Many people mistakenly believe that the battle over “sampling” has already been fought and completely won. In 1998, a lawsuit was filed against the Census Bureau after it announced that it would use statistical sampling in the 2000 Census. The Supreme Court ruled in Department of Commerce v. U.S. House of Representatives that statistical sampling could not be used for congressional apportionment because federal law barred its use–but that same law, 13 U.S.C. §195, allows sampling to be used for any other purpose.
Thus, while the Census Bureau cannot directly gerrymander apportionment through sampling, it can functionally do it indirectly through other means. For example, statistical sampling could be used to determine the populations for state (as opposed to congressional) legislative redistricting as well as for federal funding purposes. This will allow state legislatures controlled by the Democratic party to draw districts based on imagined populations that increase or consolidate their political control–and political control of state legislatures will allow them to draw congressional districts that favor their party and their control of Congress.
This could ensure that Democrats retain their majority status in Congress even if Republicans regain the support of the majority of the American people. Consider how Democrats in the Texas state legislature redrew Texas congressional lines after the 1990 Census, in what was described as the “shrewdest gerrymander of the 1990s.” Even though Republicans were capturing 59 percent of the vote in state-wide elections by 2000, Democrats still held 17 congressional seats vs. only 13 by Republicans.
When Republicans in Texas gained control of the legislature in 2003, they redrew the congressional map of Texas. In the 2004 election, when Republicans captured 58 percent of the state-wide vote, Republicans won 21 congressional seats vs. 11 by the Democrats. But they ran into a buzz saw of opposition and litigation over their plan, a plan that had to be submitted to the Justice Department for approval. Texas is covered by Section 5 of the Voting Rights Act, the anti-discrimination provision left over from the 1960s civil-rights era that requires pre-approval by Justice of voting changes by nine states. All of these are southern states that are the base of the Republican party.
The Justice Department eventually cleared the redistricting plan without objection, but underwent withering criticism for doing so. Liberal partisan career lawyers within Justice strongly objected to the plan, echoing the very same claims Democratic partisans were making in the redistricting litigation. These objections were not based on any violation of the law since they were unable to show any discrimination or “retrogression” under the applicable Section 5 legal standard. The career staff mistakenly claimed that there were eleven protected majority-minority black and Hispanic districts in Texas that the legislature should have preserved in the new plan, despite the fact that a federal court just two years earlier had found that there were only eight such minority districts.
The Texas case eventually found its way to the Supreme Court, where the Court confirmed that there were only eight such minority districts, not eleven as the career lawyers had bizarrely claimed. One of the newly drawn Hispanic districts in the plan was found by the Supreme Court to be an insufficient substitute for a prior Hispanic district under a different part of the Voting Rights Act because it wasn’t compact enough, but this was not a valid ground for objection under Section 5.
The point is that Bush political appointees at Justice were correct in their assessment that there was nothing wrong with the Texas plan under Section 5. The views of the career staff were clearly intended to benefit the Democratic party, not enforce the law in a nonpartisan manner.
The career staff at Justice has a long history of such political manipulation of the Voting Rights Act. This will only be accentuate under the willing leadership of the Obama administration and the president’s political appointees, especially lawyers such as Associate Attorney General nominee Thomas Perrelli, who represented Democratic voters and legislators in redistricting litigation arising out of the 2000 Census.
My experiences with the career staff at Justice for four years make it almost certain that they will use their enforcement power under the Voting Rights Act to attack any redistricting plans submitted to the Department for preclearance after 2010 drafted by Republican legislatures, and will allow Democratic plans (if approved by the Congressional Black Caucus) to sail through, no matter what the actual facts or the law. In combination with the Census, this will be a powerful weapon to marginalize the Republican party and make sure it never stages a political comeback, no matter how much support it has from the American public.