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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Section 5 On the Ropes?

Reports from oral arguments before the U.S. Supreme Court indicate that the Supremes may be on the brink of striking down Section 5 of the Voting Right Act, the congressional authorization for requiring Justice Department “preclearance” of districting schemes in most southern states and a few other scattered jurisdictions to ensure they do not dilute minority voting strength. The main source of this speculation was a line of questioning by Justice Anthony Kennedy, (typically the swing vote in close decisions) expressing hostility towards Congress’ alleged failure to adequately review recent voting data in deciding which jurisdictions are subject to Section 5.
Kennedy was definitely the swing vote in a recent decision prohibiting courts from requiring “majority-influence” districts on VRA grounds, which was not particularly good news for Democrats, who have been the victim of “packing” and “bleaching” practices in the past that concentrated minority voters in a small number of districts.
As with the earlier decision, the current review of Section 5 is significant due to its timing: just prior to the decennial reapportionment and redistricting process for both congressional and state legislative seats. If Section 5 were struck down, it could obviously be revisited by a Democratic Congress, and even if preclearance is no longer required, individuals can challenge districting maps on VRA grounds via a separate section of the Act.
Still, it would be nice to go into the redistricting season with a civil-rights-friendly and Democratic Justice Department exercising a full range of powers; the last two occurred under Republican presidents. In the end, the big battle affecting redistricting will be over control of state legislative chambers and governorships, which is another reason why the 2010 elections could be momentuous.

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