//  2/8/19  //  In-Depth Analysis

On Tuesday, the Department of Justice filed a brief reversing position in a case it brought six years ago.  (Diclosure: though I did not originally bring the case, I was briefly involved in the middle.)  The Civil Rights Division now argues that Texas should be let off the hook for its repeated intentional efforts to minimize the voting power of its minority population.  Nonpartisan career staff apparently refused to do this dirty work — and rightly so.  And to understand why the filing is so very problematic, it’s important to rewind a bit.

In 1870, America ratified the Fifteenth Amendment, prohibiting discrimination on the basis of race in voting.  The Amendment didn’t quite get the job done on its own.  Federal troops moved out, Jim Crow moved in, and almost 100 more years of practical disenfranchisement followed.

In 1965, Congress passed the Voting Rights Act.  It stood primarily on three enforcement pillars, designed to confront a lingering and pernicious problem.  Section 2 was the nationwide prohibition on discrimination in voting.  It was (and is) powerful, but it requires affirmative litigation against jurisdictions playing with house money: legislators reap personal benefits from discriminatory electoral rules but socialize the expense of a vigorous defensive fight.  Section 2 litigation is costly and cumbersome.  (In 63 different types of federal litigation, it’s the 6th heftiest.)  And while the defense is being waged, legislators put in place by discriminatory rules are busy at work passing policy.  Elections have consequences. Discriminatory elections have consequences too.

So Congress added another provision to the VRA, to “shift the advantage of time and inertia from the perpetrators of the evil to its victims.”  Section 5 took the jurisdictions with the worst records of racialized disenfranchisement, and required them to run new laws by DOJ or by a federal court first, to stop discriminatory practices before they could actually take effect.  The procedure was called “preclearance.” 

Geographic coverage started with a formula.  But two extra provisions made that formula flexible.  Jurisdictions that did right by minority voters could be bailed out from coverage (and every single one that petitioned for release was released).  And jurisdictions that did wrong could be “bailed in.”  Section 3(c), the Act’s most finely tailored failsafe, let courts subject jurisdictions to coverage if they were found to intentionally discriminate in the voting process on the basis of race. 

It’s really hard to prove intentional racial discrimination.  But not that long ago, we used to agree that intentional racial discrimination was really bad.  And that intentional racial discrimination in the voting process, at the root of all representation and hence all public policy, is really, really bad.  And that, once proven, it should have really serious consequences.

These pillars have been under siege in the past few years.  In 2013, in Shelby County v. Holder, the Supreme Court, acting on a pretense, found the formula for preclearance outdated, effectively gutting section 5 of the Act.  Last year, in Abbott v. Perez, the Supreme Court quietly kneecapped section 2: jurisdictions passing discriminatory plans could effectively wash their hands going forward with an interim compromise just a little more modest than the original.  Steal $500, and as long as you give back $250, call it a day.

I mentioned at the time that this combination seriously threatened the existing deterrents against intentional discrimination.  Legislators committed to entrenching their own power could discriminate, without a mechanism to stop the discrimination before it went into effect.  Those affected would have to shoulder the cost of litigation, fighting to gather complex expert proof of the harm while the machinery of the state fought them at every turn.  In the event that plaintiffs were finally able to prove up a case to a court — by no means a guarantee — the jurisdiction could retreat just enough to sink below the threshold of proof, without actually fixing all of the damage. 

After Perez, from the perspective of legislators bent on preserving power at minorities’ expense, there remains just one serious practical deterrent to giving discrimination a shot: bail-in under section 3(c).  A finding of intentional discrimination renders the jurisdiction eligible for federal supervision.  If bail-in has no teeth, there’s nothing keeping officials with a demonstrated history of wrongdoing from their worst instincts.

Which brings us to Texas.  The state has a serious problem with discrimination against its minority citizens.  The problem spans decades, but it’s not just ancient history.  In 2003, Texas redrew its congressional districts in the middle of the decade, in an enormous controversy, the aftermath of which earned Tom Delay a formal House admonishment.  Justice Kennedy called the state’s map “an affront and an insult” to Texas’s minority voters.  And on behalf of the Supreme Court, he held that “the State took away the Latinos’ opportunity because Latinos were about to exercise it. This bears the mark of intentional discrimination that could give rise to an equal protection violation.”

