Award of Attorneys Fees to Plaintiff in Texas Redistricting Case

There’s not a lot to say about this, except of course for those four magic words, “I told you so.”

Texas v. U.S. – Appellate Court Order Upholding Award of $1 Million to Plaintiffs in Redistricting Case (.pdf courtesy of

On the 50th Anniversary of the Voting Rights Act – A New Study from Rice University Corroborates the Damage Caused By the Photo I.D. Law

Not that anyone should be surprised, but there’s this:

One nice thing about this study is the timing, given the work that now needs to be done to judicially reform Texas voting laws. With this study, the plaintiffs in Veasey v. Perry should be able to help the Federal district court judge get over the hurdle placed by the 5th Circuit Court of Appeals. This evidence helps reinforce the trial court’s previous ruling holding that the State intentionally discriminated against minority voters.

So – Am I Being Too Hard On The Republicans?

A few posts ago, in a fit of pique, and in the context of Donald Trump’s relative success as an early front-runner among the potential Republican Party candidates running for that party’s 2016 presidential race nomination, I referred to the Republican Party as the “Party of Apartheid.” My wife believes that this rhetorical flourish stepped over a line (the invisible line of “I am trying to get a job and not look like a crazy person by insulting people needlessly.”) (P.S. I am seeking employment.)

The thing is, when I wrote that line, I didn’t actually think I was being particularly provocative or insulting. In the past, I’ve referred to the Republican Party as having a distinct intra-party segment or wing that could fairly be described as neo-segregationist, and for my own enlightenment, I’ve traced the history of the Republican Party’s post-1964 Faustian bargain known as the “Southern Strategy,” in which the party absorbed the explicitly pro-segregationist Southern Dixiecrats who felt abandoned by the Democratic Party. (For an introductory overview of the evolution of the “Southern Strategy,” this Wikipedia article is a good start. Also good is this recent short article by Professor Elwood Watson on GOP engagement with racial politics.)

The Southern Strategy was wildly and overwhelmingly successful, by the way. By welcoming the tattered remains of conservative Southern Democrats into their folds, the Republican Party decisively conquered local, state, and Federal offices throughout the South, particularly with the ascendancy of Ronald Reagan.

Why did the strategy work so well? Think about it. It’s not as though the Federal judicial and legislative triumph of the Civil Rights Act waved a magic wand and made all the segregationists disappear, just because the formal mechanisms and legal framework of segregation itself had been abolished. The segregationists had to go somewhere.

Nevertheless, in a nod to those who may have felt individually singled out or insulted by my analysis of the Republican Party as an institution, I should acknowledge that the act of labeling a person, group, association, or political party as racist is rhetorically inflammatory, even when that person, group, association, or political party is objectively racist. The fact that racist individuals do not (generally) relish self-identification as racists should be seen as a positive recent development in American political discourse.

As politicians of all parties and ideological positions learned over the iterative process of attempting to win elections in the United States, starting with post-Reconstruction and moving forward through the Civil Rights era, one had to be sensitive to the ways in which threatened conservative white voters preserved their sense of self-worth as human beings in the face of cognitive dissonance on being told that they were horrible people for being bigots.

I suspect that for individual bigots (i.e., ultimately all of us, since we all have our own internal unsupportable prejudices), bigotry involves a constant gauging of social acceptability and peer status in terms of feelings about a prejudice, with an internal, unspoken tug of war between a personal racist assertion born of culture, background, and experience (say, something like an unspoken feeling that, “I hate minorities,” or “I hate poor people,” or “I hate people who are different from me.”) and a questioning of that personal racist assertion, (something like, “Do I really hate minorities? What about Colin Powell? He’s identified as a minority based on racial classifications, but he’s also a former member of a Republican Presidential administration. Do I hate Colin Powell? If I do hate him, is it because he is identified as belonging to a racial minority, or do I hate him for reasons unrelated to his identification as a racial minority? Do I hate Condoleeza Rice? She’s also a former member of a Republican Presidential administration. If I discover on self-examination that I do hate Condoleeza Rice, does my realization affect how I see myself interacting with a community of my family, friends, coworkers, and peers?”)

