When Undoing Racial Gerrymanders Becomes ‘Racial Gerrymandering’

The decision by Judge Jeffrey V. Brown and his colleague Judge David C. Guaderrama to enjoin Texas from using its newly drawn congressional maps for the 2026 midterm elections represents a profound miscarriage of justice, one that not only misinterprets the law but also undermines the legitimate authority of a state legislature to pursue partisan objectives. At stake are five House seats that Republicans stand to gain, seats that reflect the shifting political landscape in Texas, where conservative values increasingly resonate with diverse voters, including Hispanics. To understand why this injunction is improper, we must first clarify the legal and factual context, anticipating the reader’s potential confusion about the interplay between race, partisanship, and redistricting under the Voting Rights Act.

Consider the foundational ruling in Petteway v. Galveston County, a case that originated in early 2022 when Black and Latino voters challenged Galveston County’s 2021 redistricting plan for diluting minority voting strength by eliminating a majority-minority precinct. The trial, held from August 8 to 18, 2023, in the U.S. District Court for the Southern District of Texas, resulted in an October 12, 2023, decision by Judge Brown himself, who ruled in favor of the plaintiffs. He held that the map violated Section 2 of the Voting Rights Act, relying on then-precedent that permitted coalition districts, where multiple minority groups combine to form a majority. Yet the Fifth Circuit, sitting en banc, reversed this on August 1, 2024, in an 11-6 decision authored by Judge Edith Jones, joined by conservative stalwarts like Judge Jerry E. Smith. The court overruled its own 1988 precedent in Campos v. City of Baytown, declaring that Section 2 does not authorize coalition vote-dilution claims. This meant states in the Fifth Circuit, including Texas, Louisiana, and Mississippi, were no longer required to create districts where minorities coalition to achieve majority status.

A reader might wonder, does this ruling imply that existing coalition districts are unconstitutional? The Fifth Circuit did not explicitly say so, nor did it order immediate redistricting. However, a logical extension follows: if creating such districts requires considering race as a predominant factor, and if the Voting Rights Act no longer mandates them, then intentionally drawing them would violate the Fourteenth Amendment’s prohibition on racial gerrymandering, unless compelled by law. As the Supreme Court has long held, in cases like Shaw v. Reno, race cannot predominate in redistricting without a compelling interest, and post-Petteway, no such interest exists for coalitions. Texas officials, guided by this reasoning, saw an opportunity to redraw maps mid-decade, not to inject race, but to eliminate its improper influence while advancing partisan goals, which the Supreme Court in Rucho v. Common Cause affirmed as non-justiciable and entirely permissible.

Enter the Department of Justice letter of early July 2025, signed by Assistant Attorney General Harmeet K. Dhillon, a staunch defender of civil rights under the Trump administration, who was nominated in December 2024 and confirmed in April 2025 on a 52-45 Senate vote. Dhillon, known for her work challenging election irregularities and advocating conservative principles, asserted that Texas’s 2021 maps contained unconstitutional racial gerrymanders in the form of coalition districts. The letter cited Petteway to argue that these districts, lacking a single minority group over 50%, must be rectified by redrawing without racial considerations. Far from demanding race-based changes, it instructed the opposite: abandon race-driven coalitions, which now lack Voting Rights Act protection and thus offend the Constitution. Governor Greg Abbott, recognizing this as alignment with conservative aims to end race-based policies, coordinated with the White House and Dhillon to draft the letter, providing political cover for legislators wary of mid-decade redistricting, a practice unusual but not unprecedented, as seen in Texas’s own history.

One might ask, was this coordination improper? Not at all, it reflects aligned interests between a Republican governor and a Republican administration to interpret Petteway correctly and maximize partisan advantage. Abbott met with Dhillon and redistricting consultant Adam Kincaid at the White House, ensuring the letter explained that while Petteway did not mandate immediate action, it clarified that future redistricting could not use race for coalitions, and Democrats could no longer sue to force them. Implicitly, existing maps, drawn under outdated precedent, carried constitutional flaws, though no court order compelled change before the next census. The letter urged rectification to avoid future challenges, emphasizing that accidental minority districts might emerge, but intentional ones would be unconstitutional. This was not a call to racial gerrymandering, but to its cessation.

Attorney General Ken Paxton’s response on July 11, 2025, has been mischaracterized by Judge Brown as evidence of internal dissent proving illicit intent. Paxton, not consulted in the letter’s drafting, expressed concern that it might undermine Texas’s defense in ongoing litigation over the 2021 maps, where his team had argued the maps were race-blind except where Voting Rights Act compliance required. He denied wrongdoing in the original drawing, insisting Texas rejected race-based decisions, and welcomed dialogue. Internally, his lawyers fretted over nuance, fearing the letter could suggest admission of flaws, potentially reviving preclearance under Section 5, a burdensome requirement Texas escaped in Shelby County v. Holder. Paxton’s reply protected the state’s legal posture, not opposed redistricting itself, he has since affirmed the new maps’ legality. Brown’s opinion twists this into proof that even Texas’s AG knew the effort was illegal, ignoring Paxton’s motive to safeguard litigation without contradicting Petteway’s implications.

