Introducing the Volume 23 Associate Editors

Congratulations to the Volume 23 Associate Editors!  The Michigan Journal of Race & Law is beyond excited to have you join our family.  Please give a warm welcome to:

 

Hira Baig

David Bergh

Morgan Birck

Ben Cornelius

Shanene Frederick

Elliott Gluck

Gloria Han

Cleo Hernandez

Allison Horwitz

Gabriela Hybel

Danielle Maldonado

Eric Nicholson

John Spangler

Rasheed Stewart

Virginia Weeks

 

Posted in Announcements

Rethinking Death Penalty Reform: The Case Against Death-qualified Juries

By Anonymous Associate Editor

Since the U.S. Supreme Court reinstated the death penalty through Gregg in 1976, racial bias has continued to pervade its administration.[1] 34.5% of defendants executed have been Black and 55.6% have been white,[2] despite the fact that only 13.3% of people in the U.S. identify as Black, while 77.1% identify as white.[3]  I consider myself an abolitionist regarding the death penalty, as I do not think that it is justified for the state to kill a citizen in any circumstance. However, given these alarming statistics and the dire situation they illuminate, I find that efforts to reform the capital process to reduce racial disparity are also worthwhile. Reformers would do well to focus on the elimination of the death qualification process, as well as Eighth Amendment and Batson challenges to the death penalty.

Reformers take a variety of approaches to advocating for changes to the death penalty. Many scholars and practitioners who are interested in death penalty reform to reduce racial disparities focus on giving teeth to Batson, which prevents prosecutors from illegally removing Black venirepersons from jury pools.[4] Batson forbids prosecutors from challenging potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable to impartially consider the State’s case against a black defendant. However, successful Batson challenges are rare, as defendant must show that the prosecutor engaged in purposeful discrimination. For example, Gilad Edelman’s piece, Why is it so Easy for Prosecutors to Strike Black Jurors?,  describes how Timothy Tyrone Foster was convicted of murder and sentenced to death by an all-white jury in 1987 after prosecutors struck four eligible black jurors.[5] During voir dire, the prosecutors highlighted black juror’s names in green, circled the answer “black” to the jury questionnaire question about race, labelled three jurors B#1, B#2, and B#3, and selected which person they would keep if they had to keep one black juror.[6] (In 2016, the U.S. Supreme Court granted Foster a new trial on Batson grounds.)[7] Others focus on reforming the death penalty through the Eighth Amendment by pointing out the unpredictability and cruelty of the execution process.[8] These are certainly problems that contribute to the inhumanity of the death penalty.

However, the scholarship glosses over another issue: judicially administered, unlimited, for-cause strikes used to select a death qualified jury also remove disproportionate numbers of Blacks, as opposition to the death penalty is higher among Blacks than whites.[9] In a capital case, the court strikes jurors who express that they would be unable to serve on a jury that imposes the death penalty for moral or religious reasons or are categorically opposed to the capital punishment. This overlooked, completely legal manner of whitewashing juries in capital cases exacerbates racial disparity in the administration of the death penalty. Reform efforts should incorporate advocacy to end the death qualification process by eliminating for-cause strikes for potential jurors who oppose to the death penalty. This is necessary to ensure that capital defendants’ right to be tried by a jury of their peers is fully realized.

According to a 2016 study, 63% of Blacks, compared to 35% of whites, oppose the death penalty for a defendant convicted of murder.[10] Melynda J. Price conducted focus groups with Blacks in Houston to understand the reasoning behind their views on the death penalty, and recounted their discussions in her book At the Cross: Race, Religion, and Citizenship in the Politics of the Death Penalty.[11] Some participants explained their opposition in terms of religion. They expressed beliefs that only should God make life-or-death decisions.[12] Others were opposed due to concerns about racial disparities in the administration of the death penalty, and compared the modern death penalty to historical lynchings.[13] Still others believed that life imprisonment without parole was a more just and meaningful punishment.[14] All of these opinions could serve as the basis of a for-cause strike during the death qualification process in a capital case.

The lack of Black presence on juries in capital cases has important implications. Paul Butler’s piece, Racially Based Jury Nullification: Black Power in the Criminal Justice System, discusses Black jurors’ power to derail a racist prosecution, even in the face of robust state evidence, through jury nullification.[15] While Butler’s piece focuses on jury nullification where Black defendants are on trial for non-violent offenses, the same moral logic applies to refusal to impose the death penalty when prosecutors seek it for a Black defendant in an abuse of their prosecutorial discretion.

Butler also explains that because of the long history of discrimination against Blacks in the criminal justice system, Black jurors serve as a symbol of “the fairness and impartiality of the law.”[16] This perception exists on the ground, too. As a legal intern with Orleans Public Defenders last summer, I spent several days observing jury selection and assisting my supervising attorneys in deciding how to use peremptory strikes. I often consulted my clients during this process, asking them if they had strong feelings about any potential jurors. On one occasion, my client, a Black man, leaned over to me and whispered, “Just make sure I get some Black ones.” My client’s request was well-founded: mock jury experiments demonstrate that in racially mixed settings, jurors raise more facts, make fewer errors, deliberate longer, and conduct broader discussions, including discussions of racism, than in all-white settings.[17]

Finally, Black defendants are more likely than their white counterparts to be sentenced to death. A study of death penalty cases decided between 1978 and 2000 in Philadelphia determined that “the odds of receiving a death sentence at the weighing stage of the penalty trial were, on average, 3.8 times higher for Black defendants than for similarly situated non-Black defendants.”[18] This is borne out in statistics on the demographics of people executed in the U.S. in the past 40 years.[19]

Doing away with the death qualification process would not completely eliminate racial disparity in the administration of the death penalty. Racially biased policing would persist, increasing the likelihood that Blacks are investigated and arrested.[20] Prosecutors would still abuse their discretion in making sentencing decisions.[21] Many indigent Black defendants would still rely on state-appointed attorneys from overworked, under-resourced public defender offices to represent them.[22]

Still, this aspect of the problem deserves attention. Reformers should demand that the death qualification process is eliminated to reduce the whitewashing of juries in capital cases and to ensure that capital defendants’ right to a trial by a jury of their peers, including those who oppose the death penalty, is fully realized.

 


[1] Gregg v. Georgia, 428 U.S. 153 (1976).

[2] National Statistics on the Death Penalty and Race, Death Penalty Information Center, https://deathpenaltyinfo.org/race-death-row-inmates-executed-1976#defend.

[3] Quick Facts: United States, United States Census Bureau, https://www.census.gov/-quickfacts/table/PST045216/00.

[4] Batson v. Kentucky, 476 U.S. 79 (1986).