So a person might go from thinking, “I hate minorities.” to thinking, “I thought I hated all minorities. But other people who share my views appear not to hate Condoleeza Rice, either because (a) they don’t regard her as being a hated minority, or (b) because they don’t hate minorities. Now either I don’t know if I hate Condoleeza Rice, or my global hatred of minorities must be modified and altered because Condoleeza Rice lacks some element of unacceptability in the eyes of my peers. Perhaps I don’t hate Condoleeza Rice despite the fact that she is identified with a minority group, either because she transcends that group, or because I don’t really hate minorities.”

Among some groups (say, for example, the most extreme white supremacists), the peer consensus would support continuing to hate Colin Powell, Condoleeza Rice, Clarence Thomas, or other nationally famous black political conservatives, solely on the basis of race – these groups and the individual bigots within these groups would then be compelled to distance themselves even further from their more moderate ideological peers, at a cost in terms of their self-identity and self-perceived social value and acceptance. When pressed on their rationalizations for their inability to not hate individual black conservatives, they would have to fall back on some distinguishing factor or quality specific to cultural determinations of say, Condoleeza Rice’s identification as a member of a minority group that she can never overcome; one could imagine a White Power gang member or a Klu Klux Klan member saying, “Oh, we can’t make an exception in our general worldview on behalf of Condoleeza Rice because of [some rationalization supporting the universality of our hatred for blacks].”

Among other groups (say, for example, conservative whites who have internalized a capacity to interact on civil terms with members of racial minority groups), the internal dialogue on race comes to a different conclusion than it does for more “doctrinaire” racists. A rural Southern bigot who has personal experiences of professional and social dealings with members of a nominally hated group might think. “Wait. I’m not a racist after all, because I don’t hate Condoleeza Rice. In order to actually be a racist, it would be necessary for me to hate Condoleeza Rice. Q.E.D., I’m open-minded. Thank goodness I’m not a racist, because self-identification as a racist comes with a number of unacceptable social trade-offs and costs that I’m not willing to be burdened with.”

Such a person, having experienced relief at not having to self-identify as racist, would read my labeling of the Republican Party as the “Party of Apartheid” (or more accurately, my use of that label to suggest that Donald Trump’s success in the early running among possible Republican Party candidates for the 2016 Presidential nomination demonstrates segregationist vigor within the Republican Party) as deeply offensive. “How dare that horrid little election law attorney paint me with the broad brush of brutal South African racial apartheid, just because I happened to vote for Mitt Romney in 2012! I’m no racist! I don’t even like Donald Trump!”

Here’s where its important for readers not to conflate their own personal self-identification with the ideological positions and strategies of the groups that they are members of. The fact that I can regard the Republican Party as effectively repositioning itself as the Party of Apartheid does not mean that I think individuals who label themselves as Republicans are consequently automatically in favor of neo-segregationist policies, or that I think that all (or even very many) Republicans are white supremacists, or that they even agree with or approve of their party’s general position on any matters associated with race.

If that isn’t clear, let me repeat it. As a shorthand expression of someone’s moral qualities, policy views, or personal ethics, I find party affiliation to be a completely meaningless and useless label in the abstract. There are Republicans in South Texas who would be vilified as bomb-throwing members of the Communist Politburo by hard right-wingers. There are Democrats in the Texas Panhandle who would be satirized as fire-breathing ultra-right Fascists by hard left-wingers. If someone shakes my hand and tells me, “I’m John Doe, Republican,” I don’t think, “Oh, John Doe, you must be a racist.” In fact, I don’t make any judgment at all until John Doe actually tells me what he thinks and shows me how he acts.

It’s not even the case that any Republicans necessarily wanted or welcomed segregationists into the Republican Party after 1964. In 1968, George Wallace ran for President on the Firebreathing Racist ticket because the Party of Lincoln didn’t want him, and the Democrats had evolved away from him. But as I said, the segregationists had to go somewhere, and ours is a nation institutionally constructed to preserve a two-party political system.

When a group gets the boot from one party, they only have one option – joining the other party. They have to swallow their pride, alter their rhetoric, philosophically make their peace with the realignment, and move on with their lives. That’s what the segregationists did after LBJ (in the most dramatic political masterstroke since the Emancipation Proclamation) broke the power of the Southern Congressional delegation.

