Rule of Law

Eric Holder Cons the Courts to Save Voting Rights Act (PJ Media Exclusive)

According to Justice Department documents obtained by PJ Media, Eric Holder’s DOJ has launched a legal strategy to uphold the constitutionality of the Voting Rights Act by deliberately disregarding statutory law, and by failing to inform courts about it in collusive litigation.

Perhaps the biggest case to be heard this term by the United States Supreme Court is Shelby County v. Holder. (Read more about the particulars of the litigation here.) Shelby County, Alabama, has challenged Section 5 coverage under the Voting Rights Act of 1965. Section 5 requires the federal government to approve every change involving elections in 16 states, even changes as small as what time a county registration office is open. To help preserve this submission obligation, Eric Holder’s Justice Department has conducted an elaborate legal ruse in court litigation — and plans to do the same to the United States Supreme Court.

Because states are given the power to run their own elections in the Constitution, Section 5 rests at the farthest frontier of federal power. The DOJ had previously called Section 5 a “substantial departure … from ordinary concepts of our federal system.”  

States may “bail out” from the coverage requirements of Section 5 if they satisfy a clearly defined statutory checklist. This bailout provision lies at the heart of DOJ’s strategy to preserve Section 5, and at the heart of the litigation ruse involving jurisdictions across the country.

It isn’t hard to understand. Satisfy a bailout list, then file a friendly lawsuit against DOJ to escape coverage. DOJ will usually enter a consent decree with a plaintiff. The problem is that the list isn’t easy to satisfy. More on that in a bit. 

In 2009, the Supreme Court almost struck down Section 5, the provision most recently used to block voter ID in Texas. The 2009 case involved a challenge to the law by a Texas utility district. Chief Justice Roberts, writing for the Court, warned that the law was constitutionally suspect, but used a strained reading of a bailout provision to uphold the law. Because the utility was a political subdivision that didn’t register voters, nobody thought it could obtain a bailout. Nevertheless, Roberts, writing for the eight-member majority, said it could.

Eric Holder’s Justice Department views the 2009 Texas case as the key to the law’s survival. Because the Roberts court bent the language of the statute to permit a bailout in 2009, DOJ now thinks a flurry of bailouts, some of them obtained improperly, will convince the Supreme Court that Section 5 is not much of a burden and should survive.

Cranking out as many bailouts as possible is the deliberate DOJ strategy to convince Chief Justice Roberts and Justice Kennedy that Section 5 should survive because it really isn’t a heavy burden.

But when the justices learn that the bailouts are being mass-produced with collusion and deception, perhaps Kennedy and Roberts will find a new reason to strike down the law. 

Earlier this year, the DOJ entered into a collusive bailout with Merced County, California. Justice Department documents reveal that the bailout was completed without complying with the bailout checklist.

Before a bailout may occur, the Voting Rights Act plainly requires ten years of complete submissions of all election changes to the DOJ. They must “have complied with [Section 5], including compliance with the requirement that no change covered by Section 5 has been enforced without preclearance under Section 5.” (42 U.S.C. Section 1973b(a)(1)(D).) Simple stuff — if you want to bail out, you need to have submitted everything you were supposed to for a decade. Moreover, every subjurisdiction must have complied with the requirement. So if a state wants to bail out, every covered county must also have submitted every change for federal approval for the previous decade.

Also, bailout is available only if no final judgment, “settlement or agreement” has been entered into in a voting case that ends an unapproved practice. If a county enters a settlement involving unapproved changes under Section 5, then bailout isn’t available.

Merced County, California, was doubly doomed. But no worries — Eric Holder is in the bailout business, and bailouts come cheap.

Enter the attorney for Merced County — former DOJ Voting Section lawyer Gerry Hebert. Hebert is on a crusade to notch as many bailouts as possible before the Supreme Court hears Shelby. He is a true believer in federal oversight of voting, and his clients are tools to keep it in place. Hebert also has a slimy history from his days at the Justice Department Voting Section, which Hans von Spakovsky covered in detail here. The important part:

He once cost American taxpayers $86,626.24 in attorneys’ fees and costs awarded against the Justice Department for bringing an unjustified case under the Voting Rights Act.

Not only did Hebert lose, but Justice was castigated by the Eleventh Circuit Court of Appeals in U.S. v. Jones, 125 F.3d 1418 (1997), for what it concluded was “a very troubling case.” (Hebert is listed as the Justice counsel of record in the district court opinion, U.S. v. Jones, 846 F.Supp. 955 (1994)).

Hebert brought a case accusing defendants of intentional racial discrimination that the Fifth Circuit Court of Appeals said was bogus. In addition to Merced, Hebert also now represents New Hampshire in their rush to bail out from the Voting Rights Act even though the DOJ has given the state a Granite State Free Ride for decades and refused to enforce the law there.

