By JAY KUO | THE STATUS KUO
Three stories caught my attention, all situated in the South, all raising deep and troubling questions about state overreach, the rejection of core principles of federalism, and the vicious targeting of vulnerable minorities. If this sounds familiar, these indeed bear echoes of the pre-Civil Rights era South of seventy years ago, and before that the actions of rebellious state governments during the long shadow of the Confederacy.
History is rhyming again.
Let’s take a look at these stories and see how they are interconnected. But first, a content warning: The facts I describe are disturbing, and in the case of the Texas section, quite graphic and violent. Hard as it may be to read, the truth needs to be known.
Gov. DeSantis funds and trains a military-style state guard
Around a year ago, Gov. DeSantis of Florida had announced that he was reconstituting a “state guard”—something that has lain dormant for 75 years. Ostensibly, that state guard was to be charged with assisting in emergency disaster relief, and it made a kind of sense given how many more severe weather events Florida likely will see in the coming years.
But the state guard turned out not to be just about disaster assistance. Rather, according to reporting by the New York Times, the small force received hard core military training, including in weapons and combat. The governor’s office said one of the state guard’s missions would be to “protect its people and borders from illegal aliens and civil unrest.”
That feels much more like a private army—adding to a growing list of groups that operate under the direction of the governor, including an “office of election crimes and security” that operates like election police. That force has already been used to intimidate minority voters in the state.
Some of the enrollees in the program, which DeSantis plans to grow with a $108 million budget up to 1,500 people, quit very publicly after realizing what the program was really about, which one recruit described as a “military fantasy camp.” One dissenter was loaded into a van and escorted off the base, according to a complaint he filed for assault.
We already know that Gov. DeSantis abuses state funds, for example to conduct high profile human pawn operations transporting migrants around the country. A weaponized and military-trained “state guard” would certainly add to the potential for abuse, particularly against anyone accused of being an “illegal alien” or causing “civil unrest.”
This force lies outside of federal control, is distinct from the Florida National Guard, and presumably answers only to the governor’s office. You can bet DeSantis isn’t training them for some hypothetical emergency and has broader plans to exploit the force to send messages or gain political advantage.
Gov. Abbott’s border patrol commits inhumane acts against migrants
Over to the west, and along the Rio Grande border with Mexico, Gov. Abbott of Texas demonstrated what horrors state police-style forces can commit. As reported by the San Antonio Express-News, according to an email sent by an officer working with the Texas Department of Public Safety at the border, efforts to prevent migrants from crossing into the U.S. recently have “stepped over a line into the inhumane.”
The trooper described multiple incidents over the past month where migrants were caught in the razor wire erected for miles as floating barricades along the river, sometimes ensnaring migrants. One instance involved a pregnant 19-year old woman, in obvious pain and experiencing a miscarriage. She was found stuck to the wire and had to be cut free. Another described a man treated with “significant lacerations” on his leg that he got while trying to free his child from a “trap in the water” covered in razor wire.
The trooper also described an incident on June 25 when an officer ordered troopers to push a large group of people, including nursing infants and children, back into the Rio Grande “to go to Mexico.” Troopers resisted the order on fears the exhausted migrants could drown. The email further detailed an order that prevented officers from providing any water to migrants. “Due to extreme heat, the order to not give people water needs to be immediately reversed as well,” the trooper wrote.
Texas officials denied any such order exists.
The assumption of “border patrol” duties by the Department of Public Safety, including the erection of dangerous razor wire, conflicts directly with federal authority to manage and control the border, including the treatment of migrants and asylum seekers legally seeking protection. Like DeSantis, Abbott has diverted state funds to military-style enforcement groups to be able to claim action and progress on the border issue and thereby bolster his own political fortunes in the state. And like DeSantis, Abbott is using human beings as political pawns in his game.
But there is a very real and dangerous human cost here, which Abbott seems ready to ignore. His cynical ploys can only succeed if he can successfully dehumanize the migrants in the eyes of voters. On this he may be faltering; if his own state troopers are refusing to commit atrocities under orders, the public may demand a political reckoning as well.
This story is developing, but it has the potential to change public opinion in hot, exhausted Texas, where the idea of denying desperate strangers water, trapping them in razor wire, and pushing children into the river could prove too much, even for Abbott’s Republican base.
Alabama defies the Supreme Court on redistricting
A third Southern state is also in the news today. After the 2020 census, the Alabama legislature redrew the state’s seven congressional district lines by means of a racial gerrymander in order to reduce the number of African American House representatives from two down to one—in a state that is 27 percent Black.
Those maps, which were in place for the 2022 midterms, were challenged all the way up to the Supreme Court. There, in a surprising decision by Chief Justice John Roberts, the majority sided with the plaintiffs and ordered the state to redraw the maps to permit fair Black representation with two majority Black districts, as required by the Voting Rights Act.
But in a move reminiscent of the Ohio legislature’s defiance of its own state supreme court’s mandate, the Alabama legislature has refused to draw such a map. Facing a deadline of this Friday, Alabama’s Permanent Legislative Committee on Reapportionment voted along party lines to submit to the legislature a new map—one that fails utterly to comply with the Supreme Court’s requirement. In the new map, a second congressional district still falls a critical 7.5 percentage points short of a majority.
The defiance of the state legislature, despite a clear mandate from the Supreme Court, is stunning. Perhaps the state hopes to run out the clock Ohio-style, tying the matter up in litigation long enough for the next midterms to happen under the old map. A federal court could and likely will be tasked with drawing a new map, which could result in further delays and challenges.
Troubling common threads
In each of the above cases, Southern government leaders are flexing their political power in contravention or direct defiance of federal authority for the purpose of acting against a vulnerable minority, whether undocumented migrants in Florida, asylum seekers along the Texas-Mexico border, or Black voters in Alabama.
Ultimately, the federal government will need to call the states’ bluffs, which perhaps is precisely what these politicians want. After all, that dynamic permits them to claim the mantle of protector of states’ rights against an intrusive federal government.
But in seeking this short term political gain at the expense of basic human rights, decency and democracy, the GOP pulls itself ever further away from mainstream voters, those who ultimately will decide elections. It is one thing to stand for border integrity, but another to order children to their deaths by drowning. It is one thing to draw harsh gerrymanders but another to defy a direct order from the Supreme Court.
Middle of the road voters fortunately by and large still understand that, for our society to function, extremists cannot be permitted to outright defy laws and authority, just as they cannot be permitted to dispute every election result they don’t like. Society cannot function without a common understanding and baseline set of rules. Those include the important idea that federal authority supersedes state authority in these United States.
But these Southern state leaders are in their own kind of death spiral on these matters. Their policies, built upon human cruelty and disenfranchisement, lead inevitably to a clash with our federal laws and to the ultimate question of whether they are a part of our system or have determined to stand outside of it.
This is not a question the South has never faced before, nor is the answer one with which the rest of the Union is unfamiliar. But we had best get ahead of these developments before they metastasize into even more dangerous threats. Our courts and our federal officials must ensure that leaders in Florida, Texas and Alabama understand the limits of their state power.
Jay Kuo is the founder of the newsletter The Status Kuo which provides thoughtful and accessible political and legal analysis of current events. He was admitted before the Supreme Court and the 9th Circuit. Board member, Human Rights Campaign. He is also the Composer and Lyricist for ‘Allegiance’, a Broadway show staring George Takei.