It’s that time again…
We’ll start with the big one.
A decision on Texas’ congressional map now before the U.S. Supreme Court could ultimately decide which party will hold control of the U.S. House of Representatives after the 2026 midterm election.
The matter fell to SCOTUS earlier this week, after the state of Texas appealed a Tuesday decision by a federal court in El Paso to temporarily block a new map Texas Republicans pushed through the legislature this summer at the behest of President Donald Trump and Gov. Greg Abbott.
The three-judge panel ruled 2-1 that they had seen enough evidence to agree with plaintiffs that the new district map is racially gerrymandered. The state argues Texas’ redistricting was purely partisan, which is legal.
“Redistricting cases are special in that appeals like this go directly to the U.S. Supreme Court,” said University of Houston political scientist Brandon Rottinghaus. “That puts a lot of pressure on the Supreme Court to essentially step in here and to solve this problem for Republicans that, to a large degree, they’ve created for themselves.”
While the federal court in El Paso handed a victory to the plaintiffs this week, until the Supreme Court rules on the state’s appeal, exactly who wins is still up in the air.
“The opinion was very carefully crafted to withstand scrutiny by the current Supreme Court,” Richard Murray, a University of Houston political scientist who was an expert witness in the case. “Justice [Jeffrey] Brown, the district court judge from Galveston who wrote the opinion, was extremely mindful that this is going to be reviewed by a court, the majority of which has said lately that ‘We don’t like explicit racial appeals in redistricting cases.’”
[…]
Specifically, what SCOTUS is deciding on is whether or not to agree with the federal court ruling out of El Paso, technically called a “preliminary injunction” on the new congressional map.
The nation’s highest court could agree with this week’s federal decision, meaning Texas couldn’t use its new map in next year’s midterms and would have to revert to its 2021 map. However, the court could also rule against the preliminary injunction, putting the 2025 map into effect.
Those two outcomes could be done the quickest. There’s urgency here because Texas candidates for Congress are facing a Dec. 8 filing deadline for next year’s election. In cases like that of Democratic U.S. House Rep. Al Green of Houston, which map is in effect for 2026, would determine which district he could run in. For Austin Congressman Lloyd Doggett, also a Democrat, it could mean the difference between whether he runs for reelection or retires.
The Supreme Court could also issue an emergency order without explanation, often called the “shadow docket.” Another option, which would take much longer, would be the Supreme Court taking up the full case on its own — something that could take months.
I think the most likely outcome is simply that SCOTUS puts a pause on the lower court’s ruling, likely in a shadow docket order, and that they do so before the December 8 filing deadline. When it is in their political interests to do so, that Republican cabal on SCOTUS can act with incredible speed. I don’t think it’s a given they will do this – I’d put it as more likely than not, which is a lot less certain than I’d expect for a lot of cases – but it’s where I’d put my money if I had to bet.
The story also notes that, while unlikely, Greg Abbott could call another special session to pass another map, this time with everyone having their story straight from the beginning about it being a partisan exercise, and maybe being less precision-focused on the Black districts. The timing is a factor here, but that can be changed, too.
Could the primary election be delayed?
There is precedent in Texas for an election being delayed due to litigation over redistricting: In 2011, the March 3 primary was delayed twice and ultimately didn’t happen until late May because of the legal battle over the maps.
But that involved redistricting done on the normal timetable aligning with the 10-year Census and did not involve competing maps for the same cycle.
And courts usually want to cause as little disruption as possible, said Nina Perales, a lawyer for the Mexican American Legal Defense and Educational Fund, which represents the original plaintiff who sued the state.
“A court will try lots of different things before that (moving an election), just to just to try to make sure the voters have the best possible experience,” she said.
Could Abbott preemptively move the election without a court telling him to do so? Perales said she doesn’t think that’s legally possible.
We are in uncharted waters, I think everyone would agree on that. If SCOTUS declines to block the El Paso court’s ruling, and if Abbott tries for another round of redistricting with a delayed primary thrown in, I feel confident saying there will be more litigation, and the time that all takes would benefit the plaintiffs.
You know who wants everyone to sit down and shut up and let us get on with the election already? Election officials, that’s who.
