Justice Department releases Voting Rights Act mapmaking guidance

States warned against diluting voting power of minorities

Activists, including members of Congress, rally in Washington on Saturday, calling on the Senate to pass voting rights legislation.  (Tom Williams/CQ Roll Call)
Activists, including members of Congress, rally in Washington on Saturday, calling on the Senate to pass voting rights legislation. (Tom Williams/CQ Roll Call)
Posted September 1, 2021 at 4:02pm

The Justice Department on Wednesday released a set of redistricting guidelines related to the Voting Rights Act, warning states and local governments redrawing district maps against diluting the voting power of minority communities.

“Where jurisdictions don’t draw maps that fairly enable all citizens, regardless of race or membership in a language minority, to elect the candidates of their choice, the Justice Department will act,” a Justice Department official told reporters Wednesday during a briefing.

Last month, the Census Bureau released detailed results from the 2020 census, kicking off the flurry of congressional and other redistricting ahead of next year’s midterm elections. 

The agency’s data showed that the country has become more diverse than ever, with an increasing population of Asian American, Black, Hispanic or Latino, and multiracial people. The white-only population dropped below 60 percent for the first time, as more than 40 percent of the country identified as another race or multiracial.

Advocates have argued that the growth should be reflected in the districts states draw — meaning more districts where minority groups have the voting power to elect candidates of their choice.

The DOJ official noted that the current round of redistricting would be the first time in decades that some states, including Texas, draw new maps without preclearance from the department. A 2013 Supreme Court decision, Shelby County v. Holder, invalidated the formula the government used to subject states to that scrutiny.

Now, if one of those states draws a map that dilutes the power of minority voters, the Justice Department would need to sue after the fact to have the map tossed under Section 2 of the Voting Rights Act. That portion of the law bans discrimination against voters on the basis of race, color or member of a language minority.

A new Voting Rights Act bill to reinstate that preclearance passed the Democratic-controlled House last month on a party line vote, sending it to the tightly divided Senate. The measure has the backing of President Joe Biden, who has urged the Senate to pass it.

Moderate Senate Democrats such as West Virginia’s Joe Manchin III have come out in favor of the the measure, but they have balked at calls by some progressives to alter the filibuster rules to pass it.

That would mean looking for the support of 10 Republicans to advance any legislation, and only one, Alaska’s Lisa Murkowski, has signed on to another Voting Rights Act. Most Republicans have argued the measure is an overreach, unnecessary in modern times.

The redistricting litigation is distinct from other voting rights litigation brought by the Justice Department, including a pending lawsuit over a new Georgia election law. This summer, Attorney General Merrick B. Garland said the DOJ would undertake a broader review of a wave of election laws passed in Republican-controlled states following the 2020 election.

Other litigation over redistricting has already started — Democrat-backed groups have filed suit in Louisiana, Minnesota, Pennsylvania and Wisconsin over redistricting issues. As states draw their maps over the next several months, experts anticipate a wave of litigation in both federal and state courts before the 2022 midterms.