Transitional Justice: DOJ in the Era of Trump

Janai Nelson, Associate Director-Counsel of the NAACP Legal Defense and Educational Fund, Inc., argued Veasey v. Abbott, the pending challenge to Texas's voter ID law, before the Fifth Circuit Court of Appeals en banc.

Amid inauguration events and march preparations on January 20th, a federal court quietly issued an important decision that cannot and should not go unnoticed. In an opinion authored by conservative Supreme Court shortlister Judge William Pryor, the three-judge court ruled that Alabama engaged in racial gerrymandering when drawing twelve of its legislative districts.

Judge Pryor is just one of dozens of federal judges around the country who have ruled that states or municipalities have diluted, disenfranchised, or otherwise devised illegal, unconstitutional schemes to deny minorities their rightful electoral power. Just weeks before the Alabama decision, George W. Bush appointee Judge Lee Rosenthal issued a decision finding that Pasadena, Texas implemented a voting plan for city council seats that ensured that "Latino voters do not have the same right to vote as their Anglo neighbors."

These rulings are both disturbing reminders that discrimination in voting is alive and well and heartening evidence of the role our courts serve as an impartial bulwark of our democracy. That role is not reserved for the courts alone, however. It is also the responsibility of the Department of Justice. In a climate where unfounded allegations of voter fraud or vote-rigging go unchallenged, the country cannot afford to let stand laws enacted on such falsehoods, many of which are palpably intended to disenfranchise ripening political power by historically marginalized racial and ethnic minority groups. Thus, DOJ's conviction to its mission "to ensure fair and impartial administration of justice for all Americans" is critical to its continued legitimacy.

However, in another quiet decision that Friday, a magistrate judge delayed at the DOJ's request a long-calendared hearing on whether Texas's stringent voter ID law was enacted with the intent to discriminate against black and Latino voters. DOJ's requests for and receipt of continuances on a range of issues and cases, including hearings on the Baltimore policing consent decree and the challenge to Texas' outlier voter ID law, have set off alarm bells. It may be too soon for such fatalism, however. Once new teams get up to speed, they then must stay the course in pursuit of justice, a course charted by clear records, thoughtful judicial opinions, and the Department's own findings.

This is especially true in the case of SB 14, Texas' hyper-restrictive voter ID law. Four courts, including the deeply conservative en banc Fifth Circuit Court of Appeals, found that the law has a discriminatory effect on minority voters. A federal trial court also found in 147-page opinion that the law was passed with unlawful intent to discriminate based on race. The Fifth Circuit asked the district court to revisit its holding in accordance with new legal guidance on how to find intent. It was this long-awaited hearing, scheduled for this week, that DOJ successfully postponed.

On February 28th, when the court is now set to hear this matter, the facts and the evidence will be unchanged. The voluminous record showing the radical procedures Texas took to pass the law and the deliberate choices it made in selecting forms of photo ID that blacks and Latinos were less likely to possess will be the same as it was on Friday. The powerful and well-substantiated arguments that the DOJ made in its briefs establishing Texas's discriminatory intent will be as resonant as ever. And, the threat to our democracy posed by suborning the Constitution to voter suppression will continue to be pressing.

The only difference will be the administration under which the DOJ is operating--which should be of no substantive import--and whether the DOJ will choose to upend justice and its own credibility in the transition. I hope, for the integrity of our justice system which undoubtedly will be tested and scrutinized in incalculable ways in the coming years, that it will remain steadfast to its mission and name, even in the midst of transition.