For months, election officials across Texas have been hustling to redraw precinct boundary lines and secure polling locations and workers for the March primary election, all based on new congressional maps Republican state lawmakers drew in a rare mid-decade redistricting this summer.
County party chairs have accepted applications from candidates for precinct chair — the parties’ neighborhood-level representatives — and, beginning this month, from candidates seeking congressional seats based on the newly drawn districts.
Now, they’re scrambling to revert to the previous congressional maps after a federal court on Tuesday blocked use of the newly drawn districts for next year’s midterms — right in the middle of the filing period for candidates seeking to run in the March primary.
Counties such as Harris and Travis, where the new boundaries changed the shape and makeup of multiple districts to help Republicans, have a lot of work to do under tight deadlines, mindful that the state’s planned appeal of the court’s order to the U.S. Supreme Court means things could change again. The stream of changes is also confusing to voters.
Officials with the Texas Secretary of State’s Office told election officials in large jurisdictions that they should currently operate the 2021 congressional maps, as the federal court ordered, Chris Davis, the Travis County voter registration division director, told Votebeat Tuesday. A spokesperson for the office, Alicia Pierce, said that state officials also told county officials the order will be appealed, and counties must pay attention to what is happening in the courts.
“Whatever ultimately happens, it’s going to have to be done quickly,” Davis said, noting the looming March primary.
Cindy Siegel, chair of the Harris County Republican Party, said some candidates may now have to consider withdrawing their application or filing again. With the filing deadline on Dec. 8, she’s worried there won’t be enough time for her office to process the applications of candidates who withdraw and refile for new offices.
“You could title your article ‘HELP!’” she told Votebeat.
Siegel also said people are wondering whether the primary election might be pushed back because of the court battle over congressional maps. If that happens, it would throw off all the Harris County GOP’s planning, she said, including hiring workers and securing hundreds of polling sites.
“It’s just crazy,” Siegel said. “Everyone right now is just wondering what’s going to happen. No one knows.”
You should pass those concerns onto Greg Abbott. I’m sure he’ll take them under advisement.
Speaking of Abbott, he’s big mad at the judge who wrote the opinion.
Gov. Greg Abbott slammed the El Paso federal judge, who once worked for him, for authoring the decision that blocked the state’s congressional redistricting map that President Donald Trump wanted ahead of next year’s elections.
Abbott said a previous redistricting decision by U.S. District Court Judge Jeffrey Brown, who worked for Abbott when he was a Texas Supreme Court justice in the 1990s, was overturned last year and he expects it will happen again with his most recent ruling. Texas has already appealed to the U.S. Supreme Court.
“He got it wrong then and he got this one wrong now,” Abbott told Fox News host Sean Hannity during an interview on Wednesday. “This decision was a gross misjudgment.”
[…]
Abbott was once a big fan of Brown’s. When he was nominated to the federal bench during Trump’s first term in office, Abbott praised him as having a sharp legal mind.
“I applaud President Trump for nominating Jeff Brown,” Abbott said in 2019.
So are other Republicans.
Brown’s ruling, which found there was “substantial evidence that Texas racially gerrymandered” its maps, immediately inflamed the right. Attorney General Ken Paxton quickly appealed to the U.S. Supreme Court, blaming the “radical left” for “once again trying to undermine the will of the people.” And Gov. Greg Abbott said the ruling was “clearly erroneous and undermines the authority the U.S. Constitution assigns to the Texas Legislature by imposing a different map by judicial edict.”
But Brown — up until Tuesday’s ruling — has been widely supported by Texas Republicans, including Paxton and Abbott, and has a track record of backing conservative policies.
Brown’s judicial career in Texas began in 2001 when then-Gov. Rick Perry appointed him to the 55th District Court, followed by an appointment to the 14th Court of Appeals six years later. He later was tapped by Perry again in 2013 to join the Texas Supreme Court.
When Brown was later nominated for the federal bench in 2019, Democrats criticized his track-record of conservative rulings while on the all-Republican state Supreme Court. He joined several rulings against same-sex marriage, including one he authored where he emphasized that marriage had been between a man and a woman for “all of Western Civilization from the beginning of Christendom to the modern day.”
