Editors’ note: See update below.
For a good preview of how politics, rather than law, may drive decisions in the Obama Justice Department next year when redistricting gets underway, go north, young man, and cast your eye on the Senate race in Alaska. The latest shenanigans by Alaskan election officials and the Voting Section of Justice’s Civil Rights Division show a dangerous willingness to bend regulations in furtherance of political objectives.
Here is the background: After Joe Miller defeated Sen. Lisa Murkowski in the Republican primary, Murkowski decided to run as a write-in candidate — meaning that her name would not be on the ballot, and thus that ill-informed voters will not be reminded at the polling place that she is an option. But on October 15, the Alaska Division of Elections decided to provide polling places with posters listing write-in candidates and their party affiliations. The list would obviously help Murkowski.
The problem is that posting such a list violates the Election Division’s own regulations, which specifically state that “information regarding a write-in candidate may not be discussed, exhibited, or provided at the polling place, or within 200 feet of any entrance to the polling place, on election day.” That’s why the Election Division has never provided a list of write-in candidates in any election in the past.
No one’s saying the regulation can’t be changed. But if the Division wants to change it, it should follow the procedures laid out in the Alaska Administrative Practices Act: proposing a new regulation, taking public comments, and only then changing the law.
Of course, following the legally mandated procedures would take far too long to help Lisa Murkowski in this election, so the division’s sudden change is highly suspicious. It’s hard not to suspect political motivations. In addition to her Republican supporters, many Democrats hope Murkowski will defeat her much more conservative opponent. Also, the state’s chief elections official, Lt. Gov. Craig Campbell, is an old political ally of the Murkowski clan, having been appointed adjutant general of the state’s Department of Military and Veteran Affairs by the candidate’s father, Frank Murkowski.
When the state’s Republican and Democratic parties sued to stop the list, the Election Division made the nonsensical claim that the list would not violate the regulation because it would not provide “information” to voters. When he ruled against the Election Division, Superior Court Judge Frank Pfiffner rejected that assertion as “simply wrong.”
The Election Division also tried to justify the list by claiming it must provide “assistance” to voters. As Judge Pfiffner pointed out, if it were so important for the Division to provide lists of write-in candidates, then the office “has been asleep at the switch for the past 50 years.”
Unfortunately, the Alaska supreme court issued a stay of Judge Pfiffner’s decision on October 27. The stay allows the list to remain posted in Alaskan absentee-voting sites, although the court ordered that candidates’ party affiliations be removed. After hearing further arguments on October 29, the court issued another order late Friday night confirming the initial stay and allowing the list to be provided to voters.
But there’s another wrinkle in this story. Alaska, like a number of southern states, is covered under Section 5 of the Voting Rights Act. This means Alaska cannot make any change in its voting laws or procedures without first getting them cleared by the Voting Section of the U.S. Department of Justice, or a federal court in Washington, D.C.
On October 15, the Alaska Election Division “surreptitiously” (as Judge Pfiffner termed it) sent a letter to the Voting Section in Washington submitting the change and seeking approval of the candidate list. The letter was full of misrepresentations. For example, it stated there had been no change in applicable Alaska statutes or regulations, but failed to inform Justice that issuing this list violates its own regulation (which constitutes an actual change in voting procedures). That’s a fact material to the Voting Section’s review under Section 5.
The Election Division also claimed that the list had not yet been used, and would not be used until November 2. This is important because federal law specifies that a voting change cannot be implemented until clearance is received. Yet in fact, the Election Division almost immediately started using the list in absentee polling places.
The Election Division also claimed that there was no litigation pending “involving the list of write-in candidates.” That was true when the submission letter was sent, but the lawsuit against the list was filed October 25. Under Justice Department regulations, the Election Division had a duty to supplement its submission by immediately notifying the Voting Section about the lawsuit. (Justice Department regulations specify that the Section will not review any submission unless the proposed voting change is “final”; changes that have been challenged in court are obviously not “final.”) There is no indication this happened.
Upon receiving a Section 5 submission, the Voting Section has a responsibility to conduct a thorough review of the proposed change to determine whether it would have a discriminatory effect, or was intended to discriminate against minority voters. Yet the Section pre-cleared the change on October 26, the day after the lawsuit was filed, apparently without doing any investigation.
Had the Section done even a basic investigation, it would have realized that the Election Division was violating its own regulations. That should have prompted an intensive investigation of the intent behind this regulatory violation, something that would be material to whether there was discriminatory intent. None of this happened.
Alaska’s actions raised additional obvious questions under two other sections of the Voting Rights Act. As the Voting Section’s own website notes, Sections 4(f)(4) and 203 require certain covered jurisdictions to provide translations of “all election information that is available in English.” Alaska happens to be covered in its entirety under Section 4(f)(4), and has at least 16 political subdivisions covered under Section 203, which requires all voting materials to be translated for Alaskan Natives, including Eskimos and Aleuts. But the Election Division proposed providing an English-only list, despite its claims that the list’s purpose was to assist voters who might otherwise have trouble.
The Voting Section is charged with protecting non-English-speaking voters in Alaska. Yet it expressed no concern whatsoever over the English-only list and has taken no action (not even a warning) to enforce these sections of the Voting Rights Act. All of this is pretty clear evidence that the Voting Section’s cursory review was controlled by political considerations, not the requirements of the Voting Rights Act or the regulations governing Section 5.
However, the October 26 approval from the Justice Department is now void. Justice approved the original write-in-candidate list, which included both names and party affiliations. But the list approved by the Alaska supreme court in its stay order Friday night can contain only the candidates’ names, and not their affiliations. The new, court-modified list will have to be submitted to the Justice Department for Section 5 review.
What will Justice do now? Keep in mind that last year, in Kinston, N.C., when voters tried to change their elections from partisan to nonpartisan, the Justice Department objected under Section 5, claiming that the party affiliations next to the candidates’ names had to be retained to protect minority voters. A dubious decision to be sure, but precedent is precedent.
Perhaps this time, the Voting Section will review Alaska’s submission with the thoroughness it is supposed to apply under the law, and without putting its thumb on the political scales and focusing on the political advantages approval might bring. That isn’t too much to ask of Justice Department, is it?
– Hans A. von Spakovsky is a former commissioner on the Federal Election Commission and a former counsel to the assistant attorney general for civil rights at the Justice Department.
UPDATE: Late Saturday evening, another lawsuit was filed in the federal district court in Anchorage in the Miller–Murkowski Senate battle. This lawsuit is by five individual voters, including a Native Alaskan, asking for an injunction against the write-in candidate list that the Alaska Supreme Court authorized for use on Friday. The claim for an injunction is made under Section 5 of the Voting Rights Act because the modified write-in list has not been cleared by the U.S. Justice Department and therefore cannot be implemented. The complaint even cites the Justice Department’s actions last year in Kinston, N.C., so the Department’s objections to the removal of candidates’ party identifications have come back to bite it. But the lawsuit also asserts claims under Section 2 of the VRA for discrimination against language minorities in Alaska who are covered under Sections 4(f)(4) and 203 of the VRA. Monday should be a busy day for lawyers in Anchorage.