We already know that civil rights enforcement has sharply declined under George W. Bush. I have written previously about the Bush administration institutionalizations of its anti-civil rights agenda through the Department of Justice: it's changes to the Voting Section in the Civil Rights Division and the DOJ's lawsuits to radically change the grounds of voting rights enforcement. Some of the most recent revelations about Bush's proposed appointment of John G. Roberts to the Supreme Court suggest that Bush is now trying to give Justices Scalia and Thomas a strong ally against voting rights.
Bush's DOJ Tears A Page Out Of Roberts' Anti-Civil Rights Agenda In The Reagan DOJ
In Monday's Washington Post, R. Jeffrey Smith, Amy Goldstein, and Jo Becker brought to light John Roberts' role in the Reagan Justice Department as a special assistant to Attorney General William French Smith.
[Roberts] wrote vigorous defenses, for example, of the administration's version of a voting rights bill, opposed by Congress, which would have narrowed the reach of the 1965 Voting Rights Act. He challenged the US Commission on Civil Rights's arguments in favor of busing and affirmation action. He described a Supreme Court decision broadening the rights of individuals to sue states for civil rights violations as causing "damage" to administration policies, and he urged that legislation be drafted to reverse it. And he wrote a memo arguing that it was constitutionally acceptable for Congress to strip the Supreme Court of its ability to hear broad classes of civil rights cases. (Emphasis added.)
In January, I explained that in
court battles, pre-election 2004, over how provisional ballots would be counted and the legalities of voter challenges at the polls, Bush administration lawyers argued that individual voters may not sue over violations of the voting rights set out in the Help America Vote Act [HAVA]. The DOJ argued, instead, that only the Attorney General has power to bring lawsuits to enforce the provisions of the 2002 law--provisions that include a requirement that states provide "uniform and nondiscriminatory" voting systems, and that they give provisional ballots to those who say they have registered but whose names do not appear on the rolls. In a 1969 US Supreme Court Ruling on enforcement of the Voting Rights Act of 1965, the Justices said "the achievement of the act's laudable goal would be severely hampered ... if each citizen were required to depend solely on litigation instituted at the discretion of the attorney general."
In the Bush Justice Department's attack on private right of action in voting rights cases, we can see a close alignment with Reagan's overtly racist agenda. Bush's policy record on civil rights issues strongly implies that he chose Roberts because of his substantive involvement in Reaganite reactionary politics.
Bush DOJ Wants To Use The Help America Vote Act To Bypass The Voting Rights Act
The DOJ has not yet had a ruling in its favor on the private right of action in voting rights violations. It must be understood, however, that current implementations of HAVA's provisional balloting were a major avenue for depriving citizens of their right to vote in 2004. As long as provisional balloting exists in its current form, there will be a steady flow of voters who lose their vote to this supposedly "fail-safe" procedure, and there will continue to be more lawsuits in which the DOJ can persist in its arguments against the private right of action in voting rights violations. If John Roberts becomes a Supreme Court Justice, the Court will be further stacked against voting rights.
Last fall's court battles over provisional ballots and private right of action indicate that Republican vote suppression strategies have a double purpose. The first, most obvious purpose, of the thousands of Republican challenges to voters was to keep people of color, low-income people, and students from getting to vote. But it was also the case that when challengers questioned a voter's status, the stop-gap measure was often to hand the voter a provisional ballot. Numerous provisional ballots were never counted for purely bureaucratic reasons, and numerous others were thrown out for having been cast in the wrong precinct. Voters who were unfairly deprived of their votes through provisional balloting must seek recourse under the provisions of HAVA and, therefore, provide the DOJ with new opportunities to argue against private right of action in court—which is the the second, little discussed purpose of Republican voter suppression strategies. Each voter disenfranchised through provisional balloting provides the DOJ with a new opportunity to make an unprecedented reversal through the courts of how voting rights can be protected.
The DOJ And The Voting Rights Act: Anniversary Gifts Don't Always Prove Your Commitment
Meanwhile, the Justice Department has recently been pursuing violations of the Voting Rights Act in cases of discrimination against language minorities.
BOSTON - The federal government filed a lawsuit Friday, as part of what it said is a national initiative in several states, alleging that Boston's election practices discriminate against Hispanic and Asian American voters.
The Department of Justice's suit, which a city attorney called "unsubstantiated," claims Boston violated the federal Voting Rights Act. It was filed in U.S. District Court in Boston.
