Several left-wing organizations are fighting against efforts by states to make sure non-citizens can’t vote in the upcoming presidential elections. The leftists came up short when the federal election agency charged with resolving such matters ruled against them.
But the leftist groups challenged this ruling in federal court, and the Obama-Loretta Lynch Justice Department has decided to take a dive. It is not opposing the lawsuit to enjoin the election agency’s decision in favor of the sates.
The Constitution (Article I, Secion 2 and the Seventeenth Amendment) confers upon states the power to set the “Qualification requisite for electors.” The left, however, would prefer to see this power exercised by federal bureaucrats in Washington, D.C.
Their vehicle for the exercise of such power is the U.S. Election Assistance Commission (EAC) — an independent federal agency, or so it is supposed to be. Under federal law, the EAC is responsible for designing the federal voter-registration form required by the National Voter Registration Act, known as Motor Voter. While states must register voters who use the federal form, they can ask the EAC to include instructions with the federal form about additional state registration requirements.
Some states now require satisfactory proof of citizenship to ensure that only citizens register to vote. When Arizona sought to do so, the usual suspects — the League of Women Voters, People for the American Way, Common Cause, Project Vote, and Chicanos for La Causa — brought a lawsuit claiming that the EAC hadn’t approved such requirements.
In 2013, a divided Supreme Court said that Arizona could not implement such a requirement unless and until the EAC agrees to change the instructions for use of the federal form to include the Arizona requirements. However, the majority opinion, written by Justice Scalia, stipulated that if the EAC refuses Arizona’s request to accommodate the proof-of-citizenship requirement, the state can sue the EAC and establish in court that “a mere oath will not suffice to effectuate its citizenship requirement and that the EAC is therefore under a nondiscretionary duty to include Arizona’s concrete evidence requirement on the Federal Form.”
Arizona duly asked the EAC to approve its requirement that voters prove their citizenship. The EAC, via a single bureaucrat who was not even a commissioner, but only the acting executive director, denied the request.
According to von Spakovsky, sources in the Justice Department say that this EAC bureaucrat did not make the decision. Instead, partisan, left-wing lawyers in the Voting Section of the Civil Rights Division at the Justice Department actually drafted the denial letter.
If so, this seems like a fundamental violation of the EAC’s charter. It is supposed to be an independent federal agency, free from the influence of the executive — an inherently partisan player.
Having lawyers from the highly partisan DOJ Voting Section write agency policy obliterates all semblance of independence and bipartisan balance. It would be outrageous (albeit par for the course) if the Eric Holder Justice Department participated in a decision not to allow a state to verify that only citizens are registering to vote.
In any case, once the EAC regained a quorum of commissioners and hired a new executive director, the agency reversed the previously announced policy and permitted Arizona (as well as Kansas) to include citizenship-verification requirements with the federal voter-registration form.
In response, the leftist groups mentioned above filed a lawsuit in D.C. federal court seeking to reverse the EAC’s decision. They want non-citizens to vote in order to help elect a Democratic president.
The state of Kansas has moved to intervene in order to defend the EAC’s decision. The Justice Department should be the principle defender, however. An important part of its job is to defend federal agencies like the EAC when they are sued.
However, Loretta Lynch and company have decided to tank the case. In a pleading filed today, the Justice Department “consents to plaintiffs’ request for entry of a preliminary injunction” against the EAC. They are trying to make sure that the left-wing plaintiffs win by default.
The matter is being heard today before Judge Richard Leon. It seems clear that Kansas should be allowed to intervene in the case, particularly given the dive that the Lynch Justice Department is taking.
In addition, Judge Leon should explore the potential conflict of interest that may plague the Justice Department in this case. Kansas cites the alleged participation of DOJ lawyers (described above) in the original EAC denial of permission to require proof of citizenship. If the DOJ wrote the original denial for the EAC and is now charged with defending its subsequent approval, that seems problematic — all the more so, since it has chosen not to defend it.
Is DOJ refusing to defend the EAC due to a good faith belief that the agency’s ruling cannot be defended? Or is it doing so because its lawyers participated (improperly) in the original ruling and now are invested in the seeing the original ruling restored? That, it seems to me, is a fair question raised by allegations of DOJ involvement at the EAC level.
Legalisms aside, I believe that DOJ is refusing to defend the EAC due to raw partisanship and ideology. DOJ wants non-citizens to vote because they are likely to vote Democratic. It’s as basic, and disgraceful, as that.