Partisan considerations still appear to be contributing to the Department of Justice's actions when it comes to enforcing the nation's voting rights laws.
Last week, two FBI officials told reporters an ACORN investigation was underway, violating Department rules for disclosing information on cases that could impact an election. The Obama campaign's response was to ask the Attorney General to include that leak in a special prosecutors' investigation of the U.S. attorney firing scandal. No response to that request has been forthcoming.
But more disturbing to civil rights attorneys is the Department's silence on what voting rights lawyers say are myriad voter suppression tactics by partisans in the campaign's final weeks. These efforts include attempts by Republicans to disqualify legal voter registrations, unlawfully purge voters, threaten individual voters with polling place challenges, fabricate barriers to student voting and abuse prosecutorial authority by investigating 2008's early voters.
"Voter suppression is not new. But this year has brought heightened efforts to disenfranchise and intimidate voters," said Wade Henderson, executive director of the Leadership Conference on Civil Rights, in a Wednesday press conference. "We've seen legal challenges to registered, valid voters in Ohio; Fear tactics threatening that mortgage foreclosures or unpaid bills will thwart your right to vote or may even result in arrest; and massive attempts to confuse voters through robo-calls, official looking web sites and e-mails. These are targeted and insidious attempts to suppress the vote, particularly in communities of color."
The Justice Department did not respond to requests to comment.
What is most striking about the voting rights lawyers' criticism of the Department is that the agency does not have to wait until Election Day to act. Under Section 11(b) of the Voting Rights Act, the Department can move to stop voter intimidation schemes without having to prove the motive behind those actions. This section of the law does not require the government show any intent by partisans to discriminate, the lawyers say. Instead, if the result is intimidation or suppression of minority voters, it can act.
"We really need the Justice Department to get out there and make a pronouncement, publicly, that voter intimidation and voter suppression will not be tolerated because it violates federal law," said Gerry Hebert, executive director of the Campaign Legal Center and a former Department Voting Section Chief. "We have asked the Attorney General to do this and thus far there has been a deafening silence."
"I think the Department's response to these issues, at best, is tepid, and at worst ignores what we think is a serious problem and their responsibility to address it," Henderson said. "The Department of Justice often argues that its jurisdiction is limited. But we think the interpretation that they have given to their jurisdiction is exceedingly narrow and it certainly ignores the larger responsibility to use the bully pulpit of the Attorney General to make clear that the Department will vigorously prosecute where possible, under federal law, any attempt to suppress the right of duly registered American citizens."
Henderson said he and other voting rights advocates recently met with the Department's Civil Rights Division to discuss issues surrounding voting rights enforcement in the 2008 election. He and others civil rights attorneys said there are precedents for the Department to discuss their enforcement priorities -- as opposed to citing specific cases -- before an election.
"I spent 21 years in the Justice Department and there is precedent for the Department to issue a public statement about how they are going to interpret or enforce the law," Hebert said, giving the example of statements made on the eve of congressional elections that preceded federal redistricting.
Other election lawyers say the Department has "ramped down" from enforcing voting rights cases since the U.S. attorney firing scandal and Michael Mukasey became Attorney General. They did praise some recent cases or settlements where the Department acted on the behalf of voters, such as joining a suit in Georgia where local election officials wanted Latinos to present proof of citizenship as part of registering to vote -- which was not in their state's law, as well as fostering a settlement in Prairie View, Texas, where local election officials have repeatedly interfered attempts by university students to vote.
However, some recent campaign tactics by Republican partisans clearly have violated federal law and have drawn no Department response, the civil rights lawyers say.
Most notable in this regard in an investigation launched by Joe Deters, the county prosecutor in Hamilton County, Ohio, where Cincinnati is located, of several hundred people who registered to vote and then voted during a week-long window earlier this month. Even though Deters, who is the southwest Ohio McCain campaign chairman, this week handed the investigation to a "special prosecutor" after protests, a letter sent by the civil rights groups to that lawman, Michael O'Neill, compared Deters' investigation to intimidation by Alabama sheriffs who violated the 1957 Civil Rights Act "when they followed persons on their way home from a voter registration meeting and arrested them for traffic violations."
"Moreover, we believe that an investigation of persons based on nothing more than their exercise of their right to register and vote would also violate their constitutional rights under the First and Fourteenth Amendments to the U.S. Constitution," the letter said, after detailing how Deters' investigation violated the voter intimidation sections of the Voting Rights Act of 1965 and the National Voter Registration Act of 1993.
The groups singing the letter, which urged O'Neill to "suspend any investigation," include the American Civil Liberties Union of Ohio, ACLU Voting Rights Project, Demos, Lawyers Committee for Civil Rights Under Law, Project Vote and the Miami Valley Voter Protection Coalition and numerous Ohio law school professors. Letters were also sent to the Justice Department's Voting Section chief, and chief of the Criminal Section of the Department's Civil Rights Division.
"Four hostile newspapers are more to be feared than a thousand bayonets. "
Napoleon Bonaparte
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