The Con Job on Voting-Rights Cases

COMMENTARY Election Integrity

The Con Job on Voting-Rights Cases

May 19th, 2014 7 min read
Hans A. von Spakovsky

Election Law Reform Initiative and Senior Legal Fellow

Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration.

Recently, we both have drawn attention to President Obama’s bogus claims about the number of voting-rights cases pursued by Attorney General Eric Holder and the Justice Department. A list of those cases, belatedly released to Politifact by the Justice Department, proves that the president’s claim was false. Both he and his Justice Department have been grossly exaggerating their enforcement of the Voting Rights Act (VRA).

In a speech on April 11 to Al Sharpton’s National Action Network, President Obama claimed that his administration had “taken on more than 100 voting-rights cases since 2009, and they’ve defended the rights of everybody from African Americans to Spanish speakers to soldiers serving overseas.” The real numbers are far less impressive.

As we have separately pointed out, the Voting Section of the Civil Rights Division of the Justice Department, where we both formerly worked, has taken on only 39 cases since 2009. Despite the president’s rhetoric, this is considerably below the record of the Bush administration. For all of the criticism leveled at the Bush Justice Department by Eric Holder and civil-rights organizations, the Bush Justice Department had a far more robust enforcement record on voting rights than the Obama Justice Department has.

Politifact took up this discrepancy in the president’s claims and obtained a list of 102 cases from the Justice Department. This list, however, does not hold up under scrutiny.

Let’s start with what it is not. It is not a list of 102 lawsuits brought by the Justice Department on behalf of racial minorities. Rather, it includes numbers-padding cases in which the DOJ was a defendant, and in many instances these were cases in which the DOJ was accused of wrongdoing. It even includes cases where the DOJ wasn’t even a party but had filed a single amicus curiae (“friend of the court”) brief. In other words, in these cases the DOJ did not, in its view, have a strong enough interest in protecting minority voting rights to do what it usually does in such cases — file a motion to intervene and become an actual party in the lawsuit.

The list is far from revealing. It provides only the name of the case and the court where it was filed, with no dates or information of any other kind that would tell Politifact or the public what the suit was about. Misleading in this way suggests that the administration opted to deliberately trick a reporter who was unfamiliar (as are most reporters) with the complexities of election litigation.

Without researching in detail the circumstances of each of these 102 cases, Politifact still rated President Obama’s claim as only “half true,” because the president’s statement was, it wrote, “somewhat vague” and he “didn’t explain during his speech what he meant by ‘taken on’ cases.” But it is pretty clear that what the president said — that DOJ had “taken on” more than 100 cases to protect the voting rights of minorities such as African Americans — is false.

As an example of the administration’s audacity, the list actually includes 28 cases approving a “bailout” from the Voting Rights Act — that is, cases in which the Justice Department agreed to extinguish the special protections that the Voting Rights Act affords to minorities.

Last year, in Shelby County v. Holder, the U.S. Supreme Court declared that the coverage formula for Section 5 of the Voting Rights Act was unconstitutional. Section 5 was a special provision that required certain covered jurisdictions (nine states and parts of seven others) to get the approval of the federal government before making any changes to their voting laws and regulations. In a speech to Sharpton’s National Action Network, Eric Holder, criticizing the Court’s decision in Shelby County, called Section 5 “a key part of the historic Voting Rights Act.” He said he would help Congress act to “fill the void left by the Supreme Court,” a reference to a bill proposed in Congress to reverse the Shelby County decision and reimpose Section 5’s requirements.

When Section 5 was still in force, it had a bailout provision under which a covered state, county, or town could sue the Justice Department and seek a court order allowing it to get out from under the special legal requirements and protections for voters that Section 5 specified. Twenty-eight such cases were filed against Eric Holder, and in every single one of them, the Justice Department consented to the bailout request rather than fight it. This is almost twice as many bailouts as the Justice Department consented to during the Bush administration.

Other cases on the DOJ list also fail the laugh test. It includes — twice, no less — a case brought by a man named Roy Perry-Bey, who represented himself in court. Perry-Bey’s lawsuit claimed that Eric Holder and the Justice Department had “failed to act or enforce §2 and 5 of the Voting Rights Act.” This wasn’t a lawsuit in which the Obama administration was acting to protect minority voting rights. It was a DOJ defense against a claim filed without a lawyer in which a minority voter sued the administration for not doing enough to protect minority voting rights. There are several other cases on the list that are mistakenly listed twice.

