Justice Department Prepares for the Demise of Federal Oversight of Southern Elections

This week, DOJ Assistant Attorney General Tom Perez ran a closed-door meeting with all of the Voting Section staff at the Justice Department. Perez called the meeting to discuss the increasingly likely demise of Section 5 of the Voting Rights Act, which allows federal oversight of southern elections. (See the full coverage map here.)

Perez articulated how the political appointees, including Eric Holder, intend to handle a loss in the case brought by Shelby County, Alabama, challenging Section 5 federal oversight. The case will be argued before the U.S. Supreme Court  next month. If Shelby wins, Section 5 obligations may go away for all or some of the covered jurisdictions.

Sources knowlegable with the content of the discussions told PJ Media that Perez assured Justice Department attorneys and analysts who enforce Section 5 that he intends to pivot the duties and responsibilities of the analysts from Section 5 review to Section 2 enforcement litigation. Perez was described as “resigned” to the demise of Section 5, though he exhibited “superficial confidence.”

Tom Perez

Section 2 is the provision of the Voting Rights Act that allows private plaintiffs and the DOJ to bring cases as a plaintiff where discrimination in voting is alleged. Under Section 5, states and local jurisdictions must act as plaintiffs, sue the DOJ, and carry the burden of proof.

Perez’s reorienting of Department resources toward Section 2 is ironic, to say the least. The last Section 2 case filed by the Holder Justice Department was brought in March 2009, almost four years ago. In fact, that case was initiated by the Bush Justice Department.

Full disclosure: I brought it.

The fact that the Obama administration has a moribund Section 2 record is ironic, because candidate Obama campaigned against the Bush DOJ’s Section 2 enforcement record — a record that with four years of Obama-era hindsight far surpasses that of the Holder-run DOJ. Activists like Wade Henderson of the Leadership Conference on Civil and Human Rights complained about the Bush Section 2 record, but have been noticeably silent about the dismal Section 2 record of the Holder/Perez era.

At least Henderson has kept quiet. Left-wing election law professors like Stanford’s Pam Karlan have brazenly published false scholarship about the Bush DOJ Section 2 record. She made false claims in a Duke Law School law review article: the Bush administration brought no Section 2 cases over a five-year span; and the first one they did bring was against black defendants. Both false. This phony scholarship has yet to be corrected, and not a single one of Karlan’s fellow-traveler election law professors have called her out.

Senate Republicans should pay attention to her phony scholarship, given that Karlan has been mentioned repeatedly as a candidate for the federal bench.

Stanford Law Professor Pam Karlan

Perez also said the Justice Department will increase enforcement of the foreign language provisions of the Voting Rights Act, the welfare agency registration obligations under the National Voter Registration Act (NVRA), and even the much neglected MOVE Act.

When Perez opened up the discussion for questions and comments, both attorneys and non-attorneys suggested that the Voting Section focus on redefining the mission of the Voting Section to include the initiation of investigation and litigation into areas of the voting process not currently under the jurisdiction or expertise of the Voting Section. These new areas would include election administration procedures such as utilization and allocation of aging voting equipment, and finding imaginative new ways to litigate administrative problems such as long lines.

Those familiar with the discussions relate that the Voting Section historian Peyton McCrary suggested that all the Section 5 data that has been forcibly collected from the currently covered states over the decades would be a “gold-mine” of information to be used in future litigation by the Voting Section. Also, that the attorneys may need to be more “imaginative” in bringing vote denial cases to replace evaporating vote dilution cases.

Probably of most import, Perez informed the Voting Section that DOJ intends to make the argument to the Supreme Court that Section 5 is not over-inclusive because bailout provisions are no longer overly restrictive (in part because DOJ has ignored the plain language of federal law). DOJ has paved the way for additional bailouts, and not one bailout has been denied. Perez assured the group that despite potential cuts to the Department of Justice budget, the Voting Section had friends in the “highest levels of the White House” who valued their work.

If Section 5 is struck down, look for aggressive, precedent-challenged litigation from the Justice Department to expand foreign language ballots, to attack long lines, and for a variety of other actions the law probably doesn’t support.