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The Justice Department Misleads the Ninth Circuit



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Eric Holder’s Justice Department seems intent on making sure noncitizens can participate in our elections. And its recent action in a federal court of appeal shows that it’s willing to engage in unethical conduct to do so.

Specifically, the Civil Rights Division misled the Ninth Circuit Court of Appeals in a brief it filed against an Arizona law that requires anyone registering to vote to provide proof of citizenship, violating the ethical rule that requires candor towards a tribunal.

In 2004, the people of Arizona overwhelmingly passed Proposition 200. It is a commonsense reform intended to prevent noncitizens from illegally voting in elections. A lawsuit was almost immediately filed by the usual liberal suspects, including People for the American Way, Project Vote, and Chicanos Por La Causa. The procedural history of this case is complicated, but in 2007, a three-judge panel of the Ninth Circuit upheld the refusal of the district court to issue a preliminary injunction after it found that the plaintiffs were unlikely to succeed in their lawsuit. Eventually, the federal district court dismissed the lawsuit entirely, ruling that the law was not discriminatory and did not violate the Voting Rights Act, the Fourteenth Amendment, or the National Voter Registration Act (NVRA).

Yet, in October 2010, a second three-judge panel of the Ninth Circuit, led by retired Supreme Court activist Sandra Day O’Connor, reversed the district court and issued an erroneous opinion claiming that the Arizona law was preempted by the NVRA. They said, in essence, that Arizona has no right to verify the citizenship status of individuals registering to vote, despite the fact that registering and voting by aliens is a violation of both state and federal law.

Ninth Circuit Chief Judge Alex Kozinski wrote a scathing dissent, pointing out that the rules of the circuit do not allow one three-judge panel to overrule another three-judge panel of the same court. The NRVA “plainly allow[s] states … to require their citizens to present evidence of citizenship when registering to vote,” he said. “That is law of the circuit and therefore binding on us.” But the “majority refuses to accept the consequences of this reality” and “distorts two major areas of law.” O’Connor completely misread the statute and its legislative history to find preemption where none exists and blatantly violated the Ninth Circuit’s procedural rules to achieve a certain policy result.

The Ninth Circuit granted en banc review of O’Connor’s decision by eleven judges of the court. Oral arguments occurred on June 21. This lawsuit has been going on since 2006. Yet on June 3, just two weeks before the oral argument, and seven years after the referendum passed, the Civil Rights Division of the Justice Department suddenly filed an amicus brief (long past the deadline for such briefs) claiming that the Arizona law violated the NVRA.

The Division left out some very important facts in its brief.

Arizona is covered by Section 5 of the Voting Rights Act, which requires the state to seek pre-clearance of any voting change, either from DOJ or a federal court in Washington, D.C., before it can be implemented. Arizona submitted Prop. 200 to the Division in 2004 for review. On Jan. 24, 2005, the Division pre-cleared the law, concluding that it was not discriminatory under the Voting Rights Act. Yet the Division failed to inform the Ninth Circuit of its approval of Prop 200. Moreover, on March 30, only two months before it filed a brief in the Arizona case, the Division was also forced to pre-clear Georgia’s almost identical proof-of-citizenship voter registration law after Georgia sued Justice in federal court.

It is true that under applicable Supreme Court precedent, pre-clearance under Section 5 does not bind a court to conclude that a law complies with the NVRA or other federal voting rights statutes. However, in performing its pre-clearance duties under Section 5, the Division acts almost as a surrogate for the federal courts, since its administrative review is an alternative to review by a federal court. The Division had an ethical obligation to inform the Ninth Circuit of all of its actions with regard to the Arizona statute the court is reviewing. DOJ should never have withheld such highly relevant information from a tribunal.

This is important for another reason. The Division’s standard practice when it receives a Section 5 submission is to also check for possible violations of other federal voting rights laws, including the NVRA. If, after pre-clearance under Section 5, the Division had concluded that Prop. 200 violated the NVRA, the Division would have immediately filed a separate enforcement action against Arizona. The Division has filed nine lawsuits to enforce the NVRA since 2004, when Prop. 200 was first passed, and entered into two settlement agreements.

Yet no enforcement action has ever been filed against Arizona (or Georgia) by DOJ claiming the state statute violates the NVRA. Instead, the Division reached the same conclusion in 2005 as both the district court and the first Ninth Circuit panel: Prop 200 does not violate the NVRA and is not superseded by federal law.

The Department’s inaction against Arizona during the past seven years, in light of the numerous NVRA enforcement actions filed against other jurisdictions, speaks loudly and more clearly about its prior legal opinion of Prop 200 than its sudden, late filing of a last-minute brief. The Department’s failure to acknowledge the change in its legal position in its brief, as well as its clearance of the Arizona and Georgia laws under the Voting Rights Act, seems intended to mislead the Ninth Circuit. This fact-deficient and dubious filing shows once again just how ethically challenged and politicized the Department has become under Eric Holder.

— Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation and former counsel to the assistant attorney general for civil rights at the Justice Department.



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