Voting Rights Advocates Used to Have an Ally in the Government. That’s Changing.
Published – August 12th, 2018 By Michael Wines New York Times
WASHINGTON — A new voter ID law could shut out many Native Americans from the polls in North Dakota. A strict rule on the collection of absentee ballots in Arizona is being challenged as a form of voter suppression. And officials in Georgia are scrubbing voters from registration rolls if their details do not exactly match other records, a practice that voting rights groups say unfairly targets minority voters.
During the Obama administration, the Justice Department would often go to court to stop states from taking steps like those. But 18 months into President Trump’s term, there are signs of change: The department has launched no new efforts to roll back state restrictions on the ability to vote, and instead often sides with them.
Under Attorney General Jeff Sessions, the department has filed legal briefs in support of states that are resisting court orders to rein in voter ID requirements, stop aggressive purges of voter rolls and redraw political boundaries that have unfairly diluted minority voting power — all practices that were opposed under President Obama’s attorneys general.
The Sessions department’s most prominent voting-rights lawsuit so far forced Kentucky state officials last month to step up the culling from registration rolls of voters who have moved.
In the national battle over voting rights, the fighting is done in court, state by state, over rules that can seem arcane but have the potential to sway the outcome of elections. The Justice Department’s recent actions point to a decided shift in policy at the federal level: toward an agenda embraced by conservatives who say they want to prevent voter fraud.
“They’re showing deference to the states when it comes to issues like voter ID,” said Logan Churchwell, a spokesman for the conservative Public Interest Legal Foundation, which advocates tighter restrictions on voter registration. “If a state sees the need for a prophylactic capability to prevent fraud, then it can.”
The Justice Department declined to comment on the record about its overall approach, though it said that in at least one case in Texas, it was not fair to say the administration reversed its predecessor’s stance.
Mr. Sessions, during his confirmation hearing, was asked about Mr. Trump’s unsubstantiated claim that millions of fraudulent votes were cast in 2016. Mr. Sessions said he did not know what Mr. Trump meant by that statement, and then added, “I would just say that every election needs to be managed closely, and we need to ensure that there is integrity in it. And I do believe we regularly have fraudulent activities occur during election cycles.”
Critics see in the Justice Department’s moves the ascendance of a longtime Republican political agenda that will increase barriers to the ballot.
“The Trump administration wants to make it harder to vote, and they’ve thrown the weight of the federal government behind that,” said Lisa M. Manheim, an associate professor and election-law scholar at the University of Washington School of Law. “It’s hard to justify some of these measures as anything but an attempt to entrench Republicans in office.”
Almost all researchers who have studied the issue have concluded that voter fraud is rare in the United States. A Trump-appointed commission investigating the issue disbanded in January without presenting any evidence of widespread impropriety.
Instead, according to critics of the administration and even some Republicans, the principal aim of laws adding requirements like photo IDs is to discourage certain voters and empower the G.O.P.
The change under Mr. Trump is a stark one from the state of play before the 2016 presidential election, when voting rights advocates and Democrats appeared to be gaining the upper hand in the courts.
With support from the Justice Department under Mr. Obama, lawyers were steadily persuading federal courts to invalidate district boundaries in states like Alabama, Texas and Virginia that were drawn to reduce minority voters’ influence. Voter ID laws and other restrictions in North Carolina, Texas and other states were struck down with the department’s help.
Some of those legal victories have already been undone.
A federal court in Texas had found that the state intentionally crippled minority voting power when it drew new state legislative and congressional districts in 2011. The same court found that replacement maps the state drew also were discriminatory. But in the Supreme Court this year, the Justice Department argued that the new districts were legal, and the justices largely agreed.
Texas also had a strict voter ID law, which had been successfully challenged by the department’s lawyers under President Obama, on the ground that the law unfairly — and intentionally — restricted access for black and Hispanic voters.
In February, Mr. Sessions’s Justice Department came to the assistance of Republican lawmakers who were fighting to restore the ID requirement by adding some revisions. After a lower court struck down the new version as discriminatory, the department argued that the court was mistaken — and in April, an appeals court adopted that position.
Critics have called the department’s involvement a reversal of its previous position on the Texas voter ID law. But the acting assistant attorney general for civil rights, John Gore, said the state’s revised law, which was passed after Mr. Trump became president, was substantially different from the one the department’s lawyers had previously assessed.
“The United States never changed its position in the Texas voter ID case,” he said. “The state of Texas changed its position in the Texas voter ID case.” He added: “Now you have a legal and appropriate voter ID law in place in Texas.”
In Ohio, the Obama Justice Department argued that a state policy of scrubbing infrequent voters from its rolls if they failed to reply to a single mailed warning violated federal law. The United States Court of Appeals for the Sixth Circuit agreed, striking down the Ohio law.
But when the case reached the Supreme Court last year, Mr. Trump’s Justice Department reversed course, saying Ohio’s aggressive purges of nonvoters met federal standards even if voters who mistook the notices for junk mail — as many did — were disenfranchised as a result. The Supreme Court agreed in June, overturning the Sixth Circuit ruling.
The Texas ID and Ohio voter-roll cases stand out for a little-noted reason: The career lawyers in the department’s civil rights division who perform the bulk of legal work on voting cases do not appear in their normal roles in the government’s latest briefs. Instead, Trump administration political appointees were the ones who took responsibility for the new positions.
That is not unprecedented in this administration. In the past, it has been a signal of disagreement within the department over the legal arguments in the briefs. In June, career lawyers not only refused to sign a brief in which the department declined to defend part of the Affordable Care Act, but also asked a judge to release them from the case.
The department’s future position on voting issues depends in part on when the civil rights division gets a permanent leader. Decisions about voting rights cases are typically made by the division, which was created in 1957 to battle discrimination against African Americans.
The administration’s nominee for assistant attorney general overseeing the division, Eric Dreiband, has been awaiting confirmation for more than a year; if and when he takes office, the division will be freer to act with more authority.
The nomination of Mr. Dreiband, a Washington labor lawyer who worked for the independent counsel Kenneth Starr during his lengthy investigation of President Clinton, has been widely opposed by civil-rights advocacy groups. His confirmation appears to have taken a back seat to Senate Republicans’ efforts to approve new federal judges.
Under more permanent leadership, the department could step up pressure on states to purge ineligible voters from their rolls under opaque standards set out in the 1993 National Voter Registration Act, the “motor-voter” law. Conservative experts say the lists need to be more aggressively pruned of dead or departed voters to discourage fraud and weed out noncitizens. And they say that under Mr. Obama, the department took no action against states whose registration lists were laden with ineligible voters.
Voting rights advocates said that aggressive culling of the rolls often delists legitimate voters, and members of minorities in particular.
Whatever the Justice Department does next, conservatives said they were heartened by the new direction it has taken under Mr. Sessions.
“We’re happy with what we’ve seen done,” said Mr. Churchwell of the Public Interest Legal Foundation.