The Department of Justice is assisting several organizations, including the NAACP and the League of Women Voters, to ensure that illegal immigrants can vote in the upcoming presidential election. Registering Latinos, for instance, can be crucial in securing enough popular votes in states such as California, Florida, Illinois, New York and Texas.
On Feb. 12, the above groups filed a suit in a District of Columbia federal court to reverse a decision made by the U.S. Election Assistance Commission (EAC). The EAC ruled that Arizona, Georgia, Kansas and other states may enforce state laws that ensure that only citizens can register to vote when they used a registration form designed by the federal government. On Feb. 22, an initial hearing has been scheduled.
The EAC had designed the federal voter-registration form required by law under the National Voter Registration Act (i.e. Motor Voter). States must register voters who utilize the form but can also ask the EAC to include instructions about further state registration requirements. In some cases, states are requiring satisfactory proof of citizenship to ensure that only citizens register to vote.
According to Article I Section 2 and the 17th Amendment to the Constitution, states are empowered to set the “Qualification requisite for electors.” However, leftist organizations such as the People for the American Way, Common Cause, Chicanos for La Causa, and the League of Women Voters dispute the delegation of powers to the states. These groups are claiming that the EAC had not approved the states’ requirements.
The Supreme Court ruled in 2013 in Arizona v. Inter Tribal Council of Arizona that the state could not implement its requirements unless the EAC agreed to change the instructions for use of the federal form to include the Arizona requirements. The majority opinion written by Justice Antonin Scalia, however, stipulated that if the EAC refused Arizona’s request to accommodate the proof-of-citizenship requirement, the state could sue the EAC and establish in court that “a mere oath will not suffice to effectuate its citizenship requirement and that the EAC is therefore under a nondiscretionary duty to include Arizona’s concrete evidence requirement on the Federal Form.”
The Supreme Court ruled that Arizona could also claim that a refusal by the EAC would be “arbitrary,” because the EAC “has accepted a similar instruction requested by Louisiana.” The justices said that the EAC had ”recently approved a state-specific instruction for Louisiana requiring applicants who lack a Louisiana driver’s license, ID card, or Social Security number to attach additional documentation” to the federal voter-registration form.
An acting executive director of the EAC, Alice Miller, who was not an EAC commissioner, denied the request, even though it is not clear whether she had the authority to do so. There was not quorum on the independent EAC, which has four members.
According to sources at the Department of Justice, attorneys aligned with the Obama administration in the Voting Section of the Civil Rights Division wrote the denial letter. The EAC was intended to be an independent federal agency. While President Obama has the authority to nominate commissioners for the four slots, two for Democrats and two for Republicans, in practice he should consult with the majority leader Sen. Mitch McConnell and House Speaker Paul Ryan.
Allowing lawyers for the DOJ Voting Section to draft the denial letter may violate the intention of bipartisan balance written into the 2002 Help America Vote Act to keep voter registration outside of the president’s influence.
It was the Voting Section of DOJ that dismissed charges of voter intimidation that were laid against members of the New Black Panther Party who physically threatened voters in Philadelphia to help Obama get elected in 2008. The Voting Section has been accused of seeking to eliminate voter ID and other election-integrity measures, as well as non-enforcement of the Voting Rights Act in a race-neutral manner. Also, it was Voting Section lawyers who fought in federal court to keep Kansas from enforcing a similar state law to ensure that only citizens registered to vote.
One of the lawyers at the Voting Section is Bradley Heard, who has been accused of potentially unethical conduct for using social media to share confidential materials with the public. Calling himself a “Voting Rights Gladiator,” before joining the DOJ, Heard worked for a number of years at the left-wing Advancement Project, which has cooperated with the NAACP LDF, ACLU, and Lawyers’ Committee for Civil Rights to oppose voter-ID statutes, felon-disenfranchisement laws, and citizenship-verification regulations, inter alia.
The state of Kansas is making some of the same points made above: that partisan lawyers in the Voting Section wrote policies that should have been written by the EAC, not an agency under the control President Obama. It charges that DOJ drafted the response to Kansas’s 2013 request and presented that response to the States as if it were coming from the EAC itself while it was without a quorum.
At the time, Attorney General Eric Holder was at DOJ and thus allegedly engaged in prohibiting an independent federal agency from allowing a state to verify only citizens are registering to vote. Observers fear that instead of actually defending the EAC when it is sued, DOJ staff attorneys may actually be trying to sabotage the requests made by Arizona and Kansas to ensure that only duly enfranchised American citizens will vote in the coming presidential election and thus decide on the future course of the United States.