Mark Posner and I engaged in an off-list dialogue about his comment
regarding the impact of Ashcroft on the ability of DOJ to object to
retrogression in an influence district. I'll attempt to briefly summarize
our discussion below.
Mark is, of course, correct that in 1993 the Justice Department issued an
objection to a board of supervisor's district in Graham County, Arizona,
that went from 39% Latino to 33% Latino, and that the objection was based,
in part, on retrogression grounds. And Mark also notes that it was not the
policy of the Justice Department in the 1990s to ignore retrogression in
influence districts. However, despite all this, there is still some
question as to whether DOJ would object when a submission only featured
retrogression in an influence district. Why? Because I attended a Voting
Section training session in early 2001 (Mark was not working in Voting at
that time) where the entire career staff was told that we would not be
objecting to submissions that only included retrogression in influence
districts.
Outside of DOJ "policy," Mark and I agreed that it is possible to come to
the conclusion, pre-Ashcroft, that there was a legal basis for objecting to
a submission based solely on retrogression in an influence district.
Suffice to say, Mark thinks the legal basis for interposing an objection is
stronger than I think it is. We also agreed on this paragraph that Mark
wrote:
"Aside from the question as to whether Ashcroft opens the door to such
objections as a matter of law or policy, I think it does have the potential
to affect DOJ's factual analysis of whether a reduction in potential
influence is sufficiently meaningful to warrant an objection. Because the
Supreme Court has given its imprimatur to influence districts, it seems that
DOJ may well be more likely to give greater credence to claims that, as a
matter of fact, a reduction in the minority percentage in an influence
district is discriminatory. Perhaps the leaked analysis of the Texas
congressional redistricting plan is evidence of this, albeit it was not of
course a submission only dealing with influence districts."
Best,
Mike
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Mark & Franca
Posner
Sent: Monday, May 15, 2006 7:45 PM
To: election-law@majordomo.lls.edu
Subject: Recent Section 5 postings
I would like to add a few of my thoughts in response to the recent postings
regarding the reauthorization of Section 5.
1. One common concern expressed here and elsewhere is that Section 5 is the
wrong voting rights remedy for the 21st Century because it doesn't
adequately address the problems that are of real concern today, either
because the problems exist in non-covered as well as covered jurisdictions
or the problems don't involve changes and thus escape scrutiny under Section
5 even in the jurisdictions covered by Section 5. While I agree that
Section 5 is lacking to this extent, I don't think this provides a reason
for rejecting a Section 5 reauthorization. Instead, the case for
reauthorization should stand or fall based on the extent to which there
remain the types of problems that Section 5 in fact was designed to address.
In the perfect world, civil rights advocates no doubt would like to both
extend Section 5 and have Congress address the other problems, but they know
that that is a non-starter. They also know that cashing in Section 5 would
not produce legislative chits that then could be used to enact legislation
to remedy the other problems. So, for several reasons, the question
presented is not one of "either or."
2. I think that a good case can be made for the proposition that Bossier II
has resulted in a substantial reduction in the number of objections, though
it is not the only reason the reduction has occurred. As Peyton McCrary and
his associates demonstrate in an article to be published soon, from the
1970s to the 1980s to the 1990s, an increasing percentage of all DOJ
objections were to changes that were not retrogressive and were based on
discriminatory purpose. Most dramatically, according to my calculations,
over 80% of the redistricting objections in the first half of the 1990s were
to nonretrogressive plans and were based on purpose. (And no, I don't agree
that DOJ was applying the purpose test so as to maximize minority
representation, a subject I address in a forthcoming law review article).
The fact that the number of objections took a nose-dive in the mid-1990s
does not suggest that Bossier II has been of little consequence. Few
redistricting objections were going to be interposed from the mid-1990s to
2000 in any event because the redistricting cycle was mostly complete by the
mid-90s. However, I do agree that the timing and extent of the nose-dive
suggest that something else was going on other than a normal ebb in
objections followed by the Bossier II decision. In particular, I believe
that another reason for the reduction is the wholesale shift to district
elections (resulting from the 1982 amendment of Section 2 and from Section 5
objections), which has led to the near-disappearance of retrogression
objections to annexations, majority vote requirements, and anti-single-shot
provisions (changes that previously were the basis for a substantial
percentage of Section 5 objections). Lastly, many purpose objections also
were interposed in the 1980s and early 90s to changes from at large to mixed
systems (e.g., because the mixed system used posts or majority vote for the
at-large seats), and these objections also disappeared in the early 1990s,
at the same time that the number of submissions of mixed plans also tailed
off.
3. To answer a question posed by Mike Pitts, I think that DOJ did have the
authority pre-Ashcroft to interpose a retrogression objection where an old
redistricting plan only contained influence districts and the new plan
contained worse influence districts. As a practical matter, this didn't
come up very often because DOJ did not think that pure influence districts
(as opposed to coalition districts) typically had much electoral
significance. However, there was at least one redistricting objection in
the 1990s based on an influence-district retrogression.
Regards,
Mark Posner