Judge Jerry Smith Issues His 104-Page Dissent to Yesterday’s 3-Judge District Court Holding that Texas’s Re-Redistricting is Likely an Unconstitutional Racial Gerrymander. Along the Way He Calls Out the “Pernicious” and “Outrageous” Behavior of Judge Brown in the Majority

redistricting

You can find the dissent at this link.

It begins with a remarkable attack on Judge Brown (a Trump appointee) explaining that Smith was not responsible for any delay in issuing the decision:

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.

And then turning to the merits:

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

In the interest of time, this dissent is, admittedly, disjointed. Usually, in dissenting from an opinion of this length, I would spend more days refining and reorganizing the dissent for purposes of impact and readability. But that approach is not reasonably possible here because these two judges have not allowed it.


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.

I have now had a chance to skim both the majority opinion and the dissent in this case. I don’t feel like I’m already steeped enough in the details to make a confident prediction about who is right on the merits of whether race predominated in drawing these maps.

But I do want to comment on the risky strategy of Judge Smith’s dissent. On the one hand, if the facts are as Judge Smith describes them, then there’s a good case to be made that Judge Brown did not afford Judge Smith a fair opportunity to write a dissent in time that would be responsive to the specific claims of the majority. (Judge Brown saw the press of time because of the Purcell principle—at some point it will be too late to interfere with the adoption of maps.

On the other hand Judge Smith’s opinion is not only dripping with anger, it includes a lot of gratuitous, personal attacks on the experts and lawyers on the plaintiffs’ side of the case. He tars many of them as being “Soros operatives,” as if the person paying services or backing a legal organization is somehow illegitimate because of who funds them. Judge Smith says he is doing so to show this was all about partisanship, rather than race, but I don’t think it shows it at all. Instead, it shows Judge Smith’s disdain for George Soros and Gavin Newsom.

Simply as a matter of strategy, if Judge Smith’s audience is the Supreme Court, I think he would have been far more effective if he had been measured and focused more attention on what he sees as the defects in the merits of the case, rather than to continually cast aspersions on the other judges, experts, and lawyers in the case. Maybe what he says will resonate with some of the Supreme Court justices, but I expect some will be turned off by this ranting.

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Mid-Decade Redistricting and the Purcell Principle

redistricting, referendum, Supreme Court

Yesterday, a three-judge district court preliminarily enjoined Texas’s mid-decade congressional redistricting map. This case will be promptly appealed to the Supreme Court, and it will be the first of many mid-decade redistricting cases on the shadow docket.

The district court’s opinion has a lengthy discussion of the Purcell principle—the notion that courts should not enjoin election laws close to an election. As Rick Hasen and Wilfred Codrington have shown, the Purcell principle is problematic. This post, however, takes Purcell on its own terms and argues that it should not apply to mid-decade redistricting plans.

As an initial matter, Purcell has more bite at the start of the decade. That is because States cannot use their previous maps under one-person, one-vote principles. If a court enjoins a map in early 2022, then the court must draw a new map for the November 2022 election. There is no democratically enacted map to fall back on that complies with the Constitution. That is not true for a mid-decade redistricting. As the three-judge district court pointed out, Texas can still use its 2021 map. Indeed, it is doing so next year for a (long-delayed) special election.

A frequent defense of the Purcell principle is that it avoids voter confusion about what law governs the election. Once again, mid-decade redistricting changes the equation. Voters are used to getting new maps at the start of the decade—a trend that had largely held since the 1960s but is quickly disintegrating. Here, Texas and other mid-decade redistricting states are the ones seeking to change the rules mid-stream.

To be sure, this particular point carries less force in situations where the People have voted on a new map. Thus, California’s Proposition 50 helps minimize voter confusion over which maps will be in place for the 2026 midterms. Similarly, if Missouri voters get to decide whether to keep their new 2025 map, then voter confusion is not a problem there either.

Moreover, applying Purcell to mid-decade redistricting would encourage such behavior, as it gives mapmakers a free bite at the apple to entrench themselves further in office. Given that Purcell is an equitable doctrine, it is capacious enough to factor in such concerns. Indeed, the three-judge district court in this case highlighted that Purcell would encourage gamesmanship by state legislatures bent on mid-decade redistricting, timing their actions to avoid judicial review. And to the extent that Purcell’s embrace of federalism principles is intended to be democracy enforcing, then Purcell is especially ill-suited for mid-decade redistricting plans. Put simply, the motive for mid-decade redistricting is almost always a power grab by politicians at the expense of the People.

One final point. The situation is different when new maps are enacted in response to a court order. That occurred in the Robinson and Callais tango, and the Supreme Court stayed the Callais district court’s injunction, allowing the post-Robinson map to go into force for the 2024 election. In an age of potential defiance of judicial rulings, we should encourage compliance. Giving States the benefit of Purcell in those situations would incentivize that behavior.  

