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Voting Rights...for Some

The Justice Department harasses Cuyahoga County.

Aug 23, 2010, Vol. 15, No. 46 • By JENNIFER RUBIN
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The mainstream media have recently discovered the misdeeds of the voting section of the Obama Justice Department. But the dismissal of an egregious case of voter intimidation against the New Black Panther party (over the objections of the veteran trial team) by Obama political appointees and the refusal to enforce Section 2 of the Voting Rights Act (requiring voting rolls be reviewed and updated to prevent voter fraud) is just the tip of the iceberg. 

A case in point is Cuyahoga County, Ohio. After a series of seemingly innocuous visits by Justice Department attorneys, the director of the county elections board was contacted by the voting section this summer. He was informed that department attorneys wished to meet with him and “no more and no less than two” of the four members of the bipartisan elections board. Five Justice Department attorneys arrived for the July 29 meeting. 

Rob Frost, a Republican board member present at the meeting, told me:

According to stats the Department of Justice attorneys cited in the meeting, Cuyahoga County has 34,000 Puerto Ricans, 12,000 of whom are of voting age and were educated in Puerto Rican schools. They further cited a number of 6,334 with limited English proficiency, but on my questioning admitted that they do not know how many of the 6,334 are among the 12,000 who are of voting age and were educated in Puerto Rican schools. That is, the numbers of people in Cuyahoga County to whom the law applies is something less than 6,334, or something in the neighborhood of .5-.6 percent of our approximately 1 million registered voters.

The county was being asked to print ballots in Spanish for all voters. With additional requirements for translators, community outreach, additional staffing, and printing, the demand potentially would double the county’s election costs. The Justice attorneys said they were authorized to sue the county unless officials immediately entered into a consent decree that would cover not just federal elections but also local ones, specifically a September primary for local races. 

The board members were surprised by the demand and wondered whether there was not some threshold number of voters required to trigger an enforcement action. Frost recalls, “They fudged that issue and gave a roundabout answer. They admitted they couldn’t bring a de minimis case.” The only written document they presented was a copy of Section 4e of the Voting Rights Act which concerns voters “educated in American-flag schools” in Puerto Rico and prohibits “conditioning the right to vote of such persons on ability to read, write, understand or interpret” English. When queried as to why they could not receive documentation of the department’s concerns in writing the county officials were told that the department “didn’t want to create a public record.”

A Democratic board member said she was taken aback by the Justice attorneys’ aggressiveness and the unreasonable timing of the demand (i.e., immediate action). She said she didn’t want anyone to be disenfranchised, but thought the attorneys’ behavior was simply unreasonable. Frost said that the Justice Department is taking “a meat cleaver when a sharp scalpel is needed.” 

The Justice Department attorneys left with an ultimatum: Sign the decree or be embarrassed and burdened by a lawsuit. But the Cuyahoga officials have refused to be strong-armed. The election board met again with the Justice attorneys on August 11 in executive session to discuss potential litigation. A majority, it appears, were not willing to capitulate to the Obama team’s demands. No agreement was reached, and another meeting is scheduled for August 23. 

One of the Justice lawyers who met with the board was Katherine Culliton-Gonzalez. While working in the voting section, she authored a law review article and spoke at a seminar advocating expansion of voting rights for Puerto Ricans, a task normally associated with advocacy rather than those tasked with enforcing existing law. Culliton-Gonzalez took part in partisan political activities on behalf of a candidate in Prince William County, Virginia, who opposed the enforcement of anti-illegal immigrant ordinances. She also attempted to bypass the normal hiring processes in order to recruit members of the Young Democrats to the Justice Department. These were all the subject of a citizen complaint alleging that she had violated her ethical and statutory obligations to avoid partisan activity while in government service and that she had called into doubt her ability to act impartially. 

Deputy voting rights section chief Rebecca Wertz was also at the meetings. She has recently been in the news for encouraging local authorities to apply for waivers to opt out of legislation requiring the provision of ballots to military personnel. Wertz falsely asserted that there was great discretion in application of provisions that in fact are crystal clear. Senator John Cornyn was so enraged by this conduct he has demanded an oversight hearing.

Wertz, Culliton-Gonzalez, and their colleagues have as little legal precedent as they do evidence to help them badger Cuyahoga officials into submission.

J. Christian Adams, the New Black Panther party trial attorney who resigned in protest in June, says that there are steep evidentiary burdens on the department in 4e cases, and local officials “would be nuts to concede anything to them.” Using targeted ballots to discrete precincts or providing Spanish ballots only upon request are, Adams explains, among the “many ways to make a marginal change that is less expensive than what DoJ wants, but defendants rarely know about all of the discrete lines of attack.” He adds, “There is a reason they don’t want to put anything in writing.”

The Justice Department is playing a game of legal chicken with local officials. As Adams explains, “The Department of Justice has never really had to litigate 4e issues fully and therefore no court has ever offered clarity about liability or remedial obligations. While there are some older cases that skirt around the edges, much has changed in the Puerto Rican community since those decisions were made decades ago.” The Justice Department ideologues are betting local officials will sign on the dotted line to avoid the cost and controversy of a suit labeling them as civil rights violators.

In the last 18 months, we have seen how much power and discretion federal voting rights attorneys have. The Obama administration seems bent on disregarding any voting rights provisions it does not like (or simply refusing to enforce them against minority defendants) while stretching other provisions beyond all recognition. Absent sufficient congressional oversight and media scrutiny to temper such abuses, local officials will have to decide whether to knuckle under or stand their ground. If Cuyahoga officials stand up to the Obama onslaught, they may encourage other jurisdictions to do the same.

Jennifer Rubin is Commentary magazine’s contributing editor..


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