The Roberts Court’s election law jurisprudence is a puzzle to scholars of the Court. The conservative Justices purport to approach their task modestly, invoking analogies to baseball umpires and the duty to call balls and strikes. But their work product is inconsistent with this purported aspiration. The Roberts Court seems to have particular views about the role of Congress in structuring democratic politics, especially vis-à-vis the states; the types of regulations that the government can enact to structure democratic politics; and the extent to which our current political environment is affected by and infected by racism. The Court does not betray any reticence in allowing its underlying views about the proper structure of the political process to shape its resolution of election law issues. Shelby County v. Holder and Citizens United v. FEC are but two prominent examples of the Court’s rejection of judicial modesty in the pursuit of larger constitutional and policy agendas. The recent decision in Abbott v. Perez approving Texas’s racially discriminatory redistricting plan adds yet another data point.
In Abbott, the Court seemed to go out of its way to reverse the judgment of the district court, which had concluded that the State of Texas’ legislative and congressional districting plans violated the Equal Protection Clause and the Voting Rights Act (VRA). In 2011, the Texas Republican Party drafted a redistricting plan that was immediately blocked by a three-judge district court (and denied preclearance by the District Court for the District of Columbia, prior to the Supreme Court’s decision in Shelby County). As Texas awaited preclearance for its 2011 plan and elections were coming up, the district court drafted its own interim plans, but the Supreme Court threw them out. The district court then drafted a second set of interim plans, which the legislature adopted in 2013 with some modifications. In 2017, the district court concluded that the 2013 plans were infected with the same discriminatory intent that infected the 2011 plans. Abbott reversed the district court’s finding that the 2013 plan was enacted with discriminatory intent and also reversed the district court’s conclusions that some of the districts were racial gerrymanders in violation of section 2 of the VRA.
All was not lost for the plaintiffs; the Court upheld the district court’s findings that one of the districts violated section 2. But for a Court that often touts its judicial restraint bona fides, the majority did seem to go out of its way to decide the case on the merits. One cannot help but contrast the Court’s insistence on reaching the merits in Abbott with the Court’s decision to avoid the merits in the political gerrymandering case Gill v. Whitford, where the Court concluded that the plaintiffs lacked standing.
As the Court did in Gill, it would have been quite easy and even sensible for the Court to dismiss Abbott on jurisdictional grounds. The relevant jurisdictional statute, 28 U.S.C. § 1253, provides for an appeal to the Court from “an order granting or denying. . . an interlocutory or permanent injunction.” The majority faced an apparent problem, because the district court explicitly stated that it had not granted or denied an injunction. Despite this language, the Court concluded that the lower court orders “were effectively injunctions” and had the “practical effect” of injunctions. Curiously, the Court recognized its “obligation to heed the limits of [its] jurisdiction,” and the fact that the language of the statute “must be strictly construed.” But the Court also stated that the statute “must be sensibly construed.” Mere words proved no match for the majority’s larger intentions.
In our view, Justice Sotomayor in dissent had the better of this argument, for numerous reasons. One was the simple fact that the district court did not grant or deny an injunction. Statutory interpretation does not get any simpler than that, especially for professed strict constructionists. Moreover, because appeals from a three-judge court would be mandatory to the Supreme Court, the Court had “strictly construed” the statute as a way of managing its docket. Nevertheless, the Court resolved that it had jurisdiction under § 1253.
Additionally, as Justice Sotomayor pointed out, the standard of review favored the district court. The lower court’s findings of fact were entitled to deference unless they were “clearly erroneous,” which means that a reviewing court ought to affirm the lower court’s decision after reviewing the entire evidence absent the firm conviction that the lower court committed a mistake. The reviewing court should not reverse simply because it would have decided the case differently. The majority could have upheld the district court’s decision in light of the standard of review.
How should we understand the majority’s decision to reach for the merits in Abbott, notwithstanding the Roberts Court’s paeans to judicial restraint? We offer three observations.
First, the Roberts Court’s election law jurisprudence seems inclined toward minimal regulations of the political process and deference to state regulations. To the Court, politics are like economic markets and they ought to be as free as possible from governmental regulations. And to the extent that the political marketplace must be regulated, we should prefer state regulations over federal ones. This is the best way to understand the Court’s campaign finance cases, such as Citizens United, its election administration jurisprudence such as Crawford v. Marion County (the voter identification case), and its redistricting cases like Abbott. Moreover, the Court believes that the Constitution has delegated to the states—and some Justices might say not just the states, but state legislatures—the responsibility for establishing rules for the political process and, with the exception of violations of the First Amendment or racial classifications, those rules must be respected.
