Elizabeth Orem is a member of the Columbia Law School Class of 2021.
Mexican immigration authorities regularly illegally detain, disappear, and/or deport indigenous Mexicans and Afro-Mexicans after mistaking them for non-citizens in irregular migratory situations. This Note addresses one factor contributing to the illegal behavior of the Mexican National Migration Institute (the “INM”): the legal framework governing human rights and immigration in Mexico. This framework, which is widely dispersed across a number of legal sources, contradictory, and vague, provides the INM with vast discretion and little guidance to enforce migration control. This discretion in turn leads INM agents to rely on discriminatory, subjective characteristics to determine an individual’s nationality, such as skin color, facial features, language, accent, clothing, and even — in the words of an INM official — “smell.”
While the Mexican government has acknowledged and made some effort to address the INM’s illegal conduct, this Note asserts that these measures do not guarantee the end of systemic discrimination against Afro-Mexicans and indigenous Mexicans. Consequently, this Note recommends the design and implementation of reforms to the legal framework that are grounded in the four principles of evolutionary learning: contextualization, collaboration, accountability and transparency, and continuous improvement. These principles have been used to address similar problems of discretion and discrimination in the United States juvenile justice system. By applying them to the legal framework governing immigration and human rights, Mexican lawmakers can reform the inequities in the INM’s current processes.
This Note advocates for measures that, even if not adopted by the Mexican legislature or judiciary, can still be incorporated into reforms led by the INM itself, other governmental agencies, and/or international and domestic NGOs and nonprofits. In addition to drawing attention to a longstanding human rights crisis in Mexico, this Note also joins the lively debate on the problem of the street-level bureaucrat, in which scholars and experts address the ways that on-the-ground actors shape policy through their day-to-day interactions with the public.
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Aroosa Khokher is a member of the Columbia Law School Class of 2021.
Increased partisanship, single-party control of state governments, and the rise of technology and “Big Data” have allowed mapmakers to draw legislative district maps—both congressional and for state legislatures—that are uncompetitive and skewed in favor of one party. The resulting “extreme partisan gerrymandering” has left states like North Carolina, a traditionally purple state with contested statewide elections, with lasting effects on the partisan composition of its elected officials.
On June 27, 2019, the Supreme Court handed down its opinion in Rucho v. Common Cause, a set of consolidated cases arising out of partisan gerrymandering claims in North Carolina and Maryland. The Court held that partisan gerrymandering claims are nonjusticiable in federal court because they present a “political question” beyond judicial competences, deciding there is no “limited and precise standard” for evaluating such claims that is “judicially discernible and manageable.” The decision effectively shut the door on the justiciability of partisan gerrymandering in federal courts, leaving advocates to search for alternative judicial paths.
In the wake of Rucho, state courts may be the most viable path forward in partisan gerrymandering litigation. Several state courts have already seen successful challenges to partisan gerrymanders. In North Carolina and Pennsylvania, state courts struck down gerrymandered state maps under the state constitutions’ Free Elections Clauses. These clauses, found within many state constitutions, generally require that elections be “free,” “equal,” or “open.”
This Note argues that following Rucho, challengers to partisan gerrymanders should bring claims in state court under explicit prohibitions on partisan gerrymandering where they are available, and where not, under state constitutions’ Free Elections Clauses. Part I describes the phenomenon of “extreme partisan gerrymandering” and its consequences. Part II discusses the Supreme Court’s ruling in Rucho v. Common Cause, and how it has left redistricting litigants without legal recourse in federal courts. Part III argues that the solution to the problem wrought by Rucho is for voting rights advocates to bring claims in state court, particularly under state constitutions’ Free Elections Clauses.
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