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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
Tuesday, May 22
The Politics of Justice
In recent weeks, the controversy surrounding the U.S. Department of Justice (DOJ) has taken an especially disturbing turn. What started as a scandal about the unjustified firings of a few U.S. attorneys now appears to be something much different -- and much more serious. There is increasing evidence that officials at DOJ used their authority in a partisan manner, exaggerating claims of voter fraud in an effort to suppress participation by likely Democratic voters and thereby to advance Republican political prospects.

To be sure, the evidence of partisan manipulation on the part of DOJ is largely circumstantial. The officials charged with enforcing federal voting laws have, of course, never admitted that they were using their authority for partisan purposes. But as stated here by Marty Lederman, the pattern of conduct on the part of high-level officials at DOJ and elsewhere in the Administration suggests "the abuse of governmental authority for partisan ends," through actions relating to voter fraud, voter registration, and voter identification.

Although they have only recently garnered widespread public attention, the signs of partisan manipulation of voting laws by DOJ have actually been there for some time, predating the tenure of current Attorney General Alberto Gonzales. Taken alone, any of these developments might have an innocent explanation, but when viewed together they create an unsettling picture of a department with a partisan enforcement agenda:

- In 2004, the New Yorker published this story on the DOJ's voter integrity efforts. At the time, I noted concerns of the civil rights community that DOJ would be "unduly focused on combatting fraud at the expense of promoting access, and that so-called 'integrity' efforts will be targeted mainly at communities of color."

- Shortly before the 2004 election, DOJ filed an amicus brief in a federal case out of Michigan, concerning the counting of provisional ballots cast by those in the wrong precinct. DOJ not only argued against counting those votes, but also against private citizens being able to sue to protect rights protected by HAVA. The latter position -- ultimately rejected by the Sixth Circuit -- would have given DOJ a monopoly on bringing alleged HAVA violations before the courts.

- In April 2005, Arizona's Democratic Governor Janet Napolitano vetoed a proposed voter ID bill on the ground that it conflicted with HAVA by requiring voters to show ID in order to obtain a provisional ballot. Later that month, DOJ issued this letter, which offered a remarkable and unjustifiable interpretation of HAVA's provisional voting provisions. As I noted here, the letter opined that HAVA allows states to condition a provisional ballot on the production of ID. Several months later, DOJ issued another letter which purported to "clarify" its earlier guidance, but in reality retracted the earlier mistaken advice.

- In August 2005, DOJ precleared Georgia's law requiring the nation's most restrictive voter identification law, requiring voters to present government-issued photo ID in order to have their votes counted. The Washington Post later obtained an internal DOJ memorandum, showing that career staff had recommended against preclearance, based on evidence that blacks were more likely to lack the requisite ID than whites. Nevertheless, on the very next day after this 51-page memo, DOJ precleared Georgia's ID law. As I noted when this memo was released: "It can only heighten concerns that DOJ has made its mission of protecting the voting rights of racial minorities subservient to partisan political interests."

- The past several years have seen an exodus of career lawyers from the DOJ, especially from its voting rights section. As the Washington Post reported in 2005: "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." Even by that time, then, there was considerable evidence that DOJ had become more politicized than ever, provoking the question whether Justice could be trusted with the enormous power to enforce voting rights with which it is vested. For one perspective on the DOJ's placement of partisan politics above civil rights enforcement, see Why I Left the Civil Rights Division by Bob Kengle, former Deputy Chief in the Voting Section.

When the most recent developments in the unfolding DOJ story are viewed against this backdrop, it becomes clear that there's even more there than meets the eye. Among the most serious is the DOJ's violation of its own policy of avoiding overt investigations prior to elections, which might "chill[] legitimate voting and campaign activities." DOJ officials reportedly claim an unwritten exception to this policy in cases of voter registration fraud. As Gerry Hebert notes, such ad hoc exceptions are very troubling, since they jeopardize the evenhanded enforcement of law that ought to be paramount whenever the DOJ intervenes in election disputes.

Most recently, McClatchy News featured this story on how DOJ"s "voter fraud" efforts may have curbed citizens from voting. The story focused on the efforts of Hans von Spakovsky, alleged to have been "a key player in a Republican campaign to hang onto power in Washington by suppressing the votes of minority voters." The story discusses Mr. von Spakovsky's involvement in the Arizona and Georgia controversies, discussed above. The most serious allegation concerns the pressure that Mr. von Spakovsky appears to have exerted on the EAC to conform to DOJ's erroneous position on provisional ballots for voters lacking ID. In response, former Republican Commissioner Paul DeGregorio wrote that, if von Spakovsky's communication was in fact "an attempt by you to put pressure on me .... I do not appreciate it." (In the interest of disclosure, I note that the McClatchy report also reveals Mr. von Spakovsky's objections to my own participation in a study of voter ID funded by the EAC.)

DOJ's actions are particularly difficult to defend, given the mounting evidence that claims of voting fraud have been greatly exaggerated by some on the right. As Professor Lori Minnite writes in a recent report entitled The Politics of Voting Fraud: "The claim that voter fraud threatens the integrity of American elections is itself a fraud." Professor Minnite's argument finds further support in the meager results of the DOJ's aggressive anti-fraud campaign, and the report of Tova Wang and Job Serebrov -- originally prepared for, but not released by, the EAC -- finding "widespread but not unanimous agreement that there is little polling place fraud."

The fact that air is quickly escaping from the voter-fraud balloon is confirmed by the abrupt disappearance of the American Center for Voting Rights. Formerly led by Mark P. "Thor" Hearne, who had served as National Elections Counsel to Bush-Cheney 2004, ACVR issued a lengthy and misleading report in 2005. As described here, this report sought to create the impression that fraud was rampant, especially in communities of color, based mostly on unconfirmed and specious media reports. But as Rick Hasen has recently observed, ACVR has now vanished as quickly as it appeared after the 2004 election.

There is also increasing evidence that the means most commonly suggested to target alleged voter fraud -- restrictive identification requirements -- are likely to have a disparate impact on certain classes of likely Democratic voters, especially racial minorities. That evidence includes this report from M.V. Hood and Charles Bullock, finding that African Americans, Latinos, and the elderly are less likely to have DMV-issued photo ID in Georgia. It also includes this one from the Brennan Center, finding that minorities, elderly people, and the poor are disproportionately represented among the more than 21 million U.S. citizens who lack government-issued ID.

To be clear, I do not claim that everyone who supports strict ID or registration rules is bent on suppressing votes. Some may legitimately believe the myth that polling place fraud is widespread and that photo ID is an effective means by which to combat such fraud. It is difficult to maintain with a straight face, however, that the sophisticated lawyers in control of the levers of power at DOJ were driven by similarly benign motives. The evidence continues to mount that claims of voting fraud have been greatly exaggerated for partisan ends -- namely, suppressing the votes of those who are already among the least likely to participate in our democracy.

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