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[Abigail Thernstrom, guest-blogging, August 19, 2009 at 3:16am] Trackbacks
DOJ: A Law Office Working for Minority Plaintiffs

[Note to readers who have responded so thoughtfully to my previous posts. A number of issues raised will be addressed in this and my subsequent two posts. For instance, I do talk about the collaboration between the Republican Party and the civil rights groups in this post. In fact, I was the first -- in the mid-1980s -- to say that Republicans were laughing all the way to the political bank with racial gerrymandering, and at the time my point was generally dismissed as laughable. As for data, in my Thursday post, I will provide some. But in less than 1200 words a day, of necessity I am barely skimming the surface. Readers interested in my fully developed arguments -- and the evidence upon which I rely -- need to look at the book.]

Changes in the method of voting are usually submitted to the Justice Department for preclearance as my first post noted. The use of the D.C. court quickly became the rare exception. The administrative route is faster and cheaper.

The Justice Department was expected to function as a surrogate court -- with the legal standards articulated in judicial opinions guiding administrative decisions. The reality has been quite different.

That reality was spelled out clearly in a 1995 Supreme Court decision, Miller v. Johnson. The issue was Georgia congressional districting, and the case tells a remarkable story of a lawless Republican Department of Justice that forced a state to accept a plan drawn by the American Civil Liberties Union in its capacity as advocate for the black caucus of the state's general assembly.

The enforcement of the Voting Rights Act has long made for strange bedfellows --although only superficially. In the Georgia case, John Dunne, the assistant attorney general for civil rights from 1990 to 1993, was an unambivalent champion of race-based districting to maximize minority officeholding. His alliance with the ACLU and the state black caucus served the Republican Party's interests, as well: What the ACLU called a "max-black" plan was also "max-white" -- more black voters in some districts meant fewer in others, and, in the South particularly, districts that had been "bleached" were fertile ground for Republican political aspirations.

Of course, redistricting is not the only area in which Republican have failed to oppose what Chief Justice John Roberts has called the "sordid business . . . [of] divvying us up by race." But seldom is the magnitude of the gap between alleged principle and a quite different reality so fully on display as it has been in some of the redistricting cases.

The Georgia House and Senate redistricting committees, when they began the map-drawing process following the 1990 census, had no idea of the roadblocks that lay ahead. They drew one map and then another, both of them increasing the number of majority black congressional districts from one to two.

The state, in fact, had no obligation to draw a map that gave minorities more safe districts than they previously had. The point of preclearance had been to prevent racially suspect states from depriving blacks of the political gains that basic enfranchisement promised, not to ensure a "fair" number of legislative seats, the Supreme Court had held in its controlling 1976 decision, Beer v. U.S.

Georgia had clearly met the demands of the law. Nevertheless, the Justice Department found both maps in violation of section 5. John Dunne informed the state that it had not adequately explained its failure to create a third majority-minority district.

Dunne wanted, among other changes, a reshuffling of black and white voters. But his reconfiguration would have created a district (CD 11) that connected black neighborhoods in metropolitan Atlanta and poor black residents on the coast, 260 miles away and "worlds apart in culture," as the Supreme Court put it in Miller.

"In short," the Court continued, "the social, political and economic makeup of the Eleventh District [told] a tale of disparity, not community." Dunne's insistence on heavy-handed racial gerrymandering forced candidates to run in four major media markets, while leaving CD 2 still only minority-black.

Dunne's communications were entirely guided by ACLU attorney Kathleen Wilde, who had drawn up a "max-black" plan. As the district court noted, "Throughout the preclearance process, from this first objection letter to the final submission, [DOJ] relied on versions of the max-black plan to argue that three majority-minority districts could indeed be squeezed out of the Georgia countryside. Ms. Wilde's triumph of demographic manipulation became the guiding light."

Georgia legislators and staff who met with Justice Department attorneys in Washington were "told to subordinate their economic and political concerns to the quest for racial percentages."

These legislators on the redistricting committee, many of whom were veteran mapmakers, were essentially cut out of the districting process by the Justice Department. Excluding them raised grave constitutional questions. As the Court stated, rejecting the "max-black" plan as unconstitutional, "Electoral districting is a most difficult subject for legislatures, and so the States must have discretion to exercise the political judgment necessary to balance competing interests." Plainly, judicial or Justice Department review "represents a serious intrusion on the most vital of local functions."

