As a veteran of the Voting Section, I understand the concern that many of us
have over the blatantly partisan manipulation of the Voting Rights Act.
That concern is well-placed, particularly based on decisions in the last few
years. However, I feel compelled to comment on some of the posts.
1. The DOJ administrative review process usually works very well. Before
this administration took charge, the DOJ had almost 35 years of reviewing
changes, and had an admirable record of stopping discriminatory laws before
they took effect. This administration's political manipulation is
unprecedented -- other administrations, both Republican and Democratic, took
Section 5's mandates very seriously.
2. Just because this administration, which has 3 years left, has abused
Section 5, is not a reason to throw the baby out with the bath water.
Section 5 is an ADDITIONAL, not alternative, line of defense for minority
voters. If Sec. 5 was not renewed, voters seeking to challenge
discriminatory legislation would be in the same position as those presently
challenging precleared laws. They would not be better off. So long as
courts and litigants realize, as they now must, that DOJ's decisions in this
administration should not bear any legal weight in subsequent litigation,
having Sec. 5 is far better than not having it. Also, future
administrations will most likely restore the neutral analysis that the
Voting Section has always been proud of.
3. There seem to be some substantial misconceptions about how
administrative review works in the DOJ. Courts are NOT more accessible than
the DOJ. Anyone can submit a comment to DOJ, and it will be considered.
335 comments were submitted regarding the Texas redistricting. To have a
trial court hear a party's comments, that party must intervene or apply for
amicus status, which is substantially more difficult than calling, emailing,
or faxing the DOJ (perhaps nobody knows this better than I, having both
reviewed many administrative changes and litigated the Georgia v. Ashcroft
case). In addition, the Voting Section professionals are not "strangers" --
they have person-to-person conversations with many people familiar with the
voting changes, and make themselves available for any comments that might be
made. Criticism of the political operatives who cynically manipulate the
VRA is one thing, but the criticism directed at the career professionals in
the Voting Section is misplaced.
4. It looks like Nate Persily was perhaps misquoted or taken out of context
in the Dallas Morning News article. While it's true that it appears the
Texas plan increased the number of minority congresspeople by one, the
evidence strongly suggests it REDUCED the number of candidates of choice
elected by minority voters (some of whom, like Martin Frost, happen to be
white). The Voting Rights Act of course does not protect minorities' right
to elect only candidates that look like them -- it protects their right to
elect whatever candidates they (the voters) choose. In Texas' case, that
included several districts where minority voters demonstrated their
preference for white candidates.
5. Finally, I'd like the echo some of the comments of my former colleagues.
While the politicization of the DOJ saddens nobody more than me, the
professionals who remain in the DOJ are suffering even more (though not as
much as minority voters in this country). The career staff who worked on
the Georgia and Texas cases are among the very best, and the memos leaked to
the Post confirm this. These memos were among the most comprehensive and
even-handed I have ever seen during my tenure in the Voting Section. The
lawyers who worked tirelessly on them should be very proud of their efforts,
and those who seek to slander them by impugning their professionalism should
be ashamed of themselves. In this kind of environment, it's no wonder half
the attorneys in the Voting Section have left in the last seven months.
David J. Becker
Election Consultant and Voting Rights Attorney
(202) 550-3470
(202) 521-4040 fax
david.j.becker@electionconsulting.com
www.electionconsulting.com
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of
ban@richardwinger.com
Sent: Saturday, December 03, 2005 8:14 PM
To: Jonathan H. Adler; election-law@majordomo.lls.edu
Subject: Justice Department compared to courts
I've always thought the function of the Voting Rights
Section in pre-clearance was akin to a judicial
function. But courts have far better methods of
making decisions than the Justice Department. Courts
are more accessible. The personnel making the
decisions in the Justice Department are sometimes
faceless strangers, and can't be reached by people
with something meaningful to say.
--- "Jonathan H. Adler" <jha5@case.edu> wrote:
Controversy about alleged leaks or improper
disclosures from the Civil
Rights Division are not new. Back in 2002 there
were claims of improper
disclosure of internal deliberations of the
Employment Litigation section,
resulting in the distribution of a memorandum
warning that Justice
Department attorneys could face disciplinary action
for such disclosures.
See: Ellen Nakashima, Justice Lawyers Get New
Warning; Discussing 'Internal
Deliberations' With Outsiders Discouraged,
Washington Post, March 15, 2003,
A07.
The Post also reported on concerns about improper
disclosures of discussions
at the Office of Legal Policy.