Gerry Hebert


According to DOJ documents which were not provided to the federal court, Merced County didn’t have just one un-precleared change in the previous decade. It had multiple un-precleared changes, and the Department of Justice documents plainly recognize this fact. “In total, for the County, the cities, the school districts and all other jurisdictions that had conducted an election during the past ten years, our investigation resulted in the submission of a number of previously unprecleared changes,” the Justice Department memo to Assistant Attorney General Tom Perez states.

Hit the eject button, no bailout for Merced. At least that’s what the law says.

But it gets worse. Merced County was also ineligible for bailout because they settled a case involving the failure to submit over two hundred annexations for Section 5 preclearance through 2006 — including 29 that occurred in the decade prior to seeking bailout.  Seattle law school professor Joaquin Avila warned DOJ lawyers that Merced could not seek a bailout because of this settlement.  Remember, bailout isn’t available if a county has entered into a final judgment or settlement regarding Voting Rights Act violations, something Merced plainly did.

When it came time, however, to submit a consent decree to the federal court, the Justice Department conveniently failed to mention that Merced enforced dozens of un-precleared changes in the previous decade. The consent decree also makes no mention of the hundreds of un-precleared annexations which were enforced. In fact, the consent decree falsely states the contrary and states that no change was enforced without first obtaining preclearance. It falsely states that no consent decree or settlement was entered into, contrary to the settlement reached by Avila. (Read the false pleadings here at page 2 and 3.)

Simply, the three-judge federal panel was conned by DOJ, including Judge Thomas F. Hogan, Circuit Court Judge David Tatel, and Judge Amy Berman Jackson.

Merced County is but one small part of a wider dishonest DOJ strategy to save Section 5. At the center of the strategy is ignoring non-compliance with the bailout checklist all in the name of the bigger mission. The moral among us call this “the ends justifying the means.” They don’t yet teach this openly in most law schools.

The DOJ documents state: “In light of [the Texas utility case], legal analysis … is heavily skewed in favor of bailout. … Thus, subsequent to [the case], the Attorney General [Holder] has adopted an interpretation of the bailout provision of the Act that encourages bailout. Even an informal policy position concerning the application of the VRA is entitled to judicial deference.”

The DOJ documents brush off the annexation settlements in Merced by saying “an overly inclusive definition would unreasonably restrict bailout by a jurisdiction that acted immediately to correct a possibly voting rights problem once informed of the issue. There is no need to punish a political subdivision that acts in good faith, and a broad definition of [settlement] ‘agreement’ would deter improvements in voting procedures by jurisdictions that hope to bailout.”

Here you have bureaucrats substituting their judgment for the express will of Congress (more on who they are in a moment).  Naturally, this behavior comes as no surprise to anyone who has ever worked in the Justice Department Voting Section, as I document thoroughly in my book Injustice

But it gets worse.

More from the DOJ documents: “While the plain text of the statute would seem to disqualify [Merced County from bailout] … the permissive statutory interpretation regime required by [the Texas utility case in 2009], along with the Attorney General’s policy to encourage bailout, militates in favor of bailout where untimely submissions do not hide discriminatory intent or retrogressive effect.  Although the sum total of late submissions by Merced County is large, they are spread through dozens of jurisdictions that are individually responsible for Section 5 compliance.” (emphasis added)

Therefore, the law “does not bar bailout” for Merced. 

Notice how high-paid Justice Department lawyers ignore the law for a selfish ends — namely to convince the Supreme Court that bailout is really easy and should save the law.

Saving Section 5 will also save some of their own jobs. Approximately thirty government employees inside the Voting Section are employed through the continued existence of Section 5. The same office that is twisting the law to grant as many bailouts as possible before the Shelby case is argued is the same office that reviews thousands of Section 5 submissions in a year. 

On August 31, 2012, the con was completed when the federal court signed the consent decree allowing Merced County, California, to bail out. 

And who are the DOJ lawyers listed as presenting this consent decree to the federal court? 

Many of them will be familiar to PJ Media readers of the Every Single One series. All of them, except for Section Chief Chris Herren, are leftists hired by the Obama administration. You can read the biographies of Meredith Bell-Platts, Risa Berkower, Anna Baldwin, Michelle McLeod, and Daniel Freeman here.


Meredith Bell-Platts

New Hampshire, represented again by Gerald Hebert, last month filed a complaint seeking statewide bailout. Let’s hope the federal court hearing the New Hampshire bailout doesn’t get tricked like the Merced panel did. But unless a party intervenes in the New Hampshire case, it may be up to the Supreme Court to break up Holder’s con game.