With the letter in hand, Abbott called a special session on July 9, 2025. Democrats fled on August 3, breaking quorum, but returned on August 18, allowing the House to pass the map 88-52 on August 20, the Senate 18-8 on August 23, and Abbott to sign it on August 29. The new map targeted five Democratic seats, boosting Republican prospects by 5 seats, reflecting Texas’s conservative tilt, where Republicans now poll strongly among Hispanics, up 15% since 2020 according to Pew Research. Challenges swiftly followed in the ongoing LULAC v. Abbott case, filed in 2021 by groups like the League of United Latin American Citizens and the NAACP, alleging vote dilution. The three-judge panel, Brown (Trump appointee, recommended by Senator John Cornyn), Guaderrama (Obama appointee), and Smith (Reagan appointee), heard arguments in October 2025.

On November 18, 2025, in a 2-1 decision, Brown and Guaderrama enjoined the map, reverting to the 2021 version. Brown’s 160-page opinion claims the redistricting was racially motivated, inferring intent from the DOJ letter and Paxton’s response, not from evidence that the legislature used race in drawing lines. No such evidence emerged at trial, the mapmakers testified to partisan focus, using data on voting patterns, not racial demographics predominantly. Yet Brown insists the letter’s mention of race proves impermissible intent, creating a novel standard where political communications taint otherwise legal processes. If a governor seeks federal guidance to explain legal changes, and that guidance references race in urging its removal, does that invalidate the redraw? Brown’s logic says yes, but this ignores Supreme Court precedent in Abbott v. Perez, where courts presume good faith and require clear proof of racial predominance.

Moreover, Brown’s ruling reeks of personal animus. Overturned in Petteway by the Fifth Circuit, including Smith on the en banc panel, Brown now sits judging a map born from that reversal. His opinion chides the DOJ for misreading Petteway, claiming it did not deem coalitions per se unconstitutional. But if coalitions require racial considerations absent Voting Rights Act mandate, they are indeed improper, a point Dhillon rightly emphasized. Brown’s refusal to accept this logical step suggests revenge, especially as a Trump appointee recommended by Cornyn, a senator often critical of Trump, Brown has long harbored anti-Trump sentiments, quietly aligning with establishment Republicans against populist gains.

Judge Smith’s 104-page dissent exposes this overreach with blistering clarity. In his preliminary statement, Smith, with 37 years on the bench, labels Brown’s conduct “the most outrageous” he has encountered, accusing him of “pernicious judicial misbehavior” by rushing the opinion without allowing input. The timeline: hearing ended October 10, 2025; majority voted to enjoin; Smith heard nothing for 26 days; a scant outline on November 5; abrupt issuance announced November 12, citing Purcell principle against last-minute changes, yet ignoring no urgency existed. Drafts arrived late, while Smith attended a funeral; the final issued November 18 from “Galveston Island,” burying the dissent in a separate filing. Smith likens this to “might makes right,” eroding judicial trust, drawing parallels to Grutter v. Bollinger critiques.

Substantively, Smith defends redistricting as legislative prerogative, citing White v. Weiser: courts follow state policies unless unconstitutional. He accuses Brown of acting as “legislator/activist,” fabricating racial motives where partisanship prevails, as affirmed in Jackson v. Tarrant County. Smith debunks plaintiffs’ biases, noting expert Matt Barreto’s Soros funding ($2.5 million via Open Society Foundations), and Soros’s anti-redistricting efforts, alongside Gavin Newsom’s influences. In contrast, Texas’s actions mirror routine politics. Referencing his vindicated dissent in Perez v. Abbott, reversed unanimously by the Supreme Court, Smith warns of repetition. The injunction violates Purcell by disrupting elections without proof, rewarding ideologues at Texas voters’ expense.

Smith’s dissent underscores Brown’s misconduct, urging impeachment by the House. If the Supreme Court reviews this, justice demands a stay, allowing the new map for 2026. The Court, with its conservative majority, should recognize partisan gerrymandering’s legality and racial claims’ weakness here. Yet pessimism lingers: the Court may deny emergency relief, citing timing, though candidates have filed under new districts, necessitating primary restarts. If so, Abbott should call another special session, explicitly for partisan redraw, sans DOJ involvement, to sidestep Brown’s flawed test. Democrats may flee again, but conservatives must persist against such judicial activism.

The legal structure of redistricting exists to ensure that states can govern themselves. It cannot depend upon the subjective interpretations of correspondence between political officials, especially when the factual record contains no evidence of racial line drawing. Judge Brown’s decision is an outlier. It should not stand. It rests on conjecture, exaggeration, and a misunderstanding of the law that the Fifth Circuit established in Petteway. A clear, modest stay would restore order and permit Texas to use the map its elected representatives adopted. That is the right outcome, and it is the only one consistent with constitutional principles.

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