Evidence of Political Manipulation at the Justice Department: How Tom DeLay's Redistricting Plan Avoided Voting Rights Act Disapproval

By MARK POSNER
Tuesday, Dec. 06, 2005

A few days ago, a confidential Justice Department memorandum was leaked to the press. The memorandum, prepared by career staff in the Department's Civil Rights Division in December 2003, dealt with the Texas congressional redistricting plan engineered by Tom DeLay earlier that year. It concluded that the plan discriminated against minority voters, in violation of the Voting Rights Act of 1965.

Under the Voting Rights Act, DOJ was required to approve or disapprove the redistricting plan. A Republican appointee overrode the staff recommendation and granted approval, allowing the plan to go into effect for the 2004 congressional elections. In so doing, the official sided with his political party and with one of the most powerful Republicans in Washington.

Was this political manipulation or, as the Bush Administration has claimed, simply an honest disagreement between the career and political staff about how to apply the law to a complex set of facts?

According to the Attorney General, who spoke out in DOJ's defense, all Department decisions are "based on what the law requires" and "disagreement within the ranks does not necessarily make [the approval] a wrong decision."

But in this column, I'll argue that this is not a case of an honest disagreement between lawyers. Rather, there is strong objective evidence that politics prevailed over the requirements of the Voting Rights Act.

Section 5 of the Voting Rights Act: What It Requires

DOJ's decision regarding the Texas remap was made pursuant to Section 5 of the Voting Rights Act. Section 5 requires certain states and localities with a history of discrimination, including the State of Texas, to obtain federal "preclearance" for all changes in election practices and procedures, including redistricting plans, before they may be implemented. To obtain preclearance, jurisdictions must demonstrate that the change does not have the purpose, and will not have the effect, of discriminating against minority voters. Preclearance may be obtained from either DOJ or, alternatively, the federal trial court in Washington, D.C.

In practice, DOJ wields tremendous power under Section 5. For a variety of reasons, states and localities covered by Section 5 almost always choose the DOJ approval route, and rarely seek preclearance from the federal court. Since 1965, DOJ has reviewed over 435,000 election changes, about 3,100 of which have been denied pre-clearance.

Given the amount of power that rests in DOJ's hands, it is critical that DOJ follow procedures which, to the extent possible, ensure that preclearance decisions are based on the law and the facts, and not on extraneous factors. Among other things, these procedures must guard against the temptation that some political appointees can have to decide matters based on what would benefit their political party .

The Preclearance Process: Veteran Career Staff Make a Recommendation to the AAG

To ensure that preclearance decisions are based on what the Voting Rights Act requires, DOJ has always relied heavily on the experience and expertise of its career staff. Since the enactment of Section 5, the career staff has been responsible for conducting the factual and legal analyses of all submitted election changes. To accomplish this in a fair manner, the staff encourages jurisdictions to submit any and all information they believe supports preclearance, and likewise allows any opponents of a change to fully voice their concerns.

The Voting Rights Act assigns the responsibility for making preclearance decisions to the Attorney General, and early on, the Attorney General delegated this responsibility to another political appointee, the Assistant Attorney General (AAG) for Civil Rights. When the career staff concludes that a particular election change does not merit preclearance, the staff forwards to the AAG a detailed and lengthy memorandum in support of its conclusion. The memorandum reflects the views of the line staff who worked on the matter, as well as the views of mid-level and senior career supervisors who typically, but not always, agree with the line staffer's analysis and recommendation.

This system has worked exceedingly well. Through both Republican and Democratic Administrations, AAGs have trusted the career staff to show the way. When the career staff unanimously recommends that preclearance be denied, the AAG almost never overrides that recommendation and approves the change.

On the flip side, the staff's unanimous preclearance recommendation always results in the change being approved.

The Texas Decision: The AAG Overrules a Unanimous Career Staff Recommendation

It is in this context that the Texas preclearance decision, as illuminated by the leaked memorandum, must be evaluated.

Most importantly, we now know that it was the unanimous conclusion of the career staff that the redistricting plan discriminated against minority voters, and it was their unanimous recommendation that the Justice Department use its authority under Section 5 to block the state from implementing the plan.

The DOJ analysis team included a large and varied group of individuals: the Chief of the Civil Rights Division's Voting Section, a Section Deputy Chief, four line attorneys, a statistician, and a civil rights analyst. Together, they set forth their conclusion and recommendation in a 73-page memorandum that carefully, and in great detail, considered each of the arguments made by the state in favor of preclearance, as well as the arguments of the opponents.

As required by Section 5, the memorandum looked at whether the redistricting was motivated by a discriminatory purpose, and whether the plan would have a discriminatory effect. The memorandum sided with the state on the purpose issue, concluding that partisan politics, not race or ethnicity, drove the redistricting process.

But the crux of the memorandum was its analysis of discriminatory effect: relying on a close examination of recent Texas elections, it concluded that the plan would reduce the ability of minority voters to effectively participate in the political process, the test for discriminatory effect under Section 5.

More specifically, according to the memorandum, the plan failed to pass muster under each and every factor the Supreme Court has established for gauging whether or not a redistricting plan will reduce minority electoral opportunity. This was not a close case, the career staff informed the AAG. Nonetheless, the plan was precleared.

The Influence of Politics Is Evident

The bottom line is this: we now know that, in preclearing Tom DeLay's redistricting plan, the Justice Department significantly and substantially deviated from the decisional practice which, for nearly four decades, has served the Department well in enforcing Section 5 in a fair and nonpartisan manner.

Of course, we do not know what DOJ's political appointees said to each other, or perhaps to the career staff, before preclearing the plan, and any memoranda or emails they may have written have not been released. But, based on what we know today, the evidence points to a single conclusion: the Justice Department did not serve the interests of minority citizens in this case, but, instead, served the political interests of the Republican Party.


Mark Posner served in the Civil Rights Division from 1980 until 2003, and from the mid-1980s to 1995 supervised the Justice Department's Section 5 reviews. He currently teaches election law at American University in Washington, D.C.