Liberal critics of Israel often think that, to achieve peace with Palestinians, all Israel needs to do is better respect international law. Noura Erakat’s new book, Justice for Some: Law and the Question of Palestine, powerfully corrects this narrative by showing how international law has done more to entrench Israel’s settler colonialism than impede it. I reviewed the book for Jacobin.
When I was an undergrad at Fordham, my friends and I tried to form a chapter of Students for Justice in Palestine (SJP). The student government voted to approve our application, but the dean of students overruled that vote and prohibited us from attaining official club status on campus. So we filed a lawsuit. Last week, we won: a judge ordered Fordham to recognize SJP as a university-sanctioned club. I wrote about it for The Nation.
Yesterday, in Harris v. Arizona Independent Redistricting Commission, the Supreme Court unanimously affirmed a lower court’s decision to uphold a legislative map drawn by an independent redistricting commission that ensures representation among voters of color. Republican voters sued on the grounds that they believed the map violated the “one-person, one-vote” principle because it was too favorable to Democrats. Last June, the Court ruled that Arizona voters could make the process of drawing congressional district lines less partisan by creating this very independent redistricting commission through a ballot initiative. In another case about “one-person, one-vote,” earlier this month the Court ruled that states may create equal congressional districts based on a state’s total population as opposed to the number of eligible voters.
Last fall, I took a constitutional law course taught by Robert J. Hume, chair of the political science department at Fordham University and author of Courthouse Democracy and Minority Rights: Same-Sex Marriage in the States. At the end of the semester, we held a moot court based on Harris v. Arizona Independent Redistricting Commission. I played the role of Justice Ruth Bader Ginsburg and wrote a decision for this case as if I were she. What follows is that paper, submitted December 2015, in which I rule in favor of the Commission – just as the Supreme Court did yesterday.
Voters in the state of Arizona challenge the map drawn for legislative districts by the Arizona Independent Redistricting Commission (AIRC). The plaintiffs argue that the map, which took effect in 2012, violates the “one-person, one-vote” principle – based on the Fourteenth Amendment’s Equal Protection Clause – by creating underpopulated Democratic-leaning districts and overpopulated Republican-leaning districts. The AIRC denies the charge that the map was motivated by partisanship, asserting that the population deviations are the result of a good-faith effort to obtain federal preclearance as required by Section 5 of the Voting Rights Act (VRA) of 1965. Since then, however, in Shelby County v. Holder, 133 S. Ct. 2612 (2013), the Supreme Court gutted the VRA, making Section 5 completely useless by declaring unconstitutional Section 4(b), the coverage formula based on patterns of historic voting discrimination that determines which districts are required to obtain preclearance under Section 5.
Thus before this Court are three main questions: 1) Does the AIRC’s desire to gain partisan advantage for one political party justify intentionally creating over-populated legislative districts – that result in voters being denied Equal Protection because their individual votes are devalued – violate the one-person, one-vote principle?, 2) Does the AIRC’s desire to obtain favorable preclearance review by the Justice Department permit the creation of legislative districts that deviate from the one-person, one-vote principle after?, and 3) Even if creating unequal districts to obtain preclearance approval was once justified, is this still a legitimate justification after Shelby?
As Mitchell N. Berman, a constitutional law professor at the University of Pennsylvania, wrote in the Texas Law Review, “The core principle of republican government is that the voters should choose their representatives, not the other way around.” This is a founding principle which many of our past decisions have been based on. The one-person, one-vote principle was first established for U.S. congressional districts in Wesberry v. Sanders, 376 U.S. 1 (1964), and for state legislative districts in Reynolds v. Simms, 377 U.S. 533 (1964), which Chief Justice Earl Warren later called the most important decisions of his term. “As nearly as is practicable one man’s vote in a congressional election is to be worth as much as another’s.” Wesberry, supra, 7-8. Similarly, in the latter case, the Court ruled, “The Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.” Reynolds, supra, 568. Acknowledging that it is impossible to create districts with the exact number of eligible voters, Chief Justice Warren wrote, “a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable.” Id., 577. Though the Court ruled that districts must be relatively equal in population, it did not define how great of a deviance from the ideal population is acceptable.
