This article is part of TPM Cafe, TPM’s home for opinion and news analysis. It first appeared at The Conversation.
The new Texas law that bans most abortions uses a method employed by Texas and other states to enforce racist Jim Crow laws in the 19th and 20th centuries that aimed to disenfranchise African Americans.
Rather than giving state officials, such as the police, the power to enforce the law, the Texas law instead allows enforcement by “any person, other than an officer or employee of a state or local governmental entity in this state.” This enforcement mechanism relies solely on citizens, rather than on government officials, to enforce the law.
This approach to enforcement is a legal end-run that privatizes a state’s enforcement of the law. By using this method of enforcement, state officials are shielded from being sued for violating the Constitution, and the law is made, at least for a time, more durable.
The U.S. Justice Department filed suit against the state on the grounds the law violated a woman’s constitutionally protected right to terminate a pregnancy before fetal viability. In its suit, the Justice Department specifically cites one of the cases that was brought over a Texas Jim Crow law that excluded Blacks from participating in primaries, which was struck down by the Supreme Court in 1944.
Privatizing discrimination
Following Reconstruction in the South, Texas banned African Americans from voting in party primaries in a law adopted in 1923. This was an example of Jim Crow, a system of laws and customs that institutionalized anti-Black discrimination in the U.S.
When this state law was challenged before the Supreme Court and struck down in Nixon v. Herndon in 1927, the Texas Legislature responded in 1928 with a tricky maneuver much like the current Texas abortion law. Texas repealed the offending statute and enacted legislation that specifically delegated to political parties the power to determine “qualifications of voters in primary elections,” thus seeking to take the state out of the equation.
By putting that power in the hands of private parties, allowing them to discriminate against and prevent African Americans from voting, the state sought to avoid legal rules, based on the Constitution, that required “state action” before a law could be struck down. Essentially, the state contracted out the dirty work of denying Black Texans the right to vote.
In the landmark 1944 ruling in Smith v. Allwright, the Supreme Court “looked behind the law and ferreted out the trickery,” as expressed by future Supreme Court Justice Thurgood Marshall, who argued the case at the court. The court ruled that no matter how “uninvolved” the state of Texas attempted to be, primary elections involved state action sufficient for purposes of a successful lawsuit under the 14th Amendment.
The court concluded that the constitutional right to vote “is not to be nullified by a state through casting its electoral process in a form which permits a private organization to practice racial discrimination in the election.”
Not giving up
Democratic Party members in Texas, bent on prohibiting African Americans from voting, turned to yet another privatization strategy to accomplish their objectives.
Since 1889, the “Jaybird Association” in Fort Bend County, a Democratic political organization that was made up exclusively of qualified white county voters, ran its own “pre-primary” to vet and select Democratic candidates for office. Blacks were excluded from these privately run contests. This selection process determined who would run in and likely win the Democratic primaries, which effectively meant only whites would gain those offices.
Blacks in the county sued. Yet again, in the 1953 ruling in Terry v. Adams, the Supreme Court invalidated this privately run primary process as a violation of the Constitution. As the court pointed out, the “Jaybird primary has become an integral part, indeed the only effective part, of the elective process that determines who shall rule and govern in the county.”
The court’s ruling invalidated similar privately enforced discrimination in voting in other states, such as South Carolina.
Resurrecting Jim Crow
The new law, formally called the Texas Heartbeat Act, constitutes a similar attempt by the state to privatize enforcement of state policy – all in an effort to prevent legal moves that would stop it from going into effect.
Texas has resurrected a decades-old technique that it used during the Jim Crow era to insulate its discriminatory laws from constitutional review in the courts. And by delegating enforcement authority to private individuals, Texas has transformed its population into a cadre of private law enforcers. Now that the federal government has sued the state over the law, the courts will be in a position to review the constitutionality of the statute.
Nevertheless, the statute raises grave issues about how states go about enforcing their policies. Will Texas voters appreciate that the state has resurrected a Jim Crow-era mechanism to avoid legal responsibility for its policies?
Stefanie Lindquist is a Foundation Professor of Law and Political Science at Arizona State University.
This article is republished from The Conversation under a Creative Commons license. Read the original article.
I am most reminded of the Supreme Court’s decision invalidating racial restrictive covenants, i.e., private deeds to property that purported to prohibit subsequent transfers to black folks or other disfavored racial groups. The argument was that they were private contracts, so there wasn’t any state action that would be necessary for the 14th Amendment to apply. In Shelley v. Kraemer (1948), SCOTUS said nope, that ain’t gonna fly because even though it’s a private contract the courts would still be called upon to enforce it, and that right there is state action sufficient for the 14th Amendment to invalidate the racially restrictive covenant.
In response to the question in the article, “will Texas voters appreciate the law is using Jim Crow tactics”,
I think Republicans are betting on exactly that, that many voters in Texas appreciate Jim Crow.
That is what needs to be iterated and reiterated is that “values” in front of the word voter is and has always been code for race and that Trump, who for most of his life was for legal abortion did not create his base but rather the GOP base of not economic or foreign policy voters created Trump.
Will Texas voters appreciate that the state has resurrected a Jim Crow-era mechanism to avoid legal responsibility for its policies?
A helluva lot of them will. Maybe even a majority.
Just remember that Jim Crow is now Jim Crow 2.0, also known as Mr. James Crow. Unfortunately I feel that a majority of the current Supreme Court would be quire happy to revive Plessy v. Ferguson.
The logic employed by this law, that it’s OK for private citizens to take action on abortion related activities because the State isn’t doing it, is like grade school “I’m not touching you” with the State’s finger a millimeter from any pro-choice advocate’s eye.
It relies on bad faith arguments others would never attempt. Can the State of Washington empower citizens to confiscate guns? Can the State of Vermont empower citizens to ransack the homes of alleged, but not convicted, tax cheats? Of course not, because despite their declaration that it isn’t so - the state IS denying people their rights by empowering others to take them away.