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Abusing the Voting Rights Act: Thanks to the Obama Justice Department, redistricting may touch...
NATIONAL REVIEW ONLINE ^ | February 23, 2011 | Hans A. von Spakovsky

Posted on 02/23/2011 11:51:45 PM PST by neverdem

Abusing the Voting Rights Act
Thanks to the Obama Justice Department, redistricting may touch off contentious court battles over the rule of law.

The redistricting process for congressional and state-legislative seats will soon begin in earnest. All redistricting plans must meet the “one person, one vote” equal-protection standard established by the Supreme Court, which means that districts are supposed to be as even in population as possible.

But redistricting also must comply with the Voting Rights Act, and the Justice Department’s Civil Rights Division just released its new “Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act.” This guidance, which affects redistricting in all or parts of 16 states, is almost guaranteed to cause problems for Republicans.

When the Voting Rights Act was enacted in 1965, Section 5 was supposed to be a temporary, emergency provision. It prohibits certain jurisdictions from implementing any change in their voting laws unless those changes are pre-cleared by the Justice Department or approved by a three-judge panel in federal court in Washington. This 45-year-old “emergency” provision has been renewed four separate times, most recently in 2006. That renewal gave the section 25 years of new life, despite a complete lack of evidence that the type of systematic discrimination that led to its initial passage still exists. Indeed, Congress even changed the Section 5 legal standardto make it easier for the Justice Department to cause mischief.

And as we see in the new guidance memo, DOJ seems intent on doing just that. Jurisdictions covered under Section 5 — all of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia, and parts of California, Florida, Michigan, New Hampshire, New York, North Carolina, and South Dakota — now have the burden of proving that their redistricting plans were adopted “free of any discriminatory purpose” and will not have any “discriminatory effect.”

Historically in U.S. jurisprudence, the government has the burden of proving guilt. But Section 5 has always had a different requirement: The states have to prove they are innocent. This poses problems when combined with a standard as vague and nebulous as “discriminatory purpose.” Let’s assume a Section 5 jurisdiction submits a new redistricting plan. Even in the absence of any evidence that the plan would have a discriminatory effect or would in any way inhibit the ability of minority voters to elect their candidates of choice, DOJ could deny pre-clearance if it found “direct or circumstantial evidence” of a “discriminatory purpose.”

This new standard seems designed to make it easier for Justice attorneys to label covered jurisdictions as racist. That is a dangerous thing. During my service as a career attorney in the Civil Rights Division, I found that nearly all the lawyers and staff involved in Section 5 determinations see nefarious racial agendas — i.e., discriminatory purpose — lurking at every corner. 

Recent testimony before the U.S. Commission on Civil Rights by DOJ whistleblowers Christian Adams and Christopher Coates confirms that attitude still prevails. The new redistricting standards will let the misguided careerists at Justice impose their worldview on Section 5 jurisdictions with little or no proof of actual discrimination.

The guidance also provides a heckler’s veto to any minority state legislator unsatisfied with a new redistricting map; such a legislator can now simply cry “racism,” thereby causing the map to suffer from a fatal Section 5 “discriminatory purpose” defect. Today, lone cries of racism are often (although not always, of course) totally baseless. But one can count on the ideologues in the Voting Section to accept every cry as legitimate.

How will this play out in the real world? Here’s my prediction. Democratic-drawn redistricting plans will nearly always be rubber stamped by this Justice Department, unless local black or Hispanic Democrats don’t like how their white Democratic colleagues have sliced the pie. Republican-drawn plans, meanwhile, will run into a buzz saw of Voting Section opposition based not on the legal standards set forth under Section 5, but on whether the Section’s lawyers think the plan will hurt or help Democratic candidates. As the Fort Worth Star-Telegram reports, “Democrats are looking toward the Justice Department in President Barack Obama’s administration to serve as a counterweight” to Republican control of the redistricting process in Texas.

