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.
Democrats said they weren’t surprised by the GOP’s thinking. “The reapportionment process down here is completely controlled by GOP,” said Eric Gray, communications director for the Georgia Democratic Party. “We’ve always considered that it was a possibility that they would try and bypass the DOJ in some way.”
Gov. Nathan Deal (R) will likely call the Peach State’s Legislature into a special session in August to draw the new maps.
Aside from deciding how they will clear the new lines, Republicans are also trying to figure out if they can shore up the eight House seats they control, draw the state’s new Congressional district to be safely Republican, and make Rep. John Barrow’s (D) district more competitive without getting entangled in a long legal struggle.
Democrats are aware their Members are vulnerable in the GOP-led process.
“The two biggest people we need to really be worried about are John Barrow and [Rep.] Sanford Bishop,” Georgia Democratic Party Chair Mike Berlon said.
Republicans that Roll Call spoke with in the state think that while Bishop is relatively safe, Barrow’s district could be tweaked to make it more favorable to a Republican candidate.
“If that becomes the main priority for the Republicans, they will get John Barrow,” said Mark Rountree, a longtime Georgia Republican campaign consultant.
Barrow spokesman Christopher Cashman brushed off talk his boss might be in danger. “The folks drawing the lines have targeted Mr. Barrow before, to no avail,” he said in a statement.
The state’s new district is likely to be drawn anchored by heavily Republican Hall County, northeast of Atlanta, top Republicans in the state said. While the state grew in population by 18 percent between 2000 and 2010, Hall grew by almost 30 percent and is in the region of the state with the most growth. Not insignificantly, Hall County is also where both the governor and lieutenant governor hail from.
Over the past decade, according to census data, the demography of the state has shifted as more minorities have come to Georgia. Whereas the white voting-age population grew by 10 percent from 2000 to 2010, the black VAP grew by 31 percent and the Asian VAP jumped by 82 percent. The Hispanic VAP, which can be of any race, grew by 80 percent.
Republicans in the state said potential GOP candidates in the new district include state Reps. Doug Collins, Sean Jerguson and Mark Hamilton, state Sen. Butch Miller, radio host Martha Zoller, Hall County Commissioner Ashley Bell, Lt. Gov. Casey Cagle and Gerry Purcell, who ran for state insurance commissioner in 2010.
The Peach State has been through two Congressional redistricting processes in the last decade, the first led by then-Gov. Barnes. A subsequent midcycle redistricting was completed by the Republican-controlled Legislature after the GOP made significant gains in the 2002 and 2004 cycles.
The Barnes plan, which included significant gerrymandering of state legislative districts and multi-Member districts, was later thrown out in court. Anger with the Democratic-led gerrymandering contributed to Barnes’ 2002 defeat by Republican Sonny Perdue.
The top Republican in charge of redistricting nationally said the Georgia GOP wouldn’t make the same mistake.
“The Democrats, they basically wanted nine districts that had a 54.5 Democratic leaning and, as it turns out, Republicans, we won seven of them — it didn’t really work out for them,” said Rep. Lynn Westmoreland (R), who was intimately involved in previous Georgia redistricting battles and is currently the redistricting vice chairman at the National Republican Congressional Committee.
“I think that was a great lesson for us,” he said. “You draw a fair map, you do what’s right, hopefully you’re going to win, [but] you don’t try and overreach.”