That’s quite a rebuke from the highest court in the land.  And in 2011, Texas responded by doing essentially the same thing.  To the same voters.  In the same district.  Two separate three-judge federal courts found that Texas intended to discriminate — again — against its Latino citizens.  In the same legislative session, Texas passed a voter ID law that was also found to be the product of intentional discrimination.

This is the behavior of a jurisdiction with a problem, and one that does not appear willing or able to contain its worst impulses on its own.  Yes, the impact of both the redistricting lines and the voter ID law have since been mitigated, but only after Texas was repeatedly dragged kicking and screaming into federal court.  In the criminal justice system, the Texas government would be labeled a recalcitrant recidivist.

This pattern is exactly what “bail-in” under section 3(c) is for.  There is no better example of repeated intentional discrimination in the country.  The case for preclearance is “New York, New York,” on its head: If you can make it anywhere, you can make it there.  (Indeed, the only jurisdiction to be ordered into preclearance since Shelby County is a Texas town that recalibrated its districts to discriminate against its Latino population, replicating the state government approach in miniature.)

Which explains why the Department of Justice filed suit against Texas in 2013, two months after Shelby County.  In all of the litigation over Texas’s redistricting, this was the only affirmative claim DOJ filed: a request to put Texas back under preclearance coverage based on its continuing pattern of discrimination, demonstrated most clearly (though not exclusively) by the redistricting plan of 2011.

The DOJ lawsuit is an enforcement action.  We expect — and usually demand — that the Department of Justice undertakes enforcement by following the facts and the law where they may lead.  Elections have consequences, and it’s natural that federal agencies under new administrations will shift policies and priorities.  But existing enforcement lawsuits are different.  They’re run by dedicated career attorneys who serve administrations of both political parties, and who bring (and pursue) cases based on nonpartisan judgments about what the law requires.  Absent a discovery of outrageous manifest injustice, if the facts don’t change and the law doesn’t change, the approach to any individual enforcement case shouldn’t change either.

And yet, on Tuesday, the Department of Justice attempted to scuttle its own ship.  The facts have not changed: the redistricting lines of 2011 were what they were, and intervening time does not alter the intent with which they were drawn.  The law has not changed: it remains a violation of the Voting Rights Act to target minority citizens in depriving political enemies of electoral power.  And there has emerged no other deterrent to discrimination in the future.  If anything, given the Abbott decision, bail-in is more important than ever.

DOJ’s brief opposing the very relief it once requested turns heavily — almost exclusively — on a 5th Circuit panel’s opinion in Veasey, the case reviewing Texas’s photo ID rule.  In 2014, a federal trial court struck down Texas’s 2011 ID law — then the strictest in the country, with choices of which cards to permit and which to prohibit curiously correlated to the racial makeup of the populations holding those cards — as both intentionally discriminatory and effectuating a discriminatory result.  The 5th Circuit, sitting en banc, affirmed the results holding, but critiqued some of the evidence on which the trial court had relied to find discriminatory intent; when it remanded for further evaluation of that claim, the trial court reweighed the evidence and again found that the ID law was crafted with the intent to discriminate. 

With the 2016 election approaching, the trial court implemented an interim remedy, allowing eligible voters without a photo ID to sign an affidavit swearing to their identity under penalty of perjury.  Texas later, in 2017, passed a new statute along lines similar to the interim remedy.  The trial court struck down the 2017 statute as impermissibly tainted by the old 2011 law; the 5th Circuit panel disagreed, and said that the 2017 statute essentially fixed the damage, with no need to supply any continuing relief — including the plaintiffs’ request for bail-in.

That last opinion of the 5th Circuit is the quicksand on which the DOJ’s brief rests.  But there are two basic problems with applying it to the redistricting request.  First, despite the DOJ’s repeated invocation of the 5th Circuit opinion as controlling, it’s not at all clear that’s how the law works.  Normally, an appellate opinion would control a trial court, yes.  But statewide redistricting challenges like the one against Texas come up through a special statutory three-judge trial court.  Decisions of those courts are appealed directly to the Supreme Court.  And as a compelling new piece by Josh Douglas and Michael Solimine explains, there’s plentiful reason to think that circuit law shouldn’t bind a three-judge court. 

