“The Civil Rights Division Bails Out of Bail-In in Texas”

Justin here. I’ve got a new post up at the Take Care blog, on a filing last week from DOJ’s Civil Rights Division. It’s a reversal of position, signed by a political appointee rather than career staff, of a request for VRA bail-in in Texas on the redistricting case. And it’s an attempt to ensure that there are no meaningful consequences for intentional racial discrimination. (I’m not a fan.)

Some snippets:

On Tuesday, the Department of Justice filed a brief reversing position in a case it brought six years ago.  . . . Civil Rights Division now argues that Texas should be let off the hook for its repeated intentional efforts to minimize the voting power of its minority population.  Nonpartisan career staff apparently refused to do this dirty work — and rightly so.

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After Perez, from the perspective of legislators bent on preserving power at minorities’ expense, there remains just one serious practical deterrent to giving discrimination a shot: bail-in under section 3(c).  A finding of intentional discrimination renders the jurisdiction eligible for federal supervision.  If bail-in has no teeth, there’s nothing keeping officials with a demonstrated history of wrongdoing from their worst instincts.

Which brings us to Texas.  The state has a serious problem with discrimination against its minority citizens.  The problem spans decades, but it’s not just ancient history. 
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This is the behavior of a jurisdiction with a problem, and one that does not appear willing or able to contain its worst impulses on its own.  Yes, the impact of both the redistricting lines and the voter ID law have since been mitigated, but only after Texas was repeatedly dragged kicking and screaming into federal court.  In the criminal justice system, the Texas government would be labeled a recalcitrant recidivist.

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The pattern in Texas redistricting . . . demands systemic intervention.  2011 was discriminatory, and no court has overturned that finding.  2003 was discriminatory, and no court has overturned that finding either.  And tragically, the DOJ brief identifies absolutely no reason to believe that Texas won’t try in 2021 exactly what it did in 2011 and 2003. 
“Baby, I swear I won’t do it again.” 
And the DOJ says Texans should just trust that promise.  Actually, it’s stronger: the DOJ says, based on one sentence in Veasey ripped out of its proper context, that Texans are legally bound to trust that promise. 

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The weakness of the DOJ’s filing has one other tell, and it may be the most significant.  Trial briefs are normally signed by the career attorneys who do the bulk of the work.  . . . Mr. Gore signed the DOJ’s filing personally on Tuesday.  This is not the new convention of the Civil Rights Division in the Trump era.  . . . I have no inside information about the anomalies, but I read them as statements.  The career attorneys know that Tuesday’s filing is wrong.  They’ll sign the final page’s certificate of service, because they can truthfully say that they sent the brief into the court’s e-filing system.  But they can’t truthfully say that they believe the legal argument in the remaining 12 pages. 

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