Nearly twenty years later, the Court defined an allowable amount of deviance in Brown v. Thomson, 462 U.S. 835 (1983): “an apportionment plan with a maximum population deviation under 10% falls within this category of minor deviations.” Brown, supra, 842. In the case before us now, according to the AIRC’s data, no district is more than 4.7 percent underpopulated, and no district is more than 4.1 percent overpopulated. Thus, the relative small population deviations themselves do not indicate a violation of the one-person, one-vote principle.
1) Partisan Advantage
The plaintiffs claim that because nearly all of the underpopulated districts elected a Democrat in 2012, and nearly all of the overpopulated districts elected a Republican, the map may have been created with the intention of getting more Democrats elected. The Supreme Court, however, has never explicitly dismissed partisan motivations as a redistricting tool. In Vieth v. Jubelirer, 541 U.S. 267, 306 (2004), the Court ruled that it did not have jurisdiction to rule on the partisan motivations for redistricting. Justice David Souter’s dissent – which simply offered different reasons for coming to the same conclusion – stated, “the issue is one of how much is too much… Instead of coming up with a verbal formula for too much, then, the Court’s job must be to identify clues, as objective as we can make them, indicating that partisan competition has reached an extremity of unfairness.” Vieth, supra, 345. Although partisan motivations are subject to being declared an invalid justification for a redistricting plan in future cases, we cannot rule in this case whether they are or not mostly because of the primary reason offered by the Commission for creating the map, which we will expand on in the next section.
(It’s also important to point out what Grant M. Hayden, research fellow at Hofstra University and former appeals court law clerk, noted in the California Law Review, namely, that partisan motivations do not always result in an outcome favorable to the creators of congressional districts. “While majority-minority districts reliably increase the number of minority officeholders, they may do so at the cost of electing candidates in surrounding districts with agendas that are at odds with minority interests,” he wrote.)
2) Attempt to Obtain Favorable Preclearance
To determine whether the partisan competition has reached the “extremity of unfairness,” we must examine the AIRC’s primary reason for creating the map as it did and determine if that reason takes precedence to the partisan outcome of its map.
Deviations from the ideal population are constitutional if they are “based on legitimate considerations incident to the effectuation of a rational state policy.” Reynolds v. Sims, 377 U.S. 533, 579 (1964). And in Karcher v. Daggett, 462 U.S. 725, 729 (1983), the Court ruled, “Any number of consistently applied legislative policies might justify some variance.” For the Arizona Independent Redistricting Commission, that “rational state policy” or those “consistently applied legislative policies” is Section 5 of the Voting Rights Act. And the Court in Bush v. Vera, 517 U.S. 952, 977 (1996), wrote, “we assume without deciding that compliance with the results test, as interpreted by our precedents… can be a compelling state interest.” Thus the Commission claims that its map’s deviations from the ideal population in several districts were a good faith effort to achieve §5’s preclearance. Because the Justice Department does not reveal its requirements to achieve preclearance, the defense claims that due to this “regulatory uncertainty,” it had to “to be cautious and to take extra steps” in terms of overpopulating and underpopulating certain districts.
According to Jason Maschmann in the St. Louis University Law Journal, the Department of Justice “uses a ‘nonretrogression’ standard. That is, a proposed plan will not be cleared if the plan will lead to a retrogression in the voting effectiveness of minorities.” The Court has declared that §5 of the VRA was created “to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise. Beer v. United States, 425 U.S. 130, 141 (1976). One method of retrogression, according to the Court, is when a new voting law hinders the ability to people of color to “elect their candidates of choice.” Id.; 52 U.S.C. § 1973c(b). Later Courts have defined retrogression in terms of these “ability to elect districts”: “there is no retrogression as long as the number of ability districts remains the same” from the old map to the new map. See Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 478 (1997) and Texas v. United States, 887 F. Supp. 2d 133, 157 (D.D.C. 2012) (citing Abrams v. Johnson, 521 U.S. 74, 97–98 (1997)).
With advice from its counsel, the Commission created 10 ability-to-elect districts (out of 30 total districts in Arizona). While partisan motivations may have played a role in creating these districts, we agree with the lower court’s ruling that the primary motivation was to achieve preclearance under §5, a legitimate justification for the population deviance.
