As many
people on the list know, current section 5 provides that the DOJ cannot
grant preclearance to a change in a voting procedure unless the
jurisdiction can show that the change "does not have
the purpose and will not have the
effect of denying or abridging the right to vote on account of race or
color, or in contravention
of the guarantees set forth in section 1973b(f)(2) of this title."
The proposed revision to section 5 would further define the applicable
standard to explain that
"Any
voting qualification or prerequisite to voting, or standard
practice or procedure with respect to voting that has the purpose of or
will have the effect of diminishing the ability of any citizens of the
United States on account of race or color, or in contravention of the
guarantees set forth in section 4(f)(2), to elect their preferred
candidates of choice denies or abridges the right to vote within the
meaning of subsection (a) of this section."
So here are my two hypotheticals. I thought it would be useful to hear
from list members whether the DOJ should grant preclearance under (a)
the Beer standard (pre-Georgia v. Ashcroft);
(b) the current Georgia v. Ashcroft standard; and
(c) the proposed revision to section 5.
Discussion of these hypotheticals among list members might clarify both
existing law (i.e., what does Ga. v. Ashcroft mean) and the meaning of
the proposed revision.
Hypo 1: A jurisdiction's old redistricting plan had one
majority-minority district. The new plan it submits for preclearance
has no majority minority districts, but creates two "influence"
districts. Should the DOJ grant preclearance?
Hypo 2: In a jurisdiction with racially polarized voting, under the existing
plan white-preferred candidates were elected in 11 of 12 districts. The
new districting plan it submits for preclearance creates a second
majority minority district, so that white preferred candidates are
elected in only 10 districts now. Should the DOJ grant preclearance?
If the answer is "it depends" or "we need more information," what does
it depend on and what more information would we need?
Finally, it is possible that Hypo 1 and Hypo 2 are the same
jurisdiction (i.e., an existing jurisdiction with 1 majority-minority
district). Is it possible that preclearance cannot be granted for
either change?
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