He has also spoken about his anti-abortion views, including posting quotes from the dissenting opinions in Roe v. Wade on social media on the anniversary of the decision. He was endorsed by Texas Right to Life, an anti-abortion group during his judicial campaigns.
Paxton applauded Brown’s federal confirmation that year, writing in a statement at the time that he “has a proven record of excellence, professionalism, and fidelity to the Constitution. He decides cases based on the rule of law rather than personal preference.”
Abbott echoed the sentiment after Brown was appointed by Trump, praising the justice’s “commitment to the Constitution and the rule of law” dating back to when Brown clerked for him during his own stint as a Supreme Court justice.
Since becoming a federal judge, with the exception of Tuesday’s ruling, Brown has largely defended Trump’s policies. For example, he criticized a federal court for striking down the president’s executive order banning travelers from several Muslim-majority countries in 2017. Brown called the ruling “an attempted coup” in a speech, according to the Houston Chronicle, and said the judges’ “reasoning is not based in law but in their belief that we have an illegitimate president.”
But just because Brown was appointed by Trump doesn’t mean he has to vote in line with Republican opinions, said Justin Levitt, a law professor at Loyola Law School. He’s a judge, not a politician, Levitt said.
“I don’t like assuming that judges necessarily are in the tank for the party or president that appointed them,” Levitt said. “I think you’ve now seen several judges rule against the presidents that appointed them, I think that’s to be expected. I think that most judges look at the law and look at the facts and do their best to think, ‘What is the right legal outcome here?’”
Well, based on a lot of SCOTUS’ recent actions, that would be “whatever Trump wants”. I think some of the outrage comes from Republican entitlement and the shock of not getting what they thought they were owed, and some from how Judge Brown pointed out all the ways that Abbott and other Republicans, including the Trump Justice Department, screwed the pooch in their approach. To which all I can say is, cry harder.
(I have no idea what “previous redistricting decision” Abbott is referring to above. Anyone know what I’m missing?)
Also mad: The dissenting judge.
When a judge warns readers to “Fasten your seatbelts!” before a 104-page legal diatribe — best to buckle up.
Jerry Smith, a judge on the 5th Circuit Court of Appeals, delivered that admonition before launching into an invective-laden, unusually personal excoriation of a legal decision Tuesday throwing out congressional boundaries Texas just redrew at the urging of President Donald Trump.
Smith, on the losing end of that 2-1 ruling, attacked the plaintiffs as tools of left-wing donors George and Alex Soros, who featured at least 17 times in the ruling. (“George and Alex Soros have their hands all over this.”) Smith swiped at Democratic California Gov. Gavin Newsom (“The main winners from Judge Brown’s opinion are George Soros and Gavin Newsom.”) And Smith went after the plaintiffs’ lawyers and advocates in intensely personal ways.
“That tells you all that you need to know — this is about partisan politics, plain and simple,” Smith wrote.
Although the Trump administration ended the federal government’s role in the litigation earlier this year, Attorney General Pam Bondi endorsed Smith’s dissent Wednesday. “Couldn’t have said it better myself,” Bondi declared in reaction to a social media post highlighting Smith’s remarks about Soros and Newsom.
But Smith, a Reagan appointee, saved his most intense disdain for a fellow jurist, U.S. District Judge Jeffrey Brown, a Galveston-based Trump appointee who authored Tuesday’s ruling scrapping the new Texas map that gave Republicans a five-seat pickup opportunity.
I feel like Jerry Smith has been on every three-judge panel involving redistricting and voter ID for at least the last 30 years. Maybe he should opt out next time, this can’t be good for his health. Whether any of this diva tantrum will have an effect on SCOTUS remains to be seen. But make no mistake, it’s a tantrum for the ages.
We may never see a better argument for judicial term limits than this dissent, which (at best) exposes an elder jurist’s brain pickled in the brine of Fox News conspiracy theories and (at worst) raises serious questions about competence and senility. But there is a silver lining to this unfortunate episode: Smith utterly failed to refute the majority’s conclusion that the Texas Legislature unlawfully re-sorted voters on the basis of race. Beneath all the rhetorical Sturm und Drang, his rejoinder amounts to a credulous belief that Texas’ main mapmaker accidentally created a near-textbook racial gerrymander without ever considering race. It’s a theory that evaporates upon contact with reality, and is nowhere near enough to overcome the overwhelming racial data that the majority meticulously dissects. The Supreme Court’s GOP appointees will still do whatever they want with this gerrymander, but Smith fails to provide a convincing fig leaf behind which to hide their partisan aims.
