In late 2010, my coworkers and I negotiated with our boss how we would go about dividing up the work of doing preclearance submission letters on new legislation produced by the 2011 Texas Legislature.
In the now-misty days before Shelby County v. Holder, the biannual “who gets to do what kind of Section 5 letters” staff meeting was a seasonal marker like the turning of the leaves.
Knowing that the Legislature would produce hundreds of election-related laws, and that these laws would have to be submitted for preclearance, every other year, my boss would feel out the preferences and habits of the attorneys under her supervision, to figure out how to divide up the work fairly and not leave anyone too overwhelmed or underworked.
Over doughnuts and juice, we picked out the general topics that we would cover. With a bit of good-natured razzing from the other attorneys (because the long-timers in the office knew what a minefield it would be), I got assigned the job of doing the Section 5 submission on redistricting. No one knew it at the time, but my workload was about to get a whole lot lighter.
By the time the redistricting bill had passed and been signed into law, the State’s Republican Party leadership had decided to take the unusual and legally provocative step of seeking court-ordered preclearance, rather than submitting a preclearance letter. In the short term, the Attorney General’s intervention in the process meant that I could sit back and watch, bemused, as the litigators at the A.G.’s office filed aggressively-worded briefs in the D.C. district court.
But in some significantly less litigious alternate universe, another version of me might have taken the first pass at the Section 5 preclearance letter.
I’m not so presumptuous as to think that my draft would look like the version of the letter that would ultimately have been submitted – redistricting is and has always been way too much of a partisan powderkeg for any of its working parts to be entrusted to the care of a non-partisan little invisible cog in the State’s bureaucracy.
But presumably (given that it was my job) I would have been the author of “Draft Version 1.01 Beta” of the letter to the Department of Justice.
Preclearance submission letters can seem complicated, but they’re really not. Every preclearance submission letter could be thought of as a narrative that did two simple things.
First, the letter described some change in the way that elections would be conducted (and incidental to that description of some new procedure or system or law, the letter would explain that the change had been finally approved and was going to be implemented). Second, the letter would assert that the change in question, whatever that change might have been, would not have any negative discriminatory effect on any protected class of racial or language minority voters.
Sometimes (depending on the facts), it could be personally difficult for an attorney to find a philosophical justification for making that critical assertion. Nevertheless, and despite my own personal opinions about the 2011 redistricting, I would have written that the redistricting plan in all its complexity (and in all its ugly political expediency) would not have any negative discriminatory effect on any protected class of racial or language minority voters.
In so doing, I would have been doing what attorneys are supposed to do. In good faith, I would have been presenting not my personal assertion, but the assertion of the State’s representative government that the redistricting plan was not discriminatory.
And presumably the analysts at the Voting Section in the Department of Justice would read my assertion in the spirit in which it was given – as the most predictable and least interesting bit of legal boilerplate in the whole letter.
Because the real meat of any preclearance letter wasn’t the rote assertion that the thing being precleared wasn’t discriminatory. The most important part of the preclearance letter was the detailed description of the actual change.
When drafting preclearance letters, my approach was always one of complete transparency. So I think my alternate-universe self, in drafting this letter, would have gone systematically through the whole redistricting bill, district by district, describing in exacting detail the specific racial and language minority demographics (based on the 2010 Census and 2010 Congressional apportionment data) of each defined area, and in comparison with the older 2010 districts.
I would have called the legislative staff of the bill’s co-authors to get the names and contact information of minority community representatives who would support the State’s assertion, if any such minority sponsors or supporters of the redistricting bill had actually existed. If (as I suspect) there weren’t any minority contacts, I would simply have omitted that determination, and instead I would have provided the contact information for the bill’s (white, Republican) co-authors and sponsors.
I would have described how, when and where the State conducted public hearings on the proposed redistricting plans, and how the State invited minority community comments on those plans. Additionally, I would have described where the transcripts of those hearings, written comments and community meetings could be retrieved through the Texas Legislative Council.
In other words, I would have put all of the State’s cards on the table. Whether or not the State had a bad hand would have been irrelevant to the drafting of my Section 5 preclearance request – it wasn’t my place to say that the State’s redistricting plan was bad, but merely that the State (as sovereign) had presumptively not created a discriminatory redistricting plan.