[5] Gilad Edelman, Why is it so Easy for Prosecutors to Strike Black Jurors?, The New Yorker (June 5, 2015), http://www.newyorker.com/news/news-desk/why-is-it-so-easy-for-prosecutors-to-strike-black-jurors; see also Andrew Cohen, Racial Bias in Death Penalty Cases: A North Carolina Test, The Atlantic (April 23, 2012), https://www.theatlantic.com/national/archive/-2012/04/racial-bias-in-death-penalty-cases-a-north-carolina-test/256197/.

[6] Id.

[7] Foster v. Chatman, 136 S.Ct. 1737 (2016).

[8] Alan Blinder, Federal Judge Blocks Arkansas Executions, The New York Times (April 15, 2017), https://www.nytimes.com/2017/04/15/us/arkansas-executions.html?_r=0.

[9] Clay S. Conrad, Are You “Death Qualified?”, Cato Institute (August 10, 2000), https://www.cato.org/publications/commentary/are-you-death-qualified.

[10] Baxter Oliphant, Support for the Death Penalty Lowest in More than Four Decades, Pew Research Center (September 29, 2016), http://www.pewresearch.org/fact-tank/2016/09/29-/support-for-death-penalty-lowest-in-more-than-four-decades/.

[11] Melynda J. Price, At the Cross: Race, Religion, and the Politics of the Death Penalty (2015).

[12] Id.

[13] Id.; see also Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010).

[14] Price, supra.

[15] Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, in Critical Race Theory: The Cutting Edge 282 (Richard Delgado & Jean Stefancic eds., 3rd ed. 2013).

[16] Id. at 286.

[17] Samuel R. Sommers, On Racial Diversity and Group Decision Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations, 90 J. of Pers. & Soc. Psychol. 597, 603-608 (2006).

[18] David C. Baldus et al., Race and Proportionality Since McCleskey v. Kemp (1987): Different Actors with Mixed Strategies of Denial and Avoidance, 39 Colum. Hum. Rts. L. Rev. 143 (2007).

[19] See supra text accompanying notes 2-3.

[20] Consent Decrees, Racial Bias and Policing, The New York Times (August 10, 2016), https://www.nytimes.com/2017/04/04/us/heres-how-racial-bias-plays-out-in-policing.html.

[21] Robert J. Smith & Justin D. Levinson, The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion, 35 Seattle U. L. Rev. 795 (2012).

[22] John Pfaff, A Mockery of Justice for the Poor, The New York Times (April 29, 2016), https://www.nytimes.com/2016/04/30/opinion/a-mockery-of-justice-for-the-poor.html.

Posted in Current Events | Tagged , , , ,

Trump’s Travel Ban: Is There a Way Out?

By Rita Samaan
Associate Editor, Vol. 22

In the wake of the Ninth Circuit Court of Appeals’ decision to block President Trump’s Executive Order 13769 (“Executive Order”), the President vowed to issue “a new executive action . . . that will comprehensively protect our country.”[1] The President’s officials have disclosed their intent to advocate more strongly for why the revised ban should apply to the seven listed countries.[2] They hope to overcome the amassing legal scrutiny of the travel ban and make it less of a “Muslim ban” in effect.[3]

So, who stood in the way of Trump’s order? Washington and Minnesota brought an action against President Trump, the Secretary of Homeland Security, Secretary of State, and the United States for a declaratory judgment that portions of the Executive Order were unconstitutional.[4] The states filed a motion for a temporary restraining order (TRO).[5] The United States District Court for the Western District of Washington granted the TRO and denied motion for stay pending appeal.[6] The federal government moved for an emergency stay of the district court’s TRO while waiting for its appeal to proceed.[7]

The decision on the government’s motion for an emergency stay came before the Ninth Circuit Court of Appeals. The court faced two questions: 1) whether the Government had made a strong showing of its likely success in its appeal and 2) whether the district court’s TRO should be stayed in light of the relative hardship and the public interest.[8] The court answered “no” to both questions,[9] listing several reasons for its decision.

The court held the Government had not shown it is likely to succeed on appeal on its argument regarding the States’ Due Process Clause claim.[10] The Government cannot deprive a person of these protected interests “without providing ‘notice and an opportunity to respond,’ or, in other words, the opportunity to present reasons not to proceed with the deprivation and have them considered.”[11]

Moreover, the court reasoned that the procedural protections of the Fifth Amendment’s Due Process Clause apply to all “persons” within the United States, which includes aliens—notwithstanding “whether their presence here is lawful, unlawful, temporary, or permanent.”[12] The Government did not succeed in showing that the States lacked viable due process rights claims for people whose protected interests will suffer due to the Executive Order.[13]

In regard to question two, the court found that the Government had not shown a stay was necessary to avoid irreparable injury.[14] The Government also provided no evidence to rebut the States’ argument that the lower court’s TRO simply returned the nation to its previous position – it did not worsen the country’s situation.[15] The Government also claimed it suffered an institutional injury when the courts interfered with an executive order, thereby eroding the separation of powers.[16] The court found that this injury is not “irreparable” because the Government can vindicate its interests through this litigation.[17]

On the other hand, the States have provided evidence that if the Executive Order were reinstated, it would considerably injure the States.[18] The travel ban substantially harmed many States’ families, students, and employees.[19] The court engaged in a weighing test of which interests should take precedence.[20] On the one hand, it acknowledged that the public does have a strong interest in national security and a president’s ability to enact policies.[21] On the other hand, the court also found that the public has an interest in free flow of travel, keeping families together, and freedom from discrimination.[22] The court found the latter interests to be more important; thus, the travel ban was not justified to protect national security and the emergency motion for a stay pending appeal was denied.[23]

While the appeal was still pending, President Trump signed a revised Executive Order on March 6, 2017, which has been similarly blocked by federal judges in Hawaii and Maryland.[24]  The revised order imposes a 90-day ban on the issuance of new visas for citizens of now six countries because Iraq has been removed from the ban.[25] The U.S. refugee program will also be suspended for 120 days and will now accept no more than 50,000 refugees in a year, which is significantly less than the previous 110,000 limit set by the Obama administration.[26]

There is a lot of room for this Executive Order to be changed, or even struck down. If the Executive Order were to be struck down, it would return the U.S. to its former immigration process. However, a part of the order may be salvageable. Although the main purpose of the Executive Order is to provide for national security, there is a small portion of it that speaks to protecting refugees who are religiously persecuted. The U.S. government has an international responsibility to care for refugees and victims of genocide, and that is what the religious persecution portion should be used to do.

Section 5(b) of the ban “directs the Secretary of State to prioritize refugee claims based on religious persecution where a refugee’s religion is the minority religion in the country of his or her nationality.”[27] This section should be severed from the order, reframed, and recategorized under efforts to help victims of ISIS’s religious genocide. For example, it could be reframed to direct that protection be afforded to these victims, as well as direct resources to be allocated for genocide relief programs.

