The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Some Thoughts On The Texas Gerrymandering Case
There is so much to say about LULAC v. Abbott, the recent gerrymandering case decided by a three judge panel of the Western District of Texas. Indeed, it has taken me a few days to process everything.
First, this three-judge panel was constituted back in 2021. Due to long-running litigation over Texas's 2021 maps, this panel maintained jurisdiction over the new 2025 maps. The plaintiffs chose to file in the Western District of Texas, El Paso Division, where they were virtually assured of not drawing a conservative judge. And they drew Judge David Guaderrama, an Obama nominee. Then-Chief Judge Priscilla (Owen) Richman, not the current Chief Judge, Jennifer Walker Elrod, appointed the other two members of the panel: District Judge Jeffrey Brown and Circuit Judge Jerry Smith.
Second, virtually every press story about the case has highlighted the fact that Judge Brown was appointed by President Trump. Indeed, Trump nominated Brown to fill a single-judge division on Galveston Island, just outside of Houston. But unlike some of the other judges appointed to single-judge divisions, Brown did not become a go-to forum for strategic litigation during the Biden years. Quite to the contrary, he put up a "Do Not Enter" sign on his courtroom. In 2023, Judge Brown adopted a local rule that required the plaintiffs to demonstrate an "obvious factual nexus to the Galveston Division." In the wake of this order, conservative litigants got the memo loud and clear, and stopped filing there. And Brown's rulings have not always fared well before the Fifth Circuit. His VRA ruling in Petteway v. Galveston County was reversed by the en banc court.
Third, in recent months, several Reagan-appointed judges have come forward as purportedly principled jurists who see Trump as a threat to the rule of law. As I've explained, many of these judges are from Massachusetts, and received blue slips from Senators Kennedy and Kerry. I doubt they were ever very conservative. By contrast, Judge Jerry Smith of the Fifth Circuit is a Reagan appointee to the Fifth Circuit whose conservative bona fides are beyond reproach. He has been on the bench for nearly forty years, and is held in very high regard by Fifth Circuit practitioners. I have seen some suggestions that his dissent in LULAC was an effort to curry favor with Trump. Judge Smith is 79 years old. I do not think he is auditioning for a promotion.
Fourth, I have some thoughts about the preliminary statement to Judge Smith's dissent. I always try to avoid imputing bad faith to those I disagree with. I am a fan of Hanlon's Razor: "Never attribute to malice that which is adequately explained by stupidity." If Judge Brown did exactly as Judge Smith alleged, then the lone judge in Galveston, at best, made a colossal error in judgment. Judge Brown was so concerned about getting an opinion out quickly to avoid a Purcell problem that he cut a member of the panel out of the drafting process. What makes this error even more shocking is that Brown previously served on the Fourteenth Court of Appeals and later the Texas Supreme Court. (Justice Scalia swore in Justice Brown at his investiture in 2013, which I attended.) Judge Brown knows how multi-member appellate courts operate.
Fifth, if this case was urgent as Judge Brown insisted, then it does not seem he approached the drafting process with the requisite sense of urgency. The preliminary injunction hearing concluded on October 10. About forty days later, on November 18, he issued a 160-page opinion. Everyone knew this case was bound for the Supreme Court. If Judge Brown was so concerned about Purcell, he could have issued a far slimmer opinion before the candidate registration began on November 8. Indeed, if he was unwilling to wait for Judge Smith's dissent, the majority could have moved even faster.
However, according to Judge Smith's stated chronology, Judge Brown did not move quickly. Between October 10 and November 5, Judge Smith relates there "there was silence." I can relay that I saw Judge Brown at the U.S. Supreme Court on November 4. Judge Brown was there to attend oral argument in The Hain Celestial Group v. Palmquist, a case in which the Fifth Circuit reversed him. I chatted with Judge Brown briefly after the case finished. Also in attendance was Sixth Circuit Judge David McKeague who wrote the dissent in Coney Island, which was also argued that day. As longtime readers might observe, I have this uncanny tendency to be at the right place at the right time. However, I did not see Judge Brown at the Federalist Society Convention, which started two days later. I've checked Judge Brown's civil docket, and there were other entries added during this time. If LULAC was truly a DEFCON 1 case, then these other activities could have taken a break.
