June 9, 2009 | Commentary on Legal Issues
When Eric Holder became U.S. attorney general, he promised to administer the law in an objective, nonpolitical manner. So it's disappointing that the Justice Department had spent the last several months misinterpreting key voting rights laws for nakedly political reasons.
Exhibit A: Justice's inexplicable dismissal of a civil lawsuit for voter intimidation against the New Black Panther Party. The Black Panthers weren't content to endorse Barack Obama. They sent their members to the polls last November to "patrol election sites." Fox News aired a video of two Black Panthers in military-style uniforms in a Philadelphia precinct. One of them was carrying a nightstick.
The complaint the Justice Department filed in January (before Messrs. Obama and Holder took over) says the Panthers made "racial threats and racial insults" to voters and "menacing and intimidating, gestures, statements and movements directed at individuals who were present to aid voters." One witness, Bartle Bull, a civil-rights lawyer who worked with Charles Evers in Mississippi in the 1960s, called it the worst voter intimidation he had ever seen.
Justice won the suit by default when the Black Panthers and three individual defendants didn't show up in court to deny the allegations. But instead of following through and getting an injunction to prevent this behavior in future elections, the department, now under Mr. Holder, dismissed the lawsuit against all but one of the defendants (the nightstick holder). Even then, Justice requested only a watered-down penalty: an injunction to prevent him from carrying a weapon in a polling place. But only in Philadelphia and only until 2012!
Exhibit B: Justice recently stopped Georgia from implementing a key provision of the Help America Vote Act. Passed in 2002, the act requires states to verify the accuracy of information voters provide on their registration forms by comparing it with state driver's license and Social Security records -- a sensible requirement. With input from Justice Department lawyers in 2008, Georgia implemented this verification process, including checking the citizenship status of applicants. It is a violation of federal and state law for a noncitizen to register and vote in federal and state elections.
Under Georgia's program, anyone flagged as a potential noncitizen would still be registered if he could confirm to local election officials that he was indeed a citizen. Georgia sent letters to over 4,000 potential noncitizens. More than 2,000 failed to confirm their citizenship, strong evidence that noncitizens were prevented from illegally registering and voting.
Has this verification process depressed minority voter turnout, as some claim? Hardly. There has been a 140% increase in Hispanic turnout and a 42% increase in black turnout since the 2004 election.
But Georgia is still covered under the outdated Section 5 of the Voting rights Act, which requires the state to submit any "change" in voting to the Justice Department for preclearance to assure it is not "discriminatory." On May 29, the department vetoed the state's verification program based on the spurious claim that it would have a "disparate" impact on minority voters -- particularly Asians and Hispanics, who are supposedly "twice as likely to appear on the list" of potential noncitizens than whites. Never mind that only 35% of Hispanics and 58% of Asians in Georgia are citizens. Or that not one eligible individual has come forward to claim this program prevented him from voting in the November election. Georgia was doing exactly what the federal government requires private employers to do in checking the citizenship of all employees.
Justice's objection defies common sense, manipulates federal law, and shows a complete disregard for the integrity of our election process. It is this kind of abuse of the applicable legal standard that is yet one more reason for the Supreme Court to hold, in a Texas case now pending (Northwest Austin Municipal Utility District v. Holder), that the renewal of Section 5 in 2005 was unconstitutional and unjustified. If the Justice Department believes a state voting law is discriminatory it should be required by law to file a lawsuit in federal court to prove it, thus allowing the state to defend itself against the charge. That would certainly be an improvement over the current administrative system, where Justice gets to choose the evidence to consider and be the one to decide its legal effect.
But that's apparently too much for the current administration, which is trying to stop verification of voter registration information. The National Voter Registration Act of 1993 requires states to maintain their voter lists by removing ineligible voters, such as those who have moved or died. In 2005, the Justice Department filed a lawsuit in Missouri against the secretary of state for not cleaning up voter registration lists. (A similar suit was settled with the Indiana secretary of state, who agreed to clean up the state's list.) Justice successfully litigated the Missouri lawsuit all the way up to the Eighth Circuit Court of Appeals, which remanded it to the district court for further proceedings.
Registration numbers from the November 2008 election show that more than a dozen counties in Missouri have more registered voters than the Census shows they have voting-age residents. Clearly, the state isn't keeping its lists current. However, in March, one month after Secretary of State Robin Carnahan (a Democrat and the defendant in the lawsuit) announced she was running for the Senate seat being vacated by Republican Kit Bond, the Justice Department dismissed the lawsuit without explanation.
All of these decisions seriously undermine confidence in the rule of law and our election process. Under the Voting rights Act, the Department of Justice is charged with protecting voters, no matter what their racial or ethnic background. Under the Help America Vote Act and the National Voter Registration Act, the department is also charged with securing the integrity of the voter registration process. In just the first five months of this administration Justice seems to be moving as fast as it can to defeat that charge.
Hans A. von Spakovsky is a visiting legal scholar at the Heritage Foundation. He is also a former commissioner on the Federal Election Commission and counsel to the assistant attorney general for civil rights at the Department of Justice.
First Appeared in The Wall Street Journal