What’s interesting about the inevitability of Donald Trump’s current success is that reflects a new sophistication in the segregationist platform; one that (wisely) steers away from the tired, moribund, and politically impotent anti-black racism of the Old South, and instead energizes a more cosmopolitan national nativist racism that plugs into a nuanced hatred of an amorphous and threatening “other.”

The Fifth Circuit Decision in Veasey v. Perry Bends Over Backwards to Help the State

As other commenters have pointed out, today’s decision upholding the determination that Texas violated the Voting Rights Act is a painfully contorted partial affirmance and remand to the trial court for a remedy. (The link is to the copy of the opinion provided on Rick Hasen’s blog).

The appellate court in effect has said, “Well, Texas doesn’t always charge for birth certificates now (thanks to a mildly remedial law passed in the 2015 legislative session), so we think the picture ID requirement isn’t a poll tax. And … we think the trial court relied too much on an historical record of racial discrimination in Texas. That’s just mean. So … we’re remanding the decision to see if the trial court can find any more evidence of current racial discrimination. We grudgingly admit that the Texas picture ID law is illegal, but we’ll leave it to the trial court to figure out a way to carefully invalidate only those portions of the law that are bad. Which might not be the whole law.”

It’s really a terrible decision in a lot of ways; a sort-of wishy-washy agonized small-voiced acknowledgment that Texas broke the law, mixed in with page after page of carefully-worded dismissal of the mountains of factual evidence of intentional racial discrimination that prompted the law’s development in the first place.

Gosh. All that historical stuff just leaves the Court woozy and afraid that maybe the trial court was too hard on poor old Texas.

Partial Vindication – Texas Voter I.D. Law Held to Violate Voting Rights Act

Here’s Rick Hasen’s analysis on this breaking story. I find it troubling that the 5th Circuit remanded on the question as to whether the Texas picture I.D. law had a racially discriminatory purpose. Still, it’s at least a nail in the coffin of one of the worst voter suppression laws in the country.

Notice anything strange about these websites?

That’s right – there’s not the slightest mention of the 5th Circuit’s decision. That’s quite a contrast from back when Shelby County v. Holder came out; (within two hours of that decision two years ago, there were notices plastered all over the Secretary of State’s website announcing that the State was doubling down on its special brand of violating voter’s rights and instantly applying the discredited voter ID law).

If a voter relied on the Texas Secretary of State’s website for information, they would think that it was all business as usual; informs voters that a “picture I.D. is now required to vote.”

But you say, “Well, Joe, that’s kind of unfair. I mean … there’s all that HTML coding to do, and it’s after business hours, and …”

The decision came out at lunchtime. That’s six hours ago.

After all, the Texas Attorney General had time to put something up on that agency’s website.

What the … ? “Texas Voter ID Law to Remain In Effect”

Oh my god.

That’s embarrassing.

That’s really embarrassing.

I guess the A.G. takes the position that because the 5th Circuit remanded on the issue of intentional discrimination, the fact that the court upheld the trial court determination that the law is freakin’ illegal and unenforceable is somehow sprinkled with magic appellate fairy dust.

Then again, the following disclaimer should be prominently displayed and attached to all press statements made by the Texas Attorney General.

“Please note that the opinions of the Attorney General are those of an individual currently under indictment for three felonies involving acts of intentional fraud. Therefore, proceed with caution.”

50 Years of Conflict Over Voting Rights – Mourning and Hope

Jim Rutenberg has written a must-read cover story for the New York Times magazine about the Voting Rights Act, providing context for the relentless pressure exerted by segregationists to kill black voting throughout the history of that landmark act.

This story has come out at the same time that Professor Heather Gerken has written a mournful look back at the Voting Rights Act. Her elegiac commentary on a recent scholarly article in the Iowa Law Review is both somber and despairing.

