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Republicans in the U.S. House of Representatives passed a slew of bad bills during the first six years of the Bush administration, but only one has the power to keep them in the minority until 2022. Surprisingly, it has nothing to do with the Iraq War, out-of-control entitlement spending, earmarks, or any of the other issues that have currently turned off voters from the GOP. Instead, it is a little-understood, highly complex provision added to the recently reauthorized Voting Rights Act and known among legal scholars as the “ Ashcroft fix.” Like much of the Voting Rights Act today, the Ashcroft fix is so fuzzy that it can mean just about anything a government lawyer wants it to mean. Sadly for the GOP, that lawyer seems unlikely to be Republican in 2011. Since the Voting Rights Act was first enacted in 1965, there have been four congressional redistricting cycles, which essentially begin the year after the U.S. Census. In 1971, 1981, 1991, and 2001, Republicans controlled the White House and, hence, the Justice Department, which oversees enforcement of voting rights. But if Republicans lose the White House in 2008, a Democratic-controlled Justice Department will be interpreting and enforcing the act’s congressional redistricting requirements for the first time. Precisely how the Ashcroft fix is enforced may determine how congressional district lines are drawn in nine, mostly Southern, Republican-leaning states. Ironically, the Bush White House and the Republican congressional leadership knew all about the latent dangers of the Ashcroft fix but chose to do nothing, hoping perhaps that the Supreme Court will strike down the law before 2010. That may yet happen. A Texas lawsuit challenging certain provisions of the act, Northwest Austin Municipal Utility District No. 1 v. Gonzales, was filed just six days after President George W. Bush signed the reauthorization. The special three-judge panel hearing the case (as required under the Voting Rights Act) set a May 15 deadline for dispositive motions; oral argument is scheduled for September. Many legal observers believe that, regardless of the panel’s ruling on these motions, the case will be sent directly to the Supreme Court later this year or in early 2008. At that point the justices may strike down or dramatically narrow the dangers in the Ashcroft fix. Or a Republican may be elected president in November 2008. But if the case is not successful and the GOP loses the White House, congressional Republicans’ political shortsightedness — and, frankly, ineptness — may keep Democrats in control of the House for a long time. PRE-APPROVAL FOREVER? To understand more fully how the Republicans foolishly painted themselves into this corner, it is necessary to examine Section 5, the most controversial of the Voting Rights Act provisions reauthorized last year. Section 5 bars designated jurisdictions from enacting any change to voting practices (such as congressional redistricting) without the prior consent of the federal government — specifically, the U.S. attorney general or the U.S. District Court for the District of Columbia. Back in 1965, this pre-approval or pre-clearance provision was designed to be temporary, set to expire after five years. It was also limited in scope to just eight states, mostly in the Deep South. Given the long history of Southern chicanery in finding clever ways to prevent blacks from registering to vote, the provision made perfect sense — at the time. But instead of expiring in 1970, Section 5 has been repeatedly reauthorized while its scope has been expanded to cover additional jurisdictions. Meanwhile, in most of the Deep South — indeed, in most of the country — the Jim Crow days of Bull Connor and George Wallace are long gone. At last year’s reauthorization hearings, many legal scholars argued that some, if not all, of the jurisdictions now covered by Section 5 should be released from this punishing federal oversight. They also labeled the pre-approval process a startling departure from the way responsibilities between the federal and state governments are properly allocated in the Constitution. Their testimony fell on deaf ears. In addition to extending Section 5 to 2031, Congress added a highly controversial component in order to overturn the results of a 2003 Supreme Court case, Georgia v. Ashcroft — hence the term, the Ashcroft fix. That case had somewhat improved the way the courts and the Justice Department determine if proposed changes to voting practices will harm the interests of minority voters. REDRAWING LINES Until Georgia v. Ashcroft, the prevailing interpretation of Section 5 required that there be no diminishment, or “retrogression,” in the position of blacks and Hispanics as a result of any proposed changes to the voting process in the covered jurisdictions. To determine whether a change was retrogressive, the Justice Department would look at the likely effects of the change on the ability of minority voters to elect a candidate of their choice. In the redistricting context, this translated into no significant reduction in the percentage of minority voters in any majority-minority district. For example, a congressional district with a 53 percent African-American population could not be redrawn with a 47 percent African-American population. Georgia v. Ashcroft altered the retrogression standard by giving state legislatures more leeway to reduce the minority population of majority-minority districts when new lines are drawn. In a 5-4 decision written by then-Justice Sandra Day O’Connor, the Court declared that minorities’ interests may be better served if they are not packed into a few ultra-safe districts, but instead are spread across more surrounding districts where they may have greater “influence” in more election contests. The Court recognized that “minority voters in [the new influence districts] will face a somewhat reduced opportunity to elect a candidate of their choice.” But the Court concluded that Section 5 was meant to safeguard minority voters’ ability to influence elections in general, not to elect specific candidates. In the dog-eat-dog world of redistricting, Georgia v. Ashcroft was seriously alarming. If it were to be applied after 2010, the broader standard might have caused a handful of black and Hispanic lawmakers to lose their safe, majority-minority districts. Those lawmakers were worried, to say nothing of Republican members who feared that Democratic-voting blacks and Hispanics might be drawn into their own safe districts. So Congress decided to legislatively overturn Georgia v. Ashcroft. The Voting Rights Act gained a provision that requires any proposed change to a redistricting plan to be rejected — i.e., denied pre-clearance by the Justice Department — if it “has the purpose of or will have the effect of” diminishing the ability of minority citizens (including language minorities) “to elect their preferred candidate of choice.” A LOADED GUN Alarm bells were rung. Michael Carvin, a prominent Republican election lawyer who testified before the Senate during the reauthorization hearings, reminded Congress of the vagueness of the “ability to elect” standard and warned lawmakers about how it could be applied during future redistrictings. Carvin noted that since Democrats are usually minorities’ preferred candidates, the Ashcroft fix would essentially forbid any changes that would diminish their ability to elect Democratic candidates. Moreover, he testified that allowing the Justice Department to deny pre-clearance to any plan because it “has the purpose” of diminishing minority voting strength is like handing the department a loaded gun. Look to the past, he said: “It is well documented . . . that the Justice Department routinely finds discriminatory purpose every time the submitting authority fails to create the maximum number of minority . . . districts.” So, armed with the Ashcroft fix, how much damage could a Democratic controlled Justice Department do to Republican hopes after the next census? Quite a bit it turns out. Today there are 102 congressional districts in the states wholly covered by Section 5: Republicans hold 61 of these seats, while Democrats hold 41. After the 2010 Census, those same states may be apportioned another seven or eight districts because of population growth. If applied by an aggressively partisan attorney general, the Ashcroft fix could shift nearly 10 of these seats to the Democrats. Since the country is so evenly split between the two parties, that may be enough to keep the GOP out of the majority for a decade (especially since it is losing support in the Mid-Atlantic, Midwestern, and Western states). A Supreme Court decision in Northwest Austin Municipal Utility District or another challenge to Section 5 may yet save the GOP from the fate that awaits it if the Democrats win back the White House. But if the courts don’t help the Republicans and they lose the presidency, there is going to be payback after 2010. No one can say they were not warned.
Edward Blum is a visiting fellow at the American Enterprise Institute. He directs the Project on Fair Representation, which supports litigation challenging the use of race and ethnicity in public policy. He is also the author of a forthcoming book on the Voting Rights Act from AEI Press.

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