Doubt this will happen? Just look at how Justice blocked Kinston, N.C., from switching from partisan to nonpartisan city-council elections. Justice’s rationale? Minorities wouldn’t know whom to vote for if candidates’ Democratic-party affiliation didn’t appear next to their names on the ballot. Or look at the Miller v. Johnson Section 5 redistricting case, which went all the way to the Supreme Court. A federal court excoriated the Division’s handling of this one, calling it “disturbing” and “an embarrassment” because Justice lawyers were taking their orders directly from the ACLU. Justice not only lost that case, it was forced to pay almost $600,000 in costs and attorneys’ fees to the state of Georgia.

Even worse is the fact that the guidance memo says that Justice will develop its own “illustrative alternative plans for use in its analysis.” In other words, the Democratic political appointees who run the Justice Department will draw up their own redistricting plans. They’re certainly prepared to do that. Sam Hirsch, who was once the Democratic party’s main redistricting lawyer, is now a deputy associate attorney general.

The guidance says that if a state submits a plan that’s not (in the opinion of Justice lawyers) as good as the plan concocted internally at Justice, then “the Attorney General will interpose an objection.” In other words, the Justice Department will use its law-enforcement power under the Voting Rights Act to force states to implement the redistricting plans drawn up by the Obama administration, despite the fact that nothing in the law allows them to do this.

The lesson here is that Republican-controlled legislatures that have drawn up redistricting plans that Democrats don’t like would be foolish to submit those plans to the Civil Rights Division for administrative review. Instead, they should go straight to the federal district court in D.C., the alternative procedure set forth in the Voting Rights Act.

States must understand that they cannot expect to get an impartial hearing from this Justice Department. They may still get a panel of liberal judges in federal court, but at least normal evidentiary standards will apply. In court, DOJ will have to provide actual evidence of discrimination — not the rank hearsay and imaginary evidence often considered in its own administrative review. Moreover, states will be able to cross-examine their accusers in court. That doesn’t happen in the administrative setting. Indeed, the Justice Department often refuses to even tell states who has accused them of discrimination in their redistricting process.

Justice also almost never shares its actual internal analysis with a submitting jurisdiction, leaving states completely in the dark about the real reasons for an objection. But it would have to produce that analysis in a courtroom. A DOJ lawyer told me that states often think it will be cheaper to go the DOJ administrative-clearance route instead of going straight to federal court. But, that lawyer said, once the Justice Department objects, “the jurisdiction better be prepared to spend lots of money and expect long delays before they may be able to put their chosen plan into effect.”

The bottom line is this: The Holder Justice Department’s opposition to race-neutral enforcement of the law over the last two years suggests that redistricting may touch off contentious court battles over the rule of law. Unless states opt to bypass DOJ and go straight to federal court, the Left’s effort to exploit the Voting Rights Act for crass political purposes may reach a degree of success once thought unimaginable.

— Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation and the former counsel to the assistant attorney general for civil rights at the Justice Department.

TOPICS: Constitution/Conservatism; Crime/Corruption; Editorial; Politics/Elections
KEYWORDS: redistricting; votingrightsact

1 posted on 02/23/2011 11:51:52 PM PST by neverdem
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To: neverdem

Section 5 of the Civil Rights Act is a serous bite across the republic. Beaten proof of the Constitution means nothing, and that a minority of States are abuses.

That there is no equal footing. I would urge resistance to this abomination. If the Federal Employees cannot recognize this unfair and constitutionally forbidden discrimination among the States, then they deserve no other title then tyrant.

2 posted on 02/24/2011 12:10:53 AM PST by Monorprise
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To: neverdem
This guidance, which affects redistricting in all or parts of 16 states, is almost guaranteed to cause problems for Republicans.

Those 16 states should sue the feds. This is a clear violation of the equal protection clause.

