//  4/24/18  //  Commentary

This morning, the Supreme Court hears argument in a Texas redistricting case.  Tomorrow, the Court considers Trump’s travel ban.  They’re both blockbuster cases, with multiple outsized issues apiece.  And one vital concern ties them together, with ramifications far beyond the context of either case alone.

The issue common to both cases is the staying power of a discriminatory taint. 

Trump v. Hawaii is ostensibly about Proclamation 9645, issued on September 24, 2017.  The proclamation restricted entry into the United States by nationals of seven countries (and certain government officials from Venezuela).  Viewed in isolation, the proclamation raises several important questions about immigration law and the scope of executive authority.  But context adds another layer.  Five of the seven countries impacted by Proclamation 9645 were also the subject of a March 2017 Executive Order — which, according to the President, was itself the “watered down, politically correct version” of a January 2017 “Travel Ban” imposed largely on Muslim residents of the targeted countries.  The Fourth Circuit found that the March Executive Order was motivated by anti-Muslim animus.  And now the Court faces questions about the lingering impact of that March discrimination on the September proclamation.

Similarly, Abbott v. Perez is about a decision that looks different on its face than it does in context.  In 2011, Texas passed a redistricting plan that was blocked under the Voting Rights Act, and found to be the product of intentional racial discrimination.  With 2012 elections swiftly approaching, the plaintiffs and Texas arrived at a vigorously negotiated interim plan, approved by a federal court as good enough for the time being.  In 2013, with just a few modifications to the state House plan, Texas essentially adopted the 2012 interim maps.  The case now up at SCOTUS is ostensibly about the 2013 legislation, which on Texas’s view merely reflects a plan with federal court blessing.  But the 2012 compromise at the heart of the controversy preserved several aspects of the initial discriminatory effort.  And now the Court faces questions about the lingering impact of that 2011 discrimination on the 2013 plan.

This is not the first time that the Court has had to address the lingering impact of an impermissible purpose.  In Hunter v. Underwood, the Court was clear that time alone — even eighty years worth of time alone, much less a matter of months — does not purge the taint of an invidiously discriminatory purpose.  And while a jurisdiction’s subsequent attempts to ameliorate the damage of a discriminatory law are not forever tainted by an original sin, United States v. Fordice shows that any new enactment must eliminate or adequately justify the vestiges of earlier discrimination.  It also shows that the burden of proof with respect to turning a new cheek is squarely on the state, to be reviewed by the courts with a skeptical eye.

The DOJ, perhaps sensing the connection between the two cases, has adopted a rather striking posture in Texas, pushing back on this standard.  (A caveat: while at the DOJ, I worked on the case, though my service began well after trial and concluded before the court’s opinion was issued: most of the action happened before I arrived and after I left.)  Its brief is styled as a filing “as appellee in support of appellants” — the DOJ, which had sued Texas over the discriminatory intent in the 2011 redistricting plan, now says that the 2013 maps were unfairly saddled by the wrongs of 2011.  And it dismisses Fordice as the artifact of some special educational-desegregation carveout. 

This is a dangerous argument.  Particularly in voting cases, officials elected under discriminatory rules are already playing with house money: the longer they can drag out litigation, the longer they can maintain the electoral conditions that keep them in office.  And Texas has already been adept at running down the clock: relief for maps preserving intentional discrimination in 2011 will come, at the earliest, for the 2020 elections. 

If the DOJ’s position prevails, it renders invidious discrimination a viable strategy indefinitely.  A jurisdiction with the desire to discriminate will enact its preferred policy, and time will pass as plaintiffs attempt to prove it illegitimate. But even if the plaintiffs are able to secure a judicial finding of invidious intent — an exceedingly serious holding with an exceedingly high standard of proof — under the DOJ position, the jurisdiction need only change the window dressing to earn a reboot.  

The DOJ’s position would also have profound consequences for litigation before a final judgment.  Voting rights litigation is a slog: by some measures, the 6th most cumbersome in the federal courts.  The Texas case itself shows that justice in such matters can be years’ delayed.  But under the DOJ’s position, preliminary relief becomes its own pitfall.  The offending jurisdiction will simply seize on any court order short of a complete remedy, enacting the interim measure and deploying it as a shield against further attack.  Plaintiffs in an intent case settling temporarily for half a loaf may find the other half irreparably gone.  And that will inevitably deter plaintiffs from coming to the table in the first place.

The issue of lingering discriminatory intent is just one of the matters on the table this week: the redistricting and immigration cases are each legally and factually complex.  It is possible that neither will turn on the issue above.  But let us hope that that welter of detail does not render the taint of invidious intent a mere afterthought.  The Court’s decision on a government’s ability to evade the consequences of an invidious motive would have lasting impact well beyond the contexts at hand.


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