The New Section 5 Guidelines

The Justice Department has issued new guidelines to assist jurisdictions in their effort to comply with the demands of the Voting Rights Act as they start the decennial redistricting process in the months ahead. The American public is unlikely to get exercised over a regulation buried in the Federal Register implementing a statutory provision, historian Hugh Davis Graham once wrote. "Yet students of public policy and public administration are increasingly aware that out of such bureaucratic boilerplate . . . can come fundamental shifts in public policy." It is a point that anyone who hopes to understand the evolution and impact of the 1965 Voting Rights Act should understand.

Redistricting is always a delicate, politically charged process, with much at stake. Across the nation, that will become once again very apparent as legislators struggle to arrive at new maps that reflect population shifts since 2000. Those new lines will reflect partisan and other interests, but in many settings they will have been determined as well by the legal standards that govern the enforcement the 1965 statute--a point that is too often overlooked.

In what are called "covered" jurisdictions--jurisdictions designated by the act for distinctive federal oversight--those standards have long been barely discernible. In an important respect legislators entrusted with redistricting in the "covered" states and counties (mostly, but not entirely in the South) consequently work in the dark. Section 5 of the act demands they obtain prior federal approval before instituting voting changes, including revised districting maps--a constitutionally unprecedented demand that altered the balance of authority between the federal government and the states, although only temporarily, it was thought at the time.

That alteration was indisputably constitutionally justified in 1965 when coverage was confined to southern states with an appalling history of black disfranchisement. At the time the Voting Rights Act was passed, blacks clearly needed extraordinary protection from electoral discrimination. But more than four decades later, the state of race relations and the status of blacks have radically changed, and federal intrusion on constitutionally sanctioned local prerogatives is arguably no longer clearly appropriate. In any case, such federal intrusion is especially troubling when the legal standards for judging voting discrimination are unclear and when administrative decisions are thus made on the basis of bureaucratic whim.

Under the new regulations, such requests do not have to come from the head of the Civil Rights Division, but can be instigated by the voting section chief or attorneys under his supervision.

Periodically, the Justice Department has issued guidelines to clarify the standards by which submissions of voting changes for federal approval ("preclearance") would be judged. Those guidelines have never provided much guidance--although jurisdictions starting in the 1980s did understand on the basis of the DOJ record that only maps that included a maximum number of possible majority-minority districts would protect them from a federal objection and allow them to conduct elections unimpeded. Districting maps that promised rough proportional racial representation were considered "racially fair."

The new guidelines, which have gone out for public comment, reflect some developments in case law and a revision of the statute in 2006; they also announce new lines of authority within the department, augmenting the power of largely invisible and unaccountable attorneys within the voting section of the civil rights division at Justice.

Thus the new regulations read: "With the exception of objections and decisions following the reconsideration of objections, the Chief of the Voting Section is authorized to perform the functions of the Assistant Attorney General. With the concurrence of the Assistant Attorney General, the Chief of the Voting Section may designate supervisory attorneys in the Voting Section to perform the functions of the Chief."

This is not benign stuff. The statute states that DOJ will respond to submissions for federal approval of voting changes within sixty days. But there's a catch. If the voting section requests more information, the clock starts all over again. Under the new regulations, such requests do not have to come from the head of the Civil Rights Division, but can be instigated by the voting section chief or attorneys under his supervision. Delays are potentially coercive--forcing jurisdictions that want to conduct elections without further delay to agree to unwelcome terms. And wider delegation of authority creates additional uncertainty when states and counties are trying to guess at what the Justice Department will accept when new districting lines or other changes in election procedure are contemplated.

The most important section in the revised guidelines concerns the definition of an electoral change discriminatory in purpose. Section 5, the preclearance provision, prohibits the introduction of new districts or other methods of voting that are discriminatory in purpose or effect. In a 2000 decision, the Supreme Court had clipped the wings of the Justice Department, curtailing its creative lawmaking by rejecting a freewheeling definition of discriminatory intent in judging changes in election-related practices submitted for preclearance. In 2006 that decision was superceded by Congress, which defined intent as a standalone question.

In the new proposed regulations, the Justice Department takes the definition of intent from a 1977 Supreme Court decision involving housing discrimination, which established criteria that eased the burden on plaintiffs who were required to show discriminatory purpose in Fourteenth Amendment cases. "Rarely," the Court had held, "can it be said that a legislature or administrative body . . . made a decision motivated by a single concern, or even that a particular purpose was the 'dominant' or 'primary' one." Circumstantial evidence was thus pertinent to evaluating allegations of discrimination in public housing--and in voting, the new guidelines announced.

Voting section attorneys can thus consider a variety of circumstantial evidence as pertinent to finding discriminatory intent: the failure to draw a maximum number of majority-minority; a deviation from normal practices; a sequence of events that might suggest something suspicious; a dubious legislative or administrative history; a suspect racial record in the jurisdiction. The new guidelines will make obtaining preclearance--federal approval for districting lines and other voting changes--immeasurably harder.

Three suits are currently challenging the continuing constitutionality of preclearance. Forty-five years after the passage of the act, the Justice Department has adopted a definition of discriminatory intent that strengthens the federal hand in micromanaging districting in states and counties throughout the South, but also in the Southwest, in New York, California, and elsewhere. In so doing, it increased the odds that the Supreme Court would soon cast a skeptical eye on section 5. And then perhaps Congress will design a Voting Rights Act that reflects a racially changed America simply unimaginable in 1965.

Abigail Thernstrom is an adjunct scholar at AEI.

Photo credit: iStockphoto/ktsimage

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