The Supreme Court held on Monday that white lawmakers enjoy a presumption of racial innocence, even when they draw legislative districts that empower white voters at the expense of racial minorities.
The thrust of Justice Samuel Alito’s opinion in Abbott v. Perez is that the “good faith” of a “state legislature must be presumed,” even when there are very serious allegations of racial gerrymandering. The facts of Perez are unusual and unlikely to repeat in the future, but Alito’s presumption of white racial innocence could have a significant impact on future cases.
In 2011, Texas drew racially gerrymandered maps. At the time, the Supreme Court had not yet struck down a key provision of the Voting Rights Act. Thus, the 2011 maps could not take effect until after they were “precleared” by federal officials in Washington, D.C. A federal court in D.C. ultimately concluded that the maps were not legal.
That meant that, with the 2012 elections rapidly approaching, Texas did not have any valid maps that it could use in that election. Worse, though a Texas federal district court drew maps that the state could have used in the upcoming election, the Supreme Court vacated these maps. Thus, in late January of 2012, Texas still had no maps, and primary elections were only a few months away.
The result was a rushed, March 2012 decision by the Texas court which laid out interim maps. Many of the districts in this hastily drawn interim map closely resembled the racially gerrymandered districts drawn by the state legislature in 2011. The Texas court, moreover, 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.”
Nevertheless, the court concluded that an imperfect, inadequately vetted map was necessary due to “the need to have the primaries as soon as possible, and the resulting need for the Court to produce an interim map with sufficient time to allow officials to implement the map.”
Texas ran its 2012 election under this interim map. Then, in 2013, the state legislature enacted a new law ratifying the no-longer-interim map as its own. The result was that many of the state’s allegedly racially gerrymandered districts were never fully scrutinized by a court of law.
And the holding of Justice Alito’s opinion in Perez is that these districts never will be scrutinized.
“The primary question” in Perez, according to Alito, “is whether the Texas court erred when it required the State to show that the 2013 Legislature somehow purged the ‘taint’ that the court attributed to the defunct and never-used plans enacted by a prior legislature in 2011.” That is, if the 2011 maps were illegal racial gerrymanders, and the 2013 maps preserve many of these illegal districts, could a court presume that the 2013 legislature ratified the court-drawn maps because it wanted to leave as many racially gerrymandered districts in place as possible?
Alito’s answer to this question is, no, a court cannot make such a presumption. Indeed, it must do the opposite — presuming that the lawmakers who voted for the 2013 legislation are racially innocent. “Whenever a challenger claims that a state law was enacted with discriminatory intent,” Alito says, “the burden of proof lies with the challenger, not the State.”
That’s an accurate statement of the ordinary rule that applies in ordinary cases, but this is hardly an ordinary case. Again, a federal court determined that the 2011 maps contained several illegal racial gerrymanders. The state then enacted new maps which left many of these gerrymanders in place.
The holding of Perez, in other words, is that the court’s determination that the 2011 maps were enacted with racist intent was washed clean by the 2013 law — even though the 2013 law left many of the gerrymandered districts intact.
Having determined that the Perez plaintiffs must prove anew that Texas’ racially gerrymandered districts were enacted with racist intent, Alito then absolves the 2013 legislature of any blame for their actions. “The only direct evidence brought to our attention suggests that the 2013 Legislature’s intent was legitimate,” Alito claims. “It wanted to bring the litigation about the State’s districting plans to an end as expeditiously as possible.”
Thus, Alito’s conclusion is that the 2013 maps weren’t enacted to preserve a racial gerrymander; they were enacted to shut down litigation challenging a racial gerrymander. And, somehow, this distinction matters.
It should be noted that Perez is not a total loss for its plaintiffs. Alito does determine that a single district which, “unlike the other districts at issue in this appeal, was not copied from the District Court’s interim plans,” is an invalid gerrymander. But the Perez opinion is very bad news for anyone hoping to challenge a racial gerrymander in the future.
Lawmakers now enjoy an exceedingly strong presumption of racial innocence when they draw legislative maps. It’s a great day for white nationalism.