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The Justice Department’s Voter Fraud Scandal: Lessons

A decade ago, the Justice Depart­ment was upen­ded by scan­dal after invest­ig­a­tions revealed it wiel­ded its power to disen­fran­chise voters. Sen. Sessions must prom­ise to avoid similar conduct during his confirm­a­tion hear­ing, espe­cially given his own dubi­ous record on the issue.


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As a pres­id­en­tial candid­ate, Donald Trump made extraordin­ary and unfoun­ded claims about wide­spread voter fraud, declar­ing that the elec­tion was “rigged” against him and even suggest­ing that he would not accept the outcome if he lost. Remark­ably, even after winning the elec­tion, the pres­id­ent-elect has contin­ued to pound at the issue. On Novem­ber 27, he tweeted of “seri­ous voter fraud in Virginia, New Hamp­shire and Cali­for­nia” and said that millions of people voted illeg­ally.  Elec­tion offi­cials, politi­cians from both major parties, and others have rightly criti­cized these base­less claims. 

But it would not surprise if Trump found a more recept­ive listener in his choice for Attor­ney General. Jeff Session­s’s prosec­u­tion of civil rights lead­ers for “voter fraud,” all of whom were acquit­ted, was a key factor in his rejec­tion by a Repub­lican-major­ity U.S. Senate for a federal judge­ship in 1986. Now he has been nomin­ated to lead the U.S. Depart­ment of Justice, the agency with the single greatest role in protect­ing voting rights. The Justice Depart­ment enforces all federal voting rights laws, civil and crim­inal; prosec­utes elec­tion miscon­duct; issues policies and guid­ance on compli­ance with federal voting laws; and sends federal observ­ers to monitor elec­tions. It is currently engaged in ongo­ing litig­a­tion to protect voting rights in at least 6 states. Should the Depart­ment reverse course, and be guided by polit­ical goals rather than legal prin­ciple, it could seri­ously damage the insti­tu­tions of Amer­ican demo­cracy. 

There is reason to worry — because that is exactly what happened little more than a decade ago. 

In 2007, the Justice Depart­ment was upen­ded by scan­dal because it had pursued a partisan agenda on voting, under the guise of root­ing out suspec­ted “voter fraud.” Its actions during the George W. Bush admin­is­tra­tion were well outside the bounds of rules and accep­ted norms of neut­ral law enforce­ment. In pursu­ing this agenda, DOJ polit­ical lead­er­ship fired seven well-respec­ted U.S. Attor­neys, dismiss­ing some top Repub­lican prosec­utors because they had refused to prosec­ute nonex­ist­ent voter fraud. Top offi­cials hired career staff members using a polit­ical loyalty test, perver­ted the work of the nonpar­tisan Voting Section toward partisan ends, and exer­ted pres­sure on states and an inde­pend­ent govern­ment agency to fall in line with an anti-voting rights agenda. 

Ulti­mately, the effort back­fired badly. The U.S. Attor­ney firings touched off a wave of invest­ig­a­tions that exposed just how partisan the Justice Depart­ment had become and how far it had strayed from its mission of neut­ral law enforce­ment. The result was the worst scan­dal to hit the Depart­ment since Water­gate. The Attor­ney General, Alberto Gonzales, was forced to resign, as were other top DOJ offi­cials. It also helped drive Karl Rove, Pres­id­ent Bush’s chief White House strategist, from his job. Moreover, the Justice Depart­ment not only lost cred­ib­il­ity with Congress, but it also lost in the courts, where judges repeatedly rejec­ted the unten­able anti-voter legal theor­ies it had urged.

The past Justice Depart­ment scan­dal offers clear lessons that Sen. Sessions and his cohorts should take care to avoid. Having been down this road before, the Senate Judi­ciary Commit­tee, in its confirm­a­tion hear­ings for Sen. Sessions, should secure his solemn commit­ment that voting rights in the Trump Justice Depart­ment will not be treated in the same fash­ion as they were in the Bush Justice Depart­ment, and that he will not repeat the mistake of allow­ing a partisan agenda to infect the Depart­ment. At a minimum, Sen. Sessions should pledge to:

  • Faith­fully enforce the laws of United States, and ensure that enforce­ment actions are based on the mandates of the law and not partisan interest;
  • Reject efforts to pres­sure state offi­cials, U.S. Attor­neys, and other agen­cies to adopt anti-voter policies or advance a partisan polit­ical agenda;
  • Uphold the mission of the Depart­ment of Justice, includ­ing its core mission to protect civil rights and the right of every eligible citizen to vote free from inter­fer­ence and discrim­in­a­tion;
  • Preserve the integ­rity and insti­tu­tional compet­ence of the DOJ by ensur­ing that career staff are hired, assigned duties, and eval­u­ated based on their compet­ence, not their polit­ics, consist­ent with federal law and long­stand­ing policy; and
  • Ensure U.S. Attor­neys — and all other DOJ employ­ees — are not harassed or removed for fail­ure to adhere to a partisan polit­ical agenda. 

This paper provides a detailed account of the Justice Depart­ment scan­dal in the mid-2000s. This history offers key lessons and guide­posts as to what conduct the next Attor­ney General must avoid — and must prom­ise to avoid.