To make matters worse, DOJ attorneys had cultivated "informants" within the state legislature; "'whistleblowers' became 'secret agents,'" the district court found. One of these informants described one black state senator who had not toed the line as a "quintessential Uncle Tom" and "the worst friend of blacks in Georgia." By contrast, attorneys from the ACLU and the voting section of the DOJ's Civil Rights Division were characterized as "peers working together." They discussed the smallest details of the Wilde plan and its revisions, with the result that "there were countless communications, including notes, maps, and charts, by phone, mail and facsimile."

In fact, the lower court found, the "DOJ was more accessible -- and amenable -- to the opinions of the ACLU than to those of the Attorney General of the State of Georgia." The DOJ's March 1992 objection letter, quoted above, actually arrived at the state attorney general's office after members of the Georgia black caucus were already discussing it with the press, since the Justice Department attorneys had told the ACLU lawyers of their decision before informing any state official. The court found this "informal and familiar" relationship between federal attorneys and an advocacy group "disturbing" and an "embarrassment."

The preclearance process was not supposed to work as it did in Georgia in the early 1990s, as well as in countless other jurisdictions, large and small, in the 1980s as well. By 1991, when the Justice Department reviewed the Georgia plan, the initial vision of the department as a more accessible court had completely broken down. The voting section of the Civil Rights Division was operating as a law office for minority plaintiffs, working as partners with civil rights advocacy groups.

As UCLA law professor Daniel Lowenstein has written, "Much is at stake for politicians and the interests they represent in a districting plan, and enacting a plan is typically a difficult and contentious process. Once they strike a deal, they want it to stay struck, and therefore they tend to be risk-averse with respect to possible legal vulnerabilities in a plan."

A risk-averse plan was one that accepted racial quotas, which the Justice Department believed in as a matter of principle through the 1980s and 1990s. Blacks here, whites there, in just the right numbers to ensure the election of blacks to public office roughly in proportion to their population numbers. In all likelihood, that commitment to proportionality will resurface in the enforcement of the Voting Rights Act under the current administration.

J. Aldridge:

You, the party of liberty and justice, attempt to fasten fetters upon one State which you dare not impose and have no authority to impose upon other States; you attempt to provide that a State admitted to representation in the Congress of the United States shall be governed not by those elected by its citizens under their own laws, but by such officials as may be appointed by act of Congress! It is your right and your duty to govern Virginia until she is reorganized under a republican form of government satisfactory to the Congress of the United States, with just such officials as you deem right and proper; but your right to do so passes away the moment you restore the State to its representation in the Congress of the United States and approve its reorganization under your acts of reconstruction. (Rep. John Bingham, January 14, 1870)



Suppose an article had been introduced into the Constitution, empowering the United States to regulate the elections for the particular States, would any man have hesitated to condemn it, both as an unwarrantable transposition of power, and as a premeditated engine for the destruction of the State governments? --Hamilton
8.19.2009 5:29am
Cato The Elder (mail) (www):
They claim they want us all to judge one another on our merits, regardless of race, but when it comes down to messy battles of politics, where hewing to such ideals should be most required, we see that our leaders have reduced us to barely more than ciphers.
8.19.2009 7:07am
Eli Rabett (www):
Thernstrom:

1. Whites systematically denigrated, stole from, imprisoned and killed blacks for 100 years after the civil war

2. In the 1960's a consensus formed that this was not a good thing. Laws were passed to make it more difficult.

3.The Federal Government took action against states who thought that denigrating, stealing from, imprisoning and killing blacks kept them in their place

4. Most whites now agree to no longer denigrate, steal from, imprision or kill blacks. There remain exceptions.

5. In the light of 3 and 4 everything is just fine and blacks are simply ungrateful for all we have done for them.

In short Abigail, what do YOU propose to do for the evil that subjugated blacks in the US and whose consequences remain.
8.19.2009 7:18am
aws3942:
I lived in the South (Georgia). I Dont recall any subjugating, killing or stealing, " Hey Bubba, lets get liquored up and go steal from the darkie boys..." Are you serious?

The civil war was a long time ago, get over it.

Ms Thernstrom is highly critical of the GOP, and only slightly touches on the ACLU and Black Caucuses... Imagine a congressional "White" caucuss if you will.

In my opinion black America is the least successful subgroup due to government attempting to legislate equality of outcome vice ensuring equality of opportunity. The quota system coupled with an you owe me mentality saps the drive to succeed.

Quotas need to go, voting, job, education or otherwise.

this article is weak and not up to this blog's standards.
8.19.2009 7:53am
Daniel Chapman (mail):
Mad trolling skills, Rabett.
8.19.2009 7:54am
Floridan:
This issue, the drawing of districts that create an opportunity for the election of minority candidates, has much less a negative impact on our political system than does the gerrymandering of districts to benefit a political party.

