Abbott v. Perez is a case of mind-numbing procedural complexity. It involves Texas’ successful efforts to draw gerrymandered maps in 2011 — maps that were eventually found to be an illegal racial gerrymander by a federal court — and then maintain as much of these illegal maps as possible for as long as possible after the fact. It is a case about race discrimination, partisan gamesmanship, and rather blatant attempts to manipulate the legal system.
Or, if you are Chief Justice John Roberts, it is an opportunity to plant a flag for white racial innocence.
Perez (which is technically two consolidated cases with the same name), involves two different versions of Texas’ congressional and state legislative maps. The first set were drawn in 2011 as part of Texas’ obligation to draw new maps every ten years following the Census. The second were drawn in 2012 by a federal court under highly unusual and rushed conditions, and then adopted into Texas law by the state legislature in 2013.
The 2011 maps, moreover, were drawn before Chief Justice Roberts’ 2013 opinion in Shelby County v. Holder, which gutted much of the Voting Rights Act. Accordingly, they could not take effect until they were “precleared” by the Justice Department or a federal court in Washington, DC. In this case, the federal court ultimately concluded that the state’s maps did not comply with the Voting Rights Act.
This created an untenable situation. The 2012 election was drawing nigh, but Texas still had no legally valid maps to use in its upcoming election. Worse, the Supreme Court struck down a federal district court’s first attempt to draw maps for the state in January of 2012.
With few good options, the court drew a rushed, interim map that left much of the 2011 maps intact. It warned, moreover, that “this interim map is not a final ruling on the merits of any claims asserted by the Plaintiffs in this case or any of the other cases consolidated with this case.” In 2013, the state legislature adopted this interim map as its own.
Texas and the Trump administration both took turns at the lectern on Tuesday to defend this 2013 map ratified by the state legislature. Although the district court found that the original 2011 map was enacted for the purpose of minimizing the power of voters of color and increasing the power of white Texans — and although the 2013 map leaves many of the tainted districts unchanged — both the state and its allies in the Trump administration claim that the legislature’s racist intent in 2011 is irrelevant.
By enacting a map that was drawn by a federal court, Texas claims that its legislature essentially cleansed the map of any lingering racism.
As a general rule, laws enacted for the purpose of discriminating on the basis of race are not allowed, but laws that merely have a discriminatory effect are much more likely to survive judicial review. The district court held that the 2011 maps were tainted by intentional race discrimination, and that this “taint” carried forward to the identical districts contained within the 2013 maps.
For the Chief Justice, Texas’ appeal to white racial innocence was like catnip.
In response to this argument, Deputy U.S. Solicitor General Edwin Kneedler, who argued this case on behalf of the Trump administration, offered a bold argument. “One of the primary motivations here,” Kneedler told the Court, “was to end the litigation.”
Texas, you see, wanted to rescue as much of its maps as possible from this lawsuit, but it knew it was likely to lose if it left the 2011 maps in place. So it decided that, by ratifying the district court’s interim maps, it could cloak itself in the mantle of the judiciary and make it more likely that much of the 2011 maps would survive review.
Sure, much of the 2013 maps were identical to the 2011 maps. But the purpose of the 2013 maps was to win this lawsuit, not to discriminate on the basis of race. So that makes it okay — at least according to Kneedler and Texas Solicitor General Scott Keller.
Needless to say, this argument did not sit well with the Court’s liberals — at one point, Justice Elena Kagan compared Perez to a case where the state drew one map with racist intent, then drew a completely identical map and claimed that it wasn’t enacted for racist purposes.
But, for the Chief Justice, Texas’ appeal to white racial innocence was like catnip.
Texas, Roberts told Renea Hicks, one of two lawyers challenging the maps, has a “strong argument” because they relied on a map drawn by a court — even if this was an interim map drawn under rushed circumstances. Shouldn’t Texas receive a “presumption of good faith?”
This phrase — a “presumption of good faith” — came up over and over again in Keller and Kneedler’s arguments, and in several of the conservative justices’ questions.
As a general rule, the Supreme Court has held that “redistricting is ‘primarily the duty and responsibility of the State,'” so courts will typically uphold state-drawn maps unless given a good reason not to. But the Chief Justice, Justice Samuel Alito, and Neil Gorusch, who occupies the seat that Senate Republicans held open for a year until Donald Trump could fill it, all seemed to believe that Texas should enjoy an especially strong presumption in its favor because it took its maps from a court order.
It is important to understand what, exactly, the Chief and his conservative colleagues seemed so eager to endorse. Texas argues that allegations of racism should be treated with great skepticism. So much skepticism, in fact, that the state can draw a district with racist intent, then enact the exact same district into law just two years later. And yet, somehow, the state lawmakers’ original intent was washed away because all they really wanted is to shut down a lawsuit accusing them of racial gerrymandering.
Shocking as this logic may be, it should not be surprising that Roberts seems to buy it. Roberts, after all, is the man who wrote an opinion arguing that we don’t need a fully operational Voting Rights Act anymore because America isn’t racist enough to justify such a law — and he wrote this opinion three years before America elected Donald Trump! He’s also the same man who wrote that two school districts violated the Constitution when they implemented plans to desegregate their schools.
“The way to stop discrimination on the basis of race,” Roberts wrote in a line that could have been delivered by Stephen Colbert’s Comedy Central persona, “is to stop discriminating on the basis of race.”
For all of Roberts’ racial naivete — and his past success in writing this naivete into the law — it is not entirely clear that he has the five votes he needs to prevail in this case. Justice Anthony Kennedy, a conservative with more moderate views on race than Roberts, asked no questions on the merits during the entire oral argument (although he did ask a few questions about whether the Court has jurisdiction to hear the case).
Even if Texas loses this case, it has already won.
It is entirely possible that Kennedy will side with the liberals in Perez, providing a fifth vote to strike down Texas’ maps.
But even if Texas loses this case, it has already won. The original gerrymander was drawn in 2011. Texas has been able to run elections under a modified version of this gerrymander since 2012. It is now 2018, and the Supreme Court issued a stay of the lower court’s decision that is likely to leave Texas’ current maps in place for November’s election.
All of which means it is likely that Texas will only need to run one election — the 2020 election — under newly drawn maps before another Census intervenes and forces the state to draw yet another set of maps. Because of the judiciary’s delay in this case, the districts at issue in Perez went unmolested for four entire election cycles.
More than half a century ago, Congress recognized that this kind of delay was inherent in voting rights litigation. That is why Congress enacted the Voting Rights Act of 1965, with its requirement that certain election laws be scrutinized before they take effect. The way to stop voter suppression is to stop it before it happens.
But, of course, Chief Justice Roberts struck down that provision of the Voting Rights Act, because he thinks that America isn’t racist enough.