Leah Litman // 4/21/17 //
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:
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:
Or consider these similarities:
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.