WASHINGTON — Bush administration lawyers
argued in three closely contested states
last week that only the Justice Department,
and not voters themselves, may sue to
enforce the voting rights set out in the
Help America Vote Act, which was passed in
the aftermath of the disputed 2000 election.
Veteran voting-rights lawyers expressed
surprise at the government's action, saying
that closing the courthouse door to aspiring
voters would reverse decades of precedent.
Since the civil rights era of the 1960s,
individuals have gone to federal court to
enforce their right to vote, often with the
support of groups such as the NAACP, the
AFL-CIO, the League of Women Voters or the
state parties. And until now, the Justice
Department and the Supreme Court had taken
the view that individual voters could sue to
enforce federal election law.
But in legal briefs filed in connection
with cases in Ohio, Michigan and Florida,
the administration's lawyers argue that the
new law gives Atty. Gen. John Ashcroft the
exclusive power to bring lawsuits to enforce
its provisions. These include a requirement
that states provide "uniform and
nondiscriminatory" voting systems, and give
provisional ballots to those who say they
have registered but whose names do not
appear on the rolls.
"Congress clearly did not intend to
create a right enforceable" in court by
individual voters, the Justice Department
briefs said.
In one case the Sandusky County
Democratic Party sued Ohio Secretary of
State J. Kenneth Blackwell, arguing that the
county's voters should be permitted to file
provisional ballots even if they go to the
wrong polling place on election day.
The Justice Department intervened as a
friend of the court on Blackwell's side.
Saturday's decision in that case, and in
other recent cases from Michigan and
Florida, gave the department a partial
victory. On the one hand, the courts agreed
with state officials who said voters may not
obtain a provisional ballot if they go to
the wrong polling place.
However, all three courts that ruled on
the matter rejected the administration's
broader view that voters may not sue state
election officials in federal court.
Still, the issue may resurface and prove
significant next week if disputes arise over
voter qualifications. Some election-law
experts believe the administration has set
the stage for arguing that the federal
courts may not second-guess decisions of
state election officials in Ohio, Florida or
elsewhere.
J. Gerald Hebert, a former chief of the
department's voting-rights section, said he
was dismayed that the government was seeking
to weaken a measure designed to protect
voters.
"This is the first time in history the
Justice Department has gone to court to side
against voters who are trying to enforce
their right to vote. I think this law will
mean very little if the rights of American
voters have to depend on this Justice
Department," said Hebert, who worked in the
voting-rights section from 1973 to 1994.
In a statement, the Justice Department
said it was simply trying to implement what
it considered to be the clear intent of
Congress. Other voting-rights laws,
including the National Voter Registration
Act of 1993, which required states to allow
citizens a chance to register to vote while
applying for or renewing driver's licenses,
have been more explicit in allowing for
private enforcement, it noted.
In contrast, the Help America Vote Act
says in its enforcement section that "the
attorney general may bring a civil action"
in federal court to challenge the actions of
states that fail to follow the law.
"Where Congress expressly decided to
trust judicial enforcement of a statute to
the Department of Justice, as it did in HAVA,
the Department has a practice of defending
its jurisdiction in court," the department's
statement said. The department said that, on
occasion, it had opposed private enforcement
in other voting-rights cases.
But some former Justice voting-rights
officials and some election law and civil
rights experts said the department's latest
position represented a marked philosophical
shift. Historically, they said, the
department had been aggressive in supporting
the idea of private suits as an important
tool in fighting discrimination and other
ills, even where such rights were not
clearly spelled out by legislation.
"Before this administration, I would say
that almost uniformly, the Department of
Justice would argue in favor of private
rights of action … to enforce statutes that
regulate state and local government," said
Pamela Karlan, a professor at Stanford
University's Law School.
She said the landmark Voting Rights Act
of 1965 did not originally include a private
right to sue state officials who
discriminated against aspiring black voters.
The Justice Department backed the idea of
private suits, nonetheless, in a test case
that ultimately reached the U.S. Supreme
Court in 1969.
In their ruling, the justices said "the
achievement of the act's laudable goal would
be severely hampered … if each citizen were
required to depend solely on litigation
instituted at the discretion of the attorney
general."
More recently, the Justice Department
also sided with private plaintiffs in a 1996
case challenging a registration fee that had
been instituted by the Virginia Republican
Party as a racially motivated poll tax under
Section 10 of the Voting Rights Act.
The section did not expressly mention
private actions but the Supreme Court, at
the urging of the Justice Department, found
an "implied" right to sue, said Steven J.
Mulroy, an assistant professor at the
University of Memphis Law School and a
former lawyer in the department's
voting-rights section.
"It is pretty rare for the Department of
Justice to take a position that there is no
private right of action to enforce a federal
statute guaranteeing voting rights," he
added.
In a related development, the Justice
Department announced Thursday that it was
sending nearly 1,100 federal workers — more
than twice the number four years ago — to
monitor and observe the election in 25
states for possible violations of the
federal voting-rights laws.
About 840 federal observers will be
stationed at polling places in 27 areas
covered by federal court orders, including
parts of Mississippi, Texas, Arizona and New
Mexico, the department said in a news
release.
In addition, the department said it was
deploying scores of attorneys and staff from
its civil rights division to monitor voting
in 58 jurisdictions in other parts of the
country. Officials did not explain how they
chose those locations, although many are in
such battleground states as Michigan, Ohio
and Florida.
Civil rights groups have been concerned
that the spectacle of a growing number of
federal workers stationed at polling places
could have a chilling effect on potential
voters.
The department said that most of the
workers would be from the federal Office of
Personnel Management and that none of the
monitors at polling locations were criminal
prosecutors.
© Copyright 2004 Los
Angeles Times