Neither.

A number of commentators have made much of the fact that this is the first time that redistricting has been carried out under a Democratic administration since passage of the Voting Rights Act. However, this is of little consequence to civil rights lawyers and advocates who will continue, as they always have, to press for full and fair enforcement of the law this redistricting cycle.

History speaks for itself. The state of Louisiana has drawn Section 5 objections to each and every state legislative house redistricting plan presented since it has been covered under the Voting Rights Act. Presumably, all of those objections came at times when Republican administrations were in place.

Taking partisanship out of the discussion, the state has taken the unusual course of presenting its map to both the Justice Department and the D.C. District Court – a decision made in the face of budget shortfalls and other strains resulting from last year’s oil spill and continued post-Katrina challenges. Most certainly, the vast majority of jurisdictions will continue to take the speedy and cost-effective route of seeking preclearance through the Justice Department.

It is now up to Louisiana to meet its burden of showing both the absence of retrogressive effect and discriminatory purpose underlying adoption of its plan. Though the state has asked both bodies to expedite its determination, it would be plainly irresponsible to blindly rubber-stamp the plan without close and careful analysis. Particular attention should be paid to decisions made to preserve and/or create majority minority districts in some parts of the state while abandoning such efforts in other parts of the state.

Republicans made historic gains in the 2010 elections, picking up over 700 legislative seats and over 18 legislative chambers across the country. These historic gains are even more significant when you look at the fact that those gains occurred the year before the historical decennial redistricting process that will determine local, state, and national political lines for the next ten years. This puts our party in a great position across the country to see Republicans gains on all levels of government in the 2012 elections. It is much easier to defend a map than it is challenge it, and controlling 202 congressional districts means Republicans will be in the position to defend challenges from outside liberal organizations more often than having to challenge them.

But it’s premature to start popping the champagne quite yet. This will be the first redistricting since the implementation of the Voting Rights Act (VRA) where a Democrat is in control of the Department of Justice, the agency that enforces the VRA. How they rule in early states, like Louisiana, could set the precedent and make for a very busy redistricting season – especially if states must opt for the judicial preclearance in order to receive a fair decision.

However, the DOJ’s reach into state maps is limited to those states affected by the VRA; whereas Republican pickups in state legislatures were seen in almost every state across the country. I think we will see a greater impact by those pickups. But the Obama Administration’s level of interference through the VRA will definitely be the X-Factor of the cycle.

Both dynamics may play out in favor of increased Latino opportunity districts.

First, the consistent Republican strategy has been to encourage as many majority African American and majority Latino districts as possible, thus creating districts that concentrate likely Democratic voters in few districts, leaving surrounding areas more favorable to GOP candidates. With the exception of three South Florida seats and two in South Texas in this Congress, all other Latino majority districts are held by Democrats. Thus, Republican strategists may want to concentrate Latinos in as few districts as possible, increasing the number of Latino majority districts, to their advantage. The Democratic strategy, conversely, has often favored sharing Latino voters among as many districts as possible to enhance the opportunities for Democratic candidates. Both strategies, of course, are fraught with risk.

Both parties’ strategy towards Latino voters---a Republican strategy to over concentrate, or pack, and a Democratic strategy to spread out, or crack-- can run afoul of the federal Voting Rights Act (VRA). Thus enter the Department of Justice. The 2011 redistricting process is the first time since the VRA’s enactment that a Democratic administration is the law’s enforcer. How the Obama Administration will weigh in on redistricting plans, particularly those that require “preclearance” under Section 5, as well as others throughout the country, will be closely scrutinized by the Latino community. Past Justice Departments, under Republican Administrations, have been known to champion Latino voting rights. In 1989, One of the most influential lawsuits affecting Latino voters, Garza vs. Los Angeles County, included the involvement of the Justice Department of the Bush, Sr. Administration, and challenged a classic example of “cracking” Latino voters to protect non Latino-incumbents. The Justice Department of the the Bush, Jr. Administration was not as aggressive.

The strategy that the Obama Administration’s Justice Department will implement is yet to be seen; one section, its Civil Rights Division, led by Assistant Attorney General Tom Perez, has vowed to aggressively enforce the VRA.

In the redistricting process, those who control the drawing of maps, usually are the winners. In this instance that would be Republicans. First, the numbers are stark 202 Congressional Districts controlled by the Republicans and 47 controlled by Democrats, the advantage is obvious. However, there is more to this. When one party is in control of the Legislative process and also have the Governor's seat, it takes a strong opposition to mount the necessary challenge to the districting plan that they produce.

On the other hand, the Justice Department is only going to be active in most instances when a voting rights violation is alleged or in instances where the new districts are subject to preclearance by the DOJ because of a previous finding of a Voting Rights Violation. unfortunately, I don't believe that there are enough of the latter to make the Justice Department a significant player in the vast majority of the 249 districts at play.

