An article in the Daily Press discusses the Virginia redistricting to take place in 2011.  As has been posted repeatedly at Election Law Center, states like Virginia should consider bypassing Department of Justice preclearance procedures and go straight to United States District Court in D.C., as they have the right to do under the Voting Rights Act.  On November 17, I asked Virginia Attorney General Ken Cuccinelli whether Virginia is considering doing so.  He told me that there have been discussions to that effect but for now it is not likely. 

I am hopeful that Virginia reconsiders.  There is no advantage to proceeding administratively with the Justice Department.  A submission will have to carry the same evidentiary burden before the Justice Department as they would before the District Court.  The materials would be the same.  The evidence would be the same.  The burdens would be the same.

What would be different?  The decision maker would be a neutral magistrate instead of a gang of bureaucrats who have demonstrated some questionable history in the past on redistricting plans. 

Also different would be the fact that established rules would govern the process.  The Rules of Civil Procedure would establish timetables, guidelines and decisions, not the whimsy of bureaucrats working in relative secrecy. 

Instead of private secret “informers” acting as witnesses opposing or supporting a plan through secret communications to the DOJ, evidence before the District Court would be in the open and subject to the Rules of Evidence and right to cross examination.

Costs?  That wouldn’t be much different either.  And what is more important, getting a fair hearing with a greater chance of a favorable outcome, or keeping costs down?  As recently as last August, the Wall Street Journal reported that he DOJ had gone beyond its authority in a Section 5 review of a Georgia law.  As reported by ELC here, Georgia has wised up and has begun going straight to the United States District Court in D.C. to gain preclearance.  Other states like Virginia should follow suit.  They owe it to their taxpayers not to waste money on a less-fair administrative review when a more fair judicial review is available using the exact same evidence and burdens. 

The bottom like is that Virginia and all covered jurisdictions are more likely to have their plans approved, and more likely to have the original plan approved, if they bypass the Eric Holder Justice Department and instead go straight to court.  That means they bypass DOJ, period.