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.