Less than two weeks after President Donald Trump took office, a Republican federal judge in Alabama handed down an absolutely shocking opinion.
The legal claims in Lewis v. Bentley are, to be fair, a bit of a stretch. After the majority-black city council in Birmingham, Alabama, enacted an ordinance raising the minimum wage in Birmingham, the state legislature passed a law invalidating that ordinance. Every state lawmaker who supported this law was white, as was the governor who signed it. The plaintiffs in Lewis claim that this state law was enacted with racist intent — which would make it unconstitutional — rather than simply out of a desire to maintain conservative labor policy throughout the state.
Yet Judge R. David Proctor, a George W. Bush appointee, did not simply dismiss this case. He handed down an opinion that, if embraced by higher courts, would eviscerate virtually any civil rights plaintiff’s ability to challenge a facially neutral law that was enacted in order to harm people of color. When a state can offer a “legitimate” — that is, a non-racist — explanation for why a law should exist “only the clearest proof” that lawmakers acted with racist intent will allow a court to look past that explanation.
It should be noted that none of the cases Judge Proctor cited to support this novel legal rule even come close to supporting it. And a panel of the United States Court of Appeals for the Eleventh Circuit tossed out Porter’s “clearest proof” standard last July. “Recklessly plucked from an unrelated line of precedent,” Judge Charles Wilson wrote of Proctor’s attempt to immunize racist lawmakers from suits, “this requirement runs contrary to decades of established equal protection jurisprudence.”
Yet there is an unhappy epilogue to this story for future civil rights plaintiffs. The full Eleventh Circuit, now flush with three Trump judges, announced on Wednesday that it was tossing out Judge WIlson’s opinion and that the full court would rehear the case. There’s now a very real risk that Proctor’s “clearest proof” test will become the law in several Southern states.
Nor is Proctor’s opinion an isolated incident. To the contrary, it is part of a much larger pattern from top Republican advocates, Republican judges, and top Republican advocates who became Trump judges, to hamstring any suit alleging racial discrimination by lawmakers. Indeed, some of these opinions go even further than Proctor — not simply trying to boot civil rights cases out of court, but suggesting that the mere allegation that a lawmaker acted with racist intent is itself an unforgivable sin.
“Almost surgical precision”
In 2013, North Carolina Republicans enacted what may be the most aggressive voter suppression law since Jim Crow. The law, as a federal appeals court later explained, targeted “African Americans with almost surgical precision.”
While drafting the law, lawmakers “requested data on the use, by race, of a number of voting practices.” And then they appear to have used that data to maximize the law’s impact on black voters while simultaneously minimizing the impact on whites.
The data showed, for example, that “African Americans disproportionately used the first seven days of early voting,” and so “the General Assembly amended the bill to eliminate the first week of early voting.” Similarly, the law did not simply require voters to show photo ID in order to cast a ballot. Rather “the legislature amended the bill to exclude many of the alternative photo IDs used by African Americans” while simultaneously permitting “only the kinds of IDs that white North Carolinians were more likely to possess.”
The appeals court decision striking this law down was not disturbed by the Supreme Court — largely because it first reached the Court after Justice Antonin Scalia’s death. Nevertheless, all four of the Republicans who sat on the Court in the summer of 2016 voted to reinstate this voter suppression law.
Likely thanks to the appeals court decision striking down this law, Republican Gov. Pat McCrory narrowly lost his bid for reelection. Yet, in his final days as a lame duck governor, a team of lawyers hired by McCrory filed a petition asking the Supreme Court to review the lower court’s decision striking down the law. The lead counsel on this attorney was a lawyer named Kyle Duncan.
Duncan’s petition is a paean to white racial resentment. Rather than simply making his best legal arguments and hoping that the justices would see things his way, Duncan appealed to the Republican Supreme Court with a vicious battle cry — how dare the United States Court of Appeals for the Fourth Circuit accuse a white person of racism!
“There is no worse charge against a State than deliberate racial discrimination,” according to Duncan’s petition. “Yet the Fourth Circuit did not hesitate to level it here: It accused and convicted the North Carolina legislature of deliberately designing its laws not just to disenfranchise African-Americans, but to usher in a new ‘era of Jim Crow.’”
Such an allegation, according to Duncan’s petition, “is an affront to North Carolina’s citizens and their elected representatives.”
In the short term, Duncan’s gambit failed. McCrory left office, the state’s new Democratic leadership withdrew the petition, and the Supreme Court ultimately decided not to hear the case after receiving what Chief Justice John Roberts described as a “blizzard of filings over who is and who is not authorized to seek review in this Court under North Carolina law.”
But the Republican lawyer got the last laugh. Thanks to Donald Trump, he’s now a judge on the United States Court of Appeals for the Fifth Circuit.
The truth is out there
Duncan, and the special brand of white grievance that Duncan brought to the North Carolina case, will be right at home on this court.
In July of 2016, the conservative Fifth Circuit surprised most court-watchers with a 9-6 decision holding that a Texas voter suppression law violates the Voting Rights Act. That act prohibits voting laws that result “in a denial or abridgement of the right of any citizen… to vote on account of race or color.” And, as the majority opinion explained in Veasey v. Abbott, Texas’ voter ID law violated this prohibition because of its disproportionate impact on black and Latino voters.
