Bush Seeks Limit to Suits Over Voting Rights

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http://www.truthout.org/docs_04/103004U.shtml

 

Bush Seeks Limit to Suits Over Voting Rights

By David G. Savage and Richard B. Schmitt

The Los Angeles Times

 

Friday 29 October 2004

 

Administration lawyers argue that only the Justice Department, not

the voters, may sue to enforce provisions in the Help America Vote Act.

 

Washington - Bush administration lawyers argued in three closely

contested states last week that only the Justice Department, and not

voters themselves, may sue to enforce the voting rights set out in the

Help America Vote Act, which was passed in the aftermath of the

disputed 2000 election.

 

Veteran voting-rights lawyers expressed surprise at the

government's action, saying that closing the courthouse door to

aspiring voters would reverse decades of precedent.

 

Since the civil rights era of the 1960s, individuals have gone to

federal court to enforce their right to vote, often with the support

of groups such as the NAACP, the AFL-CIO, the League of Women Voters

or the state parties. And until now, the Justice Department and the

Supreme Court had taken the view that individual voters could sue to

enforce federal election law.

 

But in legal briefs filed in connection with cases in Ohio,

Michigan and Florida, the administration's lawyers argue that the new

law gives Atty. Gen. John Ashcroft the exclusive power to bring

lawsuits to enforce its provisions. These include a requirement that

states provide " uniform and nondiscriminatory " voting systems, and

give provisional ballots to those who say they have registered but

whose names do not appear on the rolls.

 

" Congress clearly did not intend to create a right enforceable " in

court by individual voters, the Justice Department briefs said.

 

In one case the Sandusky County Democratic Party sued Ohio

Secretary of State J. Kenneth Blackwell, arguing that the county's

voters should be permitted to file provisional ballots even if they go

to the wrong polling place on election day.

 

The Justice Department intervened as a friend of the court on

Blackwell's side.

 

Saturday's decision in that case, and in other recent cases from

Michigan and Florida, gave the department a partial victory. On the

one hand, the courts agreed with state officials who said voters may

not obtain a provisional ballot if they go to the wrong polling place.

 

However, all three courts that ruled on the matter rejected the

administration's broader view that voters may not sue state election

officials in federal court.

 

Still, the issue may resurface and prove significant next week if

disputes arise over voter qualifications. Some election-law experts

believe the administration has set the stage for arguing that the

federal courts may not second-guess decisions of state election

officials in Ohio, Florida or elsewhere.

 

J. Gerald Hebert, a former chief of the department's voting-rights

section, said he was dismayed that the government was seeking to

weaken a measure designed to protect voters.

 

" This is the first time in history the Justice Department has gone

to court to side against voters who are trying to enforce their right

to vote. I think this law will mean very little if the rights of

American voters have to depend on this Justice Department, " said

Hebert, who worked in the voting-rights section from 1973 to 1994.

 

In a statement, the Justice Department said it was simply trying

to implement what it considered to be the clear intent of Congress.

Other voting-rights laws, including the National Voter Registration

Act of 1993, which required states to allow citizens a chance to

register to vote while applying for or renewing driver's licenses,

have been more explicit in allowing for private enforcement, it noted.

 

In contrast, the Help America Vote Act says in its enforcement

section that " the attorney general may bring a civil action " in

federal court to challenge the actions of states that fail to follow

the law.

 

" Where Congress expressly decided to trust judicial enforcement of

a statute to the Department of Justice, as it did in HAVA, the

Department has a practice of defending its jurisdiction in court, " the

department's statement said. The department said that, on occasion, it

had opposed private enforcement in other voting-rights cases.

 

But some former Justice voting-rights officials and some election

law and civil rights experts said the department's latest position

represented a marked philosophical shift. Historically, they said, the

department had been aggressive in supporting the idea of private suits

as an important tool in fighting discrimination and other ills, even

where such rights were not clearly spelled out by legislation.

 

" Before this administration, I would say that almost uniformly,

the Department of Justice would argue in favor of private rights of

action ... to enforce statutes that regulate state and local

government, " said Pamela Karlan, a professor at Stanford University's

Law School.

 

She said the landmark Voting Rights Act of 1965 did not originally

include a private right to sue state officials who discriminated

against aspiring black voters. The Justice Department backed the idea

of private suits, nonetheless, in a test case that ultimately reached

the U.S. Supreme Court in 1969.

 

In their ruling, 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. "

 

More recently, the Justice Department also sided with private

plaintiffs in a 1996 case challenging a registration fee that had been

instituted by the Virginia Republican Party as a racially motivated

poll tax under Section 10 of the Voting Rights Act.

 

The section did not expressly mention private actions but the

Supreme Court, at the urging of the Justice Department, found an

" implied " right to sue, said Steven J. Mulroy, an assistant professor

at the University of Memphis Law School and a former lawyer in the

department's voting-rights section.

 

" It is pretty rare for the Department of Justice to take a

position that there is no private right of action to enforce a federal

statute guaranteeing voting rights, " he added.

 

In a related development, the Justice Department announced

Thursday that it was sending nearly 1,100 federal workers - more than

twice the number four years ago - to monitor and observe the election

in 25 states for possible violations of the federal voting-rights laws.

 

About 840 federal observers will be stationed at polling places in

27 areas covered by federal court orders, including parts of

Mississippi, Texas, Arizona and New Mexico, the department said in a

news release.

 

In addition, the department said it was deploying scores of

attorneys and staff from its civil rights division to monitor voting

in 58 jurisdictions in other parts of the country. Officials did not

explain how they chose those locations, although many are in such

battleground states as Michigan, Ohio and Florida.

 

Civil rights groups have been concerned that the spectacle of a

growing number of federal workers stationed at polling places could

have a chilling effect on potential voters.

 

The department said that most of the workers would be from the

federal Office of Personnel Management and that none of the monitors

at polling locations were criminal prosecutors.

 

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