[EL] DOJ's Inspector General report on NVRA enforcement

[Doug Hess]

"We found that there was insufficient evidence to conclude that Division
leadership enforced the NVRA in an improper partisan manner during the
period from January 2001 to January 2009. A shown on Table 3.2, Division
leadership approved eight enforcement actions (including settlements)
relating to ballot-access violations compared to six actions to enforce the
list-maintenance provisions of Section 8(a)(4).86 This record does not
support an inference that Division leadership was pushing list-maintenance
cases at the expense of ballot-access cases for improper political
purposes." (p.106 in the DOJ report, download at
http://www.justice.gov/oig/reports/2013/s1303.pdf )

What a poorly argued conclusion. The report spends pages discussing delays
in NVRA Section 8 cases, but little time on just how long the delays on
Section 7 cases had lasted. The fact is, starting as early as
2004, leading DOJ officials were notified in writing and in meetings with
civic organizations about evidence of widespread and massive failures
regarding implementation of Section 7 by numerous states. (See, for
instance,
http://projectvote.org/administrator/images/publications/NVRA/Conyers_Letter_to_DOJ.pdf)

The evidence could not have been clearer. Following a meeting between DOJ
and the nonprofits in 2004 when significant NVRA problems were discussed
(this was a meeting I organized and attended), there was a letter from DOJ
to the groups stating they were going to pass on Section 7 enforcement.
This was at the same time that they decided to work on Section 8 cases. Why
didn't this come up in the report's review? (Not just the letter but an
inquiry about enforcement delays.)

Given the perfect winning record of private plaintiffs on NVRA Section 7
enforcement and the mountains of additional evidence of non-compliance this
has unearthed, the fact that these violations were missed from 2004 to 2008
is pretty damning. It is extremely hard, given the evidence DOJ was
provided, etc. to conclude that this was a choice of policy emphasis and
not willfully ignoring their enforcement responsibilities.

Also, I'm not sure Table 3.2 correctly categorizes the cases (and, by
extension, Figure 3.7 may be flawed). However, setting aside a debate on
how to label these cases, it is silly to count up tally marks in these
categories to reach this conclusion. The scope and nature of the problem
the cases addressed are far more important than simply making a
timeline/bar chart of their data. As a friend once said "this isn't apples
and oranges, this is apples and wheelbarrows." If officials know that a
tally sheet is all they need to show, then pointless or insignificant
litigation can be used to "balance" whatever score needs keeping.

What is most disturbing is seeing the report's authors worry more (in this
section) about "he said/she said" instead of substantial policy-relevant
and analytically important factors. Truly insipid.

Sigh.

Doug

P.S. I will say that it is true, as the report notes, that Perez made it
clear that the NVRA was not a smorgasbord from which you can pick and
choose. And Chris Herren's quotes in the report about running from crisis
to crisis strikes me as correct. So, I don't think the NVRA section of the
report makes Perez look bad at all. At worse, he and others in the
Obama Administration appear to have been unable (for whatever reasons) to
articulate a fair, coherent strategy on NVRA enforcement or provide it with
necessary resources.

Douglas R. Hess, PhD
Washington, DC
ph. 202-277-6400
douglasrhess at gmail.com

Starting Aug. 2013:

Assistant Professor
Department of Political Science
Grinnell College
1210 Park Street
Grinnell, IA 50112-1670
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