As one expert testified, Hispanic and African-American voters are “respectively 195% and 305% more likely than their Anglo peers to lack” a photo ID.
Judge Edith Jones wrote an absolutely livid dissent on behalf of herself and four colleagues. By keeping alive a separate claim that Texas acted with racist intent when it enacted this voter suppression law, Jones wrote, “the majority fans the flames of perniciously irresponsible racial name-calling.”
“The multi-thousand page record yields not a trace, much less a legitimate inference, of racial bias by the Texas Legislature,” Jones falsely claimed. “Yet the majority emulates the clever capacity of Area 51 alien enthusiasts who, lacking any real evidence, espied a vast but clandestine government conspiracy to conceal the ‘truth’”.
She added a plea for the poor Texas officials forced to endure allegations that, by enacting a law whose primary function is to prevent disadvantaged communities from casting a ballot, they might have acted with racist motives. “Inflammatory and unsupportable charges of racist motivation poison the political atmosphere and tarnish the images of every legislator, and the Texas Lt. Governor and Governor,” wrote Jones.
Just in case there is any doubt, these charges are not “unsupportable.” As the majority opinion explained, the drafters of Texas’s voter ID laws “were aware of the likely disproportionate effect of the law on minorities, and that they nonetheless passed the bill without adopting a number of proposed ameliorative measures that might have lessened this impact.” One state senator testified that “the Voting Rights Act has outlived its useful life.” And the case record “shows that Texas has a history of justifying voter suppression efforts such as the poll tax and literacy tests with the race-neutral reason of promoting ballot integrity.”
But for Jones and four of her fellow colleagues, this wasn’t a case about whether a Republican controlled legislation can enact a law that is known to suppress black and Latino voting — both of which are racial groups that tend to prefer Democrats over Republicans. This was a case about the precious reputations of the predominantly white officials tarred by an allegation of racism.
The duty of the courts, in Jones’ mind, isn’t to root out attacks on the franchise. It’s to protect the reputation of white conservatives.
Veasey was an unexpected victory for voting rights, but it is likely that Jones will have the last laugh. Since taking office, Trump added five new judges to the Fifth Circuit — including Kyle Duncan. It is likely, in other words, that at least half of the court’s active judges share Jones’ view that it is emphatically the duty of the Judicial Department to say that white people are innocent of allegations of racism — even when those white people actively prevent voters of color from exercising the right to vote.
Enter Justice Alito
In case there’s any doubt, the bitter racial resentment seen in Duncan’s petition and Jones’ opinion is not limited to a handful of lower court judges. Much of it became the law of the land after the Supreme Court’s decision in Abbott v. Perez last June.
To be sure, Justice Samuel Alito’s majority opinion in Perez is not nearly as vitriolic as Jones’ dissent in Veasey. While Jones writes with the barely harnessed rage of a MAGA rally, Alito writes with the clinical detachment of a eugenics textbook.
Yet, even if the Roberts Court is unlikely to embrace the Trumpian bombast of judges like Jones and Duncan, Perez shows that the Supreme Court’s Republicans are broadly sympathetic to Jones’ goals.
The facts of Perez are unusual and unlikely to repeat — especially after the Supreme Court’s 2013 decision striking down much of the Voting Rights Act. In 2011, while the Voting Rights Act was still intact, Texas drew racially gerrymandered maps. A federal court in DC ultimately concluded that these maps were not legal.
Thus, as Texas’ 2012 primary elections drew nigh, the state did not have lawful maps that it could use in those elections. With no time to fully litigate the case and craft maps that fully complied with the law, a federal court in Texas drew rushed, interim maps in March of 2012 so that Texas could still have an election. Many of the districts in this interim map closely resembled the racially gerrymandered districts in the 2011 maps, and the court emphasized 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.”
Then, in 2013, the state legislature ratified these interim maps as its own — thus leaving many of the still-gerrymandered districts from the 2011 maps intact. Alito’s opinion in Perez held that most of these districts will never be fully scrutinized by the courts.
“Whenever a challenger claims that a state law was enacted with discriminatory intent,” Alito wrote, “the burden of proof lies with the challenger, not the State.” That is, indeed, the ordinary rule in racial discrimination cases. But in this case, a court had already determined that the 2011 maps were illegal, and Texas’s 2013 law retained many of the gerrymandered districts.
Nevertheless, Alito concluded, nearly all of these districts must stand. According to Perez, Texas didn’t enact the 2013 law because it wanted to enshrine gerrymandered maps into law, it did so because “it wanted to bring the litigation about the State’s districting plans to an end as expeditiously as possible.”
Alito, in other words, created a distinction between laws enacted with racist intent, and laws enacted to shut down litigation alleging racist intent. That’s a mighty fine distinction. Indeed, it is such a fine distinction that it raises a cloud of uncertainty over any future lawsuit alleging that lawmakers acted with a discriminatory purpose.
After Perez, lawmakers now enjoy such a strong presumption of racial innocence that only the most egregious cases have a chance of prevailing in court. The Supreme Court may not speak with the caustic voice of an Edith Jones, but it appears eager to protect white officials from the mere allegation that they might be racist.