Expert Says Southern States May Seek to Avoid Justice Department in Redistricting

Paul Smith, an attorney specializing in redistricting and the author of The Realist’s Guide to Redistricting: Avoiding the Legal Pitfalls, reveals to C&E that there is a “great deal of concern” brewing within the Republican establishment that some of the Southern states covered by Voting Rights Act restrictions will file their redistricting plans with a Washington, D.C. district court in order to avoid what they believe is a politicized Civil Rights Division within the Department of Justice. The concern among establishment figures is that this would entail picking a fight with the Obama administration and the DoJ that will ultimately backfire.
 
“I am hearing this in Louisiana, Texas, and Virginia, where there seems to be a real suspicion of the Justice Department,” says Smith. He says that these states may file their redistricting plans for preclearance with the D.C. district court where a three-judge panel could sign off on the plans or send them back to the states for revision. Smith says that such a strategy “would create an enormous backlog of cases in the district court” and that “there is the potential for real judicial gridlock if they do this in massive numbers.”
 
The VRA has been the subject of a number of cases in which plaintiffs argue that the law violates the principles of federalism by subjecting redistricting plans to the approval of the federal government. The most prominent pending case against is a lawsuit filed by Shelby County, Alabama, which C&E profiled last December.
 
Smith does not see any reason to suspect that judgments on redistricting plans made by the Justice Department or the career attorneys in its Civil Rights Division would be politicized. As an example of truly political decision-making, Smith points to the 2003-2004 controversy over Texas’s mid-decade redistricting. In that case, he says, the state’s new district maps were challenged by career attorneys in the Civil Rights Division, but overturned by political appointees in the Bush administration’s DoJ.
 
“The career guys wrote a lengthy memo why [the DoJ] should not pre-clear [the Texas plan],” says Smith. “[The DoJ] overruled the career people and pre-cleared the DeLay map that cost Democrats six seats or so in the House. We later learned that [the department] had been politicized greatly.”
 
“That is such a joke,” says Hans von Spakovsky, a senior legal fellow at the Heritage Foundation. “The idea that the career lawyers that work in the Civil Rights Division won’t politicize their review of redistricting is ridiculous and contrasts with the evidence.”
 
Von Spakovsky thinks that going to the D.C. court is a smart move, because rather than “rather than relying on hearsay or unidentified people who complain without evidence” like the ACLU or MALDEF [the Mexican-American Legal Defense and Education Fund], the court would have to rely on evidence in order to object to a reapportionment plan.
 
“People in the voting section are among the most partisan individuals I have ever met,” says von Spakovsky. “Any state currently covered by section five of the VRA and controlled by Republicans would be foolish to make an administrative filing of their redistricting plans with the Department of Justice.”
 
After inquiry, C&E received no comment on the matter from the governor’s or the secretary of state’s offices of Virginia, Texas, or Louisiana.
 Noah Rothman is the online editor at C&E. E-mail him at nrothman@campaignsandelections.com