maps, including California, which made five congressional districts more friendly to Democrats in response.
The panel’s third member, Judge Jerry Smith, filed his response on Wednesday, writing the phrase “I dissent” some 16 times over the course of his 104-page opinion.
Smith, nominated to the bench by former President Ronald Reagan in 1987, accused the two other judges of issuing the ruling without giving him enough time to respond, which he called an “outrage.” He wrote that in the days prior to the ruling, Brown sent him a pair of drafts that were more than 160 pages long, only offered a few days to react, and didn’t wait for Smith to write his dissent.
“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,” Smith wrote.
The dissent — which started by warning readers, “Fasten your seatbelts. It’s going to be a bumpy night!” — also attacked the opinion itself in often-harsh terms. He called Brown an “unskilled magician,” compared his reasoning to a “bizarre multiple-choice question from hell,” and called the ruling the “most blatant exercise of judicial activism that I have ever witnessed.”
At one point, when discussing the court’s decision to grant a preliminary injunction, Smith writes: “If this were a law school exam, the opinion would deserve an ‘F.'”
Race or politics?
At the heart of Smith and Brown’s disagreement is whether Texas lawmakers redrew the state’s House districts for partisan reasons or racial reasons.
The map-drawing effort began after Mr. Trump and his allies pushed Texas officials over the summer to create as many as five new GOP-leaning seats, as Republicans fight to hold onto a razor-thin House majority in next year’s midterms.
At one point during that gambit, Harmeet Dhillon, who heads the Justice Department’s Civil Rights Division, sent Texas Gov. Greg Abbott a letter alleging that a handful of the state’s existing districts were illegal “coalition” districts where non-Hispanic White voters are in the minority but no single racial group has a majority.
Tuesday’s majority opinion, penned by Brown, said that Abbott “explicitly directed the Legislature to redistrict based on race” and “repeatedly stated that his goal was to eliminate coalition districts and create new majority-Hispanic districts.”
The court concluded that the state’s redistricting effort was unconstitutional because it was driven by racial considerations, not pure politics. It’s legal for lawmakers to redraw maps for partisan reasons, Brown wrote, but racially gerrymandered maps can be challenged in court.
Smith disagreed, pointing to evidence that he said shows the new Texas maps were actually driven mainly by partisan politics rather than race.
The judge cited testimony from one of the mapmakers, Adam Kincaid, who explained at length why he made certain decisions to shift around the boundaries of congressional districts. Smith said Kincaid “had a perfectly legitimate and candidly partisan explanation for his every decision.”
Smith also noted at one point that California Gov. Gavin Newsom, who pushed to redraw his state’s maps in response to Texas, “took a victory lap” after this week’s ruling.
“That tells you all that you need to know—this is about partisan politics, plain and simple,” Smith said.
In response Wednesday night, Newsom wrote on X: “This judge says California’s redistricting in response to Texas was overwhelmingly partisan. Yes, ours was. That was the ENTIRE POINT!”
Smith claimed the “main winners from Judge Brown’s opinion are George Soros and Gavin Newsom.” He alleged Soros, the liberal megadonor, and his son, Alex Soros, “have their hands all over this,” claiming several lawyers and experts for the plaintiffs have links to groups that have received funding from the Soros family’s Open Society Foundations.
And Smith warned that, if the decision stands, it could disrupt next year’s congressional races.
“As a legal and practical matter, Judge Brown’s injunction turns the Texas electoral and political landscape upside down,” he said. “It creates mayhem, chaos, misinformation, and confusion.”
The League of United Latin American Citizens, one of the plaintiffs, said Smith’s claim that the redistricting was purely political is “flatly contradicted by the record.” The group also rejected Smith’s claim that the ruling would lead to “chaos,” saying the “true risk would be allowing an unlawful, racially discriminatory map to stand.”
“Protecting voters from racial discrimination is not activism; it is a constitutional obligation,” LULAC CEO Juan Proaño said. “The majority acted responsibly to uphold the law and safeguard the rights of millions of Texans.”
CBS News has reached out to Brown and the Open Society Foundations for comment.
