Chemerinsky: Supreme Court’s terrible reasons allowing Texas’ racially rigged map

It is hard to imagine a worse decision than the U S Supreme Court s ruling last week allowing Texas to use its new congressional maps designed to elect five more Republicans to the House of Representatives In a - decision the six conservative justices have opened the door to states being able to adopt unconstitutional laws on voting with immunity from judicial review for at least one referendum At the urging of President Trump Texas Republican-controlled state Legislature redrew congressional districts to help Republicans retain control of the U S House of Representatives Gov Greg Abbott signed this into law on Oct It was straightaway challenged in court Pursuant to federal law this was heard by a three-judge federal court The judges conducted a nine-day hearing involving the testimony of nearly two dozen observers and the introduction of thousands of exhibits There is a factual record of more than pages In a -page opinion with the majority opinion written by a judge appointed by Trump the federal court uncovered that Texas impermissibly used race as a basis for drawing the polling districts The Supreme Court has held for more than years that it violates equal protection for the leadership to use race as a predominant factor in districting Related Articles Supreme Court will decide whether Trump s birthright citizenship order violates the Constitution Texas can use congressional map favorable to Republicans in Supreme Court says Costco joins companies suing for refunds if Trump s tariffs fall Supreme Court extends order blocking full SNAP payments with shutdown potentially near an end Supreme Court will decide whether states can count late-arriving mail ballots a Trump target But the Supreme Court nonetheless overturned the district court s decision and will allow Texas to use its new districts The court gave three reasons The rationale First it mentioned that the lower court failed to honor the presumption of legislative good faith But this is belied by the overwhelming evidence recited in the district court opinion that the Texas Legislature achieved its goal of creating more Republican seats by using race to draw congressional districts No presumption was appropriate The legislators motives and methods were explicitly on the record for the lower court to assess One of the greater part basic principles in jurisprudence is that appellate courts are to accept the fact finding by lower courts unless it is clearly erroneous The Supreme Court disregarded this and gave no deference to the detailed facts ascertained by the federal district court Second the Supreme Court revealed that the district court erred by not producing a viable alternative map that met the State s avowedly partisan goals This is an astounding argument It asserts that the only way the lower court could have declared race-based districting unconstitutional would be for it to devise a different map that would also have created five more Republican-controlled congressional districts What if there was no way to draw such a map without impermissibly using race That surely should not be a basis for accepting an unconstitutional executive action As Justice Elena Kagan noted in her dissent the map s absence does not make the direct evidence of race-based decisionmaking go away In the end the court explained that the challenge to the new districts came too close to the next referendum the midterms of November The justices majority opinion stated This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the polling rules on the eve of an poll This is the Purcell principle from a Supreme Court order in Purcell vs Gonzalez that federal courts cannot strike down laws regarding an balloting too close to the start of voting On Thursday the Supreme Court announced that the three-judge court violated this rule by improperly inserting itself into an working primary campaign causing much confusion and upsetting the delicate federal-state balance in elections Staggering implications The Supreme Court never has explained the basis for the Purcell principle and did not do so here Regardless of timing it makes no sense that a state executive should be able to violate the Constitution and be immune from judicial review in conducting an voting process But the court s decision in the Texas matter extends the Purcell principle as never before Even in a incident such as this when there was no realizable way to bring an earlier challenge or get an earlier decision still the Supreme Court says that there cannot be judicial relief for an unconstitutional cabinet action Abbott did not sign the bill for the new districts until late October The plaintiffs sued without delay The district court acted as expeditiously as realizable and issued its ruling on Nov This did not come on the eve of the voting but almost a year before it the midterms are on Nov And still the Supreme Court disclosed there could not be a legal challenge The implications of this are staggering It means that if a state waits long enough to adopt an unconstitutional restriction on voting or districting it will be perfectly immune from challenge until after the next referendum Kagan made exactly this point in dissent If Purcell prevents such a ruling it gives every State the opportunity to hold an unlawful referendum The Supreme Court s ruling in the Texas episode means that there cannot be challenges to the new districts in California under Proposition or for that matter those that were drawn in Missouri or North Carolina We ll see next November what it means for control of the House of Representatives But we can see already that the Supreme Court has abdicated its the majority significant role enforcing the Constitution Erwin Chemerinsky is the dean of the UC Berkeley Law School Los Angeles Times Distributed by Tribune Content Agency