Georgia Republicans are considering bypassing the Department of Justice to get preclearance for their new Congressional map and going directly to the courts instead.
Republicans are looking at that route because — for the first time since the passage of the 1965 Voting Rights Act — they control redistricting and a Democrat heads the Department of Justice.
The “consensus opinion down here among Republicans is that we’re not even going to bother dealing with the Obama Justice Department,” said Joel McElhannon, a well-regarded GOP campaign consultant in Georgia. “I would be shocked if we even sent them an email letting them know we passed a map. I think we’ll just take it to the courts.”
The move is uncommon and involves filing a declaratory judgment action in the U.S. District Court for the District of Columbia, where a three-judge panel can approve the districts as drawn.
Georgia is one of nine states where new Congressional district lines have to be cleared in accordance with the VRA. To avoid the cost of litigation, almost all states have the Civil Rights Division of the Department of Justice preclear their maps.
McElhannon cited the DOJ’s delay in approving Georgia’s implementation of the Help America Vote Act as an impetus for the consideration of avoiding the DOJ.
“These guys are ridiculously partisan — they don’t even offer the pretense of being bipartisan in how they approach things,” he said.
There is also historical precedent for such a move. In 2001, then-Gov. Roy Barnes (D) took the redrawn Congressional map to court, where it was approved, avoiding consideration by then-Attorney General John Ashcroft’s Justice Department.
Charles Bullock, a professor at the University of Georgia and an expert on redistricting, said he’s heard a number of Southern states will go directly to court and bypass the DOJ.
“Certainly if they go to court, DOJ is the other side,” he explained. “But at least you got a shot at getting a panel in the District of Columbia which may give you a less biased view of things than DOJ. If you go to DOJ, DOJ is both your opponent and your judge.”
In a statement to Roll Call, DOJ spokeswoman Xochitl Hinojosa denied any partisanship in the preclearance process. “The Department’s career attorneys make decisions based on fact-intensive reviews, and not based on political considerations,” she said.
Under federal law, the route for preclearance — D.C. district court or the DOJ — is usually up to the state’s attorney general. Georgia Attorney General Sam Olens (R) was out of the country at press time, and his communications director, Lauren Kane, said she couldn’t discuss the legal strategy regarding redistricting.