On June 14, I questioned allowed whether Alabama would follow the North Carolina lead in a new strategy to avoid the United States DOJ approval of redistricting? Well, we are. I wrote then:
We know that Hubbard and Marsh do not exactly like the Obama administration. Will they try to avoid any review of their plan by the Obama Justice Department? Will the Alabama Republicans follow the lead of their North Carolina and Texas brethren? As reported by the ISS,
Instead of submitting North Carolina’s redistricting plan to the Department of Justice — where it needs pre-clearance because 40 of the state’s counties are covered by the Voting Rights Act — the GOP law would allow the state’s Legislative Services Commission to directly present the plan to a district court in D.C.
Their scheme was inadvertently revealed by broadcast (listen to the audio here.) over the House speaker system. Oops.
The leaked audio has House Speaker Thom Tillis describing the plan, which he also warned was “extremely sensitive” and shouldn’t be publicly discussed: The plan all along has been to submit this to the courts, rather than the Department of Justice, since this will be the first redistricting plan under the Voting Rights Act submitted to a DOJ controlled by Democrats, let alone Obama.
Attorney General Luther Strange has sidestepped the U.S. Justice Department and asked a federal court in Washington D.C. to approve new lines for congressional districts and for the state school board.
The attorney general’s office filed a complaint asking a three-judge panel to approve the new political boundaries drawn earlier this year by the Alabama Legislature.
The federal Voting Rights Act of 1965 requires Alabama and some other states to have new political lines approved by the Justice Department. The filing by Strange says the law also allows the states to go straight to federal court for approval.
Officials in the attorney general’s office did not immediately say why the request was made directly to the court.
I can answer that last part: Marsh, Hubbard, and Strange are not going to let President Obama nor Attorney General Holder sit in judgment of their workmanship of gerrymandering.
What are the draw backs of this strategy?
1. Its substantially more expensive. Litigation and court costs will run up. Outside counsel will likely be hired. But this GOP legislature has shown a penchant for litigation and creating jobs for constitutional lawyers. Litigation occurs before a three-judge federal court panel in the District of Columbia.
2. It only encourages lawsuits from minority groups like ADC. The DOJ as Defendant will likely now oppose.
3. The process is substantially slower. It may take years before the lines are settled. As reported discussed here:
If each of these states opts to seek preclearance through the DCDC it will add to the court’s already busy workload. The need to review plans for Congress and the legislatures of eight states would require weeks of court time, but could be just the tip of the iceberg. What if a number of local governments that also need to secure preclearance choose to litigate their plans? Georgia, to cite one example, has 159 counties, 179 school districts and more than 500 municipalities. While not all of these will have new plans since some elect members of their governing bodies at-large, if each of these entities that draws new districts turned to the DCDC for preclearance it could lead to well over 700 suits. Texas provides an even greater threat to clog the DC courts with its 254 counties, more than 1000 school districts, approximately 1200 municipalities, and numerous municipal utility districts. Even Florida, with just five covered counties, could generate up to 32 lawsuits when the state legislative, congressional, and possible local government maps are all counted. In sum, there are as many as 5,500-6,000 local, county, and state government maps that could be submitted for bench review.
Three-judge panels, which include one court of appeals judge, review preclearance submissions. The District of Columbia Court of Appeals has 9 judges (plus 2 vacancies) while the DCDC has 18 judges and three vacancies. There are also five senior judges on the appellate bench in DC. If hundreds (or thousands) of jurisdictions doubted the fairness of DOJ and went to court, the limited number of judges would quickly become overwhelmed. DOJ’s resources would also be stretched as its attorneys respond to interrogatories, depose opposition witnesses, review expert reports, prepare their own witnesses to testify, and participate in trials. The judicial system could not cope should even a small fraction of the preclearance jurisdictions go to court. A single preclearance trial, involving a three-judge tribunal, would take several days if both expert and lay witness testimony are involved. Even a ‘paper trial’ using affidavits and deposition examination would consume trial court time. Further, because preclearance evaluations are unique to each jurisdiction, it would be nearly impossible to consolidate cases. To avoid the potential of a judicial log-jam, DOJ attorneys would be well-served to signal to submitting authorities that they can expect treatment free of partisan overtones if they follow the administrative route to preclearance.
4. If the panel finds that a map violates section 5 of the Voting Rights Act then the panel would draw the new map for 2012 elections.
A good balanced explanation of the trends can be found here.