As the lower court stated, “As a practical matter, changes that strengthened minority ability-to-elect districts were also changes that improved the prospects for electing Democratic candidates. Those motivations were not at cross purposes. They were entirely parallel.” Harris v. Arizona Independent Redistricting Commission, 993 F. Supp. 2d 1042, 1061 (2014 U.S. Dist.). If the goal of a new legislative map is to strengthen the vote for people of color, and they happen to vote predominantly for Democrats, that does not mean the map is based on partisan motivations or violates the one-person, one-vote principle. It does not matter what party people of color affiliate with – all that matters is that a district exists such that they get to elect a candidate of their choice. The results of the election, i.e. which party wins, does not matter in determining whether the one-person, one-vote principle has been violated if the redistricting plan was created to pass preclearance.
3) Post Shelby
The final point to decide upon is whether the desire to achieve preclearance is still a valid justification after the Court effectively rendered §5 useless in Shelby County v. Holder, 133 S. Ct. 2612 (2013). The map went into effect in 2012, before Shelby County. Of course, the Commission should not have to predict how the law will change in future court decisions or to base its map on what it thinks will prevail in the courts. Thus, the fact that the Court has since removed the preclearance requirement does not mean that the Commission’s motivation for achieving it should be thrown out. Moreover, it is the duty of this Court to uphold constitutional principles to protect those to whom these principles have so long been denied by a state-sponsored system of racial hierarchy.
The ideals of the Voting Rights Act are enough to justify the Commission’s 2012 legislative map. The Commission made a good faith effort to achieve preclearance. After Shelby effectively removed the preclearance requirement, the rest of the VRA still stands. And so do its ideals. The progress made by the spring 1965 voting rights campaign in Selma, Alabama – wherein black people were slaughtered by law enforcement on their first attempted march across the Edmund Pettus Bridge on March 7, 1965, Bloody Sunday – cannot be reversed. That campaign put utterly necessary pressure on Lyndon Johnson to pass the VRA. The Shelby County decision, in its pursuit of a “colorblind society,” in part erased some of that progress. Jason Maschmann’s response more than 20 years ago to Shaw v. Reno, 509 U.S. 630 (1993), which mandated that redistricting based on race must uphold strict scrutiny, applies quite well to the present: “The idea of a color-blind society which the modern Court hopes for is an attractive one. The reality, unfortunately, is that such a society does not yet exist. Racial discrimination in voting is a well-documented problem which continues through today.”
The judgment of the district court is affirmed. It is so ordered.
Photo: AP/Ross D. Franklin
Originally published at Huffington Post.
After the civil rights movement of the 1950s and 60s dismantled explicitly racist laws, racism became colorblind to survive. Today, although no law explicitly allows for racial profiling by law enforcement, it still happens at an institutional level. What’s often left out of the discussion about why racial profiling happens is that the highest court in the country has approved it ‒ in more than one case.
Terry v. Ohio (1968)
The Supreme Court’s first step to sanction racial profiling was Terry v. Ohio, 392 U.S. 1 (1968), an 8-1 ruling that developed the “reasonable suspicion” standard (also known as the “stop-and-frisk” rule). The Court, whose opinion was delivered by the usually astute Chief Justice Earl Warren, held that the Fourth Amendment’s prohibition on “unreasonable searches and seizures” is not violated when a police officer has “reasonable suspicion” “in light of his experience” that a crime has been committed. By opening the door to greater law enforcement discretion with respect to whom to stop and search, the Supreme Court in Terry gave its first approval of racial profiling.
Several studies show that police officers perceive young black boys as violent and older than they actually are. One study from 2007 found that officers display a “robust racial bias in response speed” in a simulated shooting exercise of black and white targets. So when police officers are given greater discretion “in light of their experience” as Terry offered them, it’s no surprise that they disproportionately target black people. (That’s in addition to police departments institutionally over-policing poor communities of color compared to their presence in white communities.)
