<x-charset utf-8>I am glad that we are having this discussion. My “blackberry length” reply.
1. I don't think it is fair to say that the “legal community” differs from career DOJ attorneys about what the Beer court meant by retrogression. I would venture to say that there are voting rights litigators who shared “the DOJ” view on what retrogression meant.
2. There are several contributing factors as to why there are fewer objections, including jurisdictions understanding the redistricitng rules better (for example, I'm not aware of any post-2000 plans that were found by a court to have violated Shaw), but as Mark Posner's e-mail essentially states,, the Bossier II case is probably the single biggest factor. There have been several Voting Section attorneys who have left or will be leaving soon, and political issues have played a role sometimes, but there would have been a dramatic decrease in objections regardless of administration.
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-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu <owner-election-law_gl@majordomo.lls.edu>
To: Mark & Franca Posner <fmposner@verizon.net>; election-law <election-law@majordomo.lls.edu>
Sent: Thu Jun 09 10:41:44 2005
Subject: Re: query re: preclearance after Ga. v. Ashcroft
This is a fascinating discussion. Two questions:
1. Why is there such a gap between the way the Supreme Court and the legal community view how Beer's retrogression test was implemented compared to how career DOJ attorneys did?
2. To what extent is the overall decline in objections in the 2000s due to political factors? Perhaps connected or perhaps not, am I correct to believe there has been an exodus of DOJ attorneys from the Voting Section in the past few years? (We certainly have seen an uptick in the number of Voting Section alumni subscribing to the list).
Rick
Mark & Franca Posner wrote:
As another alum of the Voting Section, I wanted to add my two cents to this discussion (I worked in the Section from 1980 to 1995, and served as Deputy Director of the Section 5 Unit and then as Section 5 Special Counsel; I left the Division in 2003).
I would like to second the comments submitted by Dave Becker and Jon Greenbaum with regard to DOJ's pre-Bossier, pre- Ashcroft Section 5 standard. I have written at length explaining and describing DOJ's reviews of the post-1990 redistrictings in Bernie Grofman's book, Race and Redistricting in the 1990s. As I wrote in that piece, there is no question but that, pre-Bossier (and pre-Miller) DOJ took a broad view of what constituted discriminatory purpose, however, DOJ did not equate a violation of the Section 2 "results" test with discriminatory purpose (there were a few objections, particularly with regard to submissions of additional judgeships, where DOJ said that the failure to correct a Section 2 violation was evidence of discriminatory purpose; that reasoning got knocked down in several DDC Section 5 dec. judg. decisions). (Btw, the expansion of the purpose test began in the early 1980s, when Brad Reynolds was AAG, particularly with regard to DOJ's review of Ms. co!
unty redistricting plans that were "least change" adaptations of plans that DOJ had precleared in the 1970s). In addition, DOJ always has taken the position that a reduction in minority electoral opportunity is retrogressive only where the reduction is electorally meaningful and where constitutionally acceptable alternatives exist that are not retrogressive (as Dave notes, DOJ's handling of the plan at issue in Ashcroft is a prime example of how DOJ has sought to apply the Beer test in a nuanced manner).
With regard to Bossier's impact on the number of redistricting objections following the 2000 Census, the following statistics are helpful. From April 1991 to June 30, 1995, DOJ interposed objections to 184 redistricting plans, which was 7% of the submitted plans (this percentage was almost identical to the percentage for the comparable 1980s period, when DOJ objected to 8% of the submitted plans). On the other hand, from 2001 through June 30, 2004, DOJ objected to only 30 plans, which was 1% of the submitted plans. Despite this huge drop-off, the number of retrogression objections essentially did not change from the 1990s to the post-2000 period -- DOJ objected to 31 plans in the 1990s period based (in whole or in part) on retrogression, and objected to 30 plans post-20000 based on retrogression.
Lastly, in response to Spencer Overton's comments, I wanted to note that while deterrence clearly has been and continues to be a major part of Section 5's enforcement effect, I think that one needs to be careful in using it as a basis for extending Section 5. Specifically, there is a danger that the justification can have no logical end point, which then would put it in conflict with the notion that Section 5 is a "temporary" remedy.
Mark Posner
----- Original Message -----
From: Jon Greenbaum <mailto:jgreenbaum@lawyerscommittee.org>
To: Rick Hasen <mailto:Rick.Hasen@lls.edu>
Cc: soverton@law.gwu.edu ; election-law <mailto:election-law@majordomo.lls.edu> ; David J. Becker <mailto:david.j.becker@comcast.net>
Sent: Wednesday, June 08, 2005 4:36 PM
Subject: RE: query re: preclearance after Ga. v. Ashcroft
Rick,
I worked for the Voting Section and wrote the district court brief after Bossier I was remanded (which led to the Bossier II opinion). I can assure you that although Section 2 evidence as often used as part of a determination that a plan was adopted with an unconstitutional purpose (after all, Arlington Heights requires some showing of effect), the Department differentiated unconstitutional purpose objections from objections made on the basis that the change clearly violated Section 2. I would be happy to discuss this directly with you.