March 17, 2017 marked the one-year anniversary since the House of Representatives voted 393-0 to recognize ISIS’s crimes as a genocide against religious minorities who don’t conform to its vision of “true Islam,” which includes Yazidis, Christians, Shabaks, Sabea-Mandeans, Turkomen, and Shia Muslims.[28]

A reframed Section 5(b) may provide the impetus for the coordination of both American and international efforts to provide sanctuary to those religious minorities. The need for global aid is urgent. The Christian and Yazidi ancient presence in the ISIS controlled region is now on the verge of extinction.[29] Aid to the Church in Need, a UK-based Catholic campaign, warned that Christians could disappear from Iraq within five years “unless emergency help is provided at an international level on a massively increased scale.”[30] In Iraq, the number of Christians has fallen to 275,000 while Syria’s Christian population has dropped from 1.25 million in 2011 to about 500,000 today.[31] The Archbishop of Washington, Cardinal Donald Wuerl, said, “For some time, the world has witnessed the deliberate and organized effort by ISIS to eliminate Christians from the Middle East. For the U.S. government to call this savagery by its proper name—genocide—is a welcome step in what must now be a more committed effort at bringing peace and security to that beleaguered land . . . These words must now be translated into action.”[32] And yet, three years after ISIS began its onslaught in Iraq, the genocide against religious minorities rages on as the world stands by.

Therefore, the Executive Order should be struck down for the unconstitutional reasons the court discussed, returning the U.S. to its former immigration process (though it may have its imperfections), and the number of accepted refugees should be increased. Next, Section 5(b), instead of being part of a broad unconstitutional travel ban, should be severed and reframed to help genocide victims. In this way, the U.S. could protect the rights of people within its borders and also act on its international responsibility to help refugees and victims of genocide.


[1]Spencer Ackerman, Trump’s Updated Travel Ban to Have Minimal Input From National Security (Feb. 25, 2017), The Guardian, https://www.theguardian.com/us-news/2017/feb/17/trump-updated-travel-ban-minimal-input-national-security.

[2] Id

[3] Id.

[4] Washington v. Trump, 847 F.3d 1151, 1151 (9th Cir. 2017) (per curiam).

[5] Id.

[6] Id.

[7] Id.

[8] Id. at 1164.

[9] Id.

[10] Id.

[11] Id. (quoting United States v. Raya-Vaca, 771 F.3d 1195, 1204 (9th Cir. 2014)).

[12] Id. at 1165 (quoting Zadvydas v. Davis, 533 U.S. 678 (2001)).

[13] Id.

[14] Id. at 1168.

[15] Id.

[16] Id.

[17] Id.

[18] Id. at 1168-69.

[19] Id.

[20] Id. at 1169.

[21] Id.

[22] Id.

[23] Id.

[24] Oliver Laughland, Trump Administration Appeals Partial Block of Travel Ban by Maryland Judge (Feb. 17, 2017), The Guardian, https://www.theguardian.com/us-news/2017/mar/17/trump-appeal-revised-travel-ban-maryland-judge-theodore-chuang.

[25] Matthew Zapotosky, Revised Executive Order Bans Travelers From Six Muslim-Majority Countries From Getting New Visas (Mar. 6, 2017), The Washington Post, https://www.washingtonpost.com/world/national-security/new-executive-order-bans-travelers-from-six-muslim-majority-countries-applying-for-visas/2017/03/06/3012a42a-0277-11e7-ad5b-d22680e18d10_story.html?postshare=3941488818443063&tid=ss_fb&utm_term=.21c519f3a208.

[26] Id.

[27] Washington, 847 F.3d at 1151.

[28] Bradford Richardson, Advocates Encourage Trump to Take Action on Anniversary of Christian Genocide Designation (Mar. 16, 2017), The Washington Times,  http://www.washingtontimes.com/news/2017/mar/16/christian-genocide-in-middle-east-anniversary-has-/.

[29]Lizzie Dearden, Christianity ‘On Course to Disappear’ in Parts of Middle East as Ethnic Cleansing Continues, Report Warns (Nov. 10, 2015), The Independent, http://www.independent.co.uk/news/world/middle-east/christianity-on-course-to-disappear-in-parts-of-middle-east-as-ethnic-cleansing-continues-report-a6728831.html.

[30] Id.

[31] Id.

[32] Elise Labott and Tal Kopan, John Kerry: ISIS Responsible for Genocide (Mar. 18, 2016), CNN, http://www.cnn.com/2016/03/17/politics/us-iraq-syria-genocide/.

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The Continuing Significance of the Non-Unanimous Jury Verdict and the Plantation Prison

By Madeleine Jennings 
Associate Editor, Vol. 22

In 1934, Oregon voters amended their Constitution to allow for non-unanimous jury verdicts in all non-first degree murder and non-capital cases.[1] The Louisiana Constitution requires unanimity only in capital cases.[2] Grounded in xenophobia and anti-Semitism, the Oregon law was passed by a ballot measure following the trial of a Jewish man who, accused of killing two Protestants, had received a lesser manslaughter conviction following a single juror hold-out.[3] The Louisiana iteration was crafted post-Reconstruction to increase convictions of then-freed Blacks, thereby increasing the for-profit labor force.[4] The State had, for decades, leased convicts to plantation owners and, in 1869, leased its prison and all of its inmates to a former major in the Confederate Army, who later moved the prisoners to Angola, the site of the former plantation, named for the country that was once home to its slaves.[5]

Once an 8,000-acre plantation, Angola now sits on 18,000 acres—roughly the size of Manhattan—and consumes its own zip code.[6] Today, it is one of the nation’s largest maximum security prisons, and has been named “America’s Bloodiest Prison.”[7]

The Louisiana and Oregon majority rules remain good law today. Each state requires just a ten- or eleven-juror consensus, among the twelve-person jury. The two states are the only, of the fifty, to not require unanimity in state criminal cases (unanimity is required in all federal criminal cases[8]). An estimated eight out of every ten convictions out of Orleans Parish are non-unanimous and, relatedly, the Parish has the highest rate of wrongful convictions in the United States.[9] The Innocence Project of New Orleans recently estimated that nearly half of its eligible exonerees were convicted by non-unanimous juries.[10]

The text of the Sixth Amendment provides no right to a unanimous jury verdict, but the Supreme Court has long recognized that right in federal criminal cases.[11] In 1972, the United States Supreme Court decided companion cases Apodaca v. Oregon[12] and Johnson v. Louisiana[13], in which the Court declined to require unanimity in state criminal cases In Apodaca, the Court split 4-1-4, with eight justices agreeing that the Sixth Amendment right applied—or did not apply—in the same manner to the federal and state governments.[14] Four posited that the right applied to both, and four, that the right applied to neither.[15] Justice Powell remained, finding that the Sixth Amendment required unanimity in federal cases, but not in state cases[16]. Dissenting in Johnson v. Louisiana, Justice Potter Stewart correctly stated that, where unanimous verdicts are not required, jurors in the majority “can simply ignore the views of their fellow panel members of a different race or class.”[17]

