In the wake of the 2013 Supreme Court ruling in Shelby County v. Holder, which gutted a key provision of the Voting Rights Act, the Department of Justice is changing its focus. Instead of going after states and smaller jurisdictions with a documentary history of racial discrimination at the polls, the DoJ will seek violations of voting rights throughout the nation:
"The voting section's work will shift to greater affirmative efforts to detect and investigate voting practices that violate federal law, to more affirmative litigation to enjoin such practices, and to additional monitoring of elections throughout the country each year," according to the agency's fiscal 2015 budget documents sent to Congress last week.• As noted above, the Supreme Court's decision in Shelby has forced a change in how the Department of Justice goes after racial discrimination voting practices. But now two conservative legal scholars are going after Section 2 of the Voting Rights Act. If courts were to buy their argument, it would make the DoJ's new efforts far more difficult.
Instead of cutting back on the number of attorneys handling voting rights cases, the department is expanding its reach under other sections of the Voting Rights Act that allow it to sue jurisdictions for unfair voting practices or return the worst offenders to a more strict level of oversight. [...]
An increased emphasis on filing lawsuits to enforce the Voting Rights Act is already apparent. The Justice Department has opened a number of new investigations as part of its plan "to identify election systems that may dilute minority voting strength ... as well as investigation of voting practices that may deny or abridge the right to vote," the budget document states.
Roger Clegg of the Center for Equal Opportunity and Hans A. von Spakovsky of the Heritage Foundation argue:
Courts should be wary, however, of construing Section 2 to allow liability when only a “disparate impact” on the basis of race—with no evidence of underlying disparate treatment on the basis of race—has been shown. Furthermore, the courts should consider the state’s legitimate, nondiscriminatory interest in preventing voter fraud and maintaining the confidence of the public in the fairness and integrity of the electoral process.Zachary Roth at MSNBC points out that since the Voting Rights Act was amended in 1982, Section 2 has not only prohibited voting laws meant to discriminate against racial minorities, but also those that have discriminatory effect. It's easy to understand why. These days, the powers-that-be don't hang around publicly with the Klan and "explicitly declare an intention to racially discriminate." If the law only permitted DoJ action when intent could be shown, it would only rarely have an impact.
And that, apparently, is what Clegg and Spakovsky want.
Below the fold you can read more about voting issues.
Libertarian candidates for Ohio governor and attorney general were rightly disqualified from the ballot, a federal judge said Wednesday, upholding a ruling this month by Ohio Secretary of State Jon Husted.• NYT editorializes against court's proof of citizenship ruling. I reported here Thursday on the ruling by federal district Judge Eric Melgren in Kobach v. United States Election Assistance Commission. The Times' editorial board concluded:
Husted had removed gubernatorial candidate Charlie Earl and attorney general candidate Steven Linnabary from the ballot because people who gathered the 500 signatures they each needed to qualify did not identify their employers, as required by Ohio law.
That law is constitutional, Judge Michael Watson said Wednesday.
In reality, as Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit wrote last year about voter ID efforts, these laws are “now widely regarded as a means of voter suppression rather than of fraud prevention.”Doug Chapin at the Humphrey School of Public Affairs has an analysis of Kobach here and Rick Hasen at the Election Law Blog has one here.
Nevertheless, Judge Melgren accepted at face value the claim by Kansas and Arizona that only “concrete proof of citizenship” can allow them to determine whether a voter is eligible. He ignored the fact that neither state had actually demonstrated that such proof was “necessary” to prevent fraud. Kansas officials identified at most 21 noncitizens who had registered to vote, out of more than 1.76 million registered voters in the state. The percentage of noncitizens alleged by Arizona to have registered improperly was similarly minuscule.
As his own party pushed through the Wisconsin Senate the latest in a series of measures to make it harder to vote in the state, Sen. Dale Schultz (R) blasted the efforts as “trying to suppress the vote” last week.• Rep. Jim Sensenbrenner writes op-ed favoring voter ID laws AND Voting Rights Act:
Schultz, who is not seeking re-election and was the lone Republican to oppose a bill last week to limit the hours of early voting in every jurisdiction in the state, was a guest on The Devil’s Advocates radio program on Madison’s 92.1 FM last Wednesday. Asked why his party pushed the bill, Schultz responded, “I am not willing to defend them anymore. I’m just not and I’m embarrassed by this.”
Schultz argued that this and dozens of similar bills before the Senate this were based on “mythology” that voter fraud is a serious concern: “I began this session thinking that there was some lack of faith in our voting process and we maybe needed to address it. But I have come to the conclusion that this is far less noble.”
... people only argue that voter fraud isn't a problem when they don't look for it. Several cases of voter fraud were reported in my home state of Wisconsin in the 2012 elections. One case involved a man who recently pleaded guilty to voting in West Milwaukee six times between 2010 and 2012, though he hasn't lived there since 2008, and deliberately voted twice in the 2012 presidential election.• Voting rights group cheers court decision in case on public assistance for low-income voters. The United States District Court for the District of Massachusetts ruled in Delgado v. Galvin to disallow defendants' attempts to get parts of the case dismissed. It also broadened an investigation into the failure of Massachusetts' public assistance offices to provide voter registration services to low-income citizens. Such assistance is required by federal law.