Little-noticed provision would dramatically expand DOJ’s authority at the polls

Robert D. Popper Senior Attorney, Judicial Watch
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Imagine if we were confronted with another dispute over the outcome of a presidential election like that between George W. Bush and Al Gore in 2000. Now imagine that a highly political Attorney General – let’s call him Eric – were authorized by federal law to intervene in that dispute, and to throw the weight of the U.S. Justice Department behind the claims of one of the candidates. That disturbing scenario is entirely plausible under a proposed amendment to federal voting law that would dramatically expand the jurisdiction of the Justice Department and revolutionize the way it litigates voting rights lawsuits.

In early February, Republican and Democratic sponsors introduced the “Voting Rights Amendment Act of 2014,” ostensibly to repair the provisions of the Voting Rights Act struck down by the Supreme Court last June in Shelby County v. Holder. The bill has been roundly (and rightly) criticized, primarily because its application would depend on the existence of “violations” that do not entail any actual discrimination, because its protections depend on race-based distinctions, and because it imposes burdensome new reporting requirements.

What has escaped comment so far, however, is the fact that a little-noticed provision of the bill would abolish the longstanding legal principle that the U.S. Attorney General has no authority to sue directly for certain violations of the Constitution. An amendment buried deep in the final pages of the bill alters the Voting Rights Act to allow the Attorney General to seek an injunction against “any act prohibited by the 14th or 15th Amendment” of the Constitution. Under current law, the Attorney General is only authorized to bring civil rights claims under specific statutes, typically those prohibiting discrimination. Private plaintiffs can, and do, allege violations of the Constitution, but the Justice Department does not.

The proposed change is a major power grab by the Justice Department, allowing it to become involved in a whole range of 14thAmendment cases which it previously would have been unable to pursue. These cases include some of the most partisan, politically charged disputes that arise in any given election cycle. The Justice Department’s new jurisdiction would extend to lawsuits concerning the validity or counting of ballots – like, for example, Bush v. Gore. The Justice Department could also intervene in partisan redistricting disputes regarding the principle of “one person, one vote” or unconstitutional gerrymandering.  Any Justice Department would have a difficult time maintaining even the appearance of neutrality in handling such cases.  A politicized Justice Department could engender one political or even constitutional crisis after another.

Eric Holder may be the most politically partisan Attorney General since John Mitchell. But pick your poison. Would you want a Justice Department under either Eric Holder or John Mitchell taking sides in disputes over who won a congressional or presidential election, in decennial redistricting fights, or in challenges to partisan gerrymanders?

There is no need for this change, as private plaintiffs have shown themselves fully capable of suing to enforce their own 14th Amendment rights. The fact that prevailing parties may recoup attorney’s fees and other expenses means that there is no shortage of plaintiffs willing to litigate any potential 14th Amendment claim.

Certainly the Justice Department has done nothing to justify this extraordinary expansion of its powers. To the contrary, an Inspector General’s report issued in March 2013 documented, among other things, partisan harassment of conservative and Republican employees of the Voting Section and race-based enforcement of the Voting Rights Act.

In the best of times, the proposed change would threaten to corrupt the Justice Department’s neutral enforcement of federal law. Under a politicized Justice Department it is courting disaster.

Robert D. Popper is a Senior Attorney for Judicial Watch and formerly the Deputy Chief of the Voting Section of the Civil Rights Division of the U.S. Department of Justice.