The Obama DOJ and the Voting Rights Act
posted by Michael Pitts
Thanks to Gerard for the introduction and to all the folks at Concurring Opinions for providing me with this blogging outlet.
As Gerard mentioned, I write in the area of the law of democracy and the next 12-18 months is a busy season for those in this area—sort of the law of democracy equivalent of early April for tax preparers. The reason for all the commotion is the phenomenon of redistricting that commences soon after release of the decennial census statistics.
One of the things to keep an eye on during this redistricting cycle will be how the Department of Justice under the Obama Administration enforces the Voting Rights Act. Because Section 5 of the Voting Rights Act requires a significant number of state and local governments to get approval for their redistricting plans from the federal government, the Obama Administration will have a lot of influence over how the Voting Rights Act gets enforced this time around.
In some ways, the Obama Administration has a tough job ahead if it. From a legal perspective, the Obama Administration has to be careful about what the federal courts might do with the Voting Rights Act if the Obama administration becomes too active for a conservative court. Indeed, in an opinion issued a couple of years ago, the Supreme Court telegraphed its skepticism about the constitutionality of the portions of the Act that allow for federal oversight over state and local election rules. From a political perspective, the Obama Administration might be under pressure to use every tool available to help its natural political allies—the civil rights groups and minority voters—achieve the goal of creating more districts that give minority voters control over who gets elected.
What will the Obama Administration do? One can only speculate, but my guess is that there may be a divergence between how the Obama Administration enforces the Voting Rights Act at the state level and how the Obama administration enforces the Act at the local level. At the state level, I suspect the Obama Administration will be relatively hands-off—primarily signing off on whatever state plans come their way. Indeed, it wouldn’t surprise me if the Obama Administration was less interventionist in statewide redistricting plans this decade than the “W” Bush Administration was in the post-2000 redistricting cycle. On the local level, though, the Obama Administration is likely to be much more active in enforcing the Act and in pushing for the creation of more districts controlled by minority voters.
Why might the Obama Administration treat state and local redistricting plans differently? First, as a practical matter, federal disapproval of a state redistricting plan is more likely to generate the sort of litigation that could result in a very negative result for the Voting Rights Act. Local governments are less likely to take on the litigation giant known as DOJ than state governments are. Second, the conventional wisdom involving enforcement of the Voting Rights Act on the statewide and congressional level is that rigorous enforcement that creates more districts controlled by minority voters is harmful to the interests of the Democratic Party as a whole. If this is the dominant thinking among the political types in the Obama Administration then there will be a political incentive to lay off enforcement at the statewide level. Third, there will be a political incentive to more strongly enforce the Voting Rights Act at the local level because there is not the same sense that strong enforcement on the local level leads to negative consequences for the Democratic Party and because strong enforcement of the Voting Rights Act is something that Obama’s core constituency prefers.