In partial satisfaction of her Ph.D., Keesha Middlemass published a dissertation in 2004 that surveyed a specific area of government regulation under the Voting Rights Act. That dissertation (available online through the library of the University of Georgia, at https://getd.libs.uga.edu/pdfs/middlemass_keesha_m_200405_phd.pdf). wasn’t the first scholarship that surveyed the contents of preclearance letters issued under Section 5 of the Voting Rights Act, but it was (as far as I can tell) the first survey that looked specifically at how the Department of Justice’s approach towards the preclearance of or objection to state and local government redistricting plans evolved from the 1960s through the 1990s.
(For those of new who are new to all this talk of “preclearance” and “Section 5” of the Voting Rights Act, a short summary of this topic can be found here: http://www.justice.gov/crt/about/vot/redistricting.php).
In the wake of Shelby County v. Holder, and with the passing of years, one might ask what relevance Ms. Middlemass’s dissertation still holds. The relevance I see is in the dissertation’s documentation of the early and consistent tendency of conservatives to ascribe partisan (i.e., liberal) motives to the generally non-partisan enforcement of the Voting Rights Act, the consistency with which the Department of Justice internalized court decisions relating to redistricting, and the evolution of the administrative guidance (at 28 C.F.R. Part 51) written by the Department of Justice in the wake of a general failure by Congress to provide any sort of specific statutory framework for enforcement of these civil rights laws.
All of these issues remain very much in the front and center of the redistricting debate, even after Shelby County.
I. Methodology and a hint to future researchers
For raw data, Ms. Middlemass sampled 431 written responses by the Department of Justice to preclearance requests associated with state and local redistricting plans. In presenting her sample, the author admitted both that (1) there had to be more approval letters than just the ones she found, but owing to the Voting Section’s notoriously awful filing system, no one could say where the missing letters were. The letters spanned a period between 1970 and 2000, and whether they were a complete sample or not, they displayed a distinct stylistic trend.
There are a couple things that the researcher could have done to beef up her data a little bit. First, in Texas and in other states, state-law equivalents of the Federal Freedom of Information Act generally allow for the retrieval of public documents, such as the complete correspondence files exchanged between local governments and the Voting Section at the Department of Justice. Since part of Ms. Middlemass’s effort was to determine which factors the Department of Justice used in decided to reject a preclearance plan, having the other side of the correspondence would have been helpful.
Second, the problem of missing approval letters may not have been as critical as it appeared. The laws relating to preclearance under the Voting Rights Act provided that the Department of Justice had a 60-day deadline to respond to preclearance requests, or (in effect) forever hold their peace. From time to time, depending on staffing levels and the complexity of the issues being reviewed, relatively non-controversial redistricting efforts may not ever have generated any explicit approval letter, since silence is the same thing as approval.
II. What the research found
Here’s what I took away from this dissertation:
- The Department of Justice serves many competing political interests, and has to walk a tightrope across the partisan divide in order to retain funding and legal authority. At various times, the Executive Branch (during the Nixon and Reagan eras), Congress (when partially or wholly controlled by Republicans), and the courts (e.g.,the U.S. Supreme Court during Rehnquist’s tenure after the Warren and Burger eras) have been hostile to all or part of the idea of preclearance under Section 5 of the Voting Rights Act.
- The assertion that the Department of Justice flaunts it’s power by ignoring Federal court mandates that limit what constitutes voting discrimination, and that the agency improperly tries to force political entities to create a surplus of new minority-ability single-member districts is an old canard, dating back to the 1970s.
- Except for a brief time prior to a substantial limiting of the Voting Rights Act’s requirements (before the Supreme Court took a decidedly more restrictive tack, and adopted the doctrine that redistricting was only infirm if it made minorities worse off than they had previously been), the Department of Justice has been scrupulously careful not to require the creation of new minority-ability voting districts.
- The Voting Rights Act created a number of political vulnerabilities for the Department of Justice, not least of which was the fact that the law didn’t give the Department any explicit rule-making authority to implement the statute, and didn’t include any guidance on how “preclearance” was supposed to work. To the extent that the Department is subjected to criticism for overreaching its authority, that criticism is opportunistic and is made possible by the functional consequences of Congressional inability to actually draft a preclearance law.
- The explicitly temporary nature of the Voting Rights Act also tends to leave the Department of Justice vulnerable, given that the jurisdictions subject to Section 5 preclearance under the Act initially gave reluctant Congressional support to the passage of the Act only because they thought that the law would go away by 1970. The law kept getting renewed in part because with the sole exception of the Voting Rights Act, the last century and a half of U.S. political history has been marked by a Congress that is institutionally incapable of otherwise bringing a conclusive and lasting end to racial discrimination in voting.
- Contrary to the explicit requirements of the Voting Rights Act, noncompliance with the law was widespread below the state level. Many, many covered Section 5 jurisdictions conducted annexations, adopted redistricting plans, and made other election-related changes without ever submitting those changes to the Department of Justice.
2004 may seem like ancient history to some, especially since we currently have no such thing as “preclearance,” and now face a civil-rights landscape very much like the one that existed before 1965, where each individual illegality has to be challenged in court, expensively, inefficiently, and one wrong at a time. But scholarly analysis and debate about how the Section 5 preclearance process was applied can help us figure out what kind of civil-rights enforcement mechanisms we need to create and protect from the vagaries of partisan politics right now.
If we don’t hang together, we will all surely be hung separately.