I have been following the
internal Georgia state litigation over whether Georgia's Republican governor
gets to pull the state's U.S. Supreme Court appeal in Georgia v. Ashcroft
brought by the Democratic state attorney general. The internal case goes to
the Georgia Supreme Court on May 6. The underlying case will be argued at
the U.S. Supreme Court on Tuesday. SCOTUSblog offers a brief description and
links to the cases here and
even more resources are available from the Georgia Republican party here.
Sam Heldman offers his commentary here.This article
from law.com explains what is at stake for the Democrats in this litigation.
This promises to be a very important decision, if it is not mooted by the
Georgia Supreme Court's decision to hand the power to withdraw the case to
the governor.The primary question in the case comes under section 5 of the
Voting Rights Act. As the Supreme Court has interpreted section 5, a state
covered by section 5's preclearance provisions (mostly, but not only, Southern
states) must obtain "preclearance" from the Justice Department or a special
three judge court in Washington D.C. before making any change in voting procedures
and practices. The state must prove the change in voting practice has neither
a discriminatory purpose or effect, which the Supreme Court has interpreted
to mean that the law cannot be "retrogressive," i.e., make the position of
protected minorities in the jurisdiction worse off than they were before
the change.
The question presented here relates to how to define retrogression in an
era when the extent of racially polarized voting (i.e., whites voting only
for white preferred candidate, and minorities voting only for minority-preferred
candidates) is declining. If it used to take a 70% African-American majority
in a jurisdiction to elect an African-American preferred candidate, and it
now takes only 60% (because more white voters will vote for the African-American
candidate, particularly if he or she is an incumbent), is it retrogression
to move to a 60% district. Democrats want to argue that the move to 60% should
be permitted, so that African-American voters can be spread across more districts.
Republicans have taken the opposite position in this litigation. The issues
are extremely complex, both on the level of doctrine and political science.
Anyone who wants to understand this area must read Rick Pildes's piece, Richard
H. Pildes, Is Voting-Rights Law Now at War with Itself?, 80 N.C. L. Rev. 1517
(2002).
--
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html