The PJ Tatler

Alberto Gonzales: Put States Back Under Federal Control of Elections

PJ Media has covered the GOP role in placing and keeping states under federal receivership when it comes to control of their elections.  I reported here on the long, and recent, history of RNC support for federal oversight of state election law changes under Section 5 of the Voting Rights Act.

That the RNC continued to support federal oversight one way or another over the past few years was no surprise to me or anyone else who has closely followed the issue . . .  Whether this RNC activity ended after the PJ Tatler story was released on Friday, or when the Supreme Court ruled in June, or sometime before is unclear.  Yes, the RNC really did support federal preclearance oversight of state elections, just as Eric Holder does now.  When this support ended is an unanswered question after the RNC on Friday unequivocally stated it opposes any fix to Section 4 that would place states such as Texas, South Carolina, and Virginia back under a federal boot.  That’s good news.

As far as I know, the RNC has not answered the question when support ended for federal oversight of state elections.  (Obviously when the RNC answers the question, PJ Media will publish it in full.)

Add Alberto Gonzales to the list of Republicans to support federal control of state election laws, a goal shared by Eric Holder.  In an interview with government funded radio KUHF-FM, Gonzales became the first Republican to advocate for resurrected federal oversight of state elections through a Congressional fix.

I think the best outcome here is for Congress to pass legislation to update the formula in Section 4. That then makes Section 5, once again, enforceable, and the Department of Justice has the preclearance authority that it had before the Shelby case.

A couple of side notes.  Gonzales makes a number of errors in the interview which are relevant to whether federal oversight should be renewed.  First of all, he says:

But those [remaining laws] are much harder for the department, because what it does, it requires the department to wait until the laws are actually passed. They go into effect, and the department has to go in and show that, in fact, the intent of the law was to discriminate based upon race. The standard is much easier under Section 5, and that’s why the decision in the Shelby case was extremely important in terms of civil rights enforcement.

It is inaccurate to say that the Justice Department must prove racial intent under the remaining laws (including Section 2 of the Voting Rights Act).  Proving racial intent is a high hurdle, and to claim that the DOJ must leap that hurdle creates the inference that a Congressional fix is needed.  The hurdle is not as high as Gonzales claims in the interview. The DOJ need only demonstrate racially discriminatory results under Section 2 for a valid claim, an easier burden.  Pay attention to advocates of renewed federal oversight of state elections who make inaccurate statements to support federal power.

Gonzales is currently in private practice.