I would say that correcting one requires correcting the other.
8.19.2009 7:57am
David Schwartz (mail):
Floridan: Since the political makeup tends to correlate at least somewhat with the racial makeup, it is frequently difficult to distinguish these two things. They are basically two spins on the same thing, a thing which has both good and bad consequences.
8.19.2009 8:40am
Abdul Abulbul Amir (mail):

This issue, the drawing of districts that create an opportunity for the election of minority candidates, has much less a negative impact on our political system than does the gerrymandering of districts to benefit a political party.



This is a distinction without a difference.
8.19.2009 8:41am
Jack Smith (mail):
Frankly, I fail to see the point of Ms. Thernstrom’s hyperventilating post. I suppose her Ideal Reader ought to react with disgust, but her descriptions reveal nothing more than politics as usual. Agencies, even the DOJ, are captured by interest groups. The Secretary of the Interior will be bought off by mining interests; the EPA will be bought off by the logging industry. That civil rights groups would use DOJ to implement their civil rights agenda is of little moment.
8.19.2009 8:50am
gerbilsbite:
Jack Smith:

You've missed the point entirely. The issue isn't that the ACLU captured the DoJ, it's that the Republican Party was exploiting its control of the DoJ and misemploying the work of the ACLU to enact a more conservative-friendly, white-friendly redistricting plan in Georgia. Keep in mind that after this redistricting, just in Georgia, Bob Barr barely beat Buddy Darden (a suburban district affected by the loss of minority areas), Saxby Chambliss took a Democratic seat, and Charlie Norwood beat Don Johnson (with both Chambliss and Norwood winning over 60% of the vote in their districts).

The obvious point is that a partisan DoJ (and, really, that's a disturbingly common and disturbingly apt descriptor in too many administrations) exploited the preclearance system to create a political advantage for one particular party. That's the outrageous aspect this post is addressing.

Professor Thernstrom:

Thank you for including this in your series (especially since I was aggressively pushing for a discussion of Miller v. Johnson in the comments of your last installment). It's good to include an example of the naked partisanship that has tainted the process, and you did a fine job of presenting it.
8.19.2009 9:11am
Jack Smith (mail):

The issue isn't that the ACLU captured the DoJ, it's that the Republican Party was exploiting its control of the DoJ and misemploying the work of the ACLU to enact a more conservative-friendly, white-friendly redistricting plan in Georgia.


Where does the post say this?
8.19.2009 9:28am
DerHahn (mail):
The obvious point is that a partisan DoJ (and, really, that's a disturbingly common and disturbingly apt descriptor in too many administrations) exploited the preclearance system to create a political advantage for one particular party.

Well, sort of. I suppose this kind of villan chasing is necessary to get liberals to listen to what Ms Thernstrom is saying (not that it's working, as evidenced by some comments here).

This redisticting plan didn't just benefit the GOP. It benefited black Democrats (but I repeat myself) by giving them a third House set that they might not have been able to obtain otherwise, right? Otherwise they would have opposed the plan, and they not only didn't oppose it, the implication is that they wanted it implemented.

I wish Ms Thernstrom had also been a little more consistent. IIRC, a major theme in the previous post was that the requirements for preclearance under VRA are vauge but now Georgia had clearly met the demands of the law. How did that happen?
8.19.2009 9:38am
KilgoreTrout_XL (mail):
Ok, that's it for this blog. Rss feed out.
8.19.2009 9:44am
REALLLLLY off-topic (mail):
A number of months ago, someone on VC blogged a paper they wrote; the title was something like "Everything I need to know about Jurisprudence I learned when I was 12" (or something simalar to that). I tried to find this today, and can't locate it in the archives.

It started off with a rule made by Mom that no food was to be eaten in the living room, and a series of "appeals" to dad, grandma and maybe an uncle, where the rule ended up through "case law" that all food could be eaten in the living room. (probably a botched summary, hence the reason I'm looking for the link).

Any information would be appreciated! Thanks!
8.19.2009 9:44am
Hannibal Lector:
What Thernstrom documents is part of a larger and more disturbing trend: The politicians of both parties conspire together to ensure congressional districts that will vote more or less reliably for one party or the other. This creates congressional districts that are "safe" for incumbents.

