The Department of Justice: Enforcing the Voting Rights Act
By Anita Hodgkiss
Vol. 22, No. 4, 2000 pp. 11-12
The U.S. Department of Justice (DOJ) has the authority to take steps to protect voting rights when election district lines are changed. The Department can file a lawsuit in court under Section 2 of the Voting Rights Act to challenge racially discriminatory districts anywhere in the country. In certain states and local jurisdictions (see box on page 16), covered by Section 5 of the Voting Rights Act, all changes in laws affecting voting, including redistricting plans, must be submitted to DOJ or to the District Court for the D.C. Circuit, to be reviewed before they can be put into practice. DOJ has sixty days to review redistricting plans submitted under Section 5. The Department will then either grant “preclearance” giving the state or local jurisdiction the go ahead to implement the change, or the Department will object to a redistricting plan if it has the purpose or effect of making minority voters worse off. When DOJ objects to a plan, it does so by writing a letter to the jurisdiction, outlining the reasons why the new plan makes minority voters worse off. (Recent objection letters are available through the Department’s website at: www.usdoj.gov/crt/voting/sec_5/obj_activ.htm.)
The DOJ’s role comes fairly late in the redistricting process, after a redistricting plan already has been adopted by a state legislature or local governing body. The Department does not introduce redistricting plans in the state legislatures. Similarly, DOJ does not take a position on what redistricting plan should be adopted by any jurisdiction, unless they are parties to a matter that is in litigation.
In addition, it is not the role of the DOJ to object to new redistricting plans if the districts are oddly shaped. In reviewing redistricting plans under Section 5, the Attorney General may not deny preclearance on the grounds that the new plan violates the one-person, one-vote principle, that it violates Shaw v. Reno, or on the ground that it violates Section 2 of the Voting Rights Act.
• Contact DOJ if you believe that community groups or citizens are not being given an opportunity to participate appropriately in the redistricting process because of their race or color, anywhere in the country.
For example, you should contact DOJ if your state is refusing to allow representatives of a minority community group to speak at public hearings on redistricting proposals or to have access to the state’s redistricting computers, when other civic groups are allowed to speak or use the computers. The Department should examine, under Section 2 of the Voting Rights Act, whether purposeful racial discrimination is occurring and, at a minimum, be aware of concerns about the fairness of the redistricting process if the jurisdiction is one that must obtain Section 5 preclearance.
• Contact DOJ if the redistricting plan passed by your legislature or local jurisdiction is retrogressive and the jurisdiction is covered by Section 5 of the Voting Rights Act.
“Retrogression” is a term the Supreme Court first used in 1976 to define how discriminatory effect is evaluated under Section 5. With regard to redistricting plans, the Justice Department evaluates whether a new redistricting plan is retrogressive by comparing it to the benchmark plan. The Department calculates the population data for the benchmark plan using the new 2000 Census data. The racial composition of the benchmark plan is then compared to that of the new redistricting plan submitted by the jurisdiction. Retrogression occurs if the new plan, evaluated together with election history and voting patterns in the jurisdiction, voter registration, turnout, and other information, reduces minority voting strength.
The Section 5 guidelines identify a number of factors that DOJ considers in determining whether a new redistricting plan is retrogressive when compared with the benchmark plan, including whether the new plan:
- Reduces minority voting strength in any district;
- Has fewer districts in which minority voters can elect candidates of choice;
- Splits minority communities among several districts;
- Over-concentrates minority voters in one or more districts;
- Departs from or is inconsistent with objective redistricting criteria set by the jurisdiction;
- Ignores available natural or artificial boundaries without explanation.
If you believe that the new redistricting plan in your jurisdiction is retrogressive, contact the Department of Justice to request that the Attorney General object to the plan under Section 5 of the Voting Rights Act.
• Contact DOJ if the redistricting plan passed by
your legislature or local jurisdiction is discriminatory, anywhere in the United States.
A redistricting plan is discriminatory when it dilutes the voting strength of minority voters and can be challenged under Section 2 of the Voting Rights Act. In general, a redistricting plan violates Section 2 when minority voters have less opportunity than other members of the electorate to participate in the political process and to elect candidates of choice to office.
Unlike retrogression under Section 5, which requires comparison to the jurisdiction’s benchmark plan, discrimination under Section 2 does not necessarily require showing that the new plan makes minority voters worse off than they were under the old plan.
• Contact DOJ if the redistricting plan passed by your legislature or local jurisdiction is fair to minority voters and the jurisdiction is covered by Section 5 of the Voting Rights Act.
If you live in a Section 5 jurisdiction, and you believe that the new redistricting plan is fair to minority voters, you can contact the Department of Justice to explain why the Attorney General should preclear the new plan.
Call the Civil Rights Division, Voting Section, toll-free at 1-800-253-3931. Letters should be addressed to: Chief, Voting Section, Civil Rights Division, Department of Justice, P.O. Box 66128, Washington, D.C. 20035- 6128.
The Section 5 guidelines provide that comments by individuals or groups concerning any change affecting voting may be sent at any time; however, individuals and groups are encouraged to comment as soon as they learn of the change. Even though DOJ has sixty days to review a redistricting plan, the earlier they have your information, the better. Occasionally, the Department will preclear submissions before the end of the sixty-day review period, where expedited consideration has been requested.
Department of Justice officials and employees will comply with the request of any individual that his or her identity not be disclosed to any person outside the Department, to the extent permitted by the Freedom of Information Act. In addition, whenever it appears to the Attorney General that disclosure of the identity of an individual who provided information regarding a change affecting voting “would constitute a clearly unwarranted invasion of personal privacy,” the identity of the individual shall not be disclosed to any person outside the Department.
For more information: The Voting Section of the Civil Rights Division maintains a Website with Section 5 guidelines, summaries of Supreme Court cases, descriptions of the Section’s work and frequently asked questions. The Visit: www.usdoj.gov/crt/voting/index.htm.
Anita Hodgkiss is co-director of the Voting Rights Project at the Lawyers Committee for Civil Rights Under Law in Washington, D.C.