By Hans A. von Spakovsky – senior legal fellow at The Heritage Foundation and a former Justice Department lawyer. – February 25, 2016
Several well-funded organizations — including the League of Women Voters and the NAACP — are fighting efforts to prevent non-citizens from voting illegally in the upcoming presidential election. And the United States Department of Justice, under the direction of Attorney General Loretta Lynch, is helping them. On February 12, these groups filed a lawsuit in D.C. federal court seeking to reverse a recent decision by the U.S. Election Assistance Commission (EAC).
The Commission’s decision allows Kansas and other states, including Arizona and Georgia, to enforce state laws ensuring that only citizens register to vote when they use a federally designed registration form. An initial hearing in the case is set for Monday afternoon, February 22. Under federal law, the EAC is responsible for designing the federal voter-registration form required by the National Voter Registration Act, or Motor Voter, as it is commonly called. While states must register voters who use the federal form, states can ask the EAC to include instructions with the federal form about additional state registration requirements.
Some states are now requiring satisfactory proof of citizenship to ensure that only citizens register to vote. Under Article I, Secion 2 and the Seventeenth Amendment to the Constitution, states have the power to set the “Qualification requisite for electors.” As with many issues, the Left disdains the balance the Framers adopted in the Constitution and objects to this delegation of power to the states. They prefer to see power over elector eligibility centralized in Washington, D.C. So when Arizona sought to include citizenship-verification requirements with voter-registration forms, the institutional Left — including the League of Women Voters, People for the American Way, Common Cause, Project Vote, and Chicanos for La Causa — brought a lawsuit claiming that the EAC hadn’t approved such requirements. Incredibly, this fight over whether states can ensure that only citizens are voting went all the way to the U.S. Supreme Court.
In 2013 in Arizona v. Inter Tribal Council of Arizona, a divided Court said that Arizona could not implement such a requirement unless and until the EAC agreed to change the instructions for use of the federal form to include the Arizona requirements. However, the majority opinion in that case, written by Justice Antonin Scalia, stipulated that if the EAC refused Arizona’s request to accommodate the proof-of-citizenship requirement, the state could sue the EAC and establish in court that “a mere oath will not suffice to effectuate its citizenship requirement and that the EAC is therefore under a nondiscretionary duty to include Arizona’s concrete evidence requirement on the Federal Form.” The Court went so far as to say that Arizona could also claim that a refusal by the EAC would be “arbitrary,” since the agency “has accepted a similar instruction requested by Louisiana.” Indeed, the Court noted, the EAC had ”recently approved a state-specific instruction for Louisiana requiring applicants who lack a Louisiana driver’s license, ID card, or Social Security number to attach additional documentation” to the federal voter-registration form. Arizona asked, and a single bureaucrat at the EAC named Alice Miller, who was not an EAC commissioner, but only the acting executive director, denied the request. It’s not even clear that Miller had the right to make this — or any other — decision.
At the time, a quorum did not exist on the bipartisan, four-member independent commission. And that decision is starting to look even more suspect. It seems that Miller may not have been the one who actually made the decision after all. Sources inside the Justice Department tell me that, in fact, it was partisan, left-wing lawyers in the Voting Section of the Civil Rights Division at the Justice Department who actually drafted the denial letter.
This is significant for several reasons. First, the EAC is supposed to be an independent federal agency. While the president is empowered to nominate commissioners for the two Democratic and two Republican commission slots, in practice the president consults with the majority leader of the Senate (Mitch McConnell) and the speaker of the House of Representatives (Paul Ryan), as well as the leaders of the minority party in both houses, to pick the nominees. Because the EAC deals with federal election administration, the legislation establishing the agency — the 2002 Help America Vote Act — was designed so as to provide the EAC with political balance and to be outside the president’s control.
