Democrats at DOJ: why partisan use of the Voting Rights Act might not be so bad after all.

• Author: Katz, Ellen D.

INTRODUCTION

In notable ways, the ongoing dispute over redistricting in Texas offers a mirror image to one of the major redistricting battles of the last decade, only with Democratic and Republican roles reversed. In both Texas v. United States and Georgia v. Ashcroft, a state attorney general (AG) decided he would not ask the United States Department of Justice (DOJ) to approve new redistricting plans enacted in his state. In both cases, the state AGs were well aware that the Voting Rights Act (VRA) required them to obtain federal approval, known as preclearance, before changing any aspect of their state's election laws and procedures, and both knew that the new redistricting plans were indisputably the type of changes that needed federal approval. Both, moreover, believed (and would later argue) that the plans satisfied the statutory standard for approval, namely, that they had neither the purpose nor the effect of denying or abridging the right to vote based on race or language minority status. (1) Still, both Texas Attorney General Greg Abbott and Georgia Attorney General Thurbert E. Baker wanted to avoid the Department of Justice at all costs.

Both AG Abbott and AG Baker wanted to steer clear of the DOJ because they suspected the Justice Department would not look kindly on the partisan redistricting plans adopted in their states. In both the Texas and Georgia cases, the plans at issue had been designed to award a disproportionate number of legislative seats to either Republican or Democratic candidates at a time when the DOJ was under the partisan control of the opposing party. Added to that, both plans had generated criticism disputing the AGs' belief that the plans complied with the VRA. (2)

Both AG Abbott and AG Baker accordingly decided they would seek preclearance in federal district court in Washington, D.C., a long-established route to preclearance that nevertheless is rarely pursued because it has repeatedly proven more costly and far slower than the administrative process on offer at the DOJ. Both AGs were willing to undertake these costs because both were convinced, and rightly so, that the DOJ would not be impressed with the states' redistricting efforts. (3) As it happened, both the Bush and Obama administrations objected to the plans at issue, arguing that they violated the VRA by offering inadequate representation to each state's minority populations. (4)

There is fair debate as to whether the Bush administration's more expansive reading of the VRA in Georgia would have better protected Georgia's African American voters than did the narrower one pressed by the state's Democratic leadership and ultimately endorsed by the Supreme Court.5 What is beyond dispute, however, is that the Republican DOJ's stance in the case mapped onto the strategic interests of the Republican Party. Equally certain, a Democratic DOJ would have promptly approved the Georgia plan, which, in turn, would have benefited the Democratic Party. (6)

Texas v. United States suggests a similar dynamic. True, the case is still being litigated such that a full assessment of the various claims at issue remains premature. Still, it looks like DOJ's present stance in the case maps onto the strategic interests of the Democratic Party. It also seems likely that a Republican-controlled DOJ would have approved the Texas plan, which would have been beneficial to the Republican Party.

In other words, both Texas and Georgia show that Democrats enforce voting rights differently from Republicans. Often this means that Democrats enforce voting rights more expansively and aggressively than do Republicans, but as Georgia shows, not always. More consistently, Democrats enforce voting rights in ways that tend to advance Democratic interests while Republican-led enforcement tends to produce benefits for Republicans. This Article explores whether these differences should be cause for concern.

In exploring this question, let's assume that the party of the sitting President stands to benefit from VRA enforcement actions taken by the DOJ. We can remain agnostic as to whether the pursuit of partisan gain best explains any particular DOJ decision. (7) The argument 1 want to pursue is not that agency officials, be they Democrats or Republicans, necessarily seek partisan benefits when making enforcement decisions. Instead, I am interested in examining whether we should be worried about partisan use of the VRA by the DOJ, based on the supposition--as distinct from the argument--that the DOJ enforces the VRA in ways that benefit the political party of the administration in power.

Imagine, then, that Assistant Attorney General Thomas Perez characterized the Justice Department's stance in Texas as an effort to block a vigorous Republican gerrymander and announced that the agency was using the VRA as a convenient legal hook to accomplish this purpose. (8) What if this statement accurately described the reality of the DOJ's purpose in the Texas case? Would such partisan use of the VRA prevent the statute from operating as we think it should?