In the following decades, many cases around the issue have come before the Justices, but the Court has repeatedly declined to hear them.[18] The Court declined to hear Bowen v. Oregon in 2009[19] and, in 2014, declined to hear Jackson v. Louisiana and several others.[20]

Last summer, I visited Angola on one hot afternoon. The sign in the parking lot read, “Louisiana State Penitentiary,” and below that, “Burl Cain Warden.” A museum adjoins the lot.[21] Inside are old electric chairs, wooden coffins, confiscated weapons, and striped inmate costumes available for purchase. A video plays on loop in a back room, and in that video, several talking heads explain the history of Angola, the plantation and the prison. Woven through their monologues are simultaneous condemnations of, and pride in the past. Their words convey a lack of understanding of the ways in which the prison’s past and present are not so dissimilar. Angola’s location 140 miles from New Orleans is misleading in many ways. The prison functions as an annex to the city, a backyard to so many, too many New Orleanians.

There’s a daiquiri shop called the Jazz Daiquiri. Made of cinder blocks, it sits on Claiborne Avenue in New Orleans, and inside are many flavors: The L.S.U. Tiger, the Red White and Blue, the Chicken & Watermelon, and the Angola.


[1] Or. Const. Art. I, § 11.

[2] La. Const. Art. 1, § 17.

[3] Jarvis DeBerry, Historian Traces Racist Origin of Louisiana Law Allowing 10-2 Jury Verdicts, Times Picayune (May 5, 2015), http://www.nola.com/crime/index.ssf/2015/05/louisiana_jury_verdicts.html.

[4] Marjorie R. Esman, Guest Column: Non-Unanimous Jury Verdicts Steeped in Racist Past, The Advocate (Jan. 28, 2016), http://www.theadvocate.com/baton_rouge/opinion/our_views/article_e9fefca4-c278-57f6-a0fa-24eb1c93d2fd.html.

[5] Id.

[6] Delia Cabe, Angola State Prison: A Short History, Voices Behind Bars: National Public Radio and Angola State Prison (2010), http://ccnmtl.columbia.edu/projects/caseconsortium/casestudies/54/casestudy/www/layout/case_id_54_id_547.html

[7] G. R., The Story of Cain: America’s Most Famous Jailer Hangs Up His Keys, The Economist (January 14, 2016), http://www.economist.com/blogs/democracyinamerica/2016/01/story-cain.

[8] Fed. R. Crim. P. 31(a).

[9] Esman, supra note 4.

[10] Id.

[11] Andrew Cohen, Will the Supreme Court Address Louisiana’s Flawed Jury System, The Atlantic (April 23, 2014), https://www.theatlantic.com/amp/article/360726/.

[12] 406 U.S. 404 (1972).

[13] 406 U.S. 356 (1972).

[14] Eugene Volokh, Non-Unanimous Criminal Jury Verdicts, The Washington Post (April 24, 2014), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/04/24/non-unanimous-criminal-jury-verdicts/?utm_term=.5f4103917920.

[15] Id.

[16] Id. at 366.

[17] Johnson, 406 U.S. at 397 (Stewart, J., dissenting).

[18] Cohen, supra note 11.

[19] Adam Liptak, Justices Decline to Hear Some 2,000 Cases, New York Times (Oct. 5, 2009), http://www.nytimes.com/2009/10/06/us/06scotus.html.

[20] DeBerry, supra note 3.

[21] History of Angola Prison, http://www.angolamuseum.org/history/history (last visited Feb. 20, 2017).


The views expressed herein represent the views of the author only.

 

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Upcoming Event: So I Wanted to Work for the Federal Government… and then Trump Got Elected. What Now?

The Michigan Journal of Race & Law will be hosting a panel with professors to discuss options for students who are interested in working for the federal government but who have reservations or concerns as a result of the current political climate.
Featuring 
Professors Bagenstos, Katz, Uhlmann and Schlanger
as well as
Melanie Macey and Alan Kahn
to present OCP’s perspective

Monday March 13

11:50-12:50

116 Hutchins Hall

Co-Sponsored by OPIS, WLSA & MJLR
Lunch will be provided to the first 50 people
Posted in MJR&L Events | Tagged , , , ,

Imposition of Identity: Trump’s Immigration Order and the Racialization of Islam

By Asma Husain
Associate Editor, Vol. 22

On January 27 of this year, newly-inaugurated President Trump issued an executive order temporarily immigration from Iran, Iraq, Syria, Sudan, Somalia, Libya, and Yemen pending a report from the Department of Homeland Security, to be completed within thirty days of the order’s date.[1] Despite singling out only Muslim-majority countries, and despite Trump’s campaign promise of a “total and complete shutdown of Muslims entering the United States,”[2] the Trump administration has refused to characterize the immigration order as a “Muslim ban.” However, the ban impacts predominantly Muslim and Muslim-looking people and contributes to the classification of Muslims as a monolithic race by both the state and popular opinion.

The immigration order is couched in language about national security, but there is no doubt of its intentions to single out Muslim immigrants. A member of Trump’s team during the presidential election, Rudy Giuliani, spoke with Fox News about how Trump told him to craft a Muslim ban that could be carried out legally.[3]

And what we did was, we focused on, instead of religion, danger – the areas of the world that create danger for us. What is a factual basis, not a religious basis. Perfectly legal, perfectly sensible. And that’s what the ban is based on. It’s not based on religion. It’s based on places where there are substantial evidence that people are sending terrorists into our country.[4]

Despite Giuliani’s claims, and his confidence in the legality of the order, the administration has offered no evidence linking the seven banned countries to active threats to the United States. The order justifies itself by references to the terrorist attacks of September 11, 2001;[5] however, “no Muslim extremist from any of these places has carried out a fatal attack on the U.S. in more than two decades.”[6] If the ban is intended to protect American citizens from terrorist attacks, it appears badly tailored to effectuate that purpose. And if the order’s stated purpose is not its true aim, then what is actually going on?

