Who draws the lines?
Note: On June 25, 2013, the Supreme Court struck down the coverage formula for the Voting Rights Act's preclearance provision. No jurisdiction is currently required to seek preclearance other than those that have been "bailed in" by specific court order. (There are currently three: Evergreen, AL; Charles Mix County, SD; and the Village of Port Chester, NY. In pending suits, litigants have requested judicial bail-in orders for the states of North Carolina and Texas; for Terrebonne Parish, LA and Galveston County, TX; and for a school district in Beaumont, TX.)
This map represents the areas required to seek preclearance as of June 24, 2013, and (by rolling the mouse pointer over the map) areas covered at some point before June 24.
Redistricting status map
|Where part of a state was covered (and is no longer), the cursor turns the state light purple.|
|DOJ only||AK, AZ, CA, MS, NH, SD|
|DOJ and court||AL, FL, GA, LA, NC, NY, SC, VA|
|Court only||MI, TX|
Section 5 of the Voting Rights Act is a special provision, covering only some jurisdictions. It applied where a "test or device" was used to screen would-be voters, and where fewer than half of the eligible voters either registered or voted in 1964, 1968, or 1972. Much of the limited political participation in these areas was caused by the disenfranchisement of minority voters.
Nine states, and parts of six others, were "covered jurisdictions" under section 5. Coverage was not designed to be eternal: in a procedure known as "bailout," after ten years of steps to improve opportunities for minority voting, a covered jurisdiction could ask the federal trial court in Washington, D.C. to be released from Section 5. Parts of 16 states had been released from coverage, including all covered towns in New Hampshire in 2013. Federal courts can also order jurisdictions with a history of discrimination to be treated temporarily like covered jurisdictions, in a procedure known as "bail-in"; two states, and parts of 8 others, have been bailed-in so far (and, later, released from coverage by court order). Rolling the cursor over the map above will reveal jurisdictions that had been bailed out or bailed in.
On June 25, 2013, the Supreme Court struck down the coverage formula for section 5. Jurisdictions may still be "bailed in" by federal courts, but no jurisdiction is presently subject to section 5 by default.
In any jurisdiction that is "covered," the government may not implement any change to any voting procedure -- including a redistricting plan -- without first submitting the change to the Department of Justice or a federal court. This is known as the requirement of "preclearance." In the 2013 redistricting cycle, the jurisdictions in the map above (plus New Hampshire and a few other counties) were subject to preclearance.
New district lines will usually be precleared 1) if the plan is not intended to dilute minority votes, and 2) if it does not cause "retrogression" in minority political opportunity, intended or not. A new plan will cause retrogression if it presents a diminished opportunity for minorities to elect their candidates of choice, as compared to the existing district map. In order to assess retrogression, the Department of Justice will look at minority political opportunity given the most recent information from the 2010 Census, and will compare that opportunity under the existing district map (the "baseline") to the proposed redistricting plan.
If a jurisdiction covered for preclearance purposes cannot prove that minority voters will be no worse off under the proposed plan, then the Department of Justice will object to the plan, and it cannot legally take effect.
Additional preclearance resources
Section 5 as Simulacrum (Yale Law Journal Online)
Shadowboxing and Unintended Consequences (SCOTUSblog) «NEW
Tearing Down Obstacles -- A Guide to Section 5 (NAACP LDF)