Dan Tokaji's Blog
Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Monday, November 14
 
Can Justice Be Trusted?
Yesterday's Washington Post had this story on the upheaval within the U.S. Department of Justice. The Post reports that the Bush Administration's political appointees have driven away veteran career lawyers, who have served Justice loyally through previous Republican and Democratic administrations.

The report puts a special focus on voting rights issues, noting that: "Longtime litigators complain that political appointees have cut them out of hiring and major policy decisions, including approvals of controversial GOP redistricting plans in Mississippi and Texas." According to the Post:
The Bush administration has filed only three lawsuits -- all of them this year -- under the section of the Voting Rights Act that prohibits discrimination against minority voters, and none of them involves discrimination against blacks. The initial case was the Justice Department's first reverse-discrimination lawsuit, accusing a majority-black county in Mississippi of discriminating against white voters.
The Post also discusses the recent, equally controversial decision to approve Georgia's new photo ID law, despite the evidence that it would have a disparate impact on racial minorities -- and the scant evidence that this requirement would do anything to prevent fraud.

This story follows a report by NPR's Morning Edition last month, which is available here. That report pointed to signs that the decisionmaking process on voting rights issues has become more politicized than ever under the current administration. It also included some unusual letters from DOJ, which tend to support the conclusion that the Department's recent actions in the area of voting rights are driven by partisan political considerations, rather than a concern with protecting racial minorities from electoral discrimination. I've previously discussed the DOJ's dubious opinion letters regarding the Help America Vote Act here and here.

My take: The evidence that DOJ has become more politicized than ever continues to mount. While some of these decisions might plausibly be defended, if they were standing alone, taken together they paint a picture of a department in which the protection of civil rights has taken a back seat to the advancement of Republican political interests. This is particularly troubling in the area of voting rights, in which our federal laws largely depend upon a Justice Department that is above the partisan fray. While political considerations have undoubtedly affected DOJ's decisionmaking in prior administrations, the dominance of those considerations in this administration seems unprecedented.

What can be done about this? If Justice indeed can't be trusted, then there are two major policy implications in the elections area, one having to do with the Voting Rights Act, the other with the Help America Vote Act.

Starting with the VRA, the debate over the reauthorization of the Act -- key provisions of which expire in 2007 -- provides the opportunity to consider whether the preclearance procedure should be altered. One possibility would be to provide affected voters with a private right of action, when they believe that DOJ has wrongly precleared an electoral practice that would have a retrogressive effect on minority voters. In the case of Georgia's recent ID law, for example, DOJ precleared this law finding (with little evidence) that it wouldn't have a retrogressive effect on African American voters. In order to guard against partisanship by DOJ, those voters might be given a right to challenge such preclearance decisions in court. This would effectively put the evidentiary burden on DOJ, to make a showing that Georgia's law doesn't make black voters worse off.

As for HAVA, the politicization of Justice provides added reason for federal courts to conclude that this statute may be enforced by private parties. If only the Department of Justice has the power to enforce HAVA's provisions, it can be anticipated that they will do so in a partisan manner. As far as I'm aware, only one circuit court (the Sixth Circuit) has yet ruled on the issue of thether there's a private right of action under HAVA. In the litigation preceding the fall 2004 election, the Sixth Circuit allowed Ohio and Michigan voters to challenge state election officials' decisions regarding provisional voting, which were alleged to violate HAVA. Although the Sixth Circuit ultimately rejected those voters' HAVA claims, it did find they had a right to sue -- over the objections of DOJ, which argued that it should have the exclusive power to enforce this law.

The recent revelations regarding Justice make it even more vital that private plaintiffs' be able to sue to enforce their rights under HAVA and the VRA If Justice can't be trusted to enforce voting rights in an evenhanded fashion, it's essential to allow voters to enforce their own rights in court. Otherwise, the rights conferred by these laws might be eviscerated.

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Moritz College of Law The Ohio State University