Democrats at DOJ: Why Partisan Use of the Voting Rights Act Might Not Be So Bad After All

INTRODUCTION In notable ways, the ongoing dispute over redistricting in Texas offers a mirror image to one of the major redistricting battles of the last decade, only with Democratic and Republican roles reversed. In both Texas v. United States and Georgia v. Ashcroft, a state attorney general (AG) decided he would not ask the United States Department of Justice (DOJ) to approve new redistricting plans enacted in his state. In both cases, the state AGs were well aware that the Voting Rights Act (VRA) required them to obtain federal approval, known as preclearance, before changing any aspect of their state's election laws and procedures, and both knew that the new redistricting plans were indisputably the type of changes that needed federal approval. Both, moreover, believed (and would later argue) that the plans satisfied the statutory standard for approval, namely, that they had neither the purpose nor the effect of denying or abridging the right to vote based on race or language minority status. (1) Still, both Texas Attorney General Greg Abbott and Georgia Attorney General Thurbert E. Baker wanted to avoid the Department of Justice at all costs. Both AG Abbott and AG Baker wanted to steer clear of the DOJ because they suspected the Justice Department would not look kindly on the partisan redistricting plans adopted in their states. In both the Texas and Georgia cases, the plans at issue had been designed to award a disproportionate number of legislative seats to either Republican or Democratic candidates at a time when the DOJ was under the partisan control of the opposing party. Added to that, both plans had generated criticism disputing the AGs' belief that the plans complied with the VRA. (2) Both AG Abbott and AG Baker accordingly decided they would seek preclearance in federal district court in Washington, D.C., a long-established route to preclearance that nevertheless is rarely pursued because it has repeatedly proven more costly and far slower than the administrative process on offer at the DOJ. Both AGs were willing to undertake these costs because both were convinced, and rightly so, that the DOJ would not be impressed with the states' redistricting efforts. (3) As it happened, both the Bush and Obama administrations objected to the plans at issue, arguing that they violated the VRA by offering inadequate representation to each state's minority populations. (4) There is fair debate as to whether the Bush administration's more expansive reading of the VRA in Georgia would have better protected Georgia's African American voters than did the narrower one pressed by the state's Democratic leadership and ultimately endorsed by the Supreme Court.5 What is beyond dispute, however, is that the Republican DOJ's stance in the case mapped onto the strategic interests of the Republican Party. Equally certain, a Democratic DOJ would have promptly approved the Georgia plan, which, in turn, would have benefited the Democratic Party. (6) Texas v. United States suggests a similar dynamic. True, the case is still being litigated such that a full assessment of the various claims at issue remains premature. Still, it looks like DOJ's present stance in the case maps onto the strategic interests of the Democratic Party. It also seems likely that a Republican-controlled DOJ would have approved the Texas plan, which would have been beneficial to the Republican Party. In other words, both Texas and Georgia show that Democrats enforce voting rights differently from Republicans. Often this means that Democrats enforce voting rights more expansively and aggressively than do Republicans, but as Georgia shows, not always. More consistently, Democrats enforce voting rights in ways that tend to advance Democratic interests while Republican-led enforcement tends to produce benefits for Republicans. This Article explores whether these differences should be cause for concern. In exploring this question, let's assume that the party of the sitting President stands to benefit from VRA enforcement actions taken by the DOJ. …