Boston's growing Hispanic population since 1992 has required the city under federal law to provide all election materials in Spanish. But the lawsuit alleges that the city's elections Web site and notices posted in polling places were only in English. A check Friday night of the Web site, however, showed there is a link to a Spanish language version.
Boston also has failed to recruit and maintain a pool of bilingual poll workers to help Hispanic, Chinese and Vietnamese speaking voters, the suit alleged.
"Despite having had an unequivocal obligation _ for 13 years _ to provide Spanish language information to voters who need it... the city of Boston has consistently fallen well short of the mark," Bradley J. Schlozman, acting assistant attorney general, said in a prepared statement.
I have no doubt such violations have occurred in my own hometown of Boston. I support rigorous enforcement of the law in these cases, but with gross inaction by the DOJ in more pervasive violations of the Voting Rights Act [pdf], the Boston case reads as a PR gimmick. As the nation turns towards fortieth anniversary celebrations of passage of the Voting Rights Act, and as debate concerning reauthorization peppers the news, the recent DOJ legal actions will give the false impression of a commitment to enforcement and contribute towards a false sense of security if some version of Voting Rights Act reauthorization goes through in 2007.
The Bush DOJ's Anti-Voting Rights Agenda
In typical Bush administration fashion, it will not matter what the law says if there is not proper implementation or enforcement. Despite token cases such as the new one in Boston, the Voting Section at the DOJ is still the same one that Jeffrey Toobin described in the New Yorker last fall:
The Attorney General had come forward [in 2002] to launch the Voting Access and Integrity Initiative, whose name refers to the two main traditions in voting-rights law. Voter-access efforts, which have long been associated with Democrats, seek to remove barriers that discourage poor and minority voters; the Voting Rights Act itself is the paradigmatic voter-access policy. The voting-integrity movement, which has traditionally been favored by Republicans, targets fraud in the voting process, from voter registration to voting and ballot counting. Despite the title, Ashcroft's proposal favored the "integrity" side of the ledger, mainly by assigning a federal prosecutor to watch for election crimes in each judicial district. These lawyers, Ashcroft said, would "deter and detect discrimination, prevent electoral corruption, and bring violators to justice."
Federal law gives the Justice Department the flexibility to focus on either voter access or voting integrity under the broad heading of voting rights, but such shifts of emphasis may have a profound impact on how votes are cast and counted. In the abstract, no one questions the goal of eliminating voting fraud, but the idea of involving federal prosecutors in election supervision troubles many civil-rights advocates, because few assistant United States attorneys have much familiarity with the laws protecting voter access.
Toobin goes on to note that current staff attorney for the Voting Section of the Civil Rights Division, Hans A. Von Spakovsky, has been emphasizing that "voting integrity will remain a focus for the Justice Department, and that voter access might best be left to volunteers."
In September, 2004, the US Government Accountability Office (GAO) reported [pdf] that:
- "The Voting Section does not have a reliable method to consistently record and document telephone calls received alleging voting irregularities";
- "The Voting Section does not routinely track its election monitoring activities through the Interactive Case Management (ICM) System, the Justice Department's formal process for tracking and managing work activities";
- "The Justice Department, due to its lack of specific information about allegations of voting irregularities, and Justice Department actions taken to address them, is unable to provide the public and Congress with clear information concerning election procedures."
If untold numbers of voting rights violations simply disappear down an Orwellian memory hole, if the DOJ's Voting Section does not consistently promote voter access, if taking cases to court may seriously limit the ability citizens to pursue legitimate complaints, then what what voting rights protections can we hope for right now?
Support Reauthorization of the Voting Rights Act
Despite my pessimism about the current enforceability of the Voting Rights Act, I still urge one and all to ask your Senators and Representatives to to renew and restore the Voting Rights Act. The specific measures of the VRA that are at stake are enforcement provisions that allow for federal oversight of state and local voting functions. It is essential that our legislators know their constituents want the legacy of the Voting Rights Act of 1965 to be revived and carried forward into the twenty-first century.
Do read the rest of the Washington Post article that I cited above. Roberts' expressed disdain for civil rights protections was multi-faceted, from voting rights, to job discrimination, to busing, to Title IX, to affirmative action. Thanks to Marsha Joyner for sending me the link. Also see today's post from Professor Kim, which links to the Washington Post article about Roberts and to an earlier piece she wrote about a very personal experience she had with a racist in the GOP, the night Reagan was elected President. I hope Kim will collect her memoir pieces into a book one day.