[Disclosure: I wrote an amicus brief in support of the Robinson intervenors in Callais.]

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New Article: Increasing Turnout in Prisons

absentee ballots, voting

MIchael W. Sances (Temple University) has a new article, In-Person Voting Increases Turnout Among Incarcerated Persons: Evidence From the Cook County Jail in the Election Law Journal.

The vast majority of persons incarcerated in jails are eligible to vote, but only via absentee ballot. . . . . I examine the case of the Cook County Jail, which in 2020 became one of the few jurisdictions to allow incarcerated persons to vote in-person. Using data on the ballots cast from jail, I compare the turnout between incarcerated and nonincarcerated Cook County voters, before and after the reform. I show that the reform increased the turnout between 7 and 33 percentage points depending on the election or between 170% and 440% over pre-reform baselines. These findings are not driven by fluctuations in the jail population due to the pandemic or state and local bail reforms, as excluding elections affected by these events yields similar results. . . .

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“Dark money groups pour cash into fight over gerrymandered Missouri congressional map”

campaign finance, redistricting, referendum

Missouri Independent reports:

Voters across Missouri late last week received a text message urging them to take their names off petitions they may have “accidentally signed.”

The message, labeled as the work of the Republican National Committee, dropped the name of Republican Secretary of State Denny Hoskins, saying he had “declared TENS OF THOUSANDS of petition signatures IMPROPERLY COLLECTED.” The text, from a number in southwest Virginia, gave a number to call in southwest Missouri to withdraw a signature.

The number, when called, goes straight to a voice mail system and promises people who leave a number that they will be called.

The mass text was the latest maneuver in the fight over Missouri’s gerrymandered redistricting map, which is drawing millions in donations from dark money groups on the right and left — including $2 million over the weekend from a pair of Republican nonprofits. The deadline is approaching for opponents of the map to submit signatures to force a referendum while the question of which signatures to count and whether a referendum is even possible remains mired in state and federal courtrooms.

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“Citing extraordinary circumstances, Chester County will count the vast majority of provisional ballots cast after Election Day chaos”

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Philadelphia Inquirer. Last month, officials mistakenly sent poll books to precincts in Chester County (PA) that did not include the names of independent and third-party voters. As a consequence, over 12,000 voters (mostly independent and third-party voters) were forced to vote on provisional ballots until the supplemental poll books arrived.

“The Chester County Board of Elections rejected Republican challenges to provisional ballots Monday as the board prepares to launch an investigation into a poll book error that forced thousands of independent and third-party voters to cast provisional ballots during this month’s election.

In a nearly six-hour meeting, the Democratic-led board heard from dozens of voters and poll workers who described the chaos they endured on Nov. 4 during the high-turnout municipal election. . . .

. . . .

The Chester County Republican Committee objected to the counting of more than 1,000 ballots ahead of Monday’s meeting. That number whittled down as the committee withdrew objections to ballots where the error was likely caused by election workers. But the GOP committee’s attorney argued that it would be illegal to count ballots missing the first required voter signature or a secrecy envelope.

The election board . . . argu[ed] that the county’s mistake allowed the board to accept ballots that would be rejected under normal circumstances.”

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“Why is American democracy in such peril?”

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Steve Huefner, my colleague at The Ohio State University Moritz College of Law and its Election Law program, and I had a conversation about the stresses and challenges facing democracy in the United States. A recording is available. I found the discussion productive, and I hope others do as well. 

One main theme of the discussion—the nation’s electoral and political institutions that worked reasonably well in the aftermath of World War II no longer function adequately because of changes in cultural conditions affecting American elections and politics—is echoed in an essay that Bruce Cain contributed to the “100 ideas in 100 days” series at NYU Law School’s Democracy Project. (Rick Pildes blogged about Bruce’s essay earlier today.) Bruce, whose previous work has greatly influenced my own thinking on America’s “Madisonian” system, writes in this essay: “We need to ask ourselves whether the Congressional rules that worked so well in the post-WWII period are the right ones for the current polarized era.” 

Bruce ends his essay with the intriguing suggestion that the United States would benefit from a “28th Amendment” that would require members of Congress to “go without pay if they could not pass the budget on time.” I’m not sure that would be a sufficient fix for the current problems caused by partisan polarization. I would add the necessity for the kind of electoral reform that former Senator Joe Manchin embraced this weekend, which I wrote about in my recent Common Ground Democracy post. But I wholeheartedly agree with Bruce that all of us should be brainstorming about what institutional innovations would restore our Madisonian system to the kind of well-functioning equilibrium that existed in the post-WWII period. 

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