At the slight risk of being a one trick pony, I’d like to toss out another question for discussion related to Georgia v. Ashcroft. One thing that seems like it has gone a bit under the radar screen is the impact of Ashcroft on Section 5 review. How much has Ashcroft changed the nature of Section 5 preclearance? In other words, how many objections has Ashcroft prevented DOJ from interposing? To the best of my knowledge, there hasn’t been an attempt to quantify the impact of Ashcroft in any of the testimony presented to Congress so far.
True, it is very difficult to quantify the impact of Ashcroft for a number of reasons. First, DOJ does not explain its preclearance decisions–precelarance letters are basically form letters that do not provide any reason for the decision. Second, Ashcroft is so recent in time, there’s not a good basis for assessing the reduction in retrogression objections from a pre-Ashcroft world to a post-Ashcroft world–in contrast, such a quantification can at least be attempted with Bossier Parish II. Third, it’s unclear how much of a role Ashcroft can play outside of the statewide redistricting context (i.e., to local redistrictings and to changes that deny minority votes rather than dilute them).
As we do not have information about the role of Ashcroft in preclearance determinations, perhaps the best place to look for the impact of Ashcroft on DOJ’s work is objection letters sent since Ashcroft. On that score, it would seem thatAshcroft has not played a very significant role. Perhaps others would disagree, but DOJ does not appear to have made very much use of Ashcroft in its objection letters. For instance, this objection letter makes only a very limited citation to Ashcroft and makes no reference to the “totality of the circumstances” retrogression test created by Ashcroft.
Indeed, on May 5, 2006, DOJ objected to several vote denial type changes enacted by a community college district in Texas. This would appear to be DOJ’s first objection in about a year (the next most recent objection posted on its website is from April 25, 2005). The May 5 objection letter makes absolutely no citation to Ashcroft and makes no reference to the totality of the circumstances. Granted, objection letters since Ashcroft have been few and far between and are clearly not something that even approaches the best evidence to determine the role Ashcroft has played.
Yet even if Ashcroft is not being cited all that much by DOJ in its objection letters, it could very well be playing a more intangible role in preclearance decisions, for Ashcroft may have made DOJ career personnel a bit more gun shy. Why? Because when you combine Ashcroft with all the substantive Section 5 losses by DOJ in the past decade, people tend to get the message about the big picture: objections are not exactly favored by the Supreme Court.
Finally, I’m not sure there’s been a great deal of discussion as to whether Ashcroft, in some ways, increases the power of DOJ to object. Under Beer, DOJ would not object to a redistricting plan if the plan contained a reduction in the number of influence districts. Unless there was a decrease in the ability to elect, DOJ would not interpose an objection under the Beer retrogression standard. But isn’t it possible under one reading of Ashcroft that DOJ can now object when the only harm to minority voters is the loss of influence districts?
–Mike Pitts