I read with interest David Lublin's post regarding the (slim) possibility of Ashcroft-styled maps in the next round of redistricting. I agree with David that the possibility of such maps are quite low, and if that were the only reaso to be concerned about the need for a legislative correction of Ashcroft, I'd agree that  there is little need to engage the issue.

However, there is a second issue, which is the choice of philosophies of representation by the Justice Department during the preclearance process.  The leaked DOJ memorandum on the Texas submission in 2003 is the only evidence we have of how DOJ would treat the Ashcroft decision. The professional staff applied a theory of representation to establish the retrogression baseline that was consistent with the O'Connor dicta, of a broad array of different districts that represented minority interests via majority-minority districts and also via districts where minorities and Anglos might coalesce.  

As long as Ashcroft is law, it is not just legislatures but also DOJ that will choose philosophies of representation. And, I can admit that, should Ashcroft stand, I see a day where a Democratic DOJ might actually get to be in control of the preclearance process during the major redistricting cycle, and they are able to reject overly-packed GOP maps as retrogressive.  

_____________________________
Ronald Keith Gaddie
Professor of Political Science
The University of Oklahoma
455 West Lindsey Street, Room 222
Norman, OK  73019-2001
Phone 405-325-4989
Fax 405-325-0718
E-mail: rkgaddie@ou.edu
http://faculty-staff.ou.edu/G/Ronald.K.Gaddie-1