//  7/6/18  //  In-Depth Analysis

“The worst readers are those who behave like plundering troops: they take away a few things they can use, dirty and confound the remainder, and revile the whole.”  - Friedrich Nietzsche

Nietzsche must have anticipated the Supreme Court recent opinion in Abbott v. Perez when he wrote those words.  Justice Alito’s opinion for the five-justice majority engages in some seriously bad reading – of the evidentiary record, of the lower court opinions, and of Justice Sotomayor’s dissent – in rejecting claims that Texas’s redistricting plans discriminated against Latinos and African Americans. The majority cherry-picks facts and distorts them to its own ends, while avoiding less helpful evidence and mischaracterizing the three-judge district court opinion it reverses.

Ironically but thankfully, the result of the majority’s bad reading is an opinion that makes less bad law than it might have.  Still, Abbott v. Perez should worry those who believe that the drawing of district lines should be free from intentional discrimination against racial minorities.  By brushing aside evidence of discrimination against Texas Latinos and African Americans, the Court invites other Republican legislatures to sublimate minority voting strength.  Put in context of other end-of-term decisions, it bodes ill for those who take seriously the promise of equal justice. The Court exhibits a willful blindness to discrimination against racial and religious minorities, even while displaying increasing solicitude for claims of discrimination made by those to whom its conservative majority is sympathetic.

The Texas Redistricting Saga

Redistricting cases tend to be complicated and this one is no exception, so some background is essential to understanding Abbott and its import.  Back in 2011, Texas adopted new congressional and state legislative redistricting plans to account for the 2010 Census.  The original maps were challenged in multiple courts and never implemented.  In January 2012, the Supreme Court issued a per curiam decision in one of the Texas cases (Perry v. Perez), providing guidance on the deference owed to legislatively drawn plans challenged under the Voting Rights Act (VRA).  The next month, a three-judge district court in Texas followed this guidance to draw up interim plans under unusually tight time constraints, with the 2012 primaries approaching.  The district court stressed the “interim” nature of these plans and the “preliminary” character of its determination that they were permissible, noting that the legal issues surrounding them hadn’t been fully vetted.

These interim plans kept many features of the 2011 plans, including some of the same district lines that had been challenged as racially discriminatory.  Texas’s Republican legislature was happy enough with the interim plans that it adopted them in 2013 with just minor modifications.  But Latino and African American voters alleged that the 2013 plans preserved the discriminatory features of the 2011 plan – and, in fact, that the Texas legislature intended to preserve the original plans’ discriminatory effects.   They challenged these plans under both the Fourteenth Amendment and the VRA.

After years of litigation that included two trials, the three-judge district court in Texas agreed with some but not all of minority voters’ claims.  Most significantly, the court concluded that some districts in the 2013 plans preserved – and were intended to preserve – racially discriminatory features of the original 2011 plans.  In considering whether Texas intentionally discriminated against minority voters, the court applied a familiar equal protection standard drawn from Village of Arlington Heights v. Metropolitan Housing Dev. Corp. (1977).  That case calls for a “sensitive inquiry into such circumstantial and direct evidence of intent as may be available,” including the racial impact of official action, the historical background, the specific sequence of events preceding the challenged action, departures from normal procedures, and contemporary statements of decisionmakers.

The three-judge district court did exactly what Arlington Heights and its progeny demand.  In the most important part of its ruling, the court focused on portions of the 2011 plans that were unchanged by the 2013 plans.   The court concluded that these aspects of the new plans “intentionally furthered and continued” discriminatory features of the prior plan. 

While it’s difficult to encapsulate all the evidence that the district court analyzed in its lengthy opinions, its overarching conclusion was that Texas’s Republican legislature intended to dilute minority votes when it adopted the 2011 plans and to preserve these discriminatory effects in 2013.  The district court engaged in the thorough review of record evidence that Arlington Heights prescribes.  That included the history of the 2011 plans, the expedited procedure used to push the 2013 bills through the legislature, and the absence of any meaningful deliberative process. 

That isn’t to say that the three-judge district court took an uncritical approach to plaintiffs’ claims.  To the contrary, it rejected their constitutional and statutory challenges to some of the districts, finding the evidence of discrimination against Latino and African Americans inadequate.  In sum, the district court engaged in precisely the sort of contextual, evidence-driven analysis that the Court had previously directed.

The Supreme Court’s Opinion

Unfortunately, the Supreme Court majority in Abbott was much less attentive to the facts and law.  Trial court factual findings are supposed to be reversed only for clear error.  And in a racial gerrymandering case from just last year, the Court said that findings of fact should be affirmed if they are “‘plausible’ in light of the full record,” not reversed simply because the Court would have decided the matter differently.  Cooper v. Harris.

To get around the deferential standard of review, the Abbott majority manufactures an error of law.  Justice Alito’s opinion accuses the district court of “disregard[ing] the presumption of legislative good faith and improperly revers[ing] the burden of proof.”  A careful reading of the district court decision reveals that it did no such thing.  Rather, the lower court found that the circumstantial evidence of an intent to weaken minority votes overcame this presumption.  That includes the evidence that the Texas legislature chose to keep intentionally discriminatory features of the 2011 plan without any meaningful deliberative process.