Since Terry, police departments ‒ and the Burger, Rehnquist, and Roberts Courts ‒ have interpreted Warren’s decision as carte blanche for police officers, so much so that UNLV constitutional law professor Thomas B. McAffee described Terry‘s long-term impact on the Fourth Amendment as “truly disastrous.” “The Terry stop-and-frisk doctrine has lent itself too readily to supporting law enforcement efforts rooted in stereotypical generalizations and racial profiling,” he wrote in the Nevada Law Journal.
United States v. Brignoni-Ponce (1975)
United States v. Brignoni-Ponce, 422 U.S. 873 (1975) might seem on the surface to be an anti-racist decision, a good step in Fourth Amendment law. The Court ruled against law enforcement on the grounds that it violated the Fourth Amendment for stopping a vehicle solely on the basis that the driver looked Mexican.
But while the Court acknowledged that, by itself, “apparent Mexican ancestry” does not justify reasonable suspicion that occupants of a vehicle are undocumented drug smugglers, it did rule unanimously that “Mexican appearance” is a “relevant factor.” Ostensibly to help law enforcement justify a stop, Justice Lewis F. Powell offered several reasons sufficient for reasonable suspicion to stop a car near the border with Mexico: “previous experience with alien traffic,” a “heavily loaded” vehicle, a vehicle with “an extraordinary number of passengers,” and finally ‒ the part that justifies racial profiling ‒ “the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut.”
In other words, a police officer can racially profile a motorist if that officer finds an additional reason to make a stop, effectively deeming race acceptable for reasonable suspicion. As Michelle Alexander wrote in The New Jim Crow, “Because the Supreme Court has authorized the police to use race as a factor when making decisions regarding whom to stop and search, police departments believe racial profiling exists only when race is the sole factor.”
The Court in Brignoni-Ponce neglected to recognize what Kevin R. Johnson, a public interest law professor at UC Davis, pointed out in the Georgetown Law Journal: “In fact, people from Mexico run the gamut in terms of phenotypes, with there being persons of both fair and dark complexions of Mexican ancestry. Nevertheless, stereotypes of ‘Mexican appearance’ persist, and the Brignoni-Ponce Court ultimately appears to have sanctioned reliance on such stereotypes by the Border Patrol.”
Whren v. United States (1996)
In Whren v. United States, 517 U.S. 806 (1996), the Supreme Court unanimously sanctioned racial profiling by allowing police officers to make “pretext stops,” wherein an officer pulls over a motorist for a traffic violation with the specific intention of hunting for drugs. “It does not matter, the Court declared, why the police are stopping motorists under the Fourth Amendment, so long as some kind of traffic violation gives them an excuse. The fact that the Fourth Amendment was specifically designed to prevent arbitrary stops and searches was deemed unpersuasive,” Alexander wrote of the decision.
But approving pretext stops wasn’t even the most dangerous legal precedent set in Whren. The Court barred victims of a pretext stop from challenging the admission of evidence on Fourth Amendment grounds, thus ignoring Whren’s argument that police officers may decide which motorists to stop based on factors that should be constitutionally impermissible, such as race. Justice Antonin Scalia ruled, “We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis.”
Scalia’s ruling left people of color with “an onerous evidentiary burden,” Johnson wrote. The responsibility for proving racism was once again placed on the oppressed. Pointing out that the Court “failed to cite any cases supporting its conclusion that the Equal Protection Clause offered the exclusive constitutional remedy (or, at least, that it offered a remedy where the Fourth Amendment did not),” Johnson noted how difficult it is to prove discrimination under the Equal Protection Clause:
The Fourth Amendment’s exclusionary rule bars the use of unlawfully seized evidence against a defendant; there is no counterpart in the Equal Protection Clause of the Fourteenth Amendment. The inability to exclude the fruits of a stop based on impermissible factors under the Equal Protection Clause make any such claim of limited utility to criminal defendants like Whren and Brown, who wanted to avoid conviction and imprisonment, not to recover damages in a civil action for a violation of their constitutional rights.
By ruling that the Fourth Amendment offered no protection against a racially motivated traffic stop, the Court gave law enforcement officials its approval to racially profile motorists and “closed the courthouse doors to claims of racial bias,” Alexander wrote.
The law is supposed to protect the rights of individuals against state abuse. But these cases show how the law can be manipulated by those who wield power to uphold a system of racial hierarchy.