JHA
-------
Jonathan H. Adler
Associate Professor of Law
Case Western Reserve University
11075 East Boulevard
Cleveland, OH 44106
w) 216/368-2535
h) 216/771-7626
cell) 202/255-3012
jha5@cwru.edu
jhadler@earthlink.net
----- Original Message -----
From: "Samuel Bagenstos"
<srbagenstos@wulaw.wustl.edu>
To: <BSmith@law.capital.edu>;
<election-law@majordomo.lls.edu>
Sent: Friday, December 02, 2005 2:35 PM
Subject: RE: Electionlawblog news and commentary
12/2/05
A couple of points:
1. I know many of these people. They're
professional civil servants,
perhaps with a mission-orientation, but hardly
politicized. Many of these
same folks, after all, were around for and
participated in the 1990s round
of redistrictings, in which the Bush I DOJ pressured
states into drawing
districts that may have increased minority
representation but also helped
the Republicans pick up seats. I can tell you, from
working in the Clinton
Administration on Shaw v. Reno cases, that the
career staff in DOJ Voting
couldn't care less about what the effect of
majority-minority districts was
on Democratic legislative strength. What's been
shocking to me -- in the
Voting Section and elsewhere -- is the number of
career lawyers in Civil
Rights who made it through Brad Reynolds and Roger
Clegg (as DAAG in Bush I)
but find it intolerable under the folks the Bush II
Administration has put
in the front office.
2. "Constant leaking"? I don't know. We're five
years into this
administration, and I don't recall much significant
leaking before this --
notwithstanding the fact that the Bush
Administration front office long ago
started to shift their voting priorities from
guaranteeing the right to vote
to making sure the wrong people don't vote. (See,
e.g., their shameful
brief in the Ohio provisional ballot litigation just
over a year ago.)
Maybe someone thought enough was enough -- and the
Georgia voter ID
preclearance decision was the last straw. I'm not
condoning this -- though
I certainly remember Republican holdovers leaking
about internal
deliberations regarding Deval Patrick's decision to
switch sides in the
Piscataway case. I just think that to call this
constant leaking is
ridiculous.
====================================
Samuel R. Bagenstos
Professor of Law
Washington University School of Law
One Brookings Drive
St. Louis, MO 63130
314-935-9097
Personal Web Page:
http://law.wustl.edu/Academics/Faculty/Bagenstos/index.html
Disability Law Blog:
http://disabilitylaw.blogspot.com/
"Smith, Brad" <BSmith@law.capital.edu>
12/2/2005 11:54 AM >>>
I wonder if the constant leaking of documents out
of DOJ does not prove
- or at least indicate - that the staff is
politicized - in which case,
it is no wonder that their recommendations are
being overruled by the
political heads of the Agency.
Bradley A. Smith
Professor of Law
Capital University Law School
Columbus, Ohio
________________________________
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu]
On Behalf Of Rick Hasen
Sent: Friday, December 02, 2005 12:03 PM
To: election-law
Subject: Electionlawblog news and commentary
12/2/05
Regular Blogging to Resume Tuesday
I'm off to DC to meet with some folks at the
National Academies of
Sciences on voting reform issues. I'm having
trouble with blogging from
my Treo, so regular blogging likely will resume
some time Tuesday.
Another Explosive DOJ Voting Rights Memo Leaked to
the Washington Post;
Could It Affect Supreme Court's Decision in Texas
Redistricting Case?
Today's Washington Post features Justice Staff Saw
Texas Districting As
Illegal; Voting Rights Finding On Map Pushed by
DeLay Was Overruled
<http://www.washingtonpost.com/wp-dyn/content/article/2005/12/01/AR20051
20101927.html> . The newspaper also posted the
73-page document here
<http://www.washingtonpost.com/wp-srv/nation/documents/texasDOJmemo.pdf>
. This comes on the heels of this earlier Post
report
<http://www.washingtonpost.com/wp-dyn/content/article/2005/11/16/AR20051
11602504.html> on a similar leak involving the
preclearance decision in
the Georgia voter i.d. case and this report
<http://www.washingtonpost.com/wp-dyn/content/article/2005/11/12/AR20051
11201200_pf.html> on the exodus of career DOJ
civil rights attorneys in
the face of accusations that the department's
decisions have become too
politicized. Clearly, someone in DOJ who is
leaking the documents to the
newspaper believes political considerations are
trumping sound analysis
by competent career DOJ attorneys. These
revelations should cause
Congress, considering reauthorization of the
preclearance provisions of
the Voting Rights Act, to look closely at whether
DOJ remains the
appropriate body to make preclearance decisions.
=== message truncated ===
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