Supreme Court Is Cool With Texas-Style Apartheid

“Racial gerrymandering” is a euphemism. What the phrase really refers to is: political apartheid. Racial gerrymandering is an attempt to deny equal political representation, on the basis of race, either by segregating minorities all into one political unit, or by spreading them among many political units so that their collective action means nothing. It’s an apartheid that doesn’t come with the violence and cultural discrimination of — capital “A” — South African Apartheid. But when you systemically deny political representation on the basis of race, we have a word for that.

Texas, according to the 2010 Census, is nearly 40% Latino. The Texas Congressional delegation, the second largest delegation in the country, has maybe two Latino Congresspeople. Texas is only 43 percent white, but whites make up two/thirds of the Texas state legislature. THAT’S NOT AN ACCIDENT. That’s not a normal democracy functioning normally. That’s a minority white population exerting political control over a majority non-white population by denying that population equal representation. That’s apartheid.

And the Supreme Court sees no legal problem with American-style apartheid.

In Abbott v. Perez, the Supreme Court ruled, 5-4, that all but one of Texas’s racially gerrymandered districts are fine. The one that wasn’t was a district where the state legislature tried to pack in some black voters, thus throwing off the balance of Latino voters, so they packed in more Latino voters to offset the black people. It was so hamfisted, that it was the only one where the Court decided that race was the “predominate” factor in the legislature’s decision. For every other district, the Court turned a blind eye.

At least Clarence Thomas and Neil Gorsuch come to their pro-apartheid stances intellectually honestly. Samuel Alito wrote the opinion for the majority and while Thomas and Gorsuch joined in the judgment, Thomas filed a one paragraph concurrence, which was joined by Gorsuch:

I adhere to my view that §2 of the Voting Rights Act of 1965 does not apply to redistricting. See Cooper v. Harris, 581 U. S. ___, ___ (2017) (concurring opinion) (slip op., at 1) (citing Holder v. Hall, 512 U. S. 874, 922–923 (1994) (THOMAS, J., concurring in judgment)). Thus, §2 cannot provide a basis for invalidating any district, and it cannot provide a justification for the racial gerrymander in House District 90. Because the Court correctly applies our precedents and reaches the same conclusion, I join its opinion in full.

Thomas’s view here is terrible. That we now know that the Republicans stole a seat on the Supreme Court and handed it to a guy who agrees with Thomas’s view is horrifying. John Roberts has already gutted section 5 of the Voting Rights Act. Should Thomas and Gorsuch eventually rule the day on section 2, they will render the Voting Rights Act essentially meaningless. It’s not that Thomas doesn’t think there’s racism in the world, in fact Thomas hates racial gerrymandering. Usually, he tries to do something about it when it benefits racial minorities, but when it’s done against racial minorities, he decides that there’s nothing the Court can do to stop it. It’s on the minorities to go out and achieve anyway.

(The best way to think about Clarence Thomas is as the black “Big” Lebowski — the rich one, not the dude. You could absolutely see him, hobbled as he is by the racism in his own life, screaming at some brother on the come-up: “I didn’t blame anyone for the loss of my legs — some Chinaman took them from me in Korea. But I went out and achieved anyway!”)

But the concurrence is not the issue, dude.

Samuel Alito, and the majority of the Court, have a familiar patter when it comes to racism. Whether it’s a matter of statutory or Constitutional interpretation, Roberts, Alito, and Kennedy refuse to see it unless the perpetrator is stupid enough to say “I AM BEING RACIST RIGHT NOW, TO THIS SPECIFIC PERSON, BECAUSE I HATE THEIR RACE!” Anything less, anything more subtle than “I HATE YOU BECAUSE OF YOUR SKIN COLOR” is lost on these men. These guys are the flat-Earthers of racial discrimination… they can’t see the curve from where they sit, and no amount of statistical, observable evidence will convince them otherwise.

At issue, the Texas legislature drew districts. These districts were racist. A lower court redrew the districts… but they preserved much of the racial makeup of the originally faulty districts. The Fifth Circuit told the district court to try again, saying that they failed to remove the “taint” of racism.

Alito said that was improper because the racist intent of the new districts is not clear. It’s not clear to only white guys and Clarence Thomas, but obtuse white people have the power to make the whole country stop and wait for them to catch up. From the opinion:

Under these circumstances, there can be no doubt about what matters: It is the intent of the 2013 Legislature. And it was the plaintiffs’ burden to overcome the presumption of legislative good faith and show that the 2013 Legislature acted with invidious intent. The Texas court contravened these basic principles. Instead of holding the plaintiffs to their burden of overcoming the presumption of good faith and proving discriminatory intent, it reversed the burden of proof. It imposed on the State the obligation of proving that the 2013 Legislature had experienced a true “change of heart” and had “engage[d] in a deliberative process to ensure that the 2013 plans cured any taint from the 2011 plans.” 274 F. Supp. 3d, at 649.

The Texas court’s references to the need to “cure” the earlier Legislature’s “taint” cannot be dismissed as stray comments. On the contrary, they were central to the court’s analysis. The court referred repeatedly to the 2013 Legislature’s duty to expiate its predecessor’s bad intent, and when the court summarized its analysis, it drove the point home. It stated: “The discriminatory taint [from the 2011 plans] was not removed by the Legislature’s enactment of the Court’s interim plans, because the Legislature engaged in no deliberative process to remove any such taint, and in fact intended any such taint to be maintained but be safe from remedy.”

Alito, and I imagine a lot of white people privileged just like him, believe that the legislature is entitled to the presumption of good faith. It would seem to me that the mere reality of the Texas delegation, when plotted against the state’s population destroys that presumption.

But for Alito, a default apartheid system doesn’t immediately look like “bad faith” on the part of all the white people who set it up.

Sonia Sotomayor wrote the dissent and… she’s having absolutely none of this white nonsense:

The Court today goes out of its way to permit the State of Texas to use maps that the three-judge District Court unanimously found were adopted for the purpose of preserving the racial discrimination that tainted its previous maps. In reaching its desired result, the majority commits three fundamental errors along the way…

This disregard of both precedent and fact comes at serious costs to our democracy. It means that, after years of litigation and undeniable proof of intentional discrimination, minority voters in Texas—despite constituting a majority of the population within the State—will continue to be underrepresented in the political process. Those voters must return to the polls in 2018 and 2020 with the knowledge that their ability to exercise meaningfully their right to vote has been burdened by the manipulation of district lines specifically designed to target their communities and minimize their political will. The fundamental right to vote is too precious to be disregarded in this manner. I dissent.

She goes on like this for nearly 50 pages. NY Mag’s Cristiana Farias pulled this quote out and I think it sums up where we are.

Justice Sotomayor not pulling punches in her conclusion. pic.twitter.com/FDx0ysF4q3

— Cristian Farias (@cristianafarias) June 25, 2018

Texas will be controlled by a minority white population so long as Courts allow a minority white population to control voter representation. The courts themselves will be controlled by white people so long as the Senate overrpresents whites in low population states over minorities in high population states. And the Supreme Court will continue to get a steady stream of conservative nominees so long as the electoral college allows a minority of predominately white people to decide national elections over a more numerous, more diverse group of voters.

Apartheid only works if the loop is closed. Each part of the system has to reinforce the other. As white people continue to fall behind demographically, don’t expect them just to cede power. “One person, one vote,” is a rule white people would like to apply only to themselves.

Abbott v. Perez [Supreme Court]

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Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.