Writing here on the election law listserv, attorney David Becker responds to the DOJ’s defense of preclearance of the New Orleans election (Becker’s response reprinted with permission):

A couple of things stand out in the DOJ’s letter:
1. The DOJ relies heavily upon the unanimous support of the Louisiana Legislative Black Caucus to justify its preclearance. While the minority legislators’ support of the election plan is certainly relevant, and was correctly taken into consideration by the DOJ, it stands in stark contrast to repeated instances where the DOJ has recently ignored the unanimous opposition of minority legislators to voting changes, such as Prop. 200 in Arizona, the Texas re-redistricting, and the Georgia photo ID law, all of which, in what must be a pure coincidence, were proposed by and benefited Republicans. It smacks of hypocrisy and cynicism to cite the preferences of minority legislators when it has no negative impact on Republicans, but ignore those preferences when there might be some political hay to be made.
2. With regard to the Sec. 2 decision in Louisiana, that of course has nothing at all to do with whether the DOJ’s determination under Sec. 5 was proper, and the DOJ knows it. The DOJ is well aware of the decision in Bossier II, and in fact was a party to it. The DOJ’s hypocrisy on this point is legendary. When a court finds a constitutional or Sec. 2 violation with a voting change they precleared, as in the case of the Georgia photo ID law, the DOJ cites Bossier II to justify why their Sec. 5 determination was proper, despite the court’s finding of discrimination. However, when a court’s ruling upholds such a change, the DOJ uses that as a validation of their position. Let’s make this perfectly clear – until Bossier II is changed, either legislatively or judicially, constitutional and Sec. 2 determinations by a court have absolutely nothing to do with whether the DOJ properly exercised its authority under Sec. 5.
3. I’m not so sure that the DOJ’s letter has it right regarding how limited their review was. Basically, DOJ is saying that so long as the changes make things better, in what admittedly is a tremendously difficult situation in New Orleans, than they would have been without the changes, the DOJ was precluded from objecting. By this standard, the state could have done nothing, resulting in the disenfranchisement of tens of thousands of (predominantly-black) New Orleans voters, and that would have satisfied the DOJ’s Sec. 5 review. I’m not so sure. I think it’s far more likely that the standard as applied here would be to compare the circumstances for minority voters with the proposed change, and compare it to what their situation was in the last election (i.e., the last judicially enforceable event). Thus, would the changes as proposed enfranchise minority voters at least as much as they were at the last election (the answer to this is undoubtedly no), and if not, was it the best that the state could do under the circumstances, i.e., the least-retrogressive alternative? The question of whether the state adopted the least-retrogressive alternative is an interesting and complex one, and I offer no opinion here regarding the answer to that question, except to note that the DOJ itself has acknowledged that “the State may well have done more under the circumstances.”