The Rule of Law Suffers Another Blow from the DOJ

I have written extensively in many outlets including Pajamas Media about the outright lawlessness emanating from the Civil Rights Division under Eric Holder’s leadership at the Justice Department. Whether it involves rewriting military voter protections, refusing to sue defendants because of their race, or ignoring the Motor Voter requirements, the rule of law is endangered by this DOJ. The latest example may be the Division’s defense of a lawsuit filed by Shelby County, Alabama, challenging the constitutionality of Section 5 of the Voting Rights Act (VRA).

Section 5 of the Voting Rights Act requires some, but not all, states to get federal government preclearance of any change involving voting or elections prior to implementation. Even the location of polling place, or the hours a voting registration office is open, must be approved in Washington. The Supreme Court nearly overturned the law a few years ago. It said the requirement may be constitutionally defective, but used a strained reading of a separate statute to defer a decision.

A number of cases have already been launched seeking to have the high court rehear the issue and interest groups are poised to launch even more. Even Georgia recently challenged Section 5 as part of an effort to have a law approved to allow Georgia to check the citizenship of voters. Amazingly, Justice objected to the citizenship check in 2009, but hastily retreated in the face of the constitutional challenge.

Desperate to prevent the court from reaching the merits of the Shelby Alabama challenge, the Division is insisting that it needs nine months of discovery before responding to Shelby County’s motion for summary judgment. This request is without merit, and the arguments advanced by Voting Section trial attorneys (and echoed by the civil rights groups who have intervened) are both vacuous and conclusory. As the preeminent attorneys from the Wiley Rein law firm noted in their brief, Shelby County is asserting an exclusively facial challenge to Section 5. And the only evidence relevant to such a claim is the congressional “findings” used to support the reauthorization of the VRA in 2006. The situation on the ground in Shelby County is irrelevant.

The Justice Department, of course, is well aware of this fact.  What it is trying to do, however, is drag out the litigation for as long as possible in the hopes that the composition of the federal appellate courts (and especially the Supreme Court) undergoes a further leftward tilt by the time the case reaches one of those tribunals.

They might also be hoping that Justice Scalia’s love of Marlboro Lights catches up to him.