Recent Trump administration moves on civil rights bring into sharper focus its efforts to reverse the Obama era and curtail decades-old laws designed to shield blacks, Latinos and other racial minorities from discrimination.
Last week, the Justice Department retreated from a prior position and said Texas’ record of voter discrimination did not justify requiring prior approval for any new redistricting maps. The Obama administration had argued that a provision of the Voting Rights Act empowering judges to intervene should cover Texas, which has been mired in minority-voter disputes for years.
The administration is also apparently considering retrenchment against policies that appear neutral but have the effect of discriminating against minorities. In December, a federal commission convened by the White House recommended the rescission of Obama policy intended to ensure that African-American students are not disproportionately targeted under school discipline rules.
The Washington Post reported in January that the administration is considering a “far-reaching” curtailment of such regulations against practices that – although not intentionally discriminatory – have a “disparate impact” on minorities, whether at schools, on the job, or in the pursuit of housing. (The Justice Department would not comment on the report.)
At the same time, the administration is also engaged in a lawsuit against Harvard’s affirmative action admissions practices that have traditionally benefited blacks, Hispanics, and Native Americans. It is siding with a group that says Asian-American applicants are held to a higher standard for admissions, compared especially to black students.
All told, the Trump team continues to demonstrate that despite an atmosphere of disarray, its lawyers have kept a singular focus on transforming racial-bias laws – alarming civil rights activists and gratifying veteran conservative advocates.
“Since the 1960s, when these major laws were first enacted, we’ve never seen an administration so intensely focused on dismantling civil rights protections across the board,” Jon Greenbaum, chief counsel for the Lawyers Committee for Civil Rights Under Law, said Friday.
“They have been more effective so far than two Bush administrations,” said Roger Clegg, president and general counsel of the Virginia-based Center for Equal Opportunity, who supports the Trump agenda and has advocated for reversal of racial policies since the early 1980s.
Trump’s lawyers, to be sure, are proceeding as previous Republican administrations have, but their efforts are more concentrated and likely emboldened by the newly solidified conservative Supreme Court.
In a case involving the Fair Housing Act of 1968, for example, the justices in 2015 endorsed litigation against mortgage lending and other practices that, despite no proof of intentional bias, disproportionately hurt minority homeowners. The case was decided by a single vote, that of Justice Anthony Kennedy (who joined the court’s four liberal justices) and who retired last summer to be succeeded by Justice Brett Kavanaugh.
The policy reversals arise in the context of a president known for his racially charged rhetoric, for example, disparaging a “Mexican judge” who ruled against Trump University in 2016 and declaring in August 2017 that “very fine people” were among the white supremacist mobs that descended on Charlottesville, Virginia.
“This administration is more likely to be accused of having bad racial motives than other Republican administrations,” said Clegg, who argues that classifying people by race, even to enhance diversity or provide other benefits, is “bad for the country.”
Narrowing the reach of the Voting Rights Act
This week’s filing in the Texas redistricting battle adds to a pattern of actions attempting to restrict the 1965 Voting Rights Act. Soon after Trump took office in 2017, the administration withdrew the US government’s opposition to a Texas voter identification law and an Ohio voter-roll purge law, both of which challengers contended would make it more difficult for minorities and poor people to vote.
The Ohio dispute, Husted v. A. Philip Randolph Institute, went to the Supreme Court last year, and the justices, by a 5-4 vote, upheld the law that allows voters’ names to be eliminated under a process that begins when a person fails to cast a ballot for two years.
Ohio officials said the law would help keep voter rolls up to date. Once a person fails to vote for two years, the state sends a postcard asking for verification that the voter is still at the same address. People who do not return the pre-paid card and then fail to vote for four more years are removed from the rolls.
The Obama administration had objected to the Ohio statute, just as it had weighed in against Texas in a protracted dispute over voting-district lines and whether Texas should be subject to federal oversight for new maps.
In the newest chapter, Latino and African-American advocates have asked a three-judge federal panel in San Antonio to require Texas to submit for pre-approval any statewide redistricting plans enacted for the next decennial redistricting cycle.
“This litigation … has made it abundantly clear that absent some form of federal oversight and pre-enforcement review under the Voting Rights Act, minority voters in Texas will once again be confronted with … persistent systemic racial discrimination,” the advocates contend, seeking judicial supervision under so-called Section 3 of the Voting Rights Act.
Texas had previously been covered by a Voting Rights Act Section 5 preclearance rule, but in the 2013 case of Shelby County v. Holder the Supreme Court struck down the Section 5 formula, freeing Texas and other designated jurisdictions with a history of discrimination from a mandate that they obtain federal approval for any proposed electoral changes.
The Justice Department contends that Section 3 coverage cannot be justified because Texas has alleviated past voter discrimination. Explaining its reversal of Obama DOJ sentiment, the Trump administration said federal court decisions favoring Texas, including at the Supreme Court last June, contradict the challengers’ assertions of voter discrimination.
DOJ spokeswoman Kelly Laco defended the switch on Friday, contending, “There is currently no reason to subject Texas to federal court oversight.” More broadly, she added “the Justice Department remains committed to enforcing the law and protecting all Americans from all forms of illegal race-discrimination.”
But the Latino and African-American voter advocates note that the next round of redistricting will be the first since the Shelby County v. Holder decision lifting the preclearance rule and warn that unless judges can intervene, Texas would be able to redraw state legislative and congressional lines “without any up-front, comprehensive federal oversight.”
Austin lawyer Renea Hicks, representing some of the Texas plaintiffs, said of the new DOJ approach, “It’s not just a retreat in the present from fair enforcement of the [Voting Rights Act]. I believe that they’re actually looking toward the future. They are giving states freer rein than they have had since enactment of the Voting Rights Act to aggressively gerrymander against the interests of minority voters.”
He added, “Any active protection of minority rights will be left to the local level and piecemeal, battle by battle, slow-paced litigation.”