During the Bush administration, liberals in Congress and the mainstream media were obsessed with allegations of “politicization” of the Justice Department. So it is amazing to watch the Obama Justice Department making what seem to be purely political decisions with absolutely no concern expressed by those same congressional and journalistic liberals. The latest example of the Left’s ostrich mentality is the dismissal by the Civil Rights Division of a National Voter Registration Act (NVRA) lawsuit filed against Missouri by the Bush Justice Department four years ago. The dismissal has gone conspicuously unmentioned on the division’s website.
Republican legislators considering the NVRA back in 1993 didn’t like its mandate forcing states to allow mail-in registration, one of the biggest sources of voter-registration fraud. But many of them voted for the bill once they had secured what they thought was an acceptable compromise: In return for the provision for mail-in registration, Democrats agreed to a requirement that states “conduct a general program” to remove “the names of ineligible voters” — usually, people who have died or moved out of the jurisdiction.
In fact, liberal career lawyers at Justice scoffed at this statutory requirement. For the first ten years following passage of the NVRA — covering the entirety of the Clinton administration — not a single lawsuit was filed to enforce the provision. The Civil Rights Division consistently ignored indisputable evidence that many states were not cleaning up their registration lists. Indeed, some counties actually had more registered voters than the Census showed they had voting-age residents.
Not until the Bush administration took over — and in fact, only after the division’s new leadership overcame intense internal opposition from career staff — were suits filed against states like Indiana and Missouri to enforce this NVRA provision. In the case of Indiana, the Republican secretary of state quickly agreed to clean up the state’s registration list. The list was so breathtakingly inaccurate that the U.S. Supreme Court noted last year, in its decision upholding Indiana’s photo-identification law, that 41 percent of voters on the list were ineligible.
The situation was as bad or worse in Missouri: When the suit was filed, in 2005, one-third of the counties had more registered voters than voting-age residents. One county’s list was 153 percent of the Census count. Talk about people dying to vote! And the state had done virtually nothing to clean up its rolls.
Despite these staggering numbers, liberals were extremely upset about the decision to file suit. Some congressional Democrats and civil-rights organizations complained that the Civil Rights Division was engaging in “voter suppression.” Suppression of whom? Dead people?
Right after the case was filed, Missouri’s Democratic secretary of state, Robin Carnahan, agreed to settle, and negotiations commenced over a draft consent decree. Carnahan even issued a press release lamenting the deficiencies in many Missouri counties. But a few days later, she suddenly changed her mind, presumably fearing the fallout from daring to capitulate to the Bush Justice Department. Carnahan’s new tune was that the secretary of state had no obligation to ensure that individual counties were complying with federal law.
Carnahan’s legal theory makes a mockery of the NVRA, which was passed in large part to make states responsible for voter registration. Unfortunately, the case was assigned to Judge Nanette Laughrey, an extremely liberal Clinton appointee whose husband was appointed to a state commission by Robin Carnahan’s father, the late Gov. Mel Carnahan. (Judge Laughrey, incidentally, once literally sold an extension of time to parties in a civil case: She told them on the record in open court that she would grant their request for an extension only if they paid $90,000 to Legal Aid of Western Missouri.) Judge Laughrey accepted Carnahan’s view of the law and ruled in favor of the state, notwithstanding the NVRA’s language obligating “the State” to ensure that proper voter-registration lists are maintained. Judge Laughrey chastised the Justice Department for failing to provide any evidence of voter fraud, even though proving the existence of voter fraud is not an element of proving a violation of the NVRA.
In July 2008, the U.S. Court of Appeals for the Eighth Circuit unanimously reversed Judge Laughrey’s ruling, holding that she had erred by failing to determine whether the secretary of state was conducting an adequate general program to remove the names of ineligible voters from the official rolls. In other words, the political leadership of the Civil Rights Division of the Bush Justice Department was vindicated.
Fast-forward to this March. There remains no evidence that the voter-registration rolls in most Missouri counties have been purged of their thousands of non-residents and decedents. Registration numbers from the November election show there are still more than a dozen Missouri counties with more registered voters than voting-age residents. Perhaps candidates in the next election, instead of holding rallies at the local community center, ought simply to hold a séance.
So how has the Obama Justice Department dealt with this lack of compliance with federal law? By quietly dismissing the suit. It is true that the suit was dealt a blow when Judge Laughrey, in a bizarre opinion on remand, refused to allow discovery to be reopened, despite the fact that two years had gone by while the case was pending in the Eighth Circuit. But the Civil Rights Division could have either appealed following a final judgment or simply filed a new lawsuit based on current conditions. Instead, the division dropped the suit altogether.
Now, this is exactly what one would have expected from the new political leadership at Justice. However, there has also been one other significant development: On February 3, just one month before the division dismissed the lawsuit, Robin Carnahan announced that she was going to run for the United States Senate seat being vacated by Kit Bond. Coincidence? Given Attorney General Holder’s assurances of a “new day” at Justice and his promise that there would be no politics involved in the department’s decision making, I am sure the dismissal of this suit against a Democratic state official had nothing to do with that official’s announcement that she would be running for the Senate — aren’t you?
– Hans A. von Spakovsky is a former commissioner on the Federal Election Commission, and former counsel in the Civil Rights Division of the Department of Justice.