Jon Greenbaum
Director - Voting Rights Project
Lawyers' Committee for Civil Rights Under Law
1401 New York Avenue, NW
Suite 400
Washington, DC 20005
(202) 662-8315 (phone)
(202) 628-2858 (fax)
jgreenbaum@lawyerscommittee.org
________________________________
From: Rick Hasen [mailto:Rick.Hasen@lls.edu]
Sent: Wednesday, June 08, 2005 4:16 PM
To: Jon Greenbaum
Cc: soverton@law.gwu.edu; election-law; David J. Becker
Subject: Re: query re: preclearance after Ga. v. Ashcroft
Not necessarily so. If I recall correctly, the Justice Department took the position (before Bossier II) that when a covered jurisdiction submitted a plan which had no retrogressive effect under Beer but which failed to comply with (the Justice Department's reading of) Section 2, that jurisdiction demonstrated discriminatory "purpose." But that is not a purpose to discriminate *in an unconstitutional manner* under the "congruence and proportionality test" because section 2 is not a constitutionally-mandated test. To put this convoluted point another way, a jurisdiction's failure to comply with section 2 could not provide the evidentiary basis for claiming the jurisdiction engaged in *unconstitutional* racial discrimination.
Rick
Jon Greenbaum wrote:
The "pre-Bossier" test also included objections on the basis of unconstitutional purpose (indeed, these were a majority of the objections prior to Bossier II), which clearly would be "congruent and proportional." I mention this because much of the commentary I have read seems to overlook Bossier II.
________________________________
From: owner-election-law_gl@majordomo.lls.edu [mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Rick Hasen
Sent: Wednesday, June 08, 2005 3:33 PM
To: soverton@law.gwu.edu
Cc: election-law; David J. Becker
Subject: Re: query re: preclearance after Ga. v. Ashcroft
Spencer,
I very much appreciate your message and want to be clear. I am not taking the position that Section 5 is no longer needed. (On that question, readers might look to Sam Issacharoff's recent Columbia Law Review article on this topic, and Michael Pitts' response, posted on SSRN.) I have taken no position on this question yet.
I am interested in the question of preclearance rates for purposes of determining whether the Supreme Court would uphold a renewed section 5 as a permissible exercise of Congress's power to enforce the 14th and 15th amendments. The extent to which Ga. v. Ashcroft has made it easier for covered jurisdictions to obtain preclearance is an argument *in favor* of the Court holding that a renewed section 5 is constitutional, because it would demonstrate that this (lessened) burden on covered jurisdictions is "congruent and proportional" to intentional racial discrimination in voting by those jurisdictions. Compare, for example, the burden on covered jurisdictions today with the pre-Bossier burden whereby DOJ would not grant preclearance unless it was convinced that a plan would not violate *section 2* or even the more mechanical Beer test under section 5.
Rick
Spencer Overton wrote:
From the postings on this list, it seems as though some might assert that Section 5 is no longer needed because of a drop in Justice Department objections to state and local election practices in recent years. Even with Bossier II’s weakening of the Voting Rights Act, however, the law still plays an important role in preventing discrimination in voting. Each of the approximately 10 objections per year may protect thousands of voters. The number of objections may also be deflated because localities and states often withdraw their submitted changes when it appears that the Justice Department suspects the change harms minority voters (rather than risk objection).
Perhaps Section 5's most important contribution, however, is the deterrence of discriminatory behavior. When state and local officials in areas covered by Section 5 debate a voting change, they know federal officials will eventually review any proposal. As a result, they often consider racial impact and design proposed changes so that they do not worsen the position of racial minorities. As Justice Department Attorney Michael Pitts has written:
"Having literally looked at hundreds of redistrictings submitted to the Attorney General, I can attest to the fact that the documents provided by local officials, whether it be meeting minutes or descriptions of redistricting criteria, amply demonstrate that local officials and their demographers are acutely cognizant of the standards for preclearance and typically try to steer very clear of anything that would raise concerns with the Attorney General."
Absent Section 5, politicians would adopt districting plans or other election laws with less regard for their impact on voters of color. For example, as Morgan Kousser has written on this listserve, following unprecedented mid-decade redistricting of 2003, Republicans increased their share of the 32-member Texas congressional delegation from about 50% to 66%. State Representative Phil King, head of the Texas House Redistricting Committee in 2003, testified that but for Section 5 preclearance, he would have tried to split all African American and Latino communities into different districts and create a plan that gave Republicans 100% of Texas’s congressional seats.
In today’s environment of career politicians, partisan and incumbent focused gerrymandering, and the desire to win at any cost, the Section 5 preclearance process remains important.
Professor Spencer Overton
The George Washington University Law School
2000 H Street, NW, Washington, DC 20052
(202)994-9794
soverton@law.gwu.edu
http://www.law.gwu.edu/facweb/soverton/
THE DONOR CLASS (arguing that campaign reforms should encourage candidates to raise the bulk of their funds from smaller contributors) available at . . .
http://ssrn.com/abstract=569021
---------- Original Message ----------------------------------
From: Rick Hasen <Rick.Hasen@lls.edu> <mailto:Rick.Hasen@lls.edu>
Date: Wed, 08 Jun 2005 11:23:57 -0700
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Sent via the Webmail system at law.gwu.edu
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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
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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