On Going Straight to Federal Court with a Section 5 Challenge

A reader writes:

What are the odds that Hans von Spakovsky will admit this was bad advice?

The lesson here is that Republican-controlled legislatures that have drawn up redistricting plans that Democrats don’t like would be foolish to submit those plans to the Civil Rights Division for administrative review. Instead, they should go straight to the federal district court in D.C., the alternative procedure set forth in the Voting Rights Act.   

States must understand that they cannot expect to get an impartial hearing from this Justice Department. They may still get a panel of liberal judges in federal court, but at least normal evidentiary standards will apply. In court, DOJ will have to provide actual evidence of discrimination — not the rank hearsay and imaginary evidence often considered in its own administrative review. Moreover, states will be able to cross-examine their accusers in court. That doesn’t happen in the administrative setting. Indeed, the Justice Department often refuses to even tell states who has accused them of discrimination in their redistricting process. (emphasis mine)
From today’s DDC Opinion (p. 43)
Next we consider Texas’s request to preclear its State Senate Plan. The United States has not objected to this plan, but the [Intervenors did] argue that the Senate Plan retrogresses and was enacted with discriminatory intent. Their arguments concern a single district, Senate District (SD) 10, which they contend is a coalition district in the benchmark plan, and which all parties agree is not an ability district in the enacted plan. These Intervenors also argue that discriminatory purpose motivated the legislature’s decision to break up SD 10. We conclude that benchmark SD 10 is not a coalition district, and thus that the Senate Plan is not retrogressive. Nevertheless, we deny preclearance because Texas failed to carry its burden to show that it acted without discriminatory purpose in the face of largely unrebutted defense evidence and clear on-the-ground evidence of “cracking” minority communities of interest in SD 10. Thus, we conclude that the Texas legislature redrew the boundaries for SD 10 with discriminatory intent.

So much for avoiding a Department hell-bent on objecting to Republican plans and having the opportunity to cross-examine accusers…
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