3 posted on 02/24/2011 12:13:48 AM PST by Islander7 (There is no septic system so vile, so filthy, the left won't drink from to further their agenda)
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To: neverdem


4 posted on 02/24/2011 12:34:52 AM PST by SuperLuminal (Where is another agitator for republicanism like Sam Adams when we need him?)
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To: neverdem
Any GOP legislature continuing to labor under the neo-Reconstruction and blatantly racist Section 5 language of the VRA who doesn't take their plan directly to a Three-Judge Panel, by-passing this nakedly partisan and racist Civil Rights Division in the Obama-Holder DOJ - especially out of fear of owing money to lawyers - is asking for trouble.

Fortunately for some, the most affected parties already know this, though they may not be as prepared financially as they should be - already. The census data will be released sometime before April, and they had better be thinking ahead now.

What your legislators need critically are minority voters in covered areas who are also conservative. If you know of, or are in fact one of those persons, either as a single person or as a member even of a church group, you are in a position to do an enormous amount of good for Republicans holding state legislatures in the covered states, or in states with counties (40 of 100 in NC, for example) - for the next five election cycles!.

As esoteric as redistricting is for most, enemies of equal protection under law are counting on having a monopoly of fellow-travelers and the usual suspect groups ready to object, probably already rehearsing - even before these plans are drawn, ready to become "friends of the court" putting their signature on briefs drawn up by DNC lawyers.

The writer fails to bring up certain other material facts that have changed since 2001, two conflicting precedents. Namely,

(1.) It is no longer necessary to conceal the Democrat argument that making the election of Democrats - any Democrats, including white Democrats - more difficult - is discrimination.

(Imagine that - the Southern Democrats, the champions of segregation and slavery, can argue plans that aid in the election of Republicans - a prerogative of any elected legislative majority, one they've never failed to enjoy when they've been able - is, prima facie discrimination, and not just in the minds of Democrats but almost certainly a point of "law" that could sway a judge.)

In the past, the creation of "coalition districts" by white southern Democrats, ones with "effective minority voting blocks," that almost certainly elect a white democrat, usually after a runoff - has been a standard practice, defended as (you guessed it) "social justice," by white liberal Democrats, and without their batting an eyelash. However,

(2.) In recent cases, the Supreme Court has ruled that a "minority-majority district" to be worthy of the name, should have a 50 percent-plus-one majority of voting-age minority population.

That's two precedents in redistricting law that must come into conflict during this coming redistricting cycle, just as the burden of proof being held by defendants must eventually come into conflict with the heart of our Constitution.

5 posted on 02/24/2011 1:16:31 AM PST by Prospero (non est ad astra mollis e terris via)
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To: neverdem
In Virginia the Democrats use Section 5 to make sure that no immigrant minority group has enough people in any legislative or Congressional district to vote one of their number into a political party office.

Although we have well over 100,000 Koreans here, and probably 250,000 Hispanics, not a one has ever served as a political officer in the Democrat party.

Without Section 5 we could begin starting on cleaning up the Democrat mess around here.

6 posted on 02/24/2011 4:46:01 AM PST by muawiyah
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To: brytlea; Diana in Wisconsin; Kakaze; Tammy8; unkus; metmom; Cap Huff; svcw; leapfrog0202; Concho; ..


7 posted on 02/24/2011 6:53:59 AM PST by greyfoxx39 ("This administration has turned off America's beacon to the world for freedom and left darkness")
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To: muawiyah

Americans of Korean descent tend to vote GOP in my experience.

8 posted on 03/09/2011 2:46:57 PM PST by MSF BU (YR'S Please Support our troops: JOIN THEM!)
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Generally they do, but around here we have enough of them that some of them have fallen off the turnip truck into the evil grasp of the Democrats.

BTW, the Obamakkkare crowd really pushed on the Korean small business community and claimed that in the future everybody would get medical care and they, as businessmen, wouldn't have to pay for it.

I think they've figured out the trick by now. Maybe not.

9 posted on 03/09/2011 3:03:05 PM PST by muawiyah (Make America Safe For Americans)
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To: neverdem

Another STRONG attempt by Obama and his thug regime to foment civil discord, lawlessness, riot and insurrection.

10 posted on 03/09/2011 3:06:14 PM PST by bvw
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