The new Texas law banning most abortions uses a method employed by Texas and other states in the 19th and 20th centuries to enforce racist Jim Crow laws that were intended to deprive African Americans.
Instead of giving state officials, such as the police, the power to enforce the law, Texas law instead allows “enforcement by any person other than an officer or employee of a state or local government entity in this state.” This enforcement mechanism relies entirely on citizens rather than government officials to enforce the law.
This approach to enforcement is a legal end that privatizes the enforcement of state law. By using this method of enforcement, state officials are protected from being prosecuted for violations of the Constitution, and the law is made more durable, at least for a time.
The US Department of Justice sued the state on the grounds that the law violated a woman’s constitutionally protected right to terminate a pregnancy prior to the viability of the fetus. In its lawsuit, the Justice Department specifically cites one of the cases that brought in Texas Jim Crow legislation that excluded blacks from participating in primaries, which was struck down by the Supreme Court in 1944. Was.
privatization of discrimination
After Reconstruction in the South, Texas adopted a law in 1923 that prohibited African Americans from voting in party primaries. It was an example of Jim Crow, a system of laws and customs that institutionalized anti-black discrimination in America.
When this state law was challenged before the Supreme Court and dismissed in 1927 in Nixon v. Herndon, the Texas Legislature responded in 1928 with a tricky maneuver similar to the current Texas abortion law. Texas repealed the objectionable statute and enacted legislation that specifically gave political parties the power to “determine the qualifications of voters in primary elections,” thus seeking to take the state out of the equation.
By placing that power in the hands of private parties, allowing them to discriminate against African Americans and barring them from voting, the state sought to avoid legal rules based on the Constitution, requiring “state action” before striking the law. was required. Essentially, the state contracted out the dirty work of denying Black Texans the right to vote.
In the landmark 1944 decision in Smith v. Allwright, the Supreme Court “looked behind the law and removed the trickery,” as expressed by future Supreme Court Justice Thurgood Marshall, who argued the case in court. The court ruled that no matter how “unconvincing” the state of Texas may have attempted, the primary elections contained sufficient state action for the purposes of a successful trial under the 14th Amendment.
The court concluded that the constitutional right to vote “should not be revoked by a state through casting its electoral process in a form that allows a private organization to practice racial discrimination in elections.”
will not give up
Members of the Democratic Party in Texas, bent on banning African Americans from voting, turned to another privatization strategy to accomplish their objectives.
Since 1889, the “Jaybird Association” in Fort Bend County, a Democratic political organization composed exclusively of qualified white county voters, has used its “pre-primary” to elect and select Democratic candidates for office. “Run. Blacks were excluded from these privately run competitions. This selection process determined who would run and potentially win the Democratic primary, which effectively meant that only whites would receive those offices.
Blacks sued in the county. Nevertheless, in a 1953 decision in Terry v. Adams, the Supreme Court invalidated this privately run primary procedure as a violation of the Constitution. As the court pointed out, “Jaybird Primary has become an integral part, in fact the only effective part of the elective process, which determines who will govern and rule in the county.”
The court’s decision invalidated similar privately enforced discrimination in voting in other states, such as South Carolina.
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reviving jim crow
The new law, formally called the Texas Heartbeat Act, constitutes a similar effort to privatize the enforcement of state-by-state policy—in an effort to block all legal moves that would prevent it from taking effect.
Texas has revived a decades-old technique it used during the Jim Crow era to protect its discriminatory laws from constitutional review in the courts. And by delegating enforcement authority to private individuals, Texas has turned 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 law.
Nevertheless, the law raises serious issues about how states implement their policies. Will Texas voters appreciate that the state has revived the Jim Crow-era apparatus to avoid legal responsibility for its policies?