Anti-Muslim sentiment is the latest iteration of anti-Asian, Orientalist prejudice that once justified the Chinese Exclusion Act[7] and Japanese internment.[8] This type of prejudice defines various groups as other and puts forth the idea that they will never be able to assimilate into American society. In upholding Chinese exclusion in 1893, the Supreme Court said that the Chinese were “of a distinct race and religion, remaining strangers in the land, residing apart by themselves, tenaciously adhering to the customs and usages of their own country . . . incapable of assimilating with our people.”[9] This fear of the unassimilated has often been tied to national security objectives, including the internment of Japanese immigrants and Japanese-Americans during World War II. The Japanese were described as “a large, unassimilated, tightly knit racial group, bound to an enemy nation by strong ties of race, culture, custom and religion.”[10] There is a persistent pattern of othering immigrant communities as too different to be part of the United States, and declaring them dangerous as a result. “The ‘Muslim terrorist’ fits within this tradition of the permanently foreign Asian American, unassimilable and subject to disloyalty, espionage, and sabotage.”[11] Therefore, when Rudy Giuliani speaks about justifying the immigration order because of danger, he is really invoking a historical legacy of legally-permissible racial prejudice.

The immigration order is not the first American government action to classify Muslims in this way. Counterterrorism measures have re-categorized Muslim and Muslim-looking people as enemy combatants and potential threats in order to justify surveillance, detention, and torture.[12] Oftentimes, individuals are targeted by these measures “not because of a reasonable suspicion that they specifically were linked to terrorism, but rather because of one common characteristic: they were or were believed to be Muslim.”[13] In 2004, the Supreme Court upheld the executive branch’s determination of individuals, including U.S. citizens, as “enemy combatants,” which allowed the state to limit those individuals’ constitutional protections and privileges under international law.[14] National security is doubtlessly a compelling government interest, but the risk lies in using this justification in such an overbroad way that that the enacted measures are not actually achieving the safety they purport to be seeking. And more narrowly-tailored government action has smoothed the way for the current administration’s unfounded selection of various states for the immigration ban, because they are Muslim-majority and not because they are connected to specific threats.

Groups facing such discrimination traditionally have the benefit of constitutional protections. However, the solution may not be as simple as Muslim plaintiffs filing suit and accumulating evidence that they are being discriminated against on the basis of their religion. Studies of religious discrimination lawsuits show that Muslims are significantly less likely to prevail on First Amendment claims than members of other religions.[15] This is because Muslim identity, or perceived Muslim identity, has undergone a transformation in the United States as it has interacted with law and policy. “Muslim” has become an externally applied label that acts more like a race under American law than an affirmatively claimed religious identity. “There has been such a profound racialization of Islam throughout the history of the U.S. that a community’s affiliation or relationship to Islam can, and has in fact, contribute to its exclusion from Whiteness.”[16] And the easier it is to exclude Muslims from American identity, the easier it is to justify measures which are “Muslim bans” in all but official name.

Does it matter, then, that the Trump administration selected seven Muslim-majority nations for the order which have no ties to recent attacks on the United States? Legally, perhaps. After a district court issued an injunction temporarily ceasing enforcement of the immigration order, the administration appealed to the Ninth Circuit.[17] The court questioned the grounds for the appeal, stating that the government submitted no evidence to rebut the states’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years. The government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States.[18]

The court further considered the aspects of public interest on either side of the case, specifically pointing to “freedom from discrimination.”[19] This court, at least, is pushing back on the rhetorical justifications for the immigration order, and that implicitly also pushes back against the blanket categorization of Muslims as a threat.

Outside of the courts, however, the ban may continue to feed perceptions of Muslims as monolithic, foreign, and dangerous. The immigration order is an exclusionary act, and it serves to further define Muslim identity both in public perception and under law. “The power of racialization is that the ‘Muslim terrorist’ is imposed upon groups regardless of their subjective wishes.”[20] By declaring every permanent resident, refugee, or visitor from Muslim-majority countries a potential threat, the Trump administration has relied on an existing framework of racialization and vilification of Muslims, and is now further bolstering that framework. Regardless of whether the ban is ultimately found constitutional or enforceable, its declaratory statements have further defined and grouped together countless individuals without their consent. That imposition of identity will continue to have consequences for those caught in the net of anti-Muslim sentiment.


UPDATE: A revised executive order was released March 6, 2017.[21]


[1] Trump’s Executive Order on Immigration, Annotated, NPR, http://www.npr.org/2017/01/31/512439121/trumps-executive-order-on-immigration-annotated (last visited Feb. 26, 2017).

[2] Stephen Dinan, Court: Trump’s ‘Muslim ban’ promise is ‘evidence’ against executive order, The Wash. Times (Feb. 08, 2017), http://www.washingtontimes.com/news/2017/feb/8/court-donald-trumps-muslim-ban-promise-evidence-ag/.

[3] Amy B. Wang, Trump asked for a ‘Muslim ban,’ Giuliani says – and ordered a commission to do it ‘legally’, The Wash. Post (Jan. 29, 2017), https://www.washingtonpost.com/news/the-fix/wp/2017/01/29/trump-asked-for-a-muslim-ban-giuliani-says-and-ordered-a-commission-to-do-it-legally/?utm_term=.a0a834094be5.

[4] Id.

[5] Trump’s Executive Order on Immigration, Annotatedsupra note 1.

[6] Greg Myre, Trump’s Immigration Freeze Omits Those Linked to Deadly Attacks in U.S., NPR (Jan. 27, 2017), http://www.npr.org/sections/parallels/2017/01/27/511861645/trumps-immigration-freeze-omits-those-linked-to-deadly-attacks-in-u-s.

[7] 22 Stat. 58, 47 Cong. Ch. 126

[8] Transcript of Executive Order 9066: Resulting in the Relocation of Japanese (1942), OurDocuments, https://www.ourdocuments.gov/doc.php?flash=false&doc=74&page=transcript (last visited Feb. 26, 2017).

[9] Fong Yue Ting v. United States, 149 U.S. 698, 717 (1893).

[10] Korematsu v. United States, 323 U.S. 214, 237 (1944) (Murphy, J., dissenting).

[11] Neil Gotanda, Race, Religion, and Late Democracy: The Racialization of Islam in American Law, 637 Annals 184, 191 (2011).

[12] Romtin Parvaresh, Note: Prayer for Relief: Anti-Muslim Discrimination as Racial Discrimination, 87 S. Cal. L. Rev. 1287, 1296 (2014).

[13] Id. at 1288.

[14] Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

[15] Gregory C. Sisk & Michael Heisse, Muslims and Religious Liberty in the Era of 9/11: Empirical Evidence from the Federal Courts, 98 Iowa L. Rev. 231, 249 (2012).

[16] Nagwa Ibrahim, Comment: The Origins of Muslim Racialization in U.S. Law, 7 UCLA J. Islamic & Near E.L.. 121, 123 (2009).

[17] Washington v. Trump, 2017 U.S. App. LEXIS 2369 (9th Cir. Wash. Feb. 9, 2017).

[18] Id. at 32.

[19] Id. at 34.

[20] Gotanda, supra note 11, at 188.

