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DOJ's Selective Prosecution of the National Voter Registration Act

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Project Vote has repeatedly reported on the Department of Justice’s selective prosecution of the National Voter Registration Act of 1993 (NVRA). Instead of addressing state’s clear failure to enforce NVRA Section 7’s mandatory provisions requiring states to offer public assistance clients the opportunity to register to vote (see this study which details the continuing problems), the DOJ chose to pursue enforcement of Section 8, which details how voters should be purged from voter rolls. Many states have buckled to the DOJ’s pressure and eligible voters have been removed from the lists and barred from voting.

Now this bias and partisanship by the Department of Justice has created another problem for advocates of voter rights. A case brought by the Western District of Missouri US Attorney’s office trying to force the Missouri Secretary of State to purge voter rolls has led to a far reaching decision that could impact enforcement of Section 7, United States v. State of Missouri, et al.  (W.D. Mo. 2005). The Court found that the Secretary of State has no authority to enforce Section 8 against local and county Boards of Elections. If applied to Section 7, organizations would need to sue in each county to enforce the law instead of filing one complaint against a state entity. The additional resources needed to do this could be exorbitant.

The case was filed over the objections of the then United States Attorney, against a Democratic Secretary of State and in a state where there was a competitive Senate race the following year. The objecting US Attorney was forced out of office and replaced by a Bradley Schlozman, a partisan Department of Justice employee.

A case brought for political reasons usually does not have good facts. Bad facts often lead to bad law.

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The judge found the facts were weak, granting the Secretary of State Summary Judgment. The procedures contained in Missouri’s law clearly complied with the NVRA and the Secretary of State had been proactive in attempting it to get the counties to comply. Even more importantly, it appeared there was no basis to even bring the claim. The judge found:

It is also telling that the United States has not shown that any Missouri resident was denied his or her right to vote as a result of deficiencies alleged by the United States. Nor has the United States shown that any voter fraud has occurred.

The judge even concluded that the Department’s enforcement of Section 8 warped the intent of the NVRA, finding:

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Increased voter participation and elimination of fraud were the primary goals of Congress when it mandated that the States make reasonable efforts to maintain accurate voter registration lists. The absence of evidence of fraud or voter suppression during the relevant time period weighs heavily in favor of a finding that the Defendants’ efforts have been reasonable.

The case involved Section 1973gg-6(a)(4) of the NVRA which requires the state to “conduct a general program that makes a reasonable effort” to purge records of ineligible voters who had died or changed their address. The Court found that a Missouri law laid out the parameters for removing records from the list of eligible voters, and that Secretary of State had made a reasonable effort, through rules, training and monitoring, to implement the law.

While this could have ended the case, the Court went a step further, laying the groundwork for potential problems for voting rights advocates. The judge also found the Secretary of State had no authority to implement the law. Under Missouri law County Boards of Elections, not the Secretary of State, have exclusive authority to remove voters from voter lists. The Secretary is not responsible for compliance and could not be sued.

The Department of Justice argued that the state could not avoid responsibility for enforcing Section 8 by delegating that authority to a local entity. The Court disagreed, finding the NVRA only obligates the Secretary of State to coordinate, not enforce, the provision. The Court refused to overturn the delegation of authority, saying nothing in the NVRA required her to do so.

There is reason to be concerned the finding could spread. A Federal judge in Ohio cited the Missouri case when dismissing a Section 7 enforcement action against the Ohio Secretary of State and Department of Jobs and Family Services, Harkless v Blackwell (N.D. Ohio, 2006). The judge dismissed the case, finding neither the Secretary of State nor DJFS had authority to require county public assistance agencies to comply with Section 7. The case is on appeal.

However, the damage appears to be limited. As bad as the decision is, it does not affect most states. Unlike running elections, which historically has been done at the local level, public assistance program are usually administered by state social service agencies. State employees occupy the positions that are involved in offering voter registration opportunities to clients. Even if the Secretary of State is not responsible for all aspects of implementing the NVRA, usually another state social or family service agency is responsible and can be held accountable, eliminating the need to bring lawsuits in every county.

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In the few states, such as Ohio, where public assistance services are administered by the county and the case workers are county, not state employees, the Ohio and Missouri case do present problems. However, the law and the facts are different and there is hope that the Ohio case will be overturned.

In the Ohio case, unlike in Missouri there is a strong factual basis that Ohio is not implementing Section 7 and individuals are being harmed. There was even evidence that the Ohio Secretary of State was doing nothing to implement, or even coordinate implementing, the NVRA. The Court did not consider this though, dismissing it without addressing the facts.

Section 8 and Section 7 also have a different purposes and mandates. Section 7 directly addresses one of the reasons for the NVRA that even the Missouri Court recognized - increasing voter participation. Section 7 also requires more than a “general program” and “reasonable effort”. It says that “[a]t each voter registration agency, the following services shall be made available” [emphasis added] and then lists each of the steps that must be made to offer the client an opportunity to register to vote. Unlike Section 8 open ended mandate, this is a clear, easily enforceable requirement that Congress intended each state designated public assistance agency to comply with.

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