Thursday, July 08, 2010

The Obama Justice Department and voting rights

John Fund was over listening to the hearing of J. Christian Adams before the Civil Rights Commission. Adams is the whistle-blower about how the Justice Department dismissed the voter intimidation case against the New Black Panther Party. Remember when whistle-blowers were all the rage and on the cover of magazines? Yeah, I know. That was when they were blowing whistles in a Republican administration.

Well, Fund notes this bit of news from the hearing.
But Mr. Adams leveled an even more explosive charge beyond the Panther case. He testified that last year Deputy Assistant Attorney General Julie Fernandes made a jaw-dropping announcement to attorneys in Justice's Voting Rights section. She said she would not support any enforcement of a key section of the federal "Motor Voter" law -- Section 8, which requires states to periodically purge their voter rolls of dead people, felons, illegal voters and those who have moved out of state.

According to Mr. Adams, Justice lawyers were told by Ms. Fernandes: "We're not interested in those kind of cases. What do they have to do with helping increase minority access and turnout? We want to increase access to the ballot, not limit it."

If true, Ms. Fernandes was endorsing a policy of ignoring federal law and encouraging potential voter fraud. Ms. Fernandes was unavailable for comment yesterday, but the Justice Department has issued a statement accusing Mr. Adams of "distorting facts" in general and having a political agenda.
Well, how likely is it that the Obama administration is ignoring this part of the law? Actually, quite likely.
But there is some evidence backing up Mr. Adams. Last year, Justice abandoned a case it had pursued for three years against Missouri for failing to clean up its rolls. When filed in 2005, one-third of Missouri counties had more registered voters than voting-age residents. What's more, Missouri Secretary of State Robin Carnahan, a Democrat who this year is her party's candidate for a vacant U.S. Senate seat, contended that her office had no obligation to ensure individual counties were complying with the federal law mandating a cleanup of their voter rolls.

The case made slow but steady progress through the courts for more than three years, amid little or no evidence of progress in cleaning up Missouri's voter rolls. Despite this, Obama Justice saw fit to dismiss the case in March 2009. Curiously, only a month earlier, Ms. Carnahan had announced her Senate candidacy. Missouri has a long and documented history of voter fraud in Democratic-leaning cities such as St. Louis and Kansas City. Ms. Carnahan may now stand to benefit from voter fraud facilitated by the improperly kept voter rolls that she herself allowed to continue.

Mr. Adams' allegations would seem to call for the senior management of Justice to be compelled to testify under oath to U.S. Commission on Civil Rights. But Justice is making none of its officials available and is refusing to enforce subpoenas issued by the commission. The more this story develops, the more it appears Justice is engaged in a massive coverup of its politicization of voting rights cases.
Ya think?

And Abigail Thernstrom, the vice chair of the U.S. Commission on Civil Rights, wrote a column the other day saying that, in the scheme of things, the New Black Panthers case was small beer. She is more concerned about what the Obama Justice Department is going to do with approving the drawing of voter districts after the Census in those areas that still must submit their districts for approval to the Justice Department.
Those who are concerned about Justice Department enforcement of the Voting Rights Act should turn their attention to quite another matter, where the attorney general has been up to much more important mischief: his interpretation of the act’s core provisions.

The department has just proposed new guidelines intended to assist the “covered” jurisdictions in their efforts to comply with the demands of section 5, which forces “covered” states to obtain federal approval (“preclearance”) for all proposed changes in voting procedure. All southern states are “covered”; so are Texas, Arizona, Alaska, and numerous scattered counties in New York, California, and elsewhere. Redrawn districting maps are changes that must be precleared.

Every state must draw new lines every ten years when the new census figures reveal demographic changes; the old districting maps seldom meet the “one person, one vote” standard.

Redistricting is always a delicate, politically charged process in which much is at stake. The DOJ under Holder will undoubtedly insist that states draw the maximum possible number of majority-minority districts — a reversion to old legal standards that were suspended after a 2000 Supreme Court decision. Those standards rest on a core conviction of the civil-rights community: In a nonracist society, minorities would be elected to political office in numbers proportional to the black and Hispanic populations.

Thus, race-conscious districts will have to be the top priority of legislative-redistricting committees. If they give greater weight to other considerations, they risk litigation and a consequent delay in their ability to hold elections. This distortion of the American political process can only be justified by a fear that blacks, left without extraordinary federal protection, will be excluded from public office. That fear does not reflect current reality.

The revised guidelines increase the authority of largely invisible and unaccountable career attorneys in the voting section of the DOJ’s Civil Rights Division. The Voting Rights Act robs states of one of their most important constitutional prerogatives: setting the rules that govern elections. Southern black disfranchisement once justified a drastic change in the balance of power between the federal government and the states, but blacks throughout the nation are now important political players. Decisions to overrule districting and other policies made by democratically elected officials should not rest with low-level attorneys whose work is barely scrutinized and rarely challenged.

The proposed guidelines also redefine intentional electoral discrimination, putting meat on the bones of a congressional statutory amendment in 2006. The new regulations would allow voting-section attorneys to consider various kinds of circumstantial evidence as pertinent to finding discriminatory intent: the failure to draw the maximum number of majority-minority districts; deviation from “normal” practices; a sequence of events that might suggest something suspicious; a dubious legislative or administrative history; or a suspect racial record in the jurisdiction.

These guidelines provide inadequate guidance. They rest explicitly on a problematic 1977 Supreme Court decision that blurred the line between discriminatory intent and impact, and left too many terms undefined. States involved in politically difficult negotiations over redistricting have been left to guess what lines will be acceptable to the particular DOJ attorneys assigned to oversee their mapmaking.

Three suits are currently challenging the continuing constitutionality of preclearance. Arguably, the proposed new regulations, if instituted, will increase the odds that the Supreme Court will soon rule section 5 unconstitutional. And then perhaps Congress will fashion a Voting Rights Act that recognizes the political revolution in the South since 1965, one which responds to contemporary voting problems (the definition of which will need to be hammered out in the legislative process).

The new guidelines will not get much press. Neither the media nor the American public is likely to get exercised over regulations buried in the Federal Register implementing a statutory provision. “Yet students of public policy and public administration are increasingly aware that out of such bureaucratic boilerplate . . . can come fundamental shifts in public policy,” historian Hugh Davis Graham once wrote.
Does anyone have any confidence about how the Eric Holder department will handle such questions?