[…]
A surprising amount of the opinion is also consumed by outrage that Brown released his majority opinion before Smith could finish his dissent. (Election cases like this one are heard by a three-judge district court: Brown and David C. Guaderrama are federal trial judges, while Smith sits on the U.S. Court of Appeals for the 5th Circuit.) He provides a blow-by-blow account of the days leading up to the ruling’s publication, including internal communications between the judges that, as a rule, are never shared with the public. Yet they reveal nothing nefarious whatsoever: Brown wanted to release his opinion as quickly as possible so lawmakers would have enough time to implement it, as the Supreme Court requires.
[…]
In fairness, Smith has long been a bit of a drama queen. But this dissent is not just a theatrical temper tantrum; it is a cry for help. Those closest to Smith ought to intervene and coax him into retirement before he can embarrass the federal judiciary more. The Supreme Court’s Republican appointees are still going to steer this case wherever they want. But rather than give them an excuse to side with Texas, Smith may have made it harder for the supermajority to reverse, because doing so may make it look as if the justices are endorsing his ultra-partisan fixation on liberal donors who just so happen to be Jewish. George and Alex Soros are wealthy men indeed. But the rent-free space they occupy in Smith’s Fox News–addled brain is beyond anything money can buy.
The story notes that Judge Smith is 79, so he’s already on senior status. But please, don’t let him retire just yet. Not while Trump can replace him with someone forty years younger and at least as crazy. Let him hang on until Democrats control the Senate, the White House, or both.
Let me also endorse what Steve Vladeck says about the Smith dissent and the underlying problem that catalyzed it:
I don’t doubt for a moment that folks’ reactions to the majority and dissenting opinions in these cases are being—and will be—colored by their partisan political preferences. But without getting into who’s right and who’s wrong on the law (i.e., whether the Texas legislature engaged in unconstitutional racial gerrymandering), or what the Supreme Court will do when, not if, Texas seeks a stay of the district court’s ruling so that it can use the new maps next year, I wanted to use today’s bonus post to reflect on the Supreme Court’s own role in causing this mess. The real issue here is the “Purcell principle”—the idea that, to avoid confusion among voters and election administrators, federal courts should generally not change the rules governing elections as Election Day approaches, meaning that injunctions against even unlawful election rules are increasingly disfavored as Election Day draws near.
As I explain below the fold, one of the central problems with Purcell is the uncertainty the decision (and its subsequent applications) creates with respect to how far in advance of an election its “principle” applies. That uncertainty, in turn, creates perverse incentives—in both directions—when it comes to the timing of lower-court rulings sustaining legal objections to local or state election rules. Although the spat between Judge Brown and Judge Smith in the Texas case is an especially ugly one, the procedural disagreement animating it is, in many ways, the inevitable result of the Supreme Court repeatedly insisting that there is a point past which district courts can no longer intervene in elections, but refusing to be clear, in rulings that have spanned two decades, about exactly what (or when) that point is.
Purcell has other problems, too, but if nothing else, the drama arising out of the Texas case should drive home, yet again, why the Supreme Court ought not to be using its impoverished processes for resolving emergency applications (like Purcell) to embark upon fundamental shifts in the law.
He goes into a lot of detail as is his wont, so read the rest.
Last word:
That map itself was a pretty aggressive gerrymander and, as numerous suits have alleged, racially discriminatory to boot.
Which is to say, the normal “this is unfair to a sovereign state” type arguments don’t quite have the same force here. #txlege
— Michael Li 李之樸 (@mcpli) 6:50 AM – 19 November 2025
Which is not to say SCOTUS will see it this way – but it should.
And that’s not even considering that the opinion is very strong and well reasoned. #txlege
— Michael Li 李之樸 (@mcpli) 6:56 AM – 19 November 2025
Make of that what you will.
Abbott is complaining about Brown’s decision in the redistricting case in Galveston county that blocked the 2021 redistricting that eliminated a majority-minority district. That decision was reversed by the Fifth Circuit later.