Second, it is becoming increasingly clear that the Roberts Court is skeptical of, if not hostile to, claims that the states are engaged in racial discrimination in the political process. The Court in Abbott accused the district court of undermining two “basic principles.” The district court “disregarded the presumption of legislative good faith and improperly reversed the burden of proof.” The Court objected strenuously to the fact that the district court impugned the good faith of the State by accusing it of creating districts with the intent to discriminate against its voters of color. Additionally, the majority protested to what it viewed as the district court using the State’s past history of discrimination to “flip[] the evidentiary burden on its head.” Quoting one of its prior cases, the majority stated: “[P]ast discrimination cannot, in the manner of original sin, condemn governmental action that is not itself unlawful.” The Court seems unwilling to entertain evidence of racism unless the evidence is unequivocal and indicative of a state’s present behavior.
To see how far the Court’s voting rights jurisprudence has travelled on this score, consider White v. Regester, a 1973 vote dilution case out of Texas. White is illustrative of the type of evidence that the Court was willing to accept in order to uphold a lower court finding of racial discrimination. It was enough for a unanimous Court in 1973 to document “the history of official racial discrimination in Texas, which at times touched the right of Negroes to register and vote and to participate in the democratic processes.” The Court was also satisfied with a survey of “the historic and present condition of the Bexar County Mexican-American community,” a community that “suffered from, and continues to suffer from, the results and effects of invidious discrimination and treatment in the fields of education, employment, economics, health, politics and others.” On this record, the Court was not “inclined” to reverse the lower court, “representing as they do a blend of history and an intensely local appraisal of the design and impact of the Bexar County multi-member district in the light of past and present reality, political and otherwise.” The contrast between this posture and the Court’s approach in Abbott is remarkable. The Court does not understand racism as it once did.
To the conservative Justices, the worst pejorative against a state is to accuse it of racial discrimination. If one hears refrains of Shelby County in the Court’s analysis in Abbott, one is hearing correctly. Abbott is of a piece with Shelby County, which struck down section 4 of the Voting Rights Act as “the conditions justifying that requirement have dramatically improved.” Both cases seek to liberate the states from the calumny reflected by the coverage formula. Both cases are concerned about the presumption that states must prove that they are not engaging in racial discrimination in voting. Both cases seek to reinterpret and contextualize history. They want courts adjudicating voting rights claims to focus not on how the states behaved fifty years ago, or ten years ago, or even two years prior, but on a disaggregated, almost acontextual present. The past, even the recent past, is not prologue.
Third, Abbott points to the slow-moving collision between what the Court clearly views as the inconsistent commitments of the Constitution and the VRA. The Court observes that the “Equal Protection Clause restricts consideration of race and the VRA demands consideration of race.” The Court underscored that the VRA “pulls in the opposite direction” from the Constitution, and that the Constitution and the VRA subject a state to “conflicting demands.” As a consequence, “a legislature attempting to produce a lawful districting plan is vulnerable to ‘competing hazards of liability.’” The Court reminds us that it has sought to “harmonize these conflicting demands” by “assum[ing] that compliance with the VRA may justify the consideration of race in a way that would not otherwise be allowed.” The majority seems concerned that race is distorting the State’s decision-making process. The conservative Justices feel much sympathy for the “legal obstacle course” faced by the Texas legislature, from population equality and state redistricting rules to section 2 and preclearance requirements under the Voting Rights Act. It is inevitable that the Court will resolve the tension that is sees between the VRA and the Constitution. And it is unlikely that the Court will resolve it in favor of section 2.
Abbott v. Perez reads as a hyper-technical opinion about jurisdiction and statutory construction. But one must look beyond the hyper-technical nature of the case to understand its significance. Behind the Court’s hyper-technical analysis rests the Court’s substantive views on the issues that it thinks ought to and ought not matter to democratic politics. After the Court’s decision in Shelby County, it should surprise no one that the Roberts Court is convinced that racism is no longer a defining feature of American politics. But if anyone needed convincing they need look no further than the Court’s decision in Abbott. Abbott sends yet another signal that what remains of the Voting Rights Act after Shelby County is in real jeopardy.