The DOJ list also includes a case in which the State of Georgia sued Eric Holder over the department’s failure to pre-clear under Section 5 a state law requiring individuals who are registering to vote to provide proof of citizenship. Before it had even filed an answer to the lawsuit, the Justice Department agreed to clear the law if Georgia agreed to dismiss the lawsuit. There are a number of other cases like that — cases in which lawsuits were filed against DOJ and DOJ immediately gave up.

Similarly, the list includes the case of LaRoque v. Holder, in which the residents of Kinston, N.C., sued the DOJ over what they saw as its unjustified objection to a town referendum. In 2008, the town’s voters, 65 percent of whom are black, overwhelmingly approved a referendum changing town-council elections from partisan to nonpartisan. Yet the Justice Department objected to the change under Section 5 of the VRA, claiming that it was discriminatory because black voters would not know whom to vote for if there was no party label next to a candidate’s name on the ballot. After the residents’ lawsuit landed in the U.S. Court of Appeals for the District of Columbia, the Justice Department suddenly reversed itself, withdrawing its objection. It seems a little far-fetched to claim that the Justice Department was working to protect minority voters in this case, particularly when it eventually said “never mind” with regard to its original bizarre objection.

It also seems frankly a little much to claim credit for cases in which courts dismissed DOJ claims as not being credible, such as State of South Carolina v. United States, which is 29th on the list. In that case, a three-judge federal panel threw out DOJ’s claims that South Carolina’s voter-ID law was discriminatory.

Other cases on the list further undermine the president’s statements. Included is a case brought by Kansas secretary of state Kris Kobach — Kobach sought to have the federal Election Assistance Commission issue a new voter-registration form that would be consistent with a Kansas law ensuring that only citizens are registered to vote. Oddly, DOJ Voting Section resources were devoted to preventing another federal agency from issuing such a form (the DOJ was unsuccessful in these efforts). One thing is for sure, Kobach et al. v. The United States Election Assistance Commission certainly wasn’t a case brought by the Obama Justice Department to protect minority rights.

Also listed are a slew of military voting cases; unlike many others, these cases are consistent with the comment Obama made, but even they are less impressive than they might seem. While it is admirable to protect military voters, Obama’s efforts came only after blistering criticism by Senator John Cornyn (R., Texas) and conservative media of inaction on this front. These military voting cases are as easy as they come: States confess to the DOJ that overseas ballots were mailed a few days late, then the DOJ sues and settles in one quick and almost effortless pleading.

Finally, the DOJ lists a case one of us (Adams) brought: United States v. Town of Lake Park, Florida. The Bush administration opened this redistricting matter well before the 2008 election and approved almost all the resources used to investigate the case. It was only an accident of the calendar that the lawsuit was filed a few weeks after Obama’s inauguration.

What is noteworthy, though, is how the Obama Justice Department ultimately bungled it. Lake Park marked the first time in a redistricting case that the DOJ sought remedies other than creating four single-member districts. Instead, a political appointee at the DOJ ordered the lawyers to seek a “limited voting” remedy.

Previously, Lake Park had used “at-large” elections to select its four-member town council, with each resident given four votes to cast. Under “limited voting,” by contrast, each resident would be given only one vote — but the town was not divided up into four districts, as one might expect. The idea was that minorities would rally behind a single candidate and propel him into the top four, which is far less likely in an at-large system, where a majority can have its way on every single seat. A court granted this remedy — but notably, the change has failed to elect a minority candidate in any subsequent Lake Park election, and Obama’s Justice Department has done absolutely nothing about it.  

In giving this trumped-up case list to Politifact, the Obama administration made one thing quite clear: It is trying to mislead the public. For all of its talk, it has filed far fewer lawsuits to enforce the Voting Rights Act than the Bush administration did. An informed reading of the list suggests that President Obama deserved Politifact’s trademarked Truth-o-Meter “Pants-on-Fire” rating.

Editor's Note: J. Christian Adams co-authored this commentary.

 - Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation. J. Christian Adams, a former career lawyer in the Justice Department Voting Section, is the founder of the Election Law Center.

Originally appeared in the National Review Online