Subject: Re: query re: preclearance after Ga. v. Ashcroft
From: Rick Hasen
Date: 6/9/2005, 7:41 AM
To: Mark & Franca Posner <fmposner@verizon.net>,
election-law <election-law@majordomo.lls.edu>
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.
county 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-2000 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.
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.
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.
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.eduhttp://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>
Date: Wed, 08 Jun 2005 11:23:57 -0700
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