Drawing lines in shifting sands: the DOJ, the VRA, and the 2011 redistricting process.

• Author: Persily, Nathaniel
• Position: Department of Justice, Voting Rights Act of 1965

INTRODUCTION

Those who criticize section 5 of the Voting Rights Act (VRA) on either constitutional or policy grounds emphasize several extraordinary features of the statute. Its selective application to certain parts of the country represents an exception to the general rule of nationwide application of provisions in the U.S. Code. The alteration of the federal-state relationship through the preclearance process is exceptional in the fact that state laws of a particular sort (that is, those relating to voting) can be held up by the federal government, either the Department of Justice (DOJ) or the U.S. District Court for the District of Columbia (D.D.C.). Finally, although other laws have sunset periods and have been reauthorized, the VRA has been reauthorized multiple times for different lengths of time, most recently in 2006 for another 25 years.

These unique characteristics of section 5 are well-known and often debated. The widespread deprivation of African Americans' voting rights at the birth of the VRA in 1965 demanded "strong medicine." (1) One question, now considered in the courts, Congress, and beyond, is whether section 5 is still necessary or whether the changing facts on the ground, including new challenges to minority voting rights, require reform of the statute.

Less attention has been paid to another way in which section 5 is extraordinary: namely, the power it vests in the federal government to oversee aspects of our electoral system. Unlike most countries of the world, the United States does not have a national overseer of our elections. The Federal Election Commission only deals with a small slice of our electoral practices, predominantly limited to campaign finance. Other agencies, such as the Election Assistance Commission, are not designed or charged with the responsibility to ensure elections are conducted fairly or even efficiently. Instead, most regulation and enforcement of election law occurs at the state and local level. (2)

When placed in this context, section 5 of the VRA and the authority it vests in the DOJ appear quite distinct, even apart from the aspects of the statute that are considered most aberrational. The statute gives the federal government the power to prevent electoral practices deemed unfair according to criteria specified in law. In this sense, at least among covered jurisdictions, section 5 enforcement has the potential to harmonize certain electoral practices considered to have potentially discriminatory effects.

Given that unique charge of section 5 and the general absence of a national nonpartisan overseer of American elections, it should come as no surprise that enforcement of the VRA leads many to criticize the DOJ for the decisions it makes. Criticism of the Voting Section of the DOJ is nothing new. Indeed, lawyers there have come to expect it as part of the job. To some extent, an absence of criticism might constitute a sign of a problem, given the sensitive task that the Voting Section performs in enforcing section 5 of the Voting Rights Act. If the Voting Section is not angering someone, then it is probably not performing the function the statute envisions.

The character of the criticism during the 2011 redistricting process, however, is of a different kind and degree. In large part, this is the result of forces beyond the DOJ's control. The polarization of our politics, the perceived stakes of this redistricting process, and the uncertain meaning and future of section 5 combine to place the DOJ in an impossible position. The elections since the 2001 redistricting cycle have completed the Southern realignment that commenced with the VRA's passage. (3) Southern White (former) Democrats now identify and vote Republican. Racial minorities (particularly African Americans, but Latinos as well) tend to vote for Democrats. With partisan polarization mapping onto racial differences in many covered areas, the DOJ's role in approving redistricting plans is necessarily fraught with partisan consequences. Such was not the case when Democrats held a monopoly on Southern politics, and when Democratic control of the U.S. House of Representatives seemed entrenched. Now, each preclearance determination, especially concerning statewide redistricting, is seen as a zero sum game between the political parties with great political and policy consequences.

