BYLINE: R. Robin McDonald and Richmond Eustis
Redistricting is a blood sport. So says L. Lynn Hogue, the chairman of the Southeastern Legal Foundation’s legal advisory board and a constitutional law professor at Georgia State University.
There is no constitutional barrier to gerrymandering for political purposes and never has been, he says. If Georgia Republicans intend to challenge the Democrat-drawn maps in court they will have to go in and look at what was done and how it was done in order to tease out any constitutional improprieties that would serve as a foundation.
But if Republicans do seek out legal flaws in the new legislative districts carved out by the General Assembly’s Democratic majority, they will have to do so without the help of A. Leroy Lee Parks-the attorney who has challenged Democratic gerrymandered Congressional districts in Georgia, the dragon-slayer of affirmative action, and the Southeastern Legal Foundation’s go-to man.
Last year, Gov. Roy E. Barnes hired Parks’ firm-Parks, Chesin, Walbert & Miller-to represent the state on reapportionment, Parks said Thursday.
In 1995, Parks successfully challenged U.S. Rep. Cynthia McKinney’s district where Democrats sought to maximize minority voting strength. The challenge resulted in a U.S. Supreme Court ruling that determined the district was unconstitutional.
In the Georgia case, Miller v. Johnson, Nos. 94-631, 94-797 (U.S. Sup. Ct. June 29, 1995), Parks faced off against his current partner David E. Walbert, then assisting the state attorney general in defending McKinney’s old district-which stretched from just south of Decatur to Savannah. Walbert was at the Gold Dome Thursday to advise the governor and his staff as the General Assembly considered a new configuration of the state’s U.S. House districts.
Parks says the firm is under a no comment rule. But he did say the firm, and Walbert in particular, has been advising Barnes for a year and has participated in redrawing the new district maps.
Perhaps as a result, state Democrats are admitting that they gerrymandered the new districts but say they did so based on political affiliation, says state Senate Minority Leader Eric B. Johnson, R-Savannah. Says Johnson: They think their case will stand.
The American Way
Hogue expressed similar feelings. If Republicans are unhappy with the newly drawn districts because they minimize their party’s voting strength, that’s the purpose of redistricting-to gore your opponent, he says.
People whine about that. But … there is nothing to litigate. To prevail in court, Republicans have to have more than they are the minority party, and they are poorly treated, Hogue continues. The answer is, Get your numbers up. … And next time it’s your turn, get revenge. That’s the American way.
Johnson says if the U.S. Justice Department approves the three newly drawn district maps for Georgia’s state representatives, state senators and U.S. representatives, Republicans well may challenge them anyway. According to Johnson, Democrats have packed Republicans into oversized districts that deviate as much as 5 percent from ideal district populations-the maximum established by 30-year-old case law.
Most Democrats have been assigned to similarly undersized districts, he says. And that design may violate the constitutional principle of one man, one vote by uniformly diluting the strength of Republican voters, Johnson says.
Oversized vs. Undersized
The minority leader says he has a map that shows each new district’s deviation from the ideal population. All of North Georgia-where the population and number of Republicans have grown since 1990-contains oversized districts, he says. All of South Georgia, where the more- Democratic population is shrinking, contains undersized districts. If you were going to use deviation to anticipate [future] population size, you would have reversed it, he says.
Barnes already has signed into law a revised state Senate reapportionment map. A Senate committee will begin considering the proposed state House map next week. On Thursday, African-American and Republican legislators joined to defeat the proposed federal congressional legislative map and returned it to committee for more work, Johnson says.
Johnson says Republicans also may be able to mount a legal challenge based on what he claims was their almost unilateral exclusion from the redistricting process. The state held public hearings but ignored the resulting findings and didn’t even print out transcripts, he says. There were no Republicans on the reapportionment subcommittee, no public comment period on the redrawn maps, and very little time to consider them before a vote was called, he says.
In addition, the new maps may dilute the minority vote, the single issue for which the U.S. Justice Department currently reviews all proposed reapportionment plans.
The court has said you cannot use race to draw a map, Johnson explains. We claim they [the Democrats] have used … the white race to gerrymander and dilute the black vote. … They put a bunch of white voters into potentially minority-majority districts solely for the purpose of maintaining power by white Democrats.
That’s why they pulled the whole House [redistricting] plan back, he says. Legislators could have created a new predominantly minority district in DeKalb County, but chose not to do so, he says. The governors’ attorneys agreed with us that constitutional problems could result. The state Senate map is even more likely to invite a similar legal challenge, he says.
Former State Attorney General and Republican gubernatorial candidate Michael J. Bowers, now a partner with Meadows, Ichter & Trigg, says reapportionment offers several areas where legal challenges may be made.
If there has been any reduction in the percentages of registered minority voters in districts, then you automatically have potential [voter] dilution claims. Number two, if you have systematic imbalances between districts as to population, although it is within the plus-or-minus 5 percent that is presumptively allowed, you could have a straight, equal-protection, one-person, one-vote challenge that is independent of race.
If districts are designed so there’s a packing of Republicans into Republican districts, and Democrats in Democratic districts are real light on population for the purpose of keeping them Democratic, I think you might have a challenge, Bowers says. If you can show you have a systematic skewing of the population, I think you might be able to pull that off.
Charles S. Bullock, a professor of political science at the University of Georgia, on the other hand, suggests that a Republican challenge may be difficult under the federal Voting Rights Act. You’d have a hard time saying that black votes have been diluted, he says. In fact, McKinney’s newly configured district has an even larger African-American population than her current district, and U.S. Rep. John Lewis’ new district sustained only a small reduction in black voting strength, he says.
My hunch is that the DOJ is going to back off on requiring as heavy a concentration as it did 20 years ago, he says. A district that would continue to elect Lewis would presumably continue to elect another black politician.
If the Voting Rights Act offers Republicans little hope, Bullock says, a 1986 U.S. Supreme Court case-Davis v. Bandemer, 478 US 109 (1986)-offers them even less. The standard the U.S. Supreme Court set at that time to challenge politically gerrymandered districts successfully not only never has been met, it has never been defined precisely, he says.
The Republicans’ only real recourse is political, Bullock says-the reason the GOP worked so hard to try to gain control of the State Senate last year. I don’t think anyone expected that the maps would be as extreme as they are, but surely the Republicans knew they were vulnerable, he says.
Republican attorney Robert L. Proctor, a partner at Atlanta’s Proctor & Chambers and former chairman of the board of the Southeastern Legal Foundation, says the redistricting maps look like some kind of nightmare I might have.
Really, the first recourse would be just to tell the Legislature to do it over again, and I don’t think the results would be substantially different, he says. Like Bullock, he believes the ultimate solution is a political, not a legal, one. When voters realize their representatives may live more than a 100 miles away, I think they will be upset. I think there will be a political backlash in a few years.