The 2010 midterm elections and the resulting battles over redistricting will shape the future of both political parties. A case challenging the constitutionality of the Voting Rights Act (VRA) is being offered to the Supreme Court, highlighting these political stakes. And President-elect Barack Obama’s Justice Department is about to take center stage in this fight.
The Constitution requires legislative districts be redrawn after each decennial national census. The 2010 midterm elections will determine the makeup of all 50 state legislatures. With few exceptions, these legislatures will then draw new lines of all congressional districts, as well as many state legislative districts, for the 2012 election and beyond.
A major factor in this redistricting is the Voting Rights Act. A number of VRA’s provisions apply nationwide, originally designed to protect the right of African Americans to vote. But another provision of the law has been challenged in a case that has now been offered to the U.S. Supreme Court. Section Five of the VRA requires certain jurisdictions with a history of egregious racism to go through a special process before they can make any changes affecting voting.
Under Section Five, these jurisdictions must get pre-clearance from the U.S. Justice Department before they can redistrict or make any other changes to their election laws or procedures, or get a three-judge panel of the federal district court in D.C. to sign off on the jurisdiction’s plan. The law requires the Justice Department or the federal court to determine whether the changes would have either the purpose or the effect of abridging the right to vote.
But as racial barriers to voting have fallen in America, and the African American vote has become increasingly reliable as a voting bloc for Democrats, VRA lawsuits have increasingly been used to advantage the Democrats in partisan wrangling against Republicans.
The VRA was originally passed in 1965. This was the height of the civil rights movement, when powerful forces were arrayed to prevent black voters from casting ballots, and where a number of states saw widespread voter intimidation. Today America is a different place. For years now, African Americans have served in Congress, served as federal judges, on the Supreme Court, and in the Cabinet. And now an African American has been elected president of the United States. America is a far different place today than it was in 1965.
Yet, Mr. Obama has nominated Eric Holder as attorney general of the United States. Mr. Holder has liberal views of what constitutes “civil rights,” including election law issues and redistricting issues subject to VRA. How will Mr. Holder deal with these VRA issues? Does America still need draconian laws that were passed to combat endemic racism and overt hostility? Will Mr. Holder use the power of Section Five to strike down redistricting plans, hoping to force districting lines that will be more favorable to Democrats?
Additionally, Mr. Obama has promised to nominate activist judges to our nation’s courts, and he has a Democrat-controlled Senate that will likely confirm anyone he nominates. Mr. Holder will be one of his top advisors on whom to nominate. How much damage could result from a liberal attorney general pushing partisan advantage in redistricting processes, with any legal challenges to those actions being decided by equally liberal, Obama-appointed judges?
These are critical questions. Republicans are on the ropes. Democrats control majorities in both houses of Congress, and now the White House. And a liberal Democrat will be deciding VRA issues at the Obama Justice Department. There will be a strong push by some to use these levers of power to get redistricting plans that will only increase Democrat control for the next decade.
This country has clearly progressed beyond yesterday’s racism. And the law should not give one party an overwhelming advantage to invoke the mistakes of the past for partisan advantage.
Ken Blackwell is the senior fellow for Family Empowerment at the Family Research Council, and a former chairman of the U.S. Census Monitoring Board.
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