The Coming Redistricting Cycle Will Test Just What Biden’s DOJ Can Do With A Gutted VRA

There’s no playbook for how President Biden’s Justice Department can protect minority voting rights in the coming round of redistricting.

When state legislatures draw their maps later this year, it will be the first time that most of them do so since the Supreme Court’s Shelby County decision in 2013. 

The wave of restrictions on ballot access that followed that decision has been well documented. A similar surge is underway again, stemming in part from former President Trump’s lies about the 2020 election.

But as the Justice Department weighs how it will respond to the slew of new state measures that will make voting harder, it will also have to figure out how to approach the uncharted territory it’s entering on the redistricting front.

Before the 2013 ruling, any state or jurisdiction covered under Section 5 of the Voting Rights Act — which intended to give the federal government supervision over states with a history of discriminatory voting practices — had to either submit its maps for DOJ approval or get them okayed by a three-judge federal court.

That meant that more than a dozen states had to get federal approval for their maps, including the some of most populous states, as well as several in the South, where Republican dominance in statehouses incentivizes extreme gerrymanders.

Now those states will be drawing their maps, for the first time, without having to worry about the federal government giving them a hard look (a few of the states in question do now have independent or advisory commissions, but those don’t necessarily guarantee that minority communities are protected in accordance with the VRA).

“It’s hard to overstate how important that loss of direct involvement is,” said Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund.

“DOJ could choose to sue about the redistricting plans. It could choose to intervene in suits by others. But that’s more affirmative effort than what was required when preclearance applied to so many remapping plans.”

Those whom Biden has nominated to lead the Justice Department have promised that voting rights will be a priority of the new administration. His associate attorney general pick Vanita Gupta told lawmakers last week that the department should use “every tool at its disposal” to protect voters, even with the preclearance process gutted.

But it’s not totally clear what those tools look like in the redistricting context.

Before Shelby County the bulk of the work the department did to make sure maps complied with the VRA was through preclearance. Occasionally the department has used another provision of the Voting Rights Act, Section 2, to challenge local maps, such as those used for a city council and a school board. But the department has only sparingly used it to go after statewide maps — with its most notable Section 2 redistricting case being its litigation around the map Texas drew after the 2010 census. That case arose out of extremely unique circumstances that makes it not perfectly analogous to the situation the department is facing now. But the way in which that case dragged on for years, with multiple trips to the Supreme Court and devious shenanigans by the state, previews the rough road ahead for Biden’s DOJ.

An alum of the Texas litigation, Pam Karlan, is now at the department in a top Biden-appointed role in the civil rights division, which includes the voting section. Biden’s choice to lead the division, Kristen Clarke — who will need Senate confirmation — has led a private civil rights organization with experience bringing Section 2 redistricting challenges.

“I 100% believe that Pam, Vanita and Kristen are committed to fully and aggressively using the tools available to them, including Section 2 of the Voting Rights Act, in redistricting,” said Allison Riggs, the head of the voting rights program at the Southern Coalition for Social Justice. But reorienting the notoriously cautious career staff in the DOJ voting section will be its own challenge, she said.

Section 2 lawsuits — which are also what non-government actors have traditionally used to bring Voting Right Act challenges — put the onus on those filing the lawsuits to prove that a legislative map is discriminatory towards minority voters. Under the preclearance regime, it was the state that had to prove to the federal government that the way in which it was redrawing the map wouldn’t illegally undermine the political power of a minority community. 

“With Section 5, it’s your job to review what other people come to you with,” Michael Li, a redistricting expert at NYU’s Brennan Center, told TPM. ”It does require you to do some of the analysis but you’re not the one who has the burden to prove it.”

The skills it takes to do a Section 5 review are “highly related” to what would go into putting together a Section 2 case, Riggs said, but making that transition is “not just flipping the light switch.”

“You’ll need more people on each issue, looking into potential Section 2 cases,” Riggs said. “There’s just a complete staffing shift.”

If a Section 2 redistricting case is brought, the evidence required in court tends to be more complicated and statistics-driven than in the other type of Section 2 cases, known as “vote-denial” cases, where the target is a restrictive election policy hindering minorities’ access to the ballot.

“It’s so math-intensive, and statistics-intensive, and expert-intensive. Marshaling all of that evidence and — for plaintiffs and for organizations — paying for that expert testimony takes a lot,” Mark Gaber, the director of trial litigation at the Campaign Legal Center, told TPM. He noted that many in the legal community consider redistricting cases to be one of the most complex kinds of litigation.

“DOJ is big and has resources but they’re not limitless, so that is the calculation I can imagine they’re going through: where can they have the most effect?”