Combined with popular election of senators the end result turns constitutional design upside down. Representatives have essentially unlimited tenure and their constituents have little control over them. On the other hand, the Senate -- the supposed "deliberative" house of the US legislature -- comprises members who must kowtow to their constituenciues because, generally speaking, each election is a serious struggle.
8.19.2009 9:47am
David Drake:
Surely Floridan is right, isn't he?

"Naked partisanship" has been the motivation of Congressional districting and redistricting since the beginning of the Republic, and the interpretation of the VRA put upon it by the "nasty cabal" of GOP Justice Department, ACLU and black caucuses in both the Georgia Assembly and the U.S. House, only adds one more motivation for deeply ingrained political behaviour.

I lived in Georgia during the Eleventh District saga: the driver was Billy McKinney, Cynthia McKinney's father and a powerful Georgia legislator, who was determined to create a district from which his daughter could get elected to Congress.

We have lived in Metro Atlanta (west Dekalb County) for 30 years but have been in at least four different legislative districts. We are currently in Rep. John Lewis's district, which is primarily in the City of Atlanta, but takes in a slice of west DeKalb. I learned that I was in this District only when I went to the polls a few years ago to vote against Cynthia McKinney when she was trying for a comeback, and found that Rep. Lewis was on the ballot instead.
8.19.2009 9:47am
Thoughtful (mail):
To Really Off Topic: I believe the post here was a link to an article that appeared in full elsewhere...
8.19.2009 9:48am
Abdul Abulbul Amir (mail):



This redisticting plan didn't just benefit the GOP. It benefited black Democrats (but I repeat myself) by giving them a third House set that they might not have been able to obtain otherwise, right?


Wrong. It benefitted exactly one black Democrat. The one that got the third seat.

It disadvantaged every Democrat in the state, black or white, as the state was unable to elect as many Democrats in total. Further, it created districts where the black office holder need care nary a taste for white concerns, and districts where the white office holder need care nary a taste for black concerns. IMO, we would all be better off if office holders needed to be able to appeal to all racial groups instead of a system that rewards the pol that is best at appealing to a single racial group.
8.19.2009 9:56am
REALLLLLY off-topic (mail):
Thoughtful:

I do remember there being a link (I thought the post's author was also the author of the paper). If you could point me to either link, I'd be grateful!
8.19.2009 10:15am
erp:
Wow. First time I've ever read a post authored by a troll on the VC. Usually they only show up in the comments.
8.19.2009 10:19am
gerbilsbite:
Jack:

That reality was spelled out clearly in a 1995 Supreme Court decision, Miller v. Johnson. The issue was Georgia congressional districting, and the case tells a remarkable story of a lawless Republican Department of Justice that forced a state to accept a plan drawn by the American Civil Liberties Union in its capacity as advocate for the black caucus of the state’s general assembly.


Kennedy's synopsis of Miller in the follow-up case Abrams v. Johnson goes into much more detail. Here's the rundown:

The need for redistricting arose in 1990 when Georgia, because of its population increase, went from 10 authorized congressional seats to 11. To move ahead with redistricting, a special session of the legislature opened in August 1991. Because Georgia is a covered jurisdiction under §4(b) of the Voting Rights Act, 42 U.S.C. § 1973b(b), §5 of the Act requires it to obtain either administrative preclearance by the Attorney General or approval by the United States District Court for the District of Columbia for any change in a "standard, practice, or procedure with respect to voting." 42 U.S.C. § 1973c. The proposed change must not have the purpose or effect "of denying or abridging the right to vote on account of race or color." Ibid. The legislature submitted a plan to the Attorney General for preclearance on October 1, 1991. See Appendix to this opinion, (hereinafter Appendix), fig. 1. The plan contained two majority black districts, the Fifth and the Eleventh. Previously, Georgia had one majority black district, the Fifth.

The Department of Justice refused preclearance of this plan in January 1992. It then refused preclearance of a second plan submitted by the legislature, also with two majority black districts. In its second refusal, the Department of Justice cited several alternative plans proposing three majority black districts, including one called the "max black" plan, drafted by the American Civil Liberties Union (ACLU) for the General Assembly's black caucus. At that point, the General Assembly set out to create three majority black districts to gain preclearance. See Appendix, fig. 2. The plan as adopted used the ACLU's max black plan as a model. One of the three majority black districts, the Eleventh, was a geographic " `monstrosity, stretching from Atlanta to Savannah. Its core is the plantation country in the center of the state, lightly populated, but heavily black. It links by narrow corridors the black neighborhoods in Augusta, Savannah and southern DeKalb County.' " 515 U. S., at _ (slip op., at 7) (quoting M. Barone &G. Ujifusa, Almanac of American Politics 356 (1994)). The district as so drawn served its purpose, however, which was to secure preclearance from the Department of Justice.