That said, the three-judge court in Texas seems to think itself bound by the 5th Circuit.  And though that conclusion may be wrong, DOJ is right to abide by the trial court’s own statements of law.  I’ll give the procedural issue a pass.

The much bigger concern is on the substance.  Even if the 5th Circuit’s conclusion is binding, the thing that’s binding is its articulation of the legal rule.  And what the Veasey panel found with respect to bail-in boils down to only one sentence of analysis: because the State acted promptly to comply with a court order striking down the old voter ID statute, “there is no equitable basis for subjecting Texas to ongoing federal election scrutiny under Section 3(c).”  That’s not a new legal principle, that’s an application of a very old principle to specific facts.

There is no reason to think that Texas will pass a new voter ID law at any point in the near future.  It has arrived at an equilibrium that appears to be stable.  And though I disagree with the circuit’s decision to cut short supervision given that the state corrected its wayward path only under judicial duress, I can at least understand the reluctance to impose ongoing equitable relief when there’s no particular forthcoming change in sight.

But that lone appellate sentence has nothing to say about the advisibility of bail-in in the redistricting context.  There may be no reason to believe a new ID rule is on the way, but there’s every reason to believe that new districts are forthcoming.  Indeed, it’s essentially guaranteed that 2021 will bring new lines.  With the same incentives for discrimination. 

In the history of Voting Rights Act enforcement, there have been 20 bail-in orders under section 3(c).  12 have been prompted by redistricting or refusals to redistrict.  Most of the remainder have been prompted by serious deficiencies in language access.  The common thread is that the repeated occurrence of the problem, and the likelihood of continued failure in the future, requires special vigilance beyond ordinary affirmative litigation.

The pattern in Texas redistricting similarly demands systemic intervention.  2011 was discriminatory, and no court has overturned that finding.  2003 was discriminatory, and no court has overturned that finding either.  And tragically, the DOJ brief identifies absolutely no reason to believe that Texas won’t try in 2021 exactly what it did in 2011 and 2003. 

“Baby, I swear I won’t do it again.” 

And the DOJ says Texans should just trust that promise.  Actually, it’s stronger: the DOJ says, based on one sentence in Veasey ripped out of its proper context, that Texans are legally bound to trust that promise. 

Veasey doesn’t go anywhere near that far.  If the mere implementation of belated court-ordered relief precludes bail-in as a legal matter, section 3(c) is a dead letter.

The weakness of the DOJ’s filing has one other tell, and it may be the most significant.  Trial briefs are normally signed by the career attorneys who do the bulk of the work.  Each individual attorney on a case doesn’t always agree with every particular of every filing, but the career attorneys at DOJ are professionals, and sign their names to valid arguments even when they may prefer a different outcome.  In the 17 months that I served at DOJ as a political appointee, in the chair that John Gore now occupies, I appeared in the caption of some briefs and reviewed many others.  But I cannot recall once signing my name to the submission.  That space is reserved for career folks.

Mr. Gore signed the DOJ’s filing personally on Tuesday.  This is not the new convention of the Civil Rights Division in the Trump era.  Most of the department’s other filings bear the signature of the career attorney, as it was before and as it should be.  This one is different.  It echoes another rarity: Mr. Gore personally signed the DOJ’s brief dismissing an intentional discrimination claim against Texas’s ID law in February 2017, on the specious grounds that the Texas legislature might maybe in the future make the law better.  (I was not a fan.)

I have no inside information about the anomalies, but I read them as statements.  The career attorneys know that Tuesday’s filing is wrong.  They’ll sign the final page’s certificate of service, because they can truthfully say that they sent the brief into the court’s e-filing system.  But they can’t truthfully say that they believe the legal argument in the remaining 12 pages. 

My reaction to this brief is not a knee-jerk response to a change in political leadership.  I’ve given the Civil Rights Division credit when they’ve done the right thing (e.g., here, or here), which is still more often than not.  The career attorneys are mostly able to uphold the high standards set across both Republican and Democratic administrations in the past.  But there’s something about Texas that sends the political leadership rogue, and it deserves to be called out.

The final call on subjecting Texas to bail-in rests with the courts, not with DOJ.  I hope they see the pattern for what it is.

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