At the same time, unfinished debates from the 2006 VRA reauthorization process have left the Department with a choice between two different interpretations of section 5's new retrogression standard: one favored by Democrats and the other favored by Republicans. (4) The debate boils down to a disagreement over whether the new statutory standard protects only majority-minority districts or protects districts where minorities have an "ability to elect" their preferred candidates irrespective of their particular share of the population. (5) Even when the partisan stakes are low, such as with a local redistricting process or a move to nonpartisan elections, the interpretive choices made by the DOJ are seen as sending partisan signals for the more contentious preclearance submissions. It should therefore come as no surprise that many Republican-controlled states have opted to seek preclearance from the D.C. District Court for their redistricting plans and voter identification laws. (6)

As the DOJ navigates the political minefield of the preclearance process during the high-stakes 2011 redistricting process, the Supreme Court is looking over its shoulder, threatening to declare section 5 unconstitutional. The signals sent in Northwest Austin Municipal Utility District Number One v. Holder, (7) as well as the brief opinion in the recent Texas redistricting case, Perry v. Perez, (8) have indicated that section 5 is living on borrowed time. Assuming the personnel on the Court remains constant, the question is not whether the Court will declare section 5 unconstitutional, but when and how. Realizing that, the DOJ necessarily views each preclearance determination as a potential vehicle that could destroy section 5 itself. It must choose its battles wisely, lest the "wrong" case emerge as the test case for either the meaning of the retrogression standard or the constitutionality of section 5. (9)

Given these conflicting pressures and the DOJ's unique position as a federal overseer of elections, it is no wonder that the DOJ receives criticism from all sides. And it should be understood that the cross-cutting pressures described lead to different and contradictory criticisms, not a chorus of critics pointing in one direction. Republicans view the DOJ as pursuing a Democratic partisan agenda with the preclearance process. (10) Civil rights groups and some Democrats see the DOJ as too timid, having denied preclearance in only a few, largely insignificant cases. (11) "Color-blindness" and states' rights advocates, uncomfortable with the VRA in general and section 5 in particular, see in every DOJ action an example of racialization of politics or excessive and arbitrary federal intrusion on states' prerogatives.

While recognizing that the DOJ is "damned if it does and damned if it doesn't," it is useful to define exactly where we are in the debates over the meaning of the VRA and to analyze how we have arrived at this particular destination. What follows is an explanation of how the contentiousness of this redistricting cycle was both predictable and foreordained by the choices not made in the VRA reauthorization process. I then turn to an analysis of the first twenty preclearance denials issued since the VRA was reauthorized. I pay particular attention to three high profile preclearance actions: the objection to the nonpartisan election initiative in Kinston, North Carolina; the objection to South Carolina's Voter ID law; and the DOJ's position in the Texas redistricting case.

If there is an argument to be unearthed from what follows it is this: the complaints against the DOJ this redistricting cycle were inevitable, given the architecture of section 5 and the state of our politics. Actions and interpretations that previously would not have raised partisan eyebrows are now seen as outrages. Such is the fate of applying a statute that regulates politics in an environment where political impartiality is universally questioned and each decision is seen as one that might determine control of a legislative chamber. At the risk of beginning on a note of pessimism, it is also far from clear that any minor reform of the current system will be able to restore bipartisan confidence in the preclearance process. These types of criticisms, or their mirror image, may be an unavoidable result of polarized politics in an age where party and race have become intertwined.

1. THE NEW VRA AND THE CURRENT DOJ: THE SEEDS OF THE PRESENT DISCONTENT

   The contentiousness surrounding the DOJ's oversight of the 2011-2012 redistricting process was entirely predictable for those who watched closely the VRA reauthorization debates in 2006. Although partisan criticism has appeared to increase in every redistricting cycle, the partisan valence of the papered-over legislative reauthorization debate foreordained the arguments now coming to full bloom, I have recounted elsewhere that legislative history and thus will only provide a brief summary here. (12) Despite massive and bipartisan support in the final votes on the new VRA, it became clear in both the pre- and post-enactment legislative history that the political parties had very conflicting views over the meaning of the new retrogression standard, as well as the constitutionality of the statute.

   1. The 2006 Amendments to the VIM

      1. The Georgia v. Ashcroft fix

         The principal source of controversy, then and now, concerned what is known as the Georgia v. Ashcroft fix, named after the Supreme Court case it attempts to overturn. (13) Georgia v. Ashcroft interpreted section 5 s retrogression standard to allow for...