The Department of Justice was originally created during Reconstruction with the intent of protecting the rights of newly freed slaves. Then in the 1960s, when Congress reawoke to its responsibility to protect the rights of African-Americans, it placed the charge of enforcing this country’s marquee civil rights statute, the Voting Rights Act, into the hands of the Department of Justice. Given this history, the Bush-era DOJ’s complete capitulation of its obligation to enforce the Voting Rights Act is particularly appalling.
The latest injustice is the approval (or preclearance) of three changes in Florida law, including restrictions on third-party voter registration drives that help minority voters register, a limitation on what kind of identification voters can use at the polls, and a shortening of the time voters have to verify provisional ballots.
The Voting Rights Act is actually a collection of provisions, but its key provision requires all changes in voting procedure to be precleared by the DOJ. States and local governments—mostly in the old South—have to submit any changes they make to the Department, to make sure they won’t make minority voters any worse off (that the change isn’t “retrogressive”).
Congress did this because they had tried for ten years through less intrusive means to make sure black citizens in the South were able to vote. They had outlawed certain practices, created certain procedures, gave federal agents more power—and none of it worked. As Congress said when it enacted the Voting Rights Act, “Indeed, even after apparent defeat registers seek new ways and means of discriminating. Barring one contrivance too often has caused no change in result, only in methods.”
The amazing thing is, the VRA basically worked: by the end of 1967, black voter registration in Mississippi, which was at 6.7% in 1963, increased to 60%. In Alabama, registration rose from 24 to 57 percent. These numbers were echoed all over the South. The DOJ, even under subsequent Republican administrations, dutifully enforced the law.
And then, the current administration came into power. There’s been a lot of detailed press coverage about the problems in the Voting Section in the Civil Rights Division of the Department, and how Bush political appointees have essentially dismantled the Section, which I won’t rehash here. But there’s every reason to suspect preclearance decisions coming out of the Section.
One of the changes the DOJ precleared this week—the changes to the rules governing third-party voter registration drives—comes out of a case I’ve helped litigate with the Brennan Center, along with the Advancement Project and the law firm Kramer Levin. Florida placed heavy restrictions on third-party registration drives in 2005 that forced the League of Women Voters to stop registering voters for the first time in their 70 year history in the state. When a federal court struck down the law as unconstitutional, the state legislature went back and instead of getting rid of an unconstitutional law, they reenacted the law with a few changes. That new law is what the DOJ approved on Thursday.
Under the VRA, the state is required to prove that the change it’s making won’t hurt minority voters. Here’s how Florida tried to prove its law wouldn’t hurt minority voters: they submitted a copy of the new law, the old law, a description of the law, and a statement that the new law “will apply equally to all voters, regardless of racial or language minority status.” Even the DOJ recognized further investigation might be necessary and asked for more information—particularly, any statistics Florida had showing how minority voters in the five Florida counties covered by the VRA registered to vote, whether through drives or other means.
They asked that question in response to a letter the Brennan Center and the Advancement Project sent in September, showing that in Florida statewide black and Hispanic voters and voters from Spanish-speaking households were twice as likely to register to vote through drives as white voters or voters from English-speaking households, based on Census data. So how did Florida respond? By submitting statistics that don’t even track how people register to vote by race—in other words, evidence that didn’t even come close to rebutting the Census data we submitted, much less prove on their own that shutting down voter registration drives, which traditionally target minority voters, wouldn’t violate the letter as well as the spirit of the Voting Rights Act.
On its face, Florida’s submission didn’t even come close to bearing its burden of proving that its law change wouldn’t hurt minority voters. Except, it appears, in the looking-glass world of the Bush Justice Department.