Leah Litman  //  4/21/17  //  Commentary


In a prior post, Joshua Matz and I drew attention to a letter that offered Attorney General Jeff Sessions some unsolicited advice on how to run DOJ’s Civil Rights Division. The letter’s suggestions, although not unexpected, were alarming: many of them urged DOJ to allow states to disenfranchise voters (predominantly people of color), while others urged DOJ itself to disenfranchise voters (again, predominantly people of color).

My post with Joshua highlighted some parallels between the reasoning in the letter and the Chief Justice’s opinion in Shelby County v. Holder, which struck down a Voting Rights Act provision that had, for several decades, helped to guard against voter suppression in several jurisdictions. (Joshua and I also covered a related letter that reminded Sessions of his legal obligations in managing DOJ's Civil Rights Division.)

In this post, I wanted to highlight the parallels between the conservative activists’ letter to Sessions and the reasoning in another recently decided voting rights case, Perez v. Abbott. Perez involved a variety of challenges to Texas’s redistricting plan. The majority in Perez held that several of Texas’s redistricting choices violated the Voting Rights Act. In particular, the panel concluded that several districts were intentionally drawn to dilute the votes of Latino voters, and that several districts were unlawful because they had the effect of diluting the votes of Latino voters.

One judge dissented: Jerry Smith. Most of Judge Smith’s dissent was relatively unremarkable and simply disagreed with the majority’s resolution of the merits of the case. But then there were the other parts of his dissent, which aggressively and gratuitously faulted the Department of Justice for even getting involved in the case. (DOJ, as the federal agency in charge of enforcing the VRA, has the unquestionable authority to do so.)

Here too, the parallels between Judge Smith’s reasoning and the reasoning in the letter to Sessions are noteworthy. Consider just a couple examples:

  •  Both the dissent and the letter faulted the effort that is expended in challenges to racially discriminatory voter suppression. Judge Smith bemoaned that “the bad news” in Perez was that the “project” of deciding the case “has taken about 2 1/2 years to complete.” The letter to Sessions similarly complained that “a single, racially-focused redistricting case can drag almost a decade.”
  • Both the dissent and the letter faulted DOJ for questioning laws with racially discriminatory effects that were enacted by states with histories of racial discrimination. Judge Smith complained that “it was obvious, from the start, that the DOJ attorneys viewed state officials and the legislative majority and their staffs as a bunch of backwoods hayseed bigots who bemoan the abolition of the poll tax and pine for the days of literacy tests and lynchings.” The letter similarly faulted DOJ for adhering to “conventions held from the mid-20th century.”

Judge Smith’s critique of DOJ attempted to contrast the not-so-distant history of open and violent racial discrimination with the world we live in today. The point of the contrast was to suggest that we have moved beyond racial discrimination and that it's offensive and needless for DOJ (and the federal courts) to spend their energy on voting rights.  

But Judge Smith’s own language arguably suggests we have not moved as far as we think: With haunting echos of history, Judge Smith criticized DOJ by relying on several of the Jim-Crow-era criticisms of civil rights enforcement. For example:

  •  Judge Smith argued that “[T]hey [DOJ] entered these proceedings with arrogance and condescension.” He continued that “One of the Department’s lawyers even exhibited her contempt for Texas and its representatives … by regularly rolling her eyes at State witnesses’ answers ….”
  • A frequent criticism of both the first Reconstruction (the attempts to protect civil rights in the immediate aftermath of the Civil War) as well as the second Reconstruction (the various civil rights statutes passed in the 1960s) was that the federal government, led by states in the North, looked down on the South.
  • Southern apologists, as early as 1863, were arguing that the North should “consider and respect the South as an equal.” Resisting federal supervision of the South after the Civil War, Southern representatives insisted on “the respect due the South” and the “equal honor” of the South.

 Or consider these similarities:

  • Judge Smith observed (in language dripping with disdain) how “the DOJ lawyers saw themselves as an expeditionary landing party arrived here, just in time, to rescue the state from oppression.”
  • The opposition to Reconstruction similarly depicted the federal government as an uninvited interloper that had no business getting involved the South. The “Dunning School” of Reconstruction scholarship portrayed the Reconstruction Congress as “motivated by an irrational hatred of Southern rebels,” and driven by a desire to consolidate and impose national power over the more local-minded south. Textbooks referred to the “oppressed whites” who had to fight (including by joining the Ku Klux Klan) to “restore the government to the people,” as opposed to a government imposed by those pesky radical integrationists.

Whatever one thinks about the merits of Perez, the narrative and rhetoric in Judge Smith’s dissent are eerily similar to the rhetoric that appeared in the letter to Sessions, and the same rhetoric that the Chief Justice used in Shelby County. The writings all channel the idea that we live in a world beyond race, where the real danger comes from a tyrannical federal government that injects racial dissonance (by acknowledging racial disparities) into an otherwise harmonious society.

This was the same rhetoric that was used in the 1860s and the 1960s to resist civil rights enforcement and civil rights advancements. Looking back now, we can say with confidence that the rhetoric and the critique that it embodied made little sense.

It is true, of course, that government officials today rarely announce their plans to discriminate on the basis of race in the same way that officials proudly announced their plans to do so to their constituents in the 1800s or 1900s. (The President, by contrast, has been quite open about his plans to discriminate against particular religions.) But why should that matter? Discrimination on the basis of race is still discrimination on the basis of race.

While states may not openly trumpet their plans to discriminate on the basis of race as they once did, that hardly means we live in a post-racial utopia free of discrimination. Perez is not the only recent case (far from it) that has concluded state voting laws were enacted with discriminatory purposes in mind.  Just yesterday, a three-judge panel found that Texas, the state at issue in Perez, also discriminated in drawing state districts (Judge Smith was on that panel but dissented from the merits determination).  Federal courts have found that multiple states enacted laws to suppress votes on the basis of race. I’m not even counting in that sentence Alabama’s closure of Department of Motor Vehicles offices in largely African-American counties, coupled with its requirement that voters have a photo ID.

Shelby County (in)famously declared that “history did not end in 1965,” and that “[n]early 50 years later, things have changed dramatically.” (Emphasis mine.) Over the span of a mere four years, these statements have already aged exceptionally poorly. Judges and conservative activists can keep recycling the refrain, but it doesn’t make it any more true, any less bizarre, or any less troubling.


The Constitutional Challenge To The CFPB

5/19/17  //  Commentary

The major constitutional challenge to the Consumer Financial Protection Bureau rests on the claim that the President of the United States does not have enough power over the agency.

Leah Litman

U.C. Irvine School of Law

Versus Trump Podcast: Prosecuting Trump FAQ + James Williams

5/17/17  //  Commentary

On today's two-part episode of Versus Trump, Take Care's podcast, we answer three burning questions related to whether the sitting President can face criminal charges, and how that prosecution could be started. We also have an interview with James Williams, the County Counsel for Santa Clara County, where he discusses his County's lawsuit against Trump Administration that has so far successfully prevented the Trump Administration from enforcing an executive order that would have withdrawn federal funding from so-called sanctuary cities.

Charlie Gerstein

Civil Rights Corps

The Comey Affair And Evidence Of Motive

5/12/17  //  In-Depth Analysis

The Comey affair underscores that decisionmakers must look beyond the administration’s “official” documents to determine the administration’s motives.

Leah Litman

U.C. Irvine School of Law