Subject: Re: query re: preclearance after Ga. v. Ashcroft
From: Rick Hasen
Date: 6/8/2005, 9:02 AM
To: "David J. Becker" <david.j.becker@comcast.net>
CC: election-law <election-law@majordomo.lls.edu>

FYI, three of the seven plans (one for Louisiana, one for Va., and one from S.C.) were decided shortly after Ga. v. Ashcroft (Supreme Court decision June 26, 2003), and make no reference to the case or its standards.  So we have four DOJ objections in total mentioning Ga. v. Ashcroft.  Two cases finds discriminatory purpose, and do not rely in substance on Ga. v. Ashcroft (http://www.usdoj.gov/crt/voting/sec_5/pdfs/l_022604.pdf; http://www.usdoj.gov/crt/voting/sec_5/pdfs/l_022604.pdf).   That second linked case, by the way, applies the old mechanical Beer test to look at retrogressive effect, rather than the broader totality test from Ga. v. Ashcroft.

In the two cases not finding retrogressive purpose but only retrogressive intent,  DOJ cites Ga. v. Ashcroft for the proposition that DOJ should consider the feasibility of non-retrogressive alternatives.  (See, e.g., http://www.usdoj.gov/crt/voting/sec_5/pdfs/l_022604.pdf; http://www.usdoj.gov/crt/voting/sec_5/pdfs/l_100603.pdf).  The first linked case also notes that the proposed plan was not supported by minority lawmakers.  (http://www.usdoj.gov/crt/voting/sec_5/pdfs/l_022604.pdf).

I think it is too early to tell how much influence Ga. v. Ashcroft will have on preclearance determinations.  It is interesting to note, however, that there were a total of only two objections filed in calendar year 2004, out of hundreds of filed requests for preclearance.

Rick

David J. Becker wrote:

Having been at the DOJ until 4/30/05, and having been lead trial counsel on GA v. Ashcroft, there were a few denials of preclearance since the Ashcroft decision.  The website (http://www.usdoj.gov/crt/voting/sec_5/obj_activ.htm) notes 2 objections in South Carolina, 4 in Louisiana, and 1 in Virginia since the Ashcroft decision in June, 2003.  All but the 2 SC objections involved redistrictings.  I’m not aware of any others.  Rick, were you hypothesizing a connection between the Ashcroft decision and the DOJ’s failure to object to more changes?

 

David J. Becker

Election Consultant and Voting Rights Attorney

(202) 550-3470

(202) 521-4040 fax

david.j.becker@electionconsulting.com

 

From: owner-election-law_gl@majordomo.lls.edu [mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Rick Hasen
Sent: Tuesday, June 07, 2005 7:35 PM
To: election-law
Subject: query re: preclearance after Ga. v. Ashcroft

 

In looking at this page on the DOJ's website:
http://www.usdoj.gov/crt/voting/sec_5/al_obj2.htm
I could find no instances where the DOJ has objected to a request for preclearance since the Supreme Court decided Ga. v. Ashcroft.  Does anyone know whether this page is up to date?  In other words, is anyone aware of any denials of preclearance following the decision in that case? 

Michael Pitts, in his Pepperdine Law Review article on Ga. v. Ashcroft, notes the following interesting statistics (at 32 Pepp. L. Rev. 265 n.102) on objections following the Bossier decisions: "Between January 24, 2000, (the day the second Bossier was decided) and January 24, 2004, the Attorney General denied preclearance on 34 occasions (not counting continued denials of preclearance). United States Department of Justice Civil Rights Division, Section 5 Objection Determinations (including text of objection letters), at http://www.usdoj.gov/crt/voting/sec_5/obj_ activ.htm. Eleven of those preclearance denials involved retrogressive purpose."
Rick


-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 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
http://electionlawblog.org

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 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
http://electionlawblog.org