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July 19, 2011

States Hope to Win on New District Maps in Federal Court

 

By Josh Goodman, Staff Writer

After winning a special election to the Louisiana House of Representatives, Alan Seabaugh showed up for legislative duty in March just as his new colleagues were plotting the end of his political career. In a preliminary plan for redrawing the state's legislative districts, Seabaugh was paired with a fellow white Republican in a move to create a new black-majority seat. "Two hours before I cast my first vote," Seabaugh says, "they drew me out of my district."
 
But Seabaugh fought back. He argued that Caddo Parish, where Shreveport is the main city, is about half black and half white, so it should continue to have three black-majority seats and three white-majority seats. Ultimately, the legislature agreed. Seabaugh's seat was saved.
 
In Louisiana, though, the legislature's verdict is never the final decision on redistricting. Under Section 5 of the 1965 U.S. Voting Rights Act, Louisiana is one of 16 states that must get federal permission for its new lines — and any other changes it makes to voting statewide - to ensure that the changes don't reduce minorities' voting power. Louisiana's record in this regard was inauspicious. It had never once won federal permission for its state House of Representatives redistricting plan — known as "preclearance" — on a first try.

This time, it decided to do something different. States have two options when they seek preclearance. They can ask the Justice Department for permission through an administrative process, which is by far the most common route. They can also go directly to federal court, something Louisiana did ten years ago. This time, Louisiana's answer was to try both approaches at once.
 
Virginia, the second state of the 16 to have a redistricting plan signed into law, also followed this new model. Other states are contemplating going directly to court too, with or without a simultaneous request to the Justice Department.
 
This is a major change from previous rounds of redistricting and it comes with a politically loaded subtext: Conservative lawmakers mistrust the Obama administration's Justice Department. They're looking to either pressure Justice to approve their plans or to sidestep it in court.
 
What's at stake is bigger than whether Alan Seabaugh has a seat in the Louisiana House of Representatives and, in fact, bigger even than what the nation's political districts look like for the next ten years. That's because the backdrop for this year's preclearance decisions is a debate over the constitutionality of the preclearance regime itself — a bedrock feature of one of the nation's signature civil rights laws for the past 46 years.
 
Broad coverage
           
The Voting Rights Act, of course, was approved in the age of literacy tests and poll taxes, when some state legislators appeared intent on finding clever ways to prevent blacks from voting. The idea behind Section 5 was that if legislators created discriminatory voting rules, the federal government would have the power to block them before they could ever go into effect.

Section 5, though, didn't apply everywhere. The law created a formula to cover states and localities with low levels of voter participation and rules in place designed to reduce voter participation. Those determinations were made in the 1960s and 1970s. For the most part, the list of covered jurisdictions has stayed the same ever since.
 
As a result, most of the Southern states are covered, but so are some places that aren't normally associated with Jim Crow: all of Alaska and Arizona and parts of California, Michigan, New Hampshire, New York, and South Dakota. For redistricting purposes, every state that's covered even in part must apply for preclearance for its entire map, since its redistricting plan invariably touches the covered portion of the state.
 
To win preclearance, states have to show that they've avoided "retrogression" — that minority voting power won't diminish as a result of the changes they're making. While that's a relatively narrow rule compared to other portions of the Voting Rights Act, it still comes with major consequences. For example, Alaska's legislative redistricting this year was defined by the struggle to preserve Native American seats, despite the population stagnation in rural areas where those seats are located. "Being one of the nine states that's covered in full in the Section 5 umbrella," says Taylor Bickford, executive director of the Alaska Redistricting Board, "really drives the process up here."
 
New dynamics
           
It's also driven redistricting in the South for decades now. This year, though, the dynamics are somewhat different.
 
For one thing, for the first time since the Voting Rights Act passed, a Democrat is in the White House during redistricting. While career staff in the Justice Department make preclearance recommendations, political appointees can overrule them — as George W. Bush's Justice Department did for Texas and Georgia maps last decade. One of the big questions this cycle is whether the Obama administration will interpret the law differently than the Bush administration did.
 
 
Meanwhile, for the first time, most Southern states are firmly in the hands of Republicans: Alabama, Florida, Georgia, North Carolina, South Carolina and Texas all are preclearance states and in all of them Republicans are in complete control of redistricting. Already, these Republican lawmakers are sparring with the Obama administration on health care, environmental rules and a host of other issues.
 
That's created the ingredients for a political clash. Jason Torchinsky, a Republican election lawyer who represented Louisiana in redistricting, says the strategy to apply both to federal court and the Justice Department simultaneously was partially just a consequence of their compressed timeline — both Louisiana and Virginia have legislative elections this year. The approach was a way to have a court case already underway as a fallback option if the Justice Department denied preclearance. But Torchinsky also describes the dual submissions as a way of winning leverage because of the constitutional challenges to Section 5.
 
In a 2009 case, just three years after Congress extended Section 5 for another 25 years, many observers expected the Supreme Court to rule it unconstitutional. Instead, it sidestepped the issue, but perhaps only temporarily. Two new cases, one out of Shelby County, Alabama, and one out of Kinston, North Carolina, could end up testing Section 5 again.

The maps Louisiana and Virginia have approved probably won't be the ones to sink Section 5. The Department of Justice has already approved legislative lines for Virginia and Louisiana, which made the court proceedings there unnecessary. Those decisions have prompted two competing interpretations: Did Justice grant preclearance in part because of the federal court cases or does the decision to grant preclearance prove that going to court wasn't necessary? 

In the end, it's impossible for a state to avoid the Justice Department altogether. Even if a state goes directly to federal court seeking preclearance, the same Justice Department lawyers participate in the case. When states seek preclearance administratively, the Justice Department is required to answer in 60 days, but court cases usually move much more slowly. "It's essentially a waste of time and money and there's nothing generally to be gained by it," says Jeffrey M. Wice, a Democratic redistricting lawyer. "Republican fears of a partisan Obama Justice Department are totally without foundation."
 
Retrogression?
 
The truth is, though, that it's hard to draw broad conclusions from anything that has happened in Louisiana or Virginia. Neither state's maps presented a clear-cut of racial retrogression. Louisiana's new state House of Representatives map actually increases the number of black-majority seats, even without the extra Caddo Parish seat. All of the maps that have been precleared so far at least kept the number of minority seats steady. But tougher and more telling preclearance decisions are ahead.
 
Take the new state Senate districts that South Carolina approved last month. The old map had ten black-majority seats, while the new one only has nine. The possible source of retrogression is Senate District 17. In the current map, District 17 is 51 percent black, while in the new map it's only 43 percent black. That would seem to be a clear instance of retrogression, except that the district's current voting-age population is 49 percent white and only 48.6 percent black. In approving the plan — which passed the Senate with only one dissenting vote — South Carolina Senate President Glenn McConnell argued that population shifts led lawmakers to change the district. The state ACLU, though, drew a map that kept the seat majority-black.
 
In Texas, the issues are even more complex. The debate centers on Hispanic voters, but there's no agreement on how many Hispanics have to be in one district to elect the Hispanic community's candidate of choice. Alabama and Alaska are two other Section 5 states that have newly minted maps. Both states plan to seek Justice Department preclearance and not go to federal court. But South Carolina and Texas haven't announced what they'll do.
 
Louisiana's Seabaugh, for one, is a new convert to the simultaneous submission strategy. Mostly, though, he's relieved that he'll still have a district to run in come November. "We knew we were right," he says, "but that doesn't always mean you're going to get preclearance."
Redistricting
 
Louisiana, South Carolina, Texas, Virginia
 
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