Is it Bad Law to Believe a Politician? Campaign Speech and Discriminatory Intent

Abstract

In the forty years since Washington v. Davis, courts have struggled to articulate with any consistency an evidentiary standard for determining the existence of impermissible discriminatory motive. Though not required to do so, courts have often avoided considering any evidence of animus not contained within the official legislative or administrative record out of skepticism for the probative value of such “unofficial” statements. Lacking a coherent approach, courts have split on whether and to what extent statements made in the course of an election campaign should factor into discriminatory intent analysis. The 2016 presidential campaign has forced courts to squarely address this issue, as litigants challenging President Trump’s executive orders on immigration dredge up a trove of discriminatory and inflammatory statements made by candidate Trump.

Curiously, the wealth of legal scholarship examining the contours of discriminatory intent analysis have largely ignored the relevance and propriety of campaign rhetoric as a permissible form of evidence in the analysis. This Article fills that gap. It proceeds by examining the five primary arguments against considering campaign statements as evidence of subjective animus, and illustrating why none of these arguments justify such a bright-line evidentiary bar. In short, traditional claims that campaign statements are of limited probative value address their evidentiary weight rather than their admissibility and fail to account for a court’s ability to discount the evidence as necessary. By adopting a more fact-specific, objective, and flexible approach to campaign statements, courts not only will more faithfully adhere to the spirit of Davis and its progeny, but will also be equipped to address the atypical case of a politician who speaks his discriminatory mind and then acts on it.

Keywords: Constitutional Law, Discriminatory Intent, Fourteenth Amendment, First Amendment, Equal Protection, Establishment Clause, Evidence, Trump, Executive Orders, Campaign Statements

JEL Classification: A00, A10, K10