By: Jonathan Klein
Under the gold dome of Georgia’s Capitol, Democratic Senators pointed forcefully to colorful redistricting maps, arguing loudly that Republicans’ newest redistricting attempts would disenfranchise minority voters. Democrats would eventually argue that Republicans’ new map violated the Voting Rights Act (VRA) of 1965. This was the scene less than a year ago, when the General Assembly debated the boundaries of Georgia’s newest Congressional and state districts.
Despite controlling the governorship, the state Senate, and nearly holding a supermajority in the House, Georgia Republicans were unsure whether they’d actually be able to implement their preferred redistricting plan. The biggest barrier to implementation? Section 5 of the VRA, which required either the Justice Department or a federal court in Washington, D.C. to approve the new boundaries. Although the controversy over Georgia’s redistricting ultimately ended with the Justice Department accepting the legislature’s new map, the same issues of disenfranchisement and minority rights have arisen in other Southern states – yet the Justice Department hasn’t been nearly as willing to approve their maps.
Section 5, often called the “preclearance requirement,” was passed against the backdrop of 1950s- and 1960s-era disenfranchisement. Before Congress addressed this problem, states used a variety of tools to prevent minorities, mostly blacks, from voting. Section 5 sought to remedy this problem by requiring covered jurisdictions to “pre-clear” any changes to the electoral process with either the Attorney General or Washington, D.C.’s federal district court. Covered jurisdictions, mostly cities and states in the South, must show that voting changes do not have the purpose or effect of discriminating on the basis of race. Underlying Section 5 is the antiquated theory is that covered state legislatures will discriminate against minorities in the redistricting process, and because the judicial process moves slowly by design, minorities will have no recourse to address constitutional concerns until after Election Day.
Unlike Section 2 of the VRA, which prohibits any government entity from engaging in electoral discrimination, Section 5 has always been controversial. Its scope is limited mostly to Southern states and, some critics argue, it punishes today’s voters for discriminatory policies that were enacted 50 or 60 years ago. Until recently, these and other concerns about the relevancy of Section 5 were faux paus. Mainstream politicians, especially Republicans looking to draw more minorities into the GOP, were reluctant to criticize an act that some voters regarded as a major step forward for American society.
That reluctance to attack the Voting Rights Act, and Section 5 in particular, has changed as Attorney General Holder infused politics into the judicial process, refusing to approve new maps that would favor Republicans gains in 2012 and beyond. Rather than using Section 5 to ensure that minorities have access to the political process, the Justice Department has recently begun using it to ensure that minorities gain more representation in Congress and statehouses. It’s important to recognize that Attorney General Holder’s interpretation of Section 5 is not faithful to the spirit of the VRA, which was intended largely to stop the blatant disenfranchisement of minorities. More importantly, the debate over enforcing Section 5 has shifted the stage from the political process to the courts, further complicating an already-messy redistricting process.
Prolonged court battles over the scope of Section 5 have wreaked havoc on the electoral process in many states. In Texas, which gained four Congressional seats for the 2012 election cycle, candidates for the state’s 36 Congressional seats are reluctant to spend limited campaign funds because they don’t yet know in which district they’ll be running. This latest development comes after a year-long battle in which the Texas state legislature drew a map likely to net +3 Republican seats, a San Antonio federal court struck down that map and implemented a +3 Democratic map instead, and the Supreme Court finally intervened, putting the entire process on hold. Meanwhile, Texas election administrators have begun telling voters – and candidates – that the primary election scheduled for April looks increasingly unlikely. To a lesser extent, the same confusion surrounding redistricting is playing out in some other states subject to the VRA’s preclearance requirement.
Aside from the legal implications, there remain serious questions about whether the pre-approval requirement even protects minorities. In an effort to satisfy the requirement, some state legislatures must gerrymander districts more heavily than they otherwise would. The result is a map that satisfies nobody: The party controlling the Justice Department begrudgingly accepts the map because its gerrymandering does not rise to the level of egregious, and state legislators voice concerns that the federal government is infringing upon states’ power to administer elections. Politically, the requirement that states not “retrogress”, or weaken minority voting power, probably dilutes minority power in of itself by forcing state legislators to create “majority-minority” districts. These majority-minority districts necessarily strengthen Republicans’ grip on other areas.
Perhaps better than any other urban area, metro Atlanta symbolizes how a state’s attempts to comply with Section 5 can reduce the competitiveness of Congressional elections. Political scientists argue over the extent to which gerrymandering increases partisanship in Congress, but a quick glance at metro Atlanta’s Congressional delegation is probably the most revealing indicator. Of metro Atlanta’s eight Congressional seats, the “most competitive” race featured a challenging Republican – now Rep. Austin Scott (GA-8) – winning by six points. In the other seven districts, the average margin of victory was 58 points. Democrats didn’t even contest two safe Republican seats, those held by Reps. Phil Gingrey (GA-11) and Tom Price (GA-06). Ultimately, the VRA’s emphasis on majority-minority districts likely plays some role in reducing the competitiveness of Congressional elections.
Even when state legislators try to comply with the VRA, confusion over the preapproval mandate sometimes leads to counterintuitive outcomes. Take, for example, Georgia’s 1992 experience in redistricting. When the state applied for preclearance, the Justice Department rejected its map, noting the new lines would create only one new majority-minority district. Despite the fact that this new district would likely elect a minority, the Justice Department ostensibly preferred a map that would give minorities a less-than-great shot at winning three seats. That rejection didn’t sit well with Democrats in the General Assembly, many of whom correctly argued their plan would essentially guarantee increased representation of black Democrats in Congress.
Rather than using a five-decade old preclearance system whose usefulness is increasingly being called into question by the Supreme Court, Congress should repeal Section 5. For those who point out that eliminating the preclearance requirement will facilitate gerrymandering, it’s important to recognize that the courts are extremely reluctant to intervene in what is seen largely as a political, not judicial, question. Cutting the requirement that any electoral changes be cleared by the judicial branch would likely reduce the number of contentious political cases the courts must consider. Until politicians and scholars can agree on a truly non-partisan method for redistricting, this highly-political process should be left where it belongs: to politicians, not the courts.