Because I favor the use of a purely regulatory expansion of administrative oversight of the Civil Rights Act as a substitute for the moribund Voting Rights Act “superstatute,” I perked up at this paragraph in Professor Gerken’s introduction:

  • Regulatory schemes have a funny habit of surviving, in large part because they become normalized after a few years. I have little doubt that a civil rights statute would be trimmed by this Court and subject to inconsistent levels of enforcement, depending on the administration. But if it were possible to pass a new statute—and that’s an enormous “if” in an era in which Congress is all but sclerotic—it’s not clear to me that it would be destined for failure. The Department of Justice has administered the VRA under executives of all sorts, and the federal courts include many a judge willing to apply the law as-is. A new civil rights-oriented statute might limp along at times, but the game might still be worth the candle.

Gerken, An Academic Elegy, 100 Io. L. R. 109, 115 (2015).

The subject of Professor Gerken’s elegy is the paper by Guy-Uriel Charles and Luis Fuentes-Rohwer, “The Voting Rights Act in Winter: The Death of a Superstatute.” Briefly, that paper masterfully recounts the political climate in 2006 that caused Congress to fail in any meaningful way to revitalize or expand the scope of the Voting Rights Act, and the sea change in American politics that rendered the traditional, geographically limited scope of Section 5 coverage of certain “troubled” political jurisdictions untenable.

Today, race and party are inextricably intertwined; the Republican Party has effectively transformed itself into the Apartheid Party, (amply demonstrated by how well Donald Trump’s explicitly segregationist campaign plays with Republican voters) while the Democratic Party has by default taken on the role of the anti-apartheid faction. The subversion of race and class issues in pursuit of the Republican Party’s concrete practical goal of winning elections means that (1) the traditionally Southern brand of focused anti-black bigotry has now been successfully exported to almost all jurisdictions, and (2) has been broadened to its natural conclusion, to target not just protected classes of minority voters for suppression, but to extend voting suppression efforts to all likely Democratic Party voters.

Of course, in one sense the suppression of racial equality has always been about winning elections; in another sense, racial discrimination has always been a root motivator for at least some part of American political competition; bigotry (as an inherent cultural element) and the exploitation of bigotry (as a viable political tactic or strategy in the pursuit of power) are just reflected elements of our nation’s original sin.

My bias is that I believe my solution to the problem (applying anodyne, depoliticized regulatory “reporting” rules that give the Department of Justice the ability to track changes in election procedures) at least points to the way out of this dilemma, and perfectly dovetails with the legal prescriptions offered by Professors Charles and Fuentes-Rohwer, for three reasons.

1. My proposed reporting rules aren’t predicated on historical or geographic patterns of racial discrimination, but instead apply to all jurisdictions equally, and without singling any specific jurisdiction or jurisdictions out based on prior bad acts; and

2. My proposed reporting rules are enforced by robust, explicit monetary incentives (i.e., through the threat of withholding federal funding from political jurisdictions that fail to comply), using tried and well-understood Civil Rights Act enforcement tools.

3. My proposed reporting rules may be adopted by purely executive action without the involvement of the vestigial and powerless Congress.

Not to keep harping on this … but, well, yes …, to keep harping on this. The loss of the preclearance mechanism of Section 5 of the Voting Rights Act was devastating to the effective management of fair elections in the United States. Therefore, some regulatory balance must be restored by adopting a replacement regulatory process.

NPR Looks at Vote-Buying In South Texas

National Public Radio has been doing a multi-part investigative report into political corruption in South Texas, and on July 7th, KERA (the Dallas-area public radio and TV station) published a transcript of the segment of the report focusing on the role that politiqueras (which could roughly be translated as canvassers) play in securing votes for public office.

An interesting question for which I have yet to see a satisfying social-science answer is this: Why is the time-honored tradition of buying votes now engendering so much resistance in South Texas (as evidenced by public organizing against the practice, more active law enforcement, and a spike in criminal prosecutions and convictions)? Does this signal a shift in political culture, voting demographics, economic factors, or (likely) a complex mix of many factors?

One huge unexamined elephant in the room is this – the economy of rural South Texas is profoundly affected by the fact that it sits squarely on the most lucrative drug-smuggling routes into the United States; the immensely wealthy organized Mexican cartels could buy and sell all the local governments of South Texas many times over. To what extend must elected officials proceed in accommodating a rapprochement with cartel interests while also competing with each other? Does the restive nature of inter-cartel warfare alter the treatment of politiqueras and vote-buying practices generally?

I don’t have the answers to these questions, but others might. Let me know what you think.


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