[Abigail Thernstrom, guest-blogging, August 19, 2009 at 3:16am] Trackbacks
DOJ: A Law Office Working for Minority Plaintiffs

[Note to readers who have responded so thoughtfully to my previous posts. A number of issues raised will be addressed in this and my subsequent two posts. For instance, I do talk about the collaboration between the Republican Party and the civil rights groups in this post. In fact, I was the first -- in the mid-1980s -- to say that Republicans were laughing all the way to the political bank with racial gerrymandering, and at the time my point was generally dismissed as laughable. As for data, in my Thursday post, I will provide some. But in less than 1200 words a day, of necessity I am barely skimming the surface. Readers interested in my fully developed arguments -- and the evidence upon which I rely -- need to look at the book.]

Changes in the method of voting are usually submitted to the Justice Department for preclearance as my first post noted. The use of the D.C. court quickly became the rare exception. The administrative route is faster and cheaper.

The Justice Department was expected to function as a surrogate court -- with the legal standards articulated in judicial opinions guiding administrative decisions. The reality has been quite different.

That reality was spelled out clearly in a 1995 Supreme Court decision, Miller v. Johnson. The issue was Georgia congressional districting, and the case tells a remarkable story of a lawless Republican Department of Justice that forced a state to accept a plan drawn by the American Civil Liberties Union in its capacity as advocate for the black caucus of the state's general assembly.

The enforcement of the Voting Rights Act has long made for strange bedfellows --although only superficially. In the Georgia case, John Dunne, the assistant attorney general for civil rights from 1990 to 1993, was an unambivalent champion of race-based districting to maximize minority officeholding. His alliance with the ACLU and the state black caucus served the Republican Party's interests, as well: What the ACLU called a "max-black" plan was also "max-white" -- more black voters in some districts meant fewer in others, and, in the South particularly, districts that had been "bleached" were fertile ground for Republican political aspirations.

Of course, redistricting is not the only area in which Republican have failed to oppose what Chief Justice John Roberts has called the "sordid business . . . [of] divvying us up by race." But seldom is the magnitude of the gap between alleged principle and a quite different reality so fully on display as it has been in some of the redistricting cases.

The Georgia House and Senate redistricting committees, when they began the map-drawing process following the 1990 census, had no idea of the roadblocks that lay ahead. They drew one map and then another, both of them increasing the number of majority black congressional districts from one to two.

The state, in fact, had no obligation to draw a map that gave minorities more safe districts than they previously had. The point of preclearance had been to prevent racially suspect states from depriving blacks of the political gains that basic enfranchisement promised, not to ensure a "fair" number of legislative seats, the Supreme Court had held in its controlling 1976 decision, Beer v. U.S.

Georgia had clearly met the demands of the law. Nevertheless, the Justice Department found both maps in violation of section 5. John Dunne informed the state that it had not adequately explained its failure to create a third majority-minority district.

Dunne wanted, among other changes, a reshuffling of black and white voters. But his reconfiguration would have created a district (CD 11) that connected black neighborhoods in metropolitan Atlanta and poor black residents on the coast, 260 miles away and "worlds apart in culture," as the Supreme Court put it in Miller.

"In short," the Court continued, "the social, political and economic makeup of the Eleventh District [told] a tale of disparity, not community." Dunne's insistence on heavy-handed racial gerrymandering forced candidates to run in four major media markets, while leaving CD 2 still only minority-black.

Dunne's communications were entirely guided by ACLU attorney Kathleen Wilde, who had drawn up a "max-black" plan. As the district court noted, "Throughout the preclearance process, from this first objection letter to the final submission, [DOJ] relied on versions of the max-black plan to argue that three majority-minority districts could indeed be squeezed out of the Georgia countryside. Ms. Wilde's triumph of demographic manipulation became the guiding light."

Georgia legislators and staff who met with Justice Department attorneys in Washington were "told to subordinate their economic and political concerns to the quest for racial percentages."

These legislators on the redistricting committee, many of whom were veteran mapmakers, were essentially cut out of the districting process by the Justice Department. Excluding them raised grave constitutional questions. As the Court stated, rejecting the "max-black" plan as unconstitutional, "Electoral districting is a most difficult subject for legislatures, and so the States must have discretion to exercise the political judgment necessary to balance competing interests." Plainly, judicial or Justice Department review "represents a serious intrusion on the most vital of local functions."

To make matters worse, DOJ attorneys had cultivated "informants" within the state legislature; "'whistleblowers' became 'secret agents,'" the district court found. One of these informants described one black state senator who had not toed the line as a "quintessential Uncle Tom" and "the worst friend of blacks in Georgia." By contrast, attorneys from the ACLU and the voting section of the DOJ's Civil Rights Division were characterized as "peers working together." They discussed the smallest details of the Wilde plan and its revisions, with the result that "there were countless communications, including notes, maps, and charts, by phone, mail and facsimile."

In fact, the lower court found, the "DOJ was more accessible -- and amenable -- to the opinions of the ACLU than to those of the Attorney General of the State of Georgia." The DOJ's March 1992 objection letter, quoted above, actually arrived at the state attorney general's office after members of the Georgia black caucus were already discussing it with the press, since the Justice Department attorneys had told the ACLU lawyers of their decision before informing any state official. The court found this "informal and familiar" relationship between federal attorneys and an advocacy group "disturbing" and an "embarrassment."

The preclearance process was not supposed to work as it did in Georgia in the early 1990s, as well as in countless other jurisdictions, large and small, in the 1980s as well. By 1991, when the Justice Department reviewed the Georgia plan, the initial vision of the department as a more accessible court had completely broken down. The voting section of the Civil Rights Division was operating as a law office for minority plaintiffs, working as partners with civil rights advocacy groups.

As UCLA law professor Daniel Lowenstein has written, "Much is at stake for politicians and the interests they represent in a districting plan, and enacting a plan is typically a difficult and contentious process. Once they strike a deal, they want it to stay struck, and therefore they tend to be risk-averse with respect to possible legal vulnerabilities in a plan."

A risk-averse plan was one that accepted racial quotas, which the Justice Department believed in as a matter of principle through the 1980s and 1990s. Blacks here, whites there, in just the right numbers to ensure the election of blacks to public office roughly in proportion to their population numbers. In all likelihood, that commitment to proportionality will resurface in the enforcement of the Voting Rights Act under the current administration.