Alabama sidesteps VRA § 5 preclearance status quo: I’ll see you in court

April 13, 2012

by John Alford

As part of the mandated decennial redistricting, the Alabama legislature will change the lines for the State’s congressional and school board districts. Current and proposed maps can be found here. This redistricting will alter the political landscape of the State, but before Alabama can move forward on redistricting, the Federal Government has to approve of the new map as per the Voting Rights Act § 5 (“VRA”). Under the VRA § 5, there are two paths Alabama can take to get preclearance. It can seek approval through the Justice Department (DOJ) or through the U.S. District Court for the District of Columbia. (For more on the VRA § 5, particularly why and how states like Alabama get preclearance from the Federal Government, see here.) Alabama has opted to take the matter to court.

Like many other covered jurisdictions, Alabama is unhappy with the requirement that the Justice Department (DOJ) keep tabs on its election process. To wit, Shelby County recently filed suit challenging the constitutionality of the preclearance process, so far unsuccessfully (see more about this lawsuit here.) The opinion in Shelby County emanates from the same court from which Alabama is seeking preclearance on redistricting. But the ruling against Shelby County should not alter how the District Court views the issue here. Overturning VRA § 5 would be an extreme political move, essentially declaring that issues of race no longer disrupt the electoral process in states historically notorious for prejudicial practices. Granting preclearance to a redistricting plan, as routinely done in the past, is nowhere near as high a hurdle for Alabama to clear.

Considering that “99 percent of voting changes are handled by [DOJ],” some might view Alabama’s decision to seek preclearance from the District Court as an odd move. Seeking preclearance through DOJ is easier, costs less money, and takes less time. Then again, as other states (Florida, Georgia, and Texas for example) apparently also fear that Obama’s DOJ may prove more aggressive than past administrations in scrutinizing preclearance decisions. There is good reason to believe that bypassing DOJ is a wise course, given its recent objections in other states’ preclearance attempts. Take Georgia for example. “When DOJ objected to Georgia’s citizenship verification program, Georgia sued. . . . What did DOJ do?  Capitulate entirely, and quickly.” DOJ folded fast when Georgia called on the Department to show its hand as to why the election matter did not gain preclearance. Different interpretations attempt to explain why DOJ granted preclearance once the court got involved, but no matter the reason, conservative commentators taking note of this political power-play now support the notion that states might do well to take preclearance directly to the District Court.

The climate is ripe for states seeking preclearance to take matters directly to District Court. Alabama and Georgia are not the only states going this route. Texas Legislators recently sought preclearance from both DOJ and District Court. Texas has no reason to preemptively take the matter to court unless the State is nervous about the redistricting plans being denied under the current DOJ. Texas’ move is directly in line with what Louisiana did, and what South Carolina and other states might do. Certainly, when one looks at Alabama’s proposed redistricting boundaries, particularly the school board districts, one sees strange arms reaching out in places like District 5, where a part of Mobile County is pulled into the district. The push-pull struggle between States, the District Court, and DOJ however, is a political time bomb. Given the current political atmosphere, and the Court’s willingness in earlier redistricting preclearance rounds to rein in the DOJ, Alabama is demonstrating the DOJ’s lack of power by removing them from the preclearance process completely. Either future DOJ opinions will fall in line with the Judges’ decisions, or you can expect to see many more instances of States taking the matter to Court.

John Alford is a second-year law student at William & Mary.

permalink: https://stateofelecdev.wpengine.com/2012/04/14/bamavra/