Excerpt from Injustice: Exposing the Racial Agenda of the Obama Justice Department, by J. Christian Adams:
BEWARE THE RED FILES
Obama and his backers have engaged in a strange form of political projection, baselessly accusing the Bush Civil Rights Division of the exact kind of malfeasance and bias that have become hallmarks of the division under Obama’s presidency. This is evident time and again in the administration of Section 5, which during the Bush years was one of the chief areas critics claimed had become politicized …
To understand the Obama administration’s duplicity, it’s important to understand how Section 5 enforcement works. DOJ Section 5 regulations give the Assistant Attorney General for Civil Rights the authority to interpose an objection to a state law. The regulations, however, do not allow the AAG to approve state election changes. As a matter of longstanding practice, the career bureaucrats inside the Voting Section review state submissions. They gather facts, conduct interviews and, if they are satisfied the proposal does not discriminate, approve the plan. … Submissions that are pre-cleared don’t reach up into the political ranks of the department. … Only if the technicians, lawyers, and statisticians detect problems justifying an objection do the political appointees get involved.
The exercise of an objection to a submission is a profound power. Such federal oversight is at the farthest frontier of federal power under the Constitution. Thus, it is understandable that the AAG alone, and not the bureaucrats in the Voting Section, has the authority to object to a submission. … The AAG remains free … to reject or accept the recommendation. But the important point is that internally, the Voting Section is responsible for pre-clearances, while the political appointees are responsible for accepting or rejecting a Voting Section recommendation for an objection.
The Obama DOJ has turned this process upside down. According to sources inside the Voting Section, Deputy Assistant Attorney General Julie Fernandes has implemented a new Section 5 process that shifts massive power to approve state laws into the DOJ’s political ranks. It works like this: when a politically important submission comes in, Fernandes or some other Obama appointee now tags it as a “red file” — it is literally placed into a red file so everyone knows this is a state law that keenly interests the Obama political appointees. Red files are treated much differently from other submissions because the staff members know their work is being watched at the highest levels of the department. It also sends a signal to the career technicians that they should be extra aggressive in collecting evidence of discrimination.
Longstanding DOJ practices have been jettisoned when it comes to red files. Instead of the Voting Section technicians deciding to pre-clear the submissions, only the political appointees inside the Civil Rights Division are allowed to pre-clear them. Under every prior administration, complex objection memos were required to support any objection. With red files, up has become down and complex pre-clearance memos are now required to justify a pre-clearance. Sources inside the DOJ tell me they have to work as hard for a pre-clearance now as they used to for an objection. This review process is a corrupt, politicized deviation from standard procedures. Politics enter the process the moment the Obama political appointees scan the submission horizon for state laws they want to subject to hyper-scrutiny.
Obviously, states long targeted by the Obama DOJ such as Arizona are justified in fearing the red file process. Sources also tell me every statewide redistricting submission for Congress, state house, and state senate will be stuck in a red file automatically by order of the Obama political appointees. That means redistricting plans in states like Florida, South Carolina, New York, California, Arizona, Georgia, South Dakota, and others will all suffer politicized scrutiny. If this isn’t enough reason for states to bypass the DOJ entirely and submit plans directly to the federal court for approval, then nothing is.
The new procedures for red files inject political manipulation into the review of election laws in nearly a third of all the states in the run-up to the 2012 presidential election. It means Obama political appointees will be deciding whether or not certain election laws are effective in states that are home to more than half of the American population. This is exactly the sort of alleged politicization that was vehemently condemned by Democratic politicians, leftwing academics, and the media during the Bush years. But not one peep will be heard from them about red files — unless, of course, a Republican defeats President Obama in 2012 and keeps the red file policy in place. Only then will we hear the familiar cries of protest.
J. Christian Adams is a former Department of Justice attorney. Excerpt adapted from his new book Injustice: Exposing the Racial Agenda of the Obama Justice Department (Regnery, 2011). Reprinted with permission by Regnery Publishing, Inc.