I would like to explore here the possibility that it would not. In so doing, we will have to part company with various commentators who have long viewed partisan use of the VRA as distasteful and destructive. (9) But note, the idea is not simply that partisan use of the VRA by the DOJ in cases like Texas" is benign. Rather, the argument I want to pursue here is that partisan use of the VRA in cases like Texas may facilitate the regime's operation in productive ways.

To be clear, in referencing cases "like Texas," I mean those in which the legal arguments made to support the DOJ's ostensible partisan agenda are subject to a full airing in federal court. Thus, Georgia is a similar case, as are the ongoing disputes about voter identification in South Carolina and Texas. (10) Distinguishable cases are those in which partisan motivation animates agency action that is fundamentally unreviewable, be it a grant of preclearance or a less transparent action that strategically delays such grants. These latter cases raise distinct and more troubling concerns that are beyond the scope of this Article. (11)

Where, however, judicial review is available, my claim is that partisan use of the VRA by the DOJ (and, indeed, other actors) is not the cause for concern it is often made out to be and instead often has beneficial consequences. The first Part of this Article explains why. It shows why core concerns about partisan use of the VRA by the DOJ are misplaced, why the practice helps elicit viable, rather than frivolous, claims, and the ways in which it is best seen as a response to, rather than the cause of, racially infused redistricting disputes.

The second Part of this Article suggests that an unduly narrow conception of what the VRA does underlies much of the skepticism about partisan use of the statute. This Part argues that one of the VRA's most critical, albeit overlooked, functions is its provision of a forum in which to resolve competing views about minority political participation in a majoritarian system. Partisan-infused enforcement actions make use of this familiar, structured forum and highlight its operation.

1. ON FRIVOLOUS CLAIMS AND "RACIALIZED" DISPUTES

In redistricting disputes, partisan use of the VRA typically involves casting injuries caused by partisan gerrymandering in racial terms. Some partisan moves are said to cause retrogression within the meaning of section 5 of the statute, while others are alleged to result in racial vote dilution under section 2. (12) Either way, partisan-infused VRA claims are routinely viewed with considerable skepticism. (13)

One concern is that such claims are factually unfounded or even frivolous, given that they are "manufactured" to serve goals other than the ones the VRA was ostensibly enacted to address. Because redistricting disputes are partisan at their core, the thought is that politics, rather than race, dictates the challenged districting moves, and that those unhappy with the results suffer primarily, or perhaps exclusively, as members of the losing political party and not as members of a particular racial group. (14) That is, they are said to suffer no cognizable racial injury under the VRA.

A related worry is that recasting a political battle in racial terms is not only a factual error, but also the cause of distinct injury. More specifically, an often-cited concern is that VRA claims pressed for partisan reasons "racialize" what are fundamentally non-racial disputes. The fear is that recasting claims in this manner worsens the very racial polarization the statute was designed to reduce. (15)

These concerns mistake cause and effect. To be sure, redistricting is almost always a partisan affair, in which members of the dominant political party draw district lines in ways that promise to maximize their power. (16) And yet, such gerrymanders are invariably implemented through race-based districting moves that rely on the close connection between race and party affiliation in most jurisdictions. For example, it was not happenstance that Georgia Democrats implemented the gerrymander at issue in Georgia v. Ashcroft by "unpacking" Black voters from majority-minority districts; nor was it an accident that Texas Republicans shored up a vulnerable incumbent by removing 100,000 Latino voters from a Laredo congressional district in 2003. (18) In these cases, the resulting claims of race-based injury under the VRA (section 5 in the first, section 2 in the second) were hardly ancillary distractions obscuring a purely partisan dispute, but instead were the predictable and unavoidable consequence of the gerrymanders themselves. (19)

Put differently, the VRA claims brought in these cases did not "racialize" non-racial disputes. The disputes were racial from the start. They were racial because the disputed gerrymanders were constructed through sequential racial moves. True...