Hans A. von Spakovsky, National Review
The redistricting process for congressional and state-legislative seats will soon begin in earnest. All redistricting plans must meet the “one person, one vote” equal-protection standard established by the Supreme Court, which means that districts are supposed to be as even in population as possible.
But redistricting also must comply with the Voting Rights Act, and the Justice Department’s Civil Rights Division just released its new “Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act.” This guidance, which affects redistricting in all or parts of 16 states, is almost guaranteed to cause problems for Republicans.
When the Voting Rights Act was enacted in 1965, Section 5 was supposed to be a temporary, emergency provision. It prohibits certain jurisdictions from implementing any change in their voting laws unless those changes are pre-cleared by the Justice Department or approved by a three-judge panel in federal court in Washington. This 45-year-old “emergency” provision has been renewed four separate times, most recently in 2006. That renewal gave the section 25 years of new life, despite a complete lack of evidence that the type of systematic discrimination that led to its initial passage still exists. Indeed, Congress even changed the Section 5 legal standardto make it easier for the Justice Department to cause mischief.
And as we see in the new guidance memo, DOJ seems intent on doing just that. Jurisdictions covered under Section 5 — all of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia, and parts of California, Florida, Michigan, New Hampshire, New York, North Carolina, and South Dakota — now have the burden of proving that their redistricting plans were adopted “free of any discriminatory purpose” and will not have any “discriminatory effect.”
Historically in U.S. jurisprudence, the government has the burden of proving guilt. But Section 5 has always had a different requirement…
How will this play out in the real world? Here’s my prediction. Democratic-drawn redistricting plans will nearly always be rubber stamped by this Justice Department, unless local black or Hispanic Democrats don’t like how their white Democratic colleagues have sliced the pie. Republican-drawn plans, meanwhile, will run into a buzz saw of Voting Section opposition based not on the legal standards set forth under Section 5, but on whether the Section’s lawyers think the plan will hurt or help Democratic candidates. As the Fort Worth Star-Telegram reports, “Democrats are looking toward the Justice Department in President Barack Obama’s administration to serve as a counterweight” to Republican control of the redistricting process in Texas. Doubt this will happen? Just look at how Justice blocked Kinston, N.C., from switching from partisan to nonpartisan city-council elections. Justice’s rationale? Minorities wouldn’t know whom to vote for if candidates’ Democratic-party affiliation didn’t appear next to their names on the ballot…
Even worse is the fact that the guidance memo says that Justice will develop its own “illustrative alternative plans for use in its analysis.” In other words, the Democratic political appointees who run the Justice Department will draw up their own redistricting plans. They’re certainly prepared to do that. Sam Hirsch, who was once the Democratic party’s main redistricting lawyer, is now a deputy associate attorney general.
The guidance says that if a state submits a plan that’s not (in the opinion of Justice lawyers) as good as the plan concocted internally at Justice, then “the Attorney General will interpose an objection.” In other words, the Justice Department will use its law-enforcement power under the Voting Rights Act to force states to implement the redistricting plans drawn up by the Obama administration, despite the fact that nothing in the law allows them to do this…
The bottom line is this: The Holder Justice Department’s opposition to race-neutral enforcement of the law over the last two years suggests that redistricting may touch off contentious court battles over the rule of law. Unless states opt to bypass DOJ and go straight to federal court, the Left’s effort to exploit the Voting Rights Act for crass political purposes may reach a degree of success once thought unimaginable.