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


Hans A. von Spakovsky

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.