Defining 'partisan' law enforcement.

• Author: Pitts, Michael J.

1. INTRODUCTION

   A revised map for congressional districts adopted by the State of Texas in an unusual mid-decade redistricting. A requirement that registered voters present photo identification at the polls enacted by the State of Georgia. A congressional redistricting plan ordered into effect by a state trial court in Mississippi. These three seemingly unrelated events are linked by a single common bond. All three represent voting changes submitted to the U.S. Attorney General for approval, commonly known as "preclearance," under Section 5 of the Voting Rights Act, (1) and all three have generated intense charges that this core civil rights provision has been misused for partisan purposes by a Republican-controlled U.S. Department of Justice (DOJ). (2)

   In Texas, Representative Tom DeLay sought to solidify the Republican party's majority in the U. S. House of Representatives by means of a rare mid-decade congressional redistricting designed to unseat several long-time, Democratic incumbents. (3) DeLay's mechanism for unseating these Democratic incumbents was through the partisan manipulation of district lines, and, after a long, politically-charged process, the Lone Star State adopted a redistricting plan suited to DeLay's purposes. (4) This redistricting plan was then forwarded to Republicans in the Bush Administration who gave Section 5 approval despite the fact that career employees of DOJ viewed the plan as racially and ethnically discriminatory. (5)

   In Georgia, a state government that had been completely dominated by Democrats since the end of Reconstruction suddenly turned overwhelmingly Republican.(6) Armed with the ability to control all three levers of Georgia's government, Republicans decided to put their own unique stamp on the state's election administration by requiring Georgia's registered voters to present a government-issued photo identification prior to casting a ballot (7)--a requirement with a seemingly strong potential to disproportionately disenfranchise reliably Democratic, African-American voters. (8) Faced with a decision on whether to allow Georgia Republicans to implement what is perhaps the most restrictive and racially discriminatory voter identification law in the nation, Republican political appointees again ignored the advice of DOJ's career employees and approved Georgia's photo ID law. (9)

   In Mississippi, the state legislature failed to agree on a post-2000 congressional redistricting plan, leaving the matter in a complex judicial limbo between two parallel proceedings--one in state trial court and one in federal district court. Initially, the Republican appointees on the three-judge federal panel deferred to the state trial court, (10) allowing that court to order into effect a congressional redistricting plan favorable to Democrats. (11) The State of Mississippi then, as it was required to do, submitted the state court's redistricting plan to Attorney General John Ashcroft for Section 5 approval. (12) But while Ashcroft mulled over his decision, the three federal judges grew impatient and threatened to order into effect their own version of Mississippi's congressional district lines if the Attorney General did not meet a firm deadline for providing Section 5 approval. (13) Faced with the federal court deadline, Ashcroft now had three options--approve the state court's plan, reject it, or do nothing and allow three Republican federal judges to impose their own plan. Ashcroft chose the course of inaction, allowing the federal court to draw Mississippi's congressional redistricting plan--a plan that just so happened to be favorable to Republicans. (14)

   To be fair to the current Bush administration, the events in Texas, Georgia, and Mississippi by no means represent the entire body of allegations of partisan law enforcement that have surfaced during the more than forty-year lifespan of Section 5. In the 1980s round of redistricting, DOJ stood accused of rendering a partisan law enforcement decision when it precleared a congressional redistricting plan for the State of Louisiana, (15) and, in the 1990s round of redistricting, charges of partisanship were hurled at what the U. S. Supreme Court characterized as DOJ's "max-black" policy. (16) Yet it is the more recent decisions of the Bush administration (combined with a rekindled academic focus on partisan gerrymandering) (17) that have raised more than a few eyebrows among commentators, causing them to refocus on partisanship in the executive branch's administration of Section 5. (18)

   But all the academic literature related to the recent Section 5 determinations seems to be lacking in a very important respect. So far there has been an absence of any sort of in-depth consideration of exactly what amounts to a "partisan" decision in the administration of Section 5 or, for that matter, any other federal voting law. For the most part, the commentators have assumed federal law has been (or could be) enforced in a partisan manner and then skipped to their bottom-line proposals for preventing partisanship. (19) To date, no one has established the parameters of what amounts to a partisan law enforcement decision so that we will all know what a partisan law enforcement decision looks like when we see it. Put somewhat differently, the term "partisan" gets bandied about without putting much definitional content into the concept.