[21] David Nakamura & Matt Zapotosky, Revised Executive Order Bans Travelers from Six Majority-Muslim Countries from Getting New Visas, The Washington Post (Mar. 6, 2017), https://www.washingtonpost.com/world/national-security/new-executive-order-bans-travelers-from-six-muslim-majority-countries-applying-for-visas/2017/03/06/3012a42a-0277-11e7-ad5b-d22680e18d10_story.html?postshare=3941488818443063&tid=ss_fb&utm_term=.355ef8cd25d4.


The views expressed herein represent the views of the author only.

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Supreme Court Considers Limits of Racial Gerrymandering

By Marcus Baldori
Associate Editor, Vol. 22

In the coming months, the Supreme Court is expected to clarify its stance on the legal boundaries of racial gerrymandering. In December 2016 the Supreme Court heard oral arguments for Bethune-Hill v. Virginia State Board of Elections; the case will explore whether a requirement that certain districts have a minimum of 55% Black voting population violates the Equal Protection Clause and the Voting Rights Act.[1] The plaintiffs allege that the 55% floor was a scheme to pack black voters into a few districts, thereby diluting minorities’ overall effect on delegate elections in Virginia.[2]

Before the Supreme Court granted cert for this case, the U.S. District Court for the Eastern District of Virginia held[3] that there was no Equal Protection violation because race was a not a predominant factor in the creation of 11 of the 12 challenged state district maps (citing criteria like compactness, contiguity, and incumbency protection[4]). The district court acknowledged that a “racial sorting” violation is independent of intent to dilute minority vote, and focuses only on whether the State has used race as a basis for separating voters.[5] Still, the Court held that the plaintiffs did not make the required showing that the legislature subordinated race-neutral principles to racial considerations in drawing the districts.[6]

For the single district where race was found to be a predominant factor in its drawing, thereby triggering a strict scrutiny analysis[7]; the district court held that there was a compelling state interest in complying with the Voting Rights Act, and therefore the State did not violate the Equal Protection Clause.[8] The Voting Rights Act provides an additional measure to prevent voting discrimination on the basis of race or ethnicity. Specifically, the Supreme Court held in Mobile v. Bolden that a Section 2 Voting Rights Act[9] violation occurs upon the result of a dilution (or “retrogression”) of racial minorities upon the reduction of majority-minority districts.[10] Legislatures have struggled with Section 2 because it requires the creation of majority-minority districts in some circumstances.[11]

A conflict arises when states are required consider race to comply with the Voting Rights Act, but, under the Equal Protection Clause, must also not subordinate race-neutral principals to racial considerations in drawing boundaries.[12] If the State does use racial considerations, it must show strong evidence that it was necessary to comply with the Voting Rights Act.[13]

Democrats have taken a strong stance against the District Court’s ruling, criticizing the ability for legislatures to get away with redrawing based on racial metrics as long as some other grounds are provided.[14] During oral arguments, both Justice Kagan and Justice Kennedy signaled concern: an intentional 55% floor for Black voting population is an admission that race was a significant factor in drawing the districts and should therefore be subject to strict scrutiny. If the Justices fall along their usual political lines, there could be a 4-4 split; but Kennedy’s concern expressed during oral argument points to the possibility of a 5-3 decision for the plaintiffs.[15] However, even if the Supreme Court decides that the 11 districts were drawn with race as a predominant factor, there would still be the question of whether this drawing was necessary to avoid retrogression under the Voting Rights Act.

It is worth noting that Virginia has since relaxed its compliance requirements with the Voting Rights Act, but that the 2011 redistricting will still be analyzed under the antidiscrimination law as it was in 2011.[16]

UPDATE: The Supreme Court has since decided the case by remanding consideration of 11 districts under the proper standard, while affirming the district court’s conclusion to uphold the single district where race was a predominant factor in its drawing.[17]


[1] Josh Gerstein, Supreme Court Takes Case Claiming Racial Gerrymandering in Virginia, Politico (June 6, 2016), http://www.politico.com/blogs/under-the-radar/2016/06/virginia-redistricting-supreme-court-223946.

[2] Josh Gerstein, Supreme Court Struggles with Pair of Race and Redistricting Cases, Politico (December 5, 2016), http://www.politico.com/blogs/under-the-radar/2016/12/supreme-court-redistricting-virginia-north-carolina-232206?jumpEdition=.

[3] Redistricting in Virginia, Ballotpedia (Feb. 18, 2017), https://ballotpedia.org/Redistricting_in_Virginia#State_legislative_redistricting.2C_2010.

[4] Adam Liptak, Justices Wrestle with Role of Race in Redistricting, The New York Times (Dec. 5, 2016), https://www.nytimes.com/2016/12/05/us/politics/supreme-court-redistricting-race.html?_r=0.

[5] Bethune-Hill v. Virginia State Bd. of Elections, 141 F.Supp.3d 505, 513 (E.D. Va. 2015).

[6] Id. at 513.

[7] Id. at 545.

[8] Liptak, supra note 4.

[9] Section 2 of the Voting Rights Act, The U.S. Dept. of Justice (Aug. 8, 2015), https://www.justice.gov/crt/section-2-voting-rights-act#sec2.

[10] Voting Rights Act, Ballotpedia (Feb. 18, 2017), https://ballotpedia.org/Voting_Rights_Act.

[11] Bethune-Hill, 141 F.Supp.3d at 516.

[12] Id.

[13] Id. at 522.

[14] Gerstein, supra note 2.

[15] Id.

[16] Bethune-Hill, 141 F.Supp.3d at 547.

[17] See Adam Liptak, Supreme Court Returns Virginia Voting Case to Lower Court, The New York Times (March 1, 2017), https://www.nytimes.com/2017/03/01/us/politics/supreme-court-virginia-house-delegates-gerrymandering.html?_r=0.


The views expressed herein represent the views of the author only.

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Civil Rights Enforcement in the Trump Era

By Ali Boyd
Associate Editor, Vol. 22
Online Publications Editor, Vol. 23

In the wake of President Trump’s recent inauguration, millions of people across the world came out in protest of his rhetoric and policy agenda.[1]  The day after the inauguration, the Women’s March on Washington and sister-marches around the world demonstrated a widespread fear shared by millions that the rights of vulnerable Americans will be violated under President Trump’s administration.[2]  Civil rights could, of course, be curtailed through the legislative process, but often this takes time.  What is perhaps even more terrifying is the reality that the Trump administration could simply stop enforcing rights that are currently in place, a decision which could have immediate effect.

