RALEIGH, North Carolina — The U.S. Commission on Civil Rights took in lopsided testimony from experts and legal practitioners Friday to gauge the status of minority ballot access ahead of the 2018 midterms and beyond.
Billed as a collection of panels to study how well the nation has operated since a portion of the Voting Rights Act was ruled unconstitutional in 2013, few right-of-center experts were invited to offer testimony.
From the Voting Rights Act’s initial enforcement to 2013, mostly southern states and counties existed under a system where any change to election law or procedure—ranging from a single polling place relocation to new legislative districts—had to be approved by bureaucrats within the Justice Department or a federal court. Jurisdictions essentially had to demonstrate they were not discriminating against minorities, rather than the DOJ showing the opposite. Those under the microscope were selected based according to voter participation data from 1964 to 1972. Shelby County, Alabama, challenged the constitutionality of the preclearance coverage formula citing how many once-discriminatory states are now out-performing others and should not be held to outdated standards. The Supreme Court eventually ruled in their favor in 2013—ending the entire regime.
The Democratic-leaning commission called for testimony from mostly liberal groups to study whether the Court erred and, if so, discern which reforms should be undertaken to bring states and jurisdictions allegedly harming minority voters back to heel.
Conservative political law and civil rights attorney Cleta Mitchell of Foley & Lardner prefaced her testimony by announcing she would depart entirely from her written remarks to address her counterparts directly and challenge the balance and intent of the commission’s work.
“The Commission is supposed to represent the thoughts and views of all Americans and not just the professional grievance industry that has been on full display today,” Mitchell began.
Echoing the Supreme Court’s sentiment in the Shelby County decision that “history did not end in 1965,” Mitchell charged the “professional grievance industry can never say, ‘we’ve made a lot of progress’.”
Video Courtesy YouTube/USCCR
A common refrain among left-leaning panelists noted that the 2020 redistricting cycle will be the first since the enactment of the Voting Rights Act where southern, now largely Republican states, will not be subject to federal approval when drawing political boundaries. Some witnesses suggested that instead of finding a formula or strategy to recapture the old jurisdictions, all in the United States should be answerable to DOJ bureaucrats instead.
The commissioners queried experts whether the 2013 Supreme Court decision “impacted the volume” of minority voter discrimination lawsuits filed by Washington. Hans von Spakovsky, a Heritage Foundation Legal Fellow, explained how litigation actually decreased after the George W. Bush Administration.
“The Bush Administration filed or settled 37 cases in contrast to only 16 by the Obama Administration,” Spakovksy noted in his prepared remarks. He added that five years after the Shelby decision, “there is still no evidence of widespread, systemic, official discrimination” by any of the states and locales that were once under constant burden to prove that they were not mistreating minority voters when changing voting laws.
Former Justice Department attorney and Public Interest Legal Foundation president J. Christian Adams warned that continued and even openly-encouraged partisan enforcement of civil rights protections waged against politically valuable jurisdictions can drive support for the laws away from the mainstream. Adams raised particular awareness to an article in the Stanford Law Review, which argued that “partisan enforcement of the Voting Rights Act” by officers of the Justice Department “might not be so bad after all.” The attorney offered the current example of a similar attempt in Nevada where Hillary Clinton’s former campaign attorney, Marc Elias, is suing to protect Democrat lawmakers from recall elections by arguing that “minority voters are less capable of voting in a recall election because they don’t pay close enough attention to public issues to have to vote twice.”
Photo identification laws, despite their continued proliferation across the states, proved a hobby horse for progressive panelists as racially discriminatory requirements to voting. National Review columnist and author John Fund challenged the Commission to consider the difference in overall impact if the Obama Justice Department had redirected the reported $50 million spent against voter ID to actually “put[ting] an ID in people’s hands.” Fund addressed the left’s rhetoric against ID laws by arguing it perpetuates the “patronizing view that minorities are helpless victims.”
Current Alabama Secretary of State John Merrill (R), representing a favorite target of the leftist panelists, on multiple occasions challenged the emerging narrative that his state was a particular bad actor for minority voters thanks to the local identification requirements. Merrill noted that his office managed to defeat a federal lawsuit thanks to a program which offers in-home service and delivery for voter IDs for those in need. Despite repeated claims that Alabama is home to roughly 118,000 voters unable to receive a picture ID, the election administrator charged co-panelists to actually name a single person that fit the statistic.
The U.S. Commission on Civil Rights consists of eight members each serving six-year terms. Half are appointed by the president while the remainder is put forward by Congress. Claimed political affiliations consist of four Democrats, three “independents”, and a single Republican.
Notable Democrats include Debo Adegbile, who came under fire in 2014 after President Obama nominated him for Assistant Attorney General for Civil Rights. The Fraternal Order of Police lobbied against his nomination thanks to Adegbile’s record of volunteering to represent former Black Panther and cop-killer Wesley Cook–better known as Mumia Abu-Jamal, Breitbart News reported at the time. Months later, Senate Democrats bowed to mounting pressure and rejected the nomination by a vote of 47 to 52.
The commission also features Democrat Michael Yaki who is serving his third appointment which began in 2017. Yaki, a former aide to House Minority Leader Nancy Pelosi, once paid $75,000 to settle a lawsuit where the City of San Francisco accused him of acting as an unregistered lobbyist and broke local law on the matter “in every way,” the SF Chronicle reported in 2014. The sum represented the largest in California’s history at the time.
The commission is slated to issue a report of recommendations for potential election law and enforcement reforms.