Despite Supporters’ Advice, Sessions Faces Uphill Battle in Denying Racial Voter Discrimination

(Gage Skidmore/Creative Commons)

Jeff Sessions recently received a letter signed by numerous individuals, including several who served in George W. Bush’s politicized Civil Rights Division and have repeatedly criticized the 2006 bill reauthorizing the Voting Rights Act.

Their letter suggests that our country is so diverse that we can stop worrying about discrimination against racial and language minorities. They claim the voting laws of the last century are “outmoded.” They use extravagant euphemisms: “[t]he mosaic image of America is growing richer in color and detail as each decade passes” and “we have witnessed longstanding conventions held from the mid-20th century prove outmoded.”

Back in the real world, has any state passed a law designed to disenfranchise European Americans?

The point that they’re making here is that in this “post-racial” world, it’s time to return to protecting white people: “discrimination, dilution … will always be constants, yet the victims can vary in our contemporary era.” Thus, the letter concludes, the Assistant Attorney General for the Civil Rights Division “must offer leadership promoting the Rule of Law and equal protection for all,” a subtext for abandoning racial discrimination as an enforcement priority.

Back in the real world, has any state passed a law designed to disenfranchise European Americans?

The wishful theory that America has progressed beyond racial discrimination was the stated reason for the Supreme Court’s 2013 decision in Shelby County v. Holder, which undoubtedly did more to undermine voting rights than any legal decision in recent history. Shelby County invalidated the preclearance mechanism of the Voting Rights Act that required jurisdictions with a history of racial voter suppression to get Justice Department approval before changing their election procedures.

Within a year and a half of the decision, at least 10 of the 15 states that were previously covered by the preapproval requirement introduced voting restrictions that disproportionately burdened minority voters. Other states, such as Texas, began implementing legislation that had previously been blocked under the preclearance procedure. Appeals courts subsequently invalidated several of these measures, including the strict voter ID bills of Texas and North Carolina.

In challenges to the Texas and North Carolina laws, courts found that the legislatures purposefully created the laws to prevent people of color from voting, including black and Latino voters in Texas and black voters in North Carolina. The federal appeals court in the North Carolina case said the legislature conducted research and crafted the legislation with “surgical precision” to exclude black citizens from the electoral process. The Texas court case found that the legislature, in response to the state having become majority-minority, “draconian” voter ID bill to exclude black and Latino voters to secure an “Anglo partisan advantage.” On appeal, the Fifth Circuit – the most conservative federal appeals court in the country, agreed the bill was invalid.

The Fifth Circuit sent the Texas case back to the lower court to reconsider its holding that the legislature intended to discriminate. The court said there was adequate evidence of intent but slightly revised the criteria the lower court should use. The intent question is crucial: under the Voting Rights Act, if it a court determines that Texas intended to discriminate, it can require the state to return to the pre-Shelby County preclearance process and submit new voting measures to the Justice Department before implementing them. Although that will have limited value as long as Sessions remains Attorney General, eventually someone with a commitment to civil rights will take his seat and will be empowered to block in advance Texas’ attempts to deny its citizens’ voting rights.

Be prepared for Sessions and his Justice Department to insist that our country has transcended racial discrimination as it dismantles civil rights protections.

It was no surprise in February 2017—as the lower court was poised to make the critical determination concerning Texas’ intent—the Justice Department withdrew its claim that the discrimination was intentional. The other plaintiffs, which include voting rights groups, continue to ask the court to return Texas to the preclearance review process. Last week, the lower court issued an opinion confirming its initial that the legislature intended to disenfranchise black and Latino citizens by using voter fraud as a “pretext.”

None of this is surprising—not that the legislatures of Texas and North Carolina enacted bills to disenfranchise millions of their constituents, or that the Sessions Justice Department is abdicating responsibility for holding states accountable for intentional discrimination. Nor is it surprising that the letter’s signatories—at least some of whom are attorneys—are promoting the verifiably false narrative that federal voting rights laws are outmoded because racial discrimination is outmoded.

But, barring review of the North Carolina case by the Supreme Court, the judicial findings that Texas and North Carolina—states long in the voter suppression game—intended to discriminate are facts. They must be central to any national discussion of voting rights and of whether federal voting laws are indispensable or “outmoded.” Be prepared for Sessions and his Justice Department to insist that our country has transcended racial discrimination as it dismantles civil rights protections. In dropping the Department’s claim that Texas’ law was racially motivated, Sessions’ clear message was that regardless of facts, the Justice Department has no interest in enforcing anti-discrimination laws against states. The letter to Sessions, then, is less about urging any particular policy and more about spinning Sessions’ abdication of responsibility.

The Justice Department and its attorneys are bound to respect—to not deny—factual findings issued by courts. At Project Vote, we intend to hold them to the facts. And to remind everyone that state action to disenfranchise people of color is a fact.