Moreover, according to Judge Smith, Brown did not keep to his own self-imposed deadlines. On November 5, Smith received a thirteen-page outline. Then silence for a week. On November 12, Brown announced he would issue the injunction three days later on November 15. At that point, Smith had not even seen a draft. The first draft would be circulated on November 13. On November 16, a new draft with "substantial revisions" was circulated. The plan was to issue it two days later on November 18. Had Judge Brown waited twenty-four hours further, Judge Smith's dissent would have been ready. All of this mess could have been avoided.
Sixth, what do we make of Judge Smith's decision to include confidential information about the panel's deliberations? You know how I feel about leaks. Then again, Judge Smith released this information in the procedurally proper format--a duly published opinion, and not through some anonymous reporting. And there is some precedent here. Footnote 2 cites Judge Danny J. Boggs's dissent in Grutter v. Bollinger, a case I know very well. In that case, Chief Judge Boyce Martin effectively rigged the process so that the en banc poll would be taken after two judges took senior status. Judge Boggs's dissent included a "procedural appendix." He did not engage in hyperbole, but instead laid out all of the facts in a plain fashion. He did so "as an explanation of the manner in which this case came before the particular decision-making body that has now decided it." By contrast, Judge Smith chose to engage in hyperbole--perhaps too much--but the facts in Galveston were perhaps worse than Boyce Martin's chicanery. Among the Carter nominees, Judge Reinhardt drew more fire, but Martin was arguably more scheming. In Grutter, Judge Karen Nelson Moore offered something of a defense of Martin--a defense that I do not find persuasive, but there was a defense to be had. What would Judge Brown's reply be? I think it would be exactly as he stated in his emails: he wanted to get ahead of Purcell. Would he allege that he thought Judge Smith would drag his feet? Doubtful. Though I doubt that Judge Brown expected that Judge Smith would air the dirty laundry. Judge Smith called Judge Brown's bluff, and now all the world can consider what transpired.
Seventh, I suspect all of this lower-court tussling will likely be for naught. Whether Judge Brown wrote 16 pages, 60 pages, or 160 pages, the Supreme Court's decision will likely come out the same way. (Perhaps 6 or 7 pages would have been just right!) Indeed, if Judge Brown wanted to Purcell-proof his opinion, he should have issued something quickly, before the candidate registration began on November 8. As I told Houston Public Media, it is impossible to drive down a road without seeing many signs with candidates jostling for the nomination. The clock has ticked too much. Judge Brown complained to Judge Smith that "the fuse is simply too short in light of Purcell." But Brown shortened that fuse by taking time to write a 160-page opinion, and tending to other matters during that time.
Eighth, what will happen before the Supreme Court? I reviewed the emergency application submitted by Will Peterson, the new Texas Solicitor General. The brief acknowledges in a candid fashion that Texas engaged in an overt political gerrymander to advantage Republicans and disadvantage Democrats. Texas is doing exactly what California, Virginia, and other blue state are doing. The brief, citing Alexander v. S.C. State Conf. of the NAACP, argues that Judge Brown failed to "draw the inference that cuts in the legislature's favor when confronted with evidence that could plausibly support multiple conclusions." Indeed, rather than starting "with a presumption that the legislature acted in good faith," Judge Brown "resolves (at best) ambiguous evidence against the Legislature and infers legislative bad faith." Texas further alleges that Judge Brown disregarded actual factual evidence, and made conclusions not supported by the record. Given how quickly this 160-page opinion was actually cobbled together, and the fact that the majority was not even interested in responding to a dissent that pointed out factual errors, I think the Court should be cautious about relying on Judge Brown's factual findings. And with these factual findings in doubt, the legal argument in favor of a stay becomes even stronger.
Ninth, I'll close by returning to a favorite hobby horse: Callais should eliminate the Voting Right Act's asymmetry. It cannot be the case that blue states can gerrymander Republican voters out of representation, but red states cannot do the same to Democratic voters. And if Callais come out the way I think it will, this ruling from Galveston will just be a blip.
