Big Blow to DOJ: District Court Fast-Tracks Challenge to Federal Oversight of Elections

Today, D.C. District Court Justice John Bates dealt a blow to the Holder Justice Department by fast-tracking a constitutional challenge to Section 5 of the Voting Rights Act.

I had previously written that the Justice Department requested nine months of factual discovery. I also reported that the DOJ made courtroom arguments that may be untrue. Today, Judge Bates rejected the DOJ positions entirely, calling it “absurd” to pursue extensive discovery.

Section 5 of the Voting Rights Act requires mostly southern states to obtain federal government approval of any change involving voting or elections. Merely moving a polling place from a school gym to a fire hall requires Washington’s approval. Increasing or decreasing the number of voter registration offices, or their hours of operation, also requires pre-clearance. The Supreme Court almost overturned the law a few years ago, saying the requirement may be constitutionally defective, but held off the ultimate decision for another day.

Judge Bates’ decision brings that day much closer. He rejected the DOJ’s request to delay the matter to conduct nine months of expensive discovery.

As they have in other potential challenges, in this case the DOJ thought they could dig up the body of Bull Connor and explain that the sins of the past justify the regulation of the present. They relished the prospect of a parade of evidence showing little change in the South. They couldn’t wait to remind the court that not long ago, blacks could not easily register to vote.

The problem is that “not long ago” is approaching a half-century.

Of course, a great deal has changed in the South. Whether it has changed enough will be the question that at least five justices on the Supreme Court may answer in the affirmative very soon. Bates ruled that the Department is bound by the congressional record from the 2006 reauthorization of Section 5.

This is a nightmare for the Department. Why? First of all, liberal law professors have written that the 2006 Congressional record simply isn’t robust enough to withstand a constitutional challenge to Section 5.