Instead of confronting the evidentiary record, the majority attacks a strawman.  Justice Alito fixates on the lower court’s use of the word “taint” to describe the discriminatory features of the 2011 that carried over into the 2013 plan.   But tainted is a wholly accurate characterization of Texas’s process.  The legislature didn’t address the discriminatory features of the prior plan and barely made any pretense of trying to do so.  In accordance with longstanding precedent, the district court recognized that the plans’ legislative history – especially the absence of a meaningful deliberative process in 2013 – was not “necessarily dispositive” but was a “relevant consideration[].”  And a meaningful one at that, since it revealed the legislature’s true purpose of preserving the discriminatory features of the 2011 plans. 

The majority owed deference to the district court’s analysis of the evidence.  Instead, Justice Alito engages in some creative appellate fact-finding.  The five conservative justices found no trace of discriminatory intent, but only the desire to bring the redistricting litigation to an expeditious end.  The majority arrives at this conclusion only by taking the few scraps of evidence it can use, confounding the remainder, and distorting what really happened in Texas – a state with an indisputably lengthy and persistent history of race discrimination in voting.

Justice Sotomayor and her fellow dissenters call out the majority on its sloppy rendering of the facts and failure to follow precedent.  As she notes, the majority’s “cursory analysis of the record” conspicuously evades the deferential standard usually accorded to trial-court fact-finding and the evidentiary record before that court.  She also explains that the district court’s supposed error of law – its asserted reversal of the burden of proof – is a figment of the majority’s imagination.

The majority’s response to Justice Sotomayor is telling.  Justice Alito accuses the dissent of “los[ing] track of its own argument,” an assertion that’s almost as insulting as it is untrue.  Engaging in what he thinks to be a clever bit of gotcha, Justice Alito quotes two different portions of the dissent, claiming they are inconsistent on whether Texas was required to engage in a deliberative process to cure the taint from its prior plans.  But here too, a careful reading belies the majority’s assertion.  Following the district court – which in turn followed Arlington Heights – the dissent properly views the absence of any meaningful deliberative process as evidence that the 2013 plans were intended to maintain the discriminatory effects of the 2011 plans.  That’s not the same as flipping the burden of proof, a point the dissent repeatedly makes but the majority evidently does not grasp.

What Lies Ahead

With so many harmful decisions at the end of the just-completed Supreme Court term, perhaps we should be thankful for small favors.  The Abbott majority indulges in some sloppy reading, but the opinion’s damage to existing legal doctrine is modest.   Arlington Heights’s contextualstandard for proving intentional discrimination remains intact.  The Court does not suggest that the Texas legislature’s partisan motives for the lines it drew – which undoubtedly existed – would vitiate racial discrimination. 

Most important, the Court avoids taking the extreme position on the Voting Rights Act that Justices Thomas and Gorsuch embrace.  Justice Thomas’s concurring opinion adheres to his view that Section 2 of the VRA “does not apply to the redistricting.”   This contravenes the text of the statute, which broadly applies to any voting “standard, practice, or procedure.”  It’s also contrary to Congress’s intent, particularly given the amendments to the VRA adopted in 1982, which were designed to reach redistricting.  

That Justice Thomas would persist in his atextual and ahistorical interpretation of Section 2 is no surprise.  What’s alarming is that Justice Gorsuch joins Justice Thomas’s concurrence, interpreting the VRA in a way that would eviscerate what’s left of the statute.  So much for textualism, and so much for judicial restraint. 

Justice Kennedy was no voice of moderation on voting rights.  He usually joined opinions like Shelby County that cut back on protection for racial minorities and – Bush v. Gore aside – was generally unsympathetic to people claiming that their constitutional right to vote had been violated.  Still, there’s reason to worry about what will happen with his departure.  It is distinctly possible that an even more right-leaning majority will follow Justices Thomas and Gorsuch in construing the VRA so stingily as to render it a nullity.  

In short, the worst is probably yet to come.  Legislative bodies will likely take the decision to signal that, when presented with evidence of intentional discrimination against racial minorities, the Supreme Court will be look the other way.  If their behavior in the last redistricting cycle is any indication, Republican line-drawers will interpret the decision as a free pass to dilute Latino and African American votes.  That would be bad news for the right to vote and for our democracy.

The picture becomes even more unsettling when Abbott is juxtaposed to the Masterpiece Cakeshop decision earlier in the term and its Trump v. Hawaii decision at the end. Taken together, these cases reveal a Court that’s hypersensitive to discrimination against some groups (e.g., those harboring antigay religious views), but indifferent to discrimination against others (e.g., Latino voters or Muslim immigrants).  Although the inscription on the Supreme Court’s west pediment still reads “EQUAL JUSTICE UNDER LAW,” these decisions suggest that the current majority’s brand of justice is available only to some.


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