Democrats' last line of defense against GOP gerrymandering: the Voting Rights Act

Plans to mess with Texas

The reapportionment situation in Texas is even more momentous. Unlike Rust Belt states losing seats because of hemorrhaging population movements, Texas just won four new House seats. With a fiercely partisan governor and huge new majorities in Austin, the GOP is already considering drawing at least three of them as safely Republican, even though Texas’ expansion comes in large part from burgeoning Latino growth.

Additionally, Republicans may seek to change the composition of two just-won, formerly Democratic-held seats based around Corpus Christi and El Paso that stand as heavily Hispanic swing districts. These measures could produce an even more durable, overwhelmingly Republican map than the one produced by former GOP kingmaker Tome DeLay in 2003.

Five unusual Census 2010 facts

Collectively, Republicans could reap more than 15 new seats nationwide by imposing a series of brutal maps, but gerrymanders of this scale above would probably violate the spirit, if not the hard letter of the Voting Rights Act. However, any violation would have to be pursued by the president’s Justice Department in federal court on grounds that the new districts unlawfully minimize minority-protected voting rights. It would be a bold stroke and lead to numerous rounds of partisan recriminations and possibly years of judicial-political legal wrangling. If his weak record on the judiciary is any indication, President Obama would have little appetite for such a raw fight.

Does Obama have the stomach for a tough fight?

While the Justice Department is free of the incompetence that was so pervasive under the Bush administration’s Alberto Gonzales, the president has nonetheless shown a startling lack of interest in broader legal issues and a lack of stomach for taking on judicial fights. Obama has offered fewer judicial nominations than any of his modern predecessors despite enjoying an enormous Senate majority, the DOJ has refused to settle on a location for trying 9/11 mastermind Khalid Sheikh Mohammad, and he astonishingly waited nearly two years to issue his first pardons – nearly all for minor, uncontroversial offenses. While unrelated to voting rights, the administration’s record shows a clear aversion to tackling critical legal decisions with deep political implications.

There is no legal area with greater partisan impact that congressional redistricting. Given the stakes, harsh redistricting in 2011 is a near-certainty; it is only a question of how far Republicans choose to extend themselves for partisan gain.

How will the Obama administration react?

A legal challenge may well benefit both the rights of minorities and the political fortunes of Democrats. But it would also potentially distract Obama’s administration with a nasty legal fight. His choice will say a lot about his priorities.

Mark Greenbaum is an attorney and freelance writer in Washington. A version of this piece appeared on Salon.

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