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

Emboldened by new Census numbers, Republicans will use their redistricting power to squeeze Democrats out. President Obama can stop it, if has the guts to use the Voting Rights Act.

Reinvigorated from seizing control of the House of Representatives, congressional Republicans are primed to drastically cement their new majority through next year’s round of national redistricting. But precisely how successful Republicans will be in imposing a spate of GOP-friendly state maps could depend on the extent of their gerrymandering and whether the Obama administration chooses to aggressively challenge them through the Voting Rights Act.

Pursuant to Article I of the Constitution, congressional reapportionment takes place every ten years. Because the careful drawing of House district lines make all the difference in electing a swath of Democrats or Republicans, the process has been bitterly contested since the start of the 19th century. Whichever party holds the upper hand can better solidify a durable majority in what remains a closely divided nation. This fall, Republicans won a decisive advantage in redistricting, winning 11 new governorships, holding onto a dozen more, and either grabbing or expanding existing full control of state houses across the country.

ANOTHER VIEW: Democrats, don't panic over post-Census redistricting

In many of these states such as Alabama, Idaho, Oklahoma, South Carolina, or Wyoming, complete party control matters little in terms of congressional representation, as their delegations are very small and thus not susceptible to drastic redrawing for GOP gain, or are already maxed-out in overwhelming favor to Republicans. Yet in states like Ohio and Pennsylvania – and others losing seats based on this week's Census results – the GOP will have huge leeway to cut down blue seats at will, as hobbled minority Democrats currently licking their wounds are largely powerless to prevent Republican entrenchment.

Voting Rights Act

Several states have overcome this problem by turning to nonpartisan panels to draw legislative lines. But in the majority of states, the only check Democrats have on Republican-controlled reapportionment (besides their own majorities in a handful of remaining key states) is the Voting Rights Act. However, that landmark legislation can only come into play if Republicans are over-ambitious and partisan in what maps they impose.

Passed by Congress in 1965, the Voting Rights Act makes up the lasting centerpiece of the Great Society. The Act mandates that states may not hinder minority voting rights through various means, including by breaking up majority-minority congressional districts. It was intended to prevent state legislatures, particularly those in the South, from diluting or wholly usurping minority representation.

This remains a particular danger given the political situations in a handful of states next year including Georgia, Michigan, Ohio, and Texas, where Republican governors and legislative majorities are eyeing the imposition of tough gerrymanders. In Michigan and Ohio, which are shedding districts because of negative population shifts, new GOP majorities will seriously consider eliminating districts based around Cleveland and Detroit. Doing so would further hurt reeling congressional Democrats and produce stronger red state maps through 2020, but also eliminate minority districts.

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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