Brennan Center for Justice

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.