The lesson here is that Voting Rights Advocates must be active participants in this year's Congressional Redistricting process. Clearly, these advocates, groups or individuals, must challenge districting plans which favor a particular party and or incumbent. At the same time, advocates for racial or language minorities must closely scrutinize proposed maps in order to insure that their ability to elect Representatives of their Choice is not eroded by efforts to crowd as many of them as possible into one or two districts such that their ability to impact a greater number of elections is restricted.

The question is really whether districts will be drawn in such a way that Fairness and competition are honest factors or whether, advocates will allow those currently in power to continue to consolidate that power, relegating the legislative process to a view small and evermore powerful group of autocrats.

I believe that groups that advocate for greater participation in the electoral process have an obligation to be active participants in the redistricting process. They should have started yesterday.

It’s still too early to tell how last November’s partisan gains will impact redistricting. We’ve already seen Republican efforts to “pack” minority residents fall short in New Jersey’s commission-based redistricting. In Virginia’s divided control legislature, Democrats and Republicans created plans designed to improve both majorities only to end up with a Governor’s veto.

Louisiana and Mississippi Republicans have already rejected state house plans increasing the number of effective minority districts. In the other states, Republicans in Missouri and Indiana have advanced partisan plans. Arkansas Democrats completed the first congressional redistricting map.

Interestingly, there are only two redistricting committee chairs who served in similar leadership positions ten years ago. The number of new Republican majorities in the states resulted in scores of new legislators who have never been through a redistricting process before (and who are have little time to learn the rules). These new leaders must avoid overreaching and being too creative in their line drawing.

Unlike several of the almost blatantly political redistricting decisions of the 1980s, 1990s, and 2000s Justice Department leaderships, I expect the Obama Justice Department to review Section 5 state plan submissions with a much more even and objective hand. The 2006 amendments to the Voting Rights Act require DOJ to consider plans with a new standard. Regulations implementing the revised Section 5 were issued just last week.

We’ll have a better understanding of DOJ’s approach once plans are submitted to the Department (or to a DC federal court). Louisiana’s review process may present the first test (followed by Virginia).

Gerry Hebert correctly observed, “It is always better to be in complete control of the redistricting process than any other circumstance.” But, total GOP control should be assessed in the context of the Section 5 preclearance. Of the 202 districts where Republicans control the process, half are in states subject to Section 5 preclearance review. In the Republican-controlled section 5 states, there are mainly two types of districts: Democratic districts with large minority populations, and white Republican districts. There are about three times as many of the latter as the former. Then, there are literally one handful of Hispanic majority districts that elect Republicans, and two hands full of districts electing white Democrats. There are eight new open seats.

Demographics and historic voting rights concerns constrain the ability to fully exploit the political opportunities where six of the new open seats are located, in Texas and Florida. Two seats currently held by the GOP in Texas are also part of the historic nonretrogression baseline for the state, so there is little latitude to bolster Republican prospects in those districts. Controlling the mapping process does offer the GOP first-mover advantage over 200+ seats. But, in crafting 100+ of those districts, the map will enjoy either administrative preclearance, or possibly a trip to the DCDC.

Then, there are the other hundred or so seats to be crafted. Over two thirds of the seats are held by the GOP already. In the most GOP dominant states, where no seats are gained or lost, the focus is probably continuity and consolidation of control of existing seats. But in the shrinking Midwest, control will dictate who the losers are in Ohio, Pennsylvania, and Michigan. In these areas, any DOJ action would be constrained by the ability to demonstrate a discriminatory impact of the remap, and the burden of proof would be on DOJ instead of the state.

Republicans over-performed and maximized their opportunities in 2010. They enjoy first mover advantage in this process. But it is not ‘true’ full control over half of these districts, because of the strong second-mover position of preclearance and the fact that most of the Democratic seats in the Section 5 states are part of the majority-minority district baselines. The good news for everyone is, with little room to gain, there is little room to make mistakes.

It is always better to be in complete control of the redistricting process than any other circumstance. So I think that controlling the process will have a bigger impact. Having said that, those in control often overreach and draw districts for their party so close to the margins that they end up losing seats in a bad election year. This happened in Pennsylvania with the congressional districts in the post-2000 cycle. The Republican gerrymander turned out to be a dummymander as seats drawn for Republicans in 2001 fell into Democratic hands over the course of the decade. And in states gaining congressional seats, e.g., Texas, it is often assumed that the new seats will all be Republican because redistricting is in the total control of Republicans. But the reason Texas is gaining four seats is directly attributable to the dramatic growth of minority groups, particularly Hispanics. So new congressional seats in Texas will have to respect that minority growth of they will fail to receive Voting Rights Act approval. It is true that for the first time since the Voting Rights Act was passed in 1965, a Democrat is in the White House as the Justice Department reviews redistricting plans. However, the Justice Department since 2008 has steadfastly avoided even the hint of partisanship, knowing that enforcement of the Voting Rights Act to benefit one political party over another is inconsistent with the purposes of the Act. Nevertheless, Justice Department review this time around will be more vigorous than the post-2000 cycle, when political operatives in the Bush Administration manipulated the preclearance process at every turn.