The 2013 Supreme Court ruling that gutted the Voting Rights Act still finds new ways to scramble the Justice Department’s enforcement of the landmark 1965 law.
As legislation that restores a key element of the law makes its way toward a likely Senate GOP filibuster, the Justice Department is heading into the first redistricting cycle in a half century without the Voting Rights Act’s so-called preclearance requirement.
At stake is whether millions of minority voters will have their political power protected from certain racial gerrymanders in elections ranging from local school boards all the way up to US congressional seats.
The preclearance requirement mandated that states or localities with a history of racial voting discrimination get federal approval — either from the Justice Department or a court in DC — for election policy changes, including the legislative maps that are redrawn every 10 years.
While only a part of the country was covered by the requirement, the process brought transparency to how maps were being redrawn in several large states in the South, like Georgia and Texas, as well as in parts of New York and California.
“It’s going to be a mess for the Department of Justice,” William Yeomans, a former acting assistant attorney general for civil rights who now lectures at Columbia Law School, told CNN. “I know they will do their best, but they really are handicapped by the loss of preclearance.”
For the first time in decades, the department will in some ways be starting from scratch in understanding whether voters of color are being discriminated against in redistricting.
“Where previously you had the ability of the Justice Department to gather the information, and process it, and make determinations in a timely and resource-efficient manner, that is certainly lost,” said Terry Ao Mimmis, the senior director of the census and voting programs for Asian Americans Advancing Justice – AAJC.
The onset of the next redistricting cycle has created “added urgency” for Congress to revive the requirement, Assistant Attorney General Kristen Clarke told Congress last month.
The Justice Department “will not have access to maps and other redistricting-related information from many jurisdictions where there is reason for concern, even though this kind of information is necessary to assess where voting rights are being restricted or inform how the department directs its limited enforcement resources,” said Clarke, who leads the department’s civil rights division.
How preclearance opened up the redistricting process in covered states
The Supreme Court’s 2013 ruling in Shelby County v. Holder opened the floodgates to a wave of restrictive voting laws in previously covered states. Now in those states, map-drawers will be delineating districts without the Justice Department or a federal court looking over their shoulders.
This preclearance requirement had a deterrence effect on map-drawers, legal experts say. Not only did legislatures know that those regimes would be scrutinized closely by the federal government, but the burden also was on the map-drawers to prove to the department that their new districts would not adversely affect the ability of minority communities to elect the candidates of their choice.
In reviewing maps in the covered states, the department would invite members of those communities to weigh in on whether they should be approved.
Now, Clarke said in her written testimony last month, the absence of preclearance means there will be “less incentive” for those jurisdictions to get community input on election rule changes, and local communities will have “less insight into the electoral process and the process of making voting changes.”
The deterrence effect extended beyond just the covered states, said Thomas Saenz, the president of the Mexican American Legal Defense and Educational Fund. Because the department made its determinations public when it concluded that a map had violated the Voting Rights Act, those objection letters sent a signal to the non-covered jurisdictions what tactics might earn a legal response.
While only the jurisdictions in about a dozen fully or partially covered states had to go through preclearance before the Shelby County ruling, the entire nation is subject to the Voting Rights Act’s broader protections for minority voters and could face lawsuits for maps that violate the law.
“If you’re doing something similar, then even if you’re not in a covered situation you should pause, and consider whether you want to go through with it, because the risk you will be sued by a private party or the government is pretty high at that point,” Saenz said.
The cases implicating US congressional districts or state legislative maps attract much of the national attention, but the bulk of Voting Rights Act enforcement has historically happened on an extremely local level, in places where school board districts and parish lines are alleged to have violated the law.
Private minority rights groups that monitor redistricting will now to pay more attention to those extremely local maps, Saenz said, because local jurisdictions that no longer have to go through the Justice Department review process may believe they can fly under the radar with discriminatory maps and not get caught.
A potential time crunch
The Justice Department released guidance last week reminding jurisdictions of their obligations to comply with the Voting Rights Act in redistricting. The law prohibits intentional discrimination in redistricting, as well as line-drawing that has the effect of diluting the votes of minorities.
While its preclearance provision is not in effect, the department can still bring proactive lawsuits against noncompliant jurisdictions under a Voting Rights Act provision known as Section 2. It can also file briefs in support of private groups that bring Section 2 cases.
A Justice Department official told reporters that the department has been preparing for the coming redistricting cycle for “some time.” It could use “public records requests or other formal requests from the department for maps, if we are not able to get them in the public sphere,” the official — whose anonymity the department requested as a condition of the call — told reporters.
Getting that detailed information about a state’s maps is a more complicated endeavor than it may seem. For instance, to analyze whether a map is Voting Rights Act-compliant, one needs to look at past election results, often at the precinct level, and not every state offers such information in a single database, according to Kathay Feng, the national redistricting director for the voting rights group Common Cause.
“You would have to go to each county, and each county would give it to you in a slightly different format, and you have to figure out how that all could be put together,” Feng said
As it has waited for the restricting process to start in earnest, the Justice Department has looked at data from the American Community Survey, the department official said, to identify potential hot spots, based on where the largest demographic shifts in the country occurred.
“We are doing our best to anticipate where there may be issues, but based on past experience from past decades, things will come up that we will have to — not necessarily things that were anticipated,” the Justice Department official said.
The pandemic-related delays the Census Bureau faced in getting out its 2020 data — the redistricting numbers were released about five months late — are throwing another wrench into the process, as there will be a real time crunch in some states between when the post-2020 maps are released and when the electoral calendar gets underway.
The census delays aside, preclearance created an incentive for covered jurisdictions to submit their maps with enough time for the full Justice Department review that would be needed before they could go into effect for the next election cycle. That will likely change now that Section 2 lawsuits are the only tool for blocking noncompliant maps, Nathaniel Persily, a Stanford Law School professor and redistricting expert, told CNN.
“If you are a gerrymanderer, you are going to wait until the last minute,” Persily said.