Allowing lawyers for the highly partisan Voting Section to write agency policy obliterates all semblance of independence and bipartisan balance. The Voting Section of the Civil Rights Division has become one of the most controversial and ideological components in the entire U.S. government. It is the same cadre of lawyers that dismissed a voter-intimidation charge against members of the New Black Panther Party who physically threatened voters in Philadelphia to help President Barack Obama get elected in 2008; that has waged a war on voter ID and other election-integrity measures; and that has refused to enforce the Voting Rights Act in a race-neutral manner as called for by the plain text of the statute. It was Voting Section lawyers who fought in federal court to keep Kansas from enforcing a similar state law to ensure that only citizens registered to vote.
One of those lawyers, Bradley Heard, engaged in potentially unethical conduct when he tweeted on his private Twitter account his impressions of the federal judge after a hearing in Kansas. Justice Department lawyers are not allowed to use social media to share with the public confidential assessments about the cases on which they work. According to a source, Heard’s actions prompted a quick internal memo from DOJ ethics officials reminding Voting Section lawyers they may not take to social media to bash Kansas and talk about ongoing Justice Department litigation. On the Twitter account that landed Heard in hot water, he calls himself a “Voting Rights Gladiator . . . Outside Agitator.”
Before joining the Voting Section, Heard worked for a number of years at the Advancement Project, a radical left-wing voting organization. The Advancement Project has worked closely with the ACLU, NAACP LDF, Lawyers’ Committee for Civil Rights, and other liberal advocates to oppose voter-ID statutes, felon-disenfranchisement laws, and citizenship-verification regulations, and has adopted extreme positions on many other state and federal voting-rights laws. My sources tell me that Heard is the attorney who made and wrote the EAC’s decision to reject Kansas’s and Arizona’s request to modify the voter-registration form to include state requirements in the first place.
Once the EAC regained a quorum of commissioners and hired a new executive director, the agency reversed the previously announced policy and allowed Kansas and Arizona to include citizenship-verification requirements with the federal voter-registration form. In other words, the EAC wound up doing the right thing, in accordance with the Supreme Court’s 2013 decision. Which brings us to the League of Women Voters lawsuit filed on February 12.
Kansas has asked to intervene in the case. Its pleadings make the same bombshell allegations outlined above: that partisan lawyers in the Voting Section wrote EAC policies that should have been written by the EAC, not an agency under the control of the President. It charges that: . . . in the previous case concerning Kansas’s 2013 requested language, Kobach v. Election Assistance Commission, the United States Department of Justice drafted the response to Kansas’s 2013 request and presented that response to the States as if it were coming from the EAC itself. In effect, the Department of Justice commandeered the vacant ship that was the EAC and used that vessel to fight against the interests of the State of Kansas. If these allegations are true (and based on the history of the Voting Rights Section during this administration, they may well be), then the Eric Holder–run Justice Department was actively engaged in blocking an independent bipartisan federal agency from allowing a state to verify that only citizens are registering to vote.
Like most federal agencies, it is the Justice Department that is supposed to defend the EAC when it is sued. Based on my experience working in the Voting Section, it would not surprise me if Bradley Heard and the other lawyers who may have tried to sabotage the Kansas and Arizona requests are now back on the case. Except this time, instead of writing policy for the EAC designed to thwart Kansas and Arizona, they may end up attacking the new EAC policy behind closed doors when they are supposed to be defending it in court.
That’s a potential conflict of interest, especially because those lawyers — if they were acting in a policy-making capacity instead of a legal capacity when they implemented the EAC’s prior position — may be potential witnesses in the case. It is a potential conflict of interest that District Court Judge Richard J. Leon should delve into deeply. He should ask Justice Department lawyers about it at the hearing on Monday, particularly if there are any signs that lawyers for the federal government appear to be taking a dive instead of defending the EAC’s sound decision. And there is no question that Judge Leon should allow Kansas to intervene in this lawsuit to defend the EAC’s decision.
All signs point to this Justice Department not conducting the type of high-quality, vigorous, professional defense it is obligated to provide.
About the Author: Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow at the Edwin Meese III Center for Legal and Judicial Studies
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