   In truth, no commentator should be faulted for this elision. (20) For starters, there is a practical problem. The secretive nature of DOJ's enforcement decisions creates an informational void that curtails the ability of outside observers to arrive at any definitive conclusions as to which law enforcement decisions made by the DOJ have been overly infected by partisan politics. (21) More fundamentally, it would seem a sure wager to presume the existence of partisanship in the enforcement of federal voting laws because, to paraphrase the first great Justice Marshall: "It is upon politicians we are expounding." (22) Politicians will, by their very definition, take action for self-interested partisan reasons, rendering as almost presumptively partisan any decision made by a political actor. Moreover, because partisan actors are presumed always to be motivated on some level by partisan politics and because any decision made in the electoral realm has the potential for partisan gain, it is by no means easy to theorize a standard to separate "malevolently" partisan law enforcement decisions from typical or "acceptably" partisan law enforcement decisions; witness, for an analogous example, the federal courts' struggle to develop manageable standards that would allow the judicial system to identify partisan gerrymanders. (23)

   This Article attempts, in three distinct ways, to fill this void in the discussion of partisanship by federal officials charged with enforcing federal voting laws. At the outset, I want to expand the scope of the discussion about the potential for partisanship in the administration of federal voting laws by arguing that the concerns expressed about partisanship in relation to Section 5 can easily apply to other portions of the Voting Rights Act and to other federal laws designed to secure the fundamental right to vote (Part II). If Section 5 can be used in a partisan manner, then it would seem that every other voting-related federal law can be manipulated in partisan fashion--whether it be the minority language provisions of the Voting Rights Act or the more recently enacted Help America Vote Act.

   But then I will shift gears in an attempt to move the dialogue away from a discussion of the potential for partisanship by providing a framework that will help delineate which types of federal law enforcement decisions truly should be considered partisan and which types of decisions should not. In the first instance, creation of this framework requires a definition of what type of decision is a partisan law enforcement decision. Ultimately, I settle on the idea that a partisan law enforcement decision occurs when a federal official makes an illegitimate or largely illegitimate individual law enforcement decision intended to directly further the ability of the decision-maker's party to win elections (Part III). In the second instance, creation of this framework requires a delineation of the type of evidence that would be used to identify a partisan law enforcement decision and on this list I place: direct evidence of partisan intent, the legal legitimacy of the decision, process flaws, consistency, and the amount of electoral gain (Part IV).

   This Article, however, is by no means intended to serve as the last word on the matter of partisan law enforcement. This Article represents a beginning rather than an end, with the definitions and evidentiary framework becoming the subject of criticism and refinement. In essence, the purpose of this Article is to shift the dialogue away from accusations (or speculation) of partisanship to a more abstract, theoretical dialogue about what kinds of law enforcement decisions we should define as "partisan" and, in turn, what sort of generalized evidentiary framework we can develop to ferret out those partisan decisions. My sincere hope is that by engaging in a dialogue regarding what one might deem to be "first-order" principles of partisan law enforcement, we can come to better understand the scope of partisanship and, therefore, arrive at a better consensus regarding solutions. (24)

2. PARTISAN LAW ENFORCEMENT DECISIONS BEYOND SECTION 5

   Before defining the concept of partisan law enforcement, it is useful to demonstrate the potential scope of partisanship in the enforcement of federal voting laws. To date, the academic literature has almost exclusively focused on partisan law enforcement in the context of individual preclearance decisions rendered by DOJ under Section 5--Texas, Georgia, Mississippi. What has been left largely undeveloped by the commentators is...