Last-minute bill gives governor more redistricting power

By Aaron Gould Sheinin

The Atlanta Journal-Constitution

Less than an hour remained in the 2010 legislative session when a state representative introduced a final version of a bill he said would "do a couple of simple things" with Georgia's voting and election laws -- things like adding to the pool of poll workers and setting new limits on campaigning near the polls.

But the change lawmakers passed just before the close of the legislative session April 29 was far more significant than that.

One Republican calls it "a political insurance policy." A Democrat counters it will actually inject politics into how Georgia deals with federal Voting Rights and elections oversight.

Under Georgia law, the governor can direct the attorney general to initiate a legal action the governor believes is in the best interest of the state. But if the attorney general refuses, the governor can then appoint a special assistant attorney general to pursue the litigation on the governor’s behalf.

House Bill 540, if signed into law, would allow the governor to seek preclearance for a change in Voting Rights laws or file a lawsuit in those cases without first asking the attorney general to do so.

Vitally important to elected officials, reapportionment is the process of redrawing legislative and congressional district maps based on population shifts recorded in the census. It is a hugely political undertaking, as the party in the majority has great power to draw the maps in a way that protects their incumbents or creates more party-friendly districts.

The fear among Republicans is that the state could end up after this fall's elections with a Democratic attorney general who refuses to seek Justice Department approval for maps drawn by a Republican-controlled General Assembly and approved by a Republican governor.

The bill would also give the governor the power to sue the Justice Department on other Voting Rights issues, including a controversy over the secretary of state's plans to check voters' citizenship. The Justice Department refused preclearance for those changes just a week before the Legislature passed this bill.

State Rep. Austin Scott (R-Tifton), who introduced the final bill during the final session, said he did so at the behest of the governor's office but insists the bill is not political.

Gov. Sonny Perdue has not indicated whether he will sign the bill, although his spokesman, Bert Brantley, said the governor's office didn't ask for it but was consulted.

Scott said the intent is to streamline the process of gaining preclearance to make changes and acknowledged that it would prevent the attorney general from slowing the process.

‘A slippery slope'

Attorney General Thurbert Baker, a Democratic candidate for governor, said he was "deeply concerned" about the bill, because it represents "a huge shift where we've been through the history of this state."

"There is a reason why years and years ago we authorized by law the attorney general to submit preclearance matters," Baker said. "Part of that reason is we want this state to speak with one legal voice. This takes away our ability to do that.

"This is a slippery slope they've started down."

Baker said his office has never refused to submit a preclearance request, but he has disagreed with "how we do it."

The most recent example is ongoing: Baker is at odds with Secretary of State Brian Kemp and Gov. Sonny Perdue who want the attorney general to sue the Justice Department for failing to approve a controversial system designed by Kemp's predecessor to check the citizenship of Georgians when they register to vote.

Baker has met with Justice Department officials and believes the system will be approved if submitted again. He  refused to sue and now Perdue is planning to on his own.

As for the contention by some that the bill is designed to prevent an attorney general from blocking reapportionment, Baker was nonplussed.

"Well that's just political," Baker said. "What they have to understand is we should get to a point where we respect the role of the attorney general and understand we're all trying to do what's best for the state of Georgia. We ought to be able to sit around like grownups and decide where this state needs to go and how to manage our business. It's not about Republicans and it's not about Democrats."

Political views

The men vying to replace Baker as attorney general are split about the bill. Two tried to convince Scott the bill was badly flawed. Sen. Preston Smith (R-Rome) and Rep. Rob Teilhet (D-Smyra) were unsuccessful, both arguing that the bill would unnecessarily sap power from the attorney general.

But other Republicans see no problem.

Former U.S. attorney Max Wood, a GOP candidate for the post, said the attorney general does not work for the governor and therefore does not have to follow a governor's order.

"The bill allows for the governor to act on his or her own when the attorney general doesn't act," Wood said. "You don't want a situation where the attorney general works for the governor but also you don't want a situation where the governor is being hamstrung by the attorney general."

When it comes to reapportionment, Wood said the bill would act as "a political insurance policy. Ideally, we'll have a Republican attorney general and a Republican governor. But all things are possible."

Former Cobb County Commission chairman Sam Olens, the third GOP candidate, called the bill "an appropriate check."

"The law is clear the attorney general is the state's lawyer and when there's a dispute, I'm comfortable with the governor having the legal authority to take legal action, as long as it remains clear the attorney general remains the day-to-day legal authority," Olens said.

But Democrat Ken Hodges said the attorney general must rule on the law, not on politics, and this bill puts politics into the state's legal position.

"The attorney general's office is independent because the law must be followed and enforced without political consideration, regardless of the political winds and regardless of who's sitting in the governor's office," Hodges said.

Not politics as usual

Whatever the politics, Georgia's move in this direction is "highly unusual," said Daniel Tokaji, an expert in election law and a professor at Ohio State University's Moritz College of Law.

"I can't think of any state that has done something like this before," Tokaji said. "The job of the attorney general in most states is to enforce state law and of course to defend state laws when they're subject to challenge. To go over the attorney general's head when you simply don't like the decision he might make is unusual. I'm not going to go so far as to say it's illegal or a violation of the state's constitution, but it strikes me as quite unusual."

Atlanta lawyer Lee Parks, who has successfully argued Georgia voting rights cases before the U.S. Supreme Court, called the legislation “a huge deal.” The bill, he said, must be in retaliation for Baker’s refusal to sue the Justice Department.

“It’s a law that was passed because someone’s mad,” Parks said. “And mad laws make bad laws.”

Parks said the law could be used by a governor to manipulate the state’s reapportionment process.

If the Legislature approves new redistricting maps and the attorney general believes they are not constitutional because they are racially gerrymandered, the AG would ask the Legislature to try again, Parks hypothesized.

But if the governor thinks the redistricting maps are politically opportunistic for his or her party, the governor could then file suit asking the federal court in Washington to approve the new maps, Parks said.

Such a lawsuit would take a couple of years to run its course, delaying the implementation of the new maps and requiring the 2012 elections to be carried out with the current state House and Senate and congressional seats, he said. They would not reflect the rise over the past decade of the state’s minority population, which could be diluted, Parks said.

“It has the potential to cause a lot of problems,” Parks said. “If you don’t like the way the attorney general is doing his or her job, you elect another one. But you don’t let the governor put the AG’s hat on.”

Staff reporters Bill Rankin and Ernie Suggs contributed to this story.