The Eric Holder Justice Department has done it again, this time in Pennsylvania. Not content to use Section 5 of the Voting Rights Act to shake down Texas and South Carolina, the DOJ yesterday sent a demand to the Keystone State for stacks of documents regarding Pennsylvania voter ID.
This letter was a highly irregular and purely partisan exercise designed to stoke Obama’s electoral base in Philadelphia. It is also designed to placate the civil rights industry, which has quietly simmered about the lack of enforcement of the Voting Rights Act to help minorities over the last three years. (See, Wade Henderson – Cat Got Your Tongue?)
The demand letter to Pennsylvania was sent pursuant to 42 U.S.C 1974. This law requires election officials to preserve election records for 22 months after an election. It is designed to ensure that no racial discrimination occurred in the conduct of a particular election. For example, poll books from 1966 would have to be kept for 22 months to ensure that both black and white voters who were properly registered were actually allowed to vote.
Like so much with this Justice Department, the partisans have perverted the law and demanded far more than the law allows, so much so that even liberal former DOJ lawyers are surprised.
Note that Assistant Attorney General Tom Perez signed the letter. Normally, when I worked on cases involving 42 U.S.C. 1974, either the trial lawyer or section chief would sign the letter. It may be that Chris Herren, the current section chief, would do neither what the career partisans below him wanted nor what the political gangsters above him wanted. Internal dissent may be afoot, and with good reason.
The letter also demands that Pennsylvania turn over information far beyond what Section 1974 envisions. The letter reads like a discovery request in litigation, which of course it is — it’s just that the litigation hasn’t started yet. In fact, it is almost impossible for DOJ lawyers to write a “J-Memo” without Pennsylvania’s cooperation. That’s another way of saying Pennsylvania is most likely to be sued only if they cooperate with the demand letter.
Expect DOJ to do something against Pennsylvania in the fall to really pump the political bellows, even if it is simply a notice of intent to sue.
Assistant Attorney General Perez should have to answer to Congress this week about any coordination between the DOJ and the ACLU regarding the latter’s lawsuit against Pennsylvania. The letter reads like an ACLU wish list in their lawsuit.
The letter seeks all voter records, lists of people who don’t have ID, and internal studies which probably don’t exist exactly like DOJ suspects. The letter even brazenly goes after Governor Tom Corbett’s press shop, demanding documents supporting his press release!
This is the sort of reckless letter that would never have been sent during the Bush administration. It oozes open partisanship, a radical legal perspective, and an unashamed willingness to flex federal muscle in the press.
Naturally, the DOJ demand was designed by one of the radicals inside the Voting Section. It reveals: “The materials may be sent by FedEx to Daniel Freeman, Trial Attorney, Voting Section,” and suggests, “If you have any questions. . . please contact Mr. Freeman at 202-305-4355.” In Voting Section parlance, that means Freeman is the attorney most responsible for this partisan act.
Daniel Freeman: Mr. Freeman comes to the Voting Section following a fellowship at the New York Civil Liberties Union. He previously interned at the ACLU, where he assisted the organization with its efforts to attack the Bush administration’s national security policies. He also helped to challenge the “state secrets privilege” and to support the rights of terrorist detainees at Guantanamo Bay during an internship at Human Rights First.
On his resume, Freeman proudly notes his membership in the liberal American Constitution Society, as well as his service as co-chair of the Yale Law School Democrats. Of course, being a member of the American Constitution Society does not bar you from federal employment. Yet the Bush administration was castigated for hiring lawyers who were members of the Federalist Society. Incidentally, Mr. Freeman is helping lead the Voting Section’s review of redistricting submissions from the state of Alabama.
What about Crawford v. Marion County, you ask; didn’t the Supreme Court uphold voter ID? Nonsense. As I have been writing ad nauseum, Crawford has limited applicability in Pennsylvania, Texas or South Carolina. It was a facial Equal Protection challenge, not a Section 5 or Section 2 case under the Voting Rights Act. Those who rely on Crawford in the 2012 voter ID wars are being lured into a trap that Justice Department lawyers know how to spring.
States that think Crawford will save state voter ID laws will lose those laws to DOJ attacks.
Pennsylvania officials should also take note of the lessons learned by Texas and South Carolina in their run-in with the partisan Justice Department. First, don’t turn over data or documents unless a judge orders you to do so because whatever is in them will be used against you. It happened to Texas. It happened to South Carolina.
Pennsylvania officials should follow the lead of Georgia. The Peach State has figured out that the DOJ Voting Section has limited resources and cannot be bogged down in litigation everywhere. Thus, when Georgia resolved to fight back on another election integrity matter, DOJ dropped its demands.
Hopefully Pennsylvania absorbs the lessons from the election integrity fights around the country and realizes the vast majority of Americans support voter ID. Thus, demonstrations and rallies against Pennsylvania voter ID will appear to most as peculiar protests against everyday life activities. In other words, the protesters will seem nuts. The state should not fear rallies of nuts with photo ID in their pockets; Pennsylvania should welcome them.
Just ask James O’Keefe about the value of nuts on camera.