See also this response: Bagenstos Responds to Oremus Slate Piece on Voting Rights Act
When Georgia’s Republican leaders redrew the state’s election-district maps last year, Democrats and minorities instantly cried foul. In an increasingly diverse state where 47 percent of voters chose Obama in 2008, the new maps looked likely to hand the GOP 10 of the state’s 14 seats in Congress. Perhaps even more significantly, they were drawn so as to give Republicans a shot at a two-thirds majority in both chambers of the state legislature, allowing them to pass constitutional amendments unilaterally. They achieved this in part by “packing” the state’s black voters (who overwhelmingly vote Democratic) into a handful of districts in order to make others more solidly white (and Republican).
Fortunately for the state’s Democrats, federal law seemed to offer a time-tested remedy. Section 5 of the Voting Rights Act, a landmark civil rights bill passed in 1965 to crack down on poll taxes and other discriminatory practices, requires Georgia and a number of other Southern states to get federal approval for any changes to their voting laws. Any that harmed minorities’ chances of fair representation were to be thrown out. And that’s exactly what Georgia Democrats expected Obama’s Department of Justice to do with Republicans’ new maps. Just two years earlier, it had invoked Section 5 to block two Georgia voter-verification laws. Liberals gleefully predicted the Republican gerrymanders would likewise be “DOA at the DOJ.”
The Republicans held a trump card, however: the threat of a lawsuit challenging the Voting Rights Act itself. If the Justice Department didn’t clear their maps, they warned, they’d pursue their case and seek to have the VRA’s Section 5 struck down by the Supreme Court. Five years ago, that threat might have rung hollow. Yet the DoJ quickly approved the maps. The state’s Democratic and black leaders were stung by what they saw as a capitulation. “The DoJ’s decision was disappointing, because Republicans took it as an approval of their resegregation strategy,” says Stacey Abrams, leader of the Democratic minority in the Georgia House. So why did the DoJ acquiesce?
It’s possible, of course, that it thought the maps were just fine. While many believe packing contradicts the spirit of Section 5, it’s not prohibited per se. If anything, it provides near-certainty that at least some minorities will be elected to Congress and the statehouse. In Georgia, it’s white Democrats who are likely to be squeezed out as previously diverse districts become whiter and more conservative. The upshot is that black legislators may end up as a powerless Democratic minority in the Statehouse. So is that racial discrimination, or just gerrymandering as usual?