One of the key institutions for the federal government’s enforcement of civil rights is the Civil Rights Division of the Department of Justice, which was created after the passage of the Civil Rights Act of 1957.[3]  Since that time, the Division has been responsible for enforcing federal statutes designed to protect some of the most vulnerable members of our society, [4] including the Americans with Disabilities Act (ADA), the Equal Educational Opportunities Act of 1974, the Civil Rights Act of 1964, and the Voting Rights Act.[5]  The Civil Rights Division has been responsible for some remarkable legal work since its installation.  The DOJ website boasts of the prosecution of the eighteen individuals for civil rights violations surrounding the murder of three civil rights workers in Mississippi in 1964 as well as the Civil Rights Division’s involvement in the investigations of the assassination of Dr. Martin Luther King, Jr.[6]

In theory, the Civil Rights Division’s job appears straightforward – the United States legislature creates the law, and the Department of Justice’s duty is to enforce those laws through necessary legal action.  However, in practice, the power of the Civil Rights Division stretches far beyond mere enforcement of federal statutes.  The Division’s ability to choose which issues are worthy of litigation and which are to remain unenforced affects the lives of millions of vulnerable people and sends a message to the nation about what type of discriminatory behavior is acceptable or unacceptable.

As such, the Division’s decisions in these matters should be seen as a direct reflection of the current administration’s civil rights agenda.  For example, the Civil Rights Division under President Obama took unprecedented steps toward combatting police misconduct in the wake of several high profile incidents by investigating over twenty police agencies for civil rights violations.[7]  President Obama’s support for same-sex marriage and LGBT rights[8] was reflected in the DOJ’s refusal to defend the Defense of Marriage Act, a federal law that defined marriage as being between one man and one woman for the purpose of federal benefits.[9]  The Civil Rights Division took proactive steps to expand LGBTQ protections as well by filing suit against North Carolina for its discriminatory transgender bathroom bill.[10]  On the other hand, a 2009 Government Accountability Office report found that the Civil Rights Division saw a decline in the number of certain kinds of civil rights enforcement cases under President Bush when compared to his predecessor President Clinton, particularly when it came to enforcement of the Voting Rights Act.[11]  These differences from one administration to the next occurred in spite of the fact that the Civil Rights Division has been tasked with enforcing much of the same long-standing law since its inception.

Additionally, the attorneys selected to lead the Department of Justice, and the Civil Rights Division in particular, can have a profound impact on the direction the Civil Rights Division takes, and therefore on the direction of civil rights within our nation.  The previously mentioned Government Accountability Office Report found that under the Bush administration, supervisors in the Civil Rights Division decided to close cases against the recommendation of career civil rights attorneys, oftentimes without any explanation.[12]

With this much power vested in the Division and its leaders, do minorities have reason to fear the agenda that the Civil Rights Division will set under President Trump?  Based on the evidence we have been given thus far, the answer is a resounding yes.  President Trump, through his words and actions, has already begun to set an agenda for what civil rights will look like over the next four years.  During his campaign, Trump advocated for a controversial nation-wide stop-and-frisk policy as a way to reduce crime.[13]  Should this platform trickle down into the Civil Rights Division, it will be in stark contrast to the investigations of police brutality conducted by Obama’s civil rights team.  Within hours of President Trump’s inauguration, the civil rights page that once appeared on the White House’s official website had been removed.[14] Additionally, President Trump’s pick to oversee the Civil Rights Division has a background that indicates resistance to civil rights enforcement may be in our nation’s future, particularly in the area of voting rights.  President Trump has tapped attorney John M. Gore to lead the Civil Rights Division as the Deputy Assistant Attorney General.[15]  Headlines have scoffed at the fact that Gore, in his private practice, defended the University of North Carolina against the ACLU’s challenge to the same transgender bathroom bill that President Obama’s Department of Justice fought against.[16]  Additionally, Gore’s specialty is in “defending the Republican Party against allegations that its voting laws violate civil rights.”[17]  When combined with President’s Trump’s recent obsession with the meritless claim that millions of voters cast fraudulent ballots in the November election,[18] this serves as an indication that voting rights will be at the center of President Trump’s time in office.  As has become recently apparent, the rights of immigrants and refugees in this country will also be a hot-button issue over the next four years, and President Trump will not stand for anyone within the Department of Justice who gets in the way of his agenda.  After acting Attorney General Sally Yates refused to enforce President Trump’s executive order banning the entry of citizens of seven Muslim-majority countries into the United States, the President swiftly removed her from her position.[19]

What do these clues ultimately tell us?  At best, it is likely that over the next four years we will see a scaling back of the cases taken on by the Civil Rights Division, particularly in certain areas like voting rights, LGBT rights, and race-based discrimination.  This would be similar to the scaling back seen during the years of President George W. Bush.  At worst, we could see a complete reversal of the government’s position on important civil rights matters.  Rather than using the Voting Rights Act to protect voters from discrimination and give greater access to ballots, the government could instead argue on behalf of states who want to restrict access further.  Either way, it is clear we no longer live under President Obama’s Department of Justice.


[1] See Tessa Stuart, Inside the Historic Women’s March on Washington, Rolling Stone (Jan. 21, 2017), http://www.rollingstone.com/politics/features/inside-the-historic-womens-march-on-washington-w462325.

[2] See id.

[3] See About the Division, U.S. Dep’t of Just. Civ. Rights Division (last visited Jan. 26, 2014), https://www.justice.gov/crt/about-division.

[4] See id.

[5] See Disability Rights Section, U.S. Dep’t of Just. Civ. Rights Division, https://www.justice.gov/crt/disability-rights-section (last visited Jan. 26, 2017); Educational Opportunities Section, U.S. Dep’t of Just. Civ. Rights Division, https://www.justice.gov/crt/educational-opportunities-section (last visited Jan. 26, 2017); Voting Section, U.S. Dep’t of Just. Civ. Rights Division, https://www.justice.gov/crt/voting-section (last visited Jan. 26, 2017).

[6] About the Division, supra note 3.

[7] Eric Tucker, Trump Could Reshape Justice Department’s Civil Rights Focus, PBS (Nov. 11, 2016, 10:10 AM), http://www.pbs.org/newshour/rundown/trump-reshape-justice-departments-civil-rights-focus/.

[8] Phil Gast, Obama Announces He Supports Same-Sex Marriage, CNN (May 9, 2012, 9:57 PM), http://www.cnn.com/2012/05/09/politics/obama-same-sex-marriage/.

[9] Eric Tucker, supra note 8.

[10] Id.

[11] See Charlie Savage, Report Examines Civil Rights During Bush Years, The N.Y. Times (Dec. 2, 2009), http://www.nytimes.com/2009/12/03/us/politics/03rights.html.

[12] Id.

[13] Louis Nelson, Trump Calls for Nationwide ‘Stop-and-Frisk’ Policy, Politico (Sept. 21, 2106, 4:04 PM), http://www.politico.com/story/2016/09/donald-trump-stop-and-frisk-228486.

