Georgia V. Ashcroft, the Voting Rights Act and Narratives of Change and Continuity in the American South
Moore, Toby, Southeastern Geographer
In 2003 the Supreme Court issued its opinion in Georgia v. Ashcroft, a case involving the redistricting of Georgia's state Senate under Section 5 of the Voting Rights Act. This paper traces the course of the Georgia litigation from the legislature through the Supreme Court, examining its impact on the future of retrogression analysis under Section 5 and its impact on the future of the section itself. In addition, it looks at the opinion by Justice Sandra Day O'Connor in the context of competing claims regarding the progress, or lack of progress, in the racial politics of the South, claims which arose again and again in the course of the litigation. The author concludes that O'Connor's re-working of the Section 5 standards was an attempt, whether successful or not, to overcome an inherent paradox of minority voting rights in the contemporary South.
KEY WORDS: redistricting, Voting Rights Act, the South, Georgia
Many observers and participants in the redistricting that followed the release of the 2000 Census apportionment data expected to see the controversies of the previous decade re-ignited. In the Shaw v. Reno (1993) and Miller v. Johnson (1995) lines of cases, the Supreme Court sought to delineate how far plan drawers could go in drawing districts that enabled minority voters to elect candidates of their choice. The tensions inherent in trying to fit minority voting rights into winner-take-all, district-based representation plans had given rise to congressional plans in North Carolina and Georgia that were struck down in the courts by judges who ruled that race had played an impermissibly large role in the design of the maps. Shaw, Miller and related decisions sparked dire warnings among voting rights advocates that the Supreme Court was in full retreat from aggressive efforts to preserve voting rights. Some even intuited an end to the Voting Rights Act (VRA) itself.
In fact, the issues brought to the fore by Shaw and Miller did not dominate the early 2000s. Instead, the focus of redistricting law shifted in two other directions. The first direction, unresolved at the time of this writing, was the continuing question of whether any meaningful judicial checks could be made on the pursuit of partisan goals through district drawing. The Court has flirted with the idea of justiciable partisan gerrymandering claims in the past, with the same result it reached in the Pennsylvania case of Vieth et al v. Jubelirer (2004), where it refused to grant actual relief while leaving the door cracked for a future claim. The mid-decade redistricting of the Texas congressional plan, on which the Supreme Court heard oral arguments on 1 March 2006, could become a leading case in whether the Court will draw a line at the outer limits of permissible partisan gerrymandering, but at the time of this writing no opinion had been issued.
The second direction, and the subject of this article, was the question of how new redistricting plans should be judged under Section 5 of the VRA. Section 5 requires, for the largely southern jurisdictions covered by it, that changes to election laws and procedures not cause "retrogression" in the ability of minority voters to exercise their electoral franchise effectively. In other words, changes to election laws could not leave minority voters worse off than before. The Court tackled the question of exactly what Section 5 requires of states in Georgia v. Ashcroft, a 2003 opinion involving state legislative redistricting. The case pitted the state of Georgia, which had drawn congressional and legislative plans while under Democratic control, against the Bush Administration's Department of Justice, which objected to parts of the state's Senate plan in 2001 on the grounds that the plans weakened the opportunity of black voters to elect candidates of their choice.
The resulting District Court and Supreme Court opinions are notable for several reasons. …