On November 4, 1992, elections were held under the new plan, and all three majority black districts elected black candidates.
8.19.2009 10:32am
Jack Smith (mail):
That reality was spelled out clearly in a 1995 Supreme Court decision, Miller v. Johnson. The issue was Georgia congressional districting, and the case tells a remarkable story of a lawless Republican Department of Justice that forced a state to accept a plan drawn by the American Civil Liberties Union in its capacity as advocate for the black caucus of the state’s general assembly.
8.19.2009 10:34am
gerbilsbite:
As I said: the Republican Party was exploiting its control of the DoJ and misemploying the work of the ACLU to enact a more conservative-friendly, white-friendly redistricting plan in Georgia.

The fact that the ACLU drew a plan is secondary to the fact that the DoJ forced that plan to be used despite the twice-expressed contrary wishes of the (very Democratic) state legislature.
8.19.2009 10:45am
David M. Nieporent (www):
This redisticting plan didn't just benefit the GOP. It benefited black Democrats (but I repeat myself) by giving them a third House set that they might not have been able to obtain otherwise, right? Otherwise they would have opposed the plan, and they not only didn't oppose it, the implication is that they wanted it implemented.
No, it didn't benefit black Democrats. It benefited black Democratic officeholders at the expense of black (and white) Democrats.
8.19.2009 11:22am
Redman:
I have lived in Texas since 1950 and during that time I have never seen with my own eyes an incident of white on black violence or oppression.
8.19.2009 11:29am
gerbilsbite:
Redman:

I'm glad that you didn't see the myriad incidents in Jena, the outrageous police misconduct in Tulia, or the James Byrd lynching, but those aren't exactly ancient history.
8.19.2009 11:52am
Fugle:
Erp: Looked in the mirror lately, is it necessary to call names?

It's possible, Pig, you may have missed the point of the post. It's conceivable, you miserable, vomitous mass, that the Professor's point escapes your meager understanding. Gerbilsbite explained above and used small words so that you’d be sure to understand, you warthog faced buffoon.

Name calling is easy, and generally pointless (as I admit my post is); however, perhaps this can serve as a reminder that it is persuasive argument and collegial commentary that brought most of us here - if you have a issue with a post explain what that issue is and support with argument and/or examples (lest we end up with closed comments by all conspirators.)



[The invectives contained herein are the sole responsibility of this author, and are not reflective of the commentary, explanations, views, or opinions of any other person living or dead.]
8.19.2009 11:53am
PeteP:
What ever will they do about the cases where a white-majority district elects a black representative, or the other way around ?
8.19.2009 3:13pm
Eli Rabett (www):
So Abigail, you admit that the US owes an enormous debt to blacks, you admit there is still organized opposition to them gaining full participation. How do you propose the debt be repaid?
8.19.2009 3:40pm
/:
How do you propose the debt be repaid?

It's not like racial preferencing is unconstitutional.
8.19.2009 3:44pm
einhverfr (mail) (www):

So Abigail, you admit that the US owes an enormous debt to blacks, you admit there is still organized opposition to them gaining full participation. How do you propose the debt be repaid?


I would propose a big monument showing our appreciation.....
8.19.2009 3:54pm
David M. Nieporent (www):
So Abigail, you admit that the US owes an enormous debt to blacks, you admit there is still organized opposition to them gaining full participation. How do you propose the debt be repaid?
You admit that Saddam Hussein is a bad person. How do you propose to overthrow him?
8.19.2009 4:25pm
davod (mail):
I wonder what current opinion of the lawless Republican Justice Department would be if it had reined in its pro ACLU Civil Rights Division.
8.19.2009 4:52pm
PatHMV (mail) (www):
Damn those Republicans for working so hard to put more minorities in Congress. How dare they be so sneaky! How dare they do what those arch-conservative racists at the ACLU wanted them to do!
8.19.2009 6:15pm
Cato The Elder (mail) (www):
It would be untoward for me to generalize to liberals at large from the comments of those like Eli Rabett, right, Leo Marvin? Even though we observe the same obnoxious sort of sanctimony again and again from those types?
8.19.2009 8:25pm
Asher Steinberg (mail):
Dr. Thernstrom,

For an even more egregious case of DOJ-driven racial gerrymandering, see Smith v. Beasley, 946 F. Supp. 1174 (D. S.C. 1996). Quite the disquieting read.
8.20.2009 12:56am

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