[14] Janell Ross, Civil Rights Page Also Deleted from White House Website, The Wash. Post (Jan. 20, 2017, 3:16 PM), https://www.washingtonpost.com/local/2017/live-updates/politics/live-coverage-of-trumps-inauguration/civil-rights-page-also-deleted-from-white-house-website/?utm_term=.1981d3339f4b.

[15] Eric Levitz, Trump’s Pick to Enforce Civil Rights Is an Expert at Defending GOP Voting Laws, N.Y. Mag. (Jan. 21, 2017, 11:53 AM), http://nymag.com/daily/intelligencer/2017/01/trumps-top-civil-rights-pick-has-bad-record-on-civil-rights.html.

[16] Id.

[17] Id.

[18] Maggie Haberman, Jennifer Steinhauer, and Charlie Savage, Press Secretary Affirms that Trump Believes Lie of Millions of Illegal Voters, The N.Y. Times (Jan. 24, 2017), https://www.nytimes.com/2017/01/24/us/politics/donald-trump-administration.html.

[19] Evan Perez and Jeremy Diamond, Trump Fires Acting AG After She Declines to Defend Travel Ban, CNN (Jan. 31, 2017, 2:37 PM), http://www.cnn.com/2017/01/30/politics/donald-trump-immigration-order-department-of-justice/.


The views expressed herein represent the views of the author only.

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Announcing the Volume 23 Executive Editorial Board

Congratulations to Our
Volume 23 Executive Editorial Board!

Editor-In-Chief
Asma Husain
 
Managing Editor
Tara Patel
 
Managing Executive Editor
Laura Page 
 
Executive Articles Editor
Jesus Narvaez 
 
Executive Notes Editor
Lauren Powell
 
Online Publications Editor 
Alexandra Boyd 
 
Symposium Co-Chairs
Madeleine Jennings
&
Claire Nagel 
 
Race & Curriculum Editor
Claire Nagel
Posted in Announcements

Deterrence and Democracy: Election Law After Preclearance

By Asma Husain
Associate Editor, Vol. 22

In 2013, Chief Justice Roberts delivered the Court’s opinion in Shelby County v. Holder, which struck down key provisions of the Voting Rights Act. Considered the crown jewel of the Civil Rights Movement, the Voting Rights Act had, until that decision, required covered jurisdictions to preclear changes to their election laws through either the Department of Justice or the District Court for the District of Columbia. The Court’s decision in Shelby County held that the preclearance formula was unconstitutional, and preclearance itself became a moot point. Almost immediately thereafter, several states implemented new election laws. Without the deterrent effect of Section 5 of the Voting Rights Act, 860 polling places in previously covered jurisdictions were closed within three years and new voter ID requirements proliferated. These changes, which would have had to be pre-approved under the VRA’s preclearance regime, could now be implemented without impediment. Although no reliable data yet exists comparing voter turnout and ballot accessibility in pre- and post-Shelby County presidential elections, what is clear is the message that striking down portions of the VRA sent.

What the majority and dissenters of the Shelby County court could not agree on was one central issue: was the Voting Rights Act still necessary in 2013 and beyond? Chief Justice Roberts stood firmly against the idea, stating that the coverage formula kept “the focus on decades-old data relevant to decades-old problems, rather than current data reflecting current needs.” Justice Ginsburg, in dissent, argued for the continued relevance of the preclearance formula. She boldly stated: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

The opposing sides of the Court came at the question of Shelby County from two inconsistent viewpoints. The preclearance formula, which covered jurisdictions that had a documented history of race-based voting discrimination, scrutinized changes to those jurisdictions’ voting laws under the assumption that there was a danger of further discrimination going forward. The majority truncated the context of the issue to the present, and stated that because the VRA had effectively corrected for the egregious race-based disenfranchisement of the Jim Crow South, it had served its purpose. The dissent, on the other hand, took a long view of history and saw the preclearance formula as a deterrent against future efforts to suppress or dilute minority voting strength, providing a check on future discriminatory laws before they could go into practice. Ultimately, Chief Justice Roberts’ viewpoint prevailed, and the formula was declared unconstitutional. The message sent to the states and to voters was that jurisdictions that had historically engaged in race-based voter suppression no longer needed to be kept under the watchful eye of the federal government. That portion of the Voting Rights Act was no longer necessary.

However, just seven years earlier, the Senate had reaffirmed its belief that the Voting Rights Act was necessary. In 2006, by a vote of 98 to 0, the Senate reauthorized the Voting Rights Act in its entirety for a further twenty-five years. In fact, Congress had continually reauthorized the Voting Rights Act since its initial passage in 1965, renewing its provisions in 1970, 1975, and 1982. Although the Shelby County majority declared that the preclearance regime was no longer necessary, Congress, at least up until 2006, had vehemently disagreed.

Laws function to control behavior in a variety of ways, the least of which is not through their expressive function. By “making statements,” laws can shape what is deemed acceptable by society at large. The preclearance regime of the Voting Rights Act acted in a such a way, standing for the proposition that voting is a fundamental right, and denying it to others on the basis of race is simply unacceptable.

The loss of that simple declaration was felt almost immediately. Within a year of the Shelby County decision, “most of the feared consequences [had] come to pass – including attempts to: revive voting changes that were blocked as discriminatory, move forward with voting changes previously deterred, and implement new discriminatory voting restrictions.” Many states enacted more restrictive voting laws after 2013, including most jurisdictions that had previously been covered by the preclearance regime.

Would these new laws have been enacted had the preclearance regime remained in place? Perhaps. Some might well have survived federal scrutiny, although other changes may not have passed through state legislatures while preclearance stood as an obstacle. Certainly, the number of proposed election laws proliferated in the years after Shelby County. And while some of those changes have served to make voting more efficient, others have specifically targeted impoverished and minority voters.

When the Supreme Court looked at the preclearance regime and questioned its continued relevance, the majority asked whether the preclearance regime was actually serving to block discriminatory voting laws. They questioned the preclearance formula’s focus on historically discriminatory jurisdictions, and found that that section of the VRA had become disconnected from its historical raison d’être. But the action the preclearance regime was meant to stall returned in force immediately after it was struck down. The problem, which had begun to seem like a historical relic, is now revived. Shelby County, rather than declaring the decisive end of discriminatory election law, has given such discrimination new life.

In his 1975 testimony before Congress,  Modest Rodriquez said, “Democracy does not come easily and we are asking for your help in this matter.” Rodriguez sought to impress upon Congress the need for expanding the Voting Rights Act, and he was ultimately successful. But his cause was one of many steps, additions and amendments and ratifications that bolstered the VRA through its history. Although the Act still stands, its central deterrent effect no longer does, and once again democracy proves that it does not come easily.

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