Port Chester elected a Hispanic candidate in town elections Tuesday.  A story is here.  A cumulative voting remedy was in place that allowed voters to cast multiple votes for the same candidate.  Congratulations to the lawyers at the Justice Department who worked so long and so hard for this day. 

The Justice Department has issued guidance  on implementation of the NVRA, or Motor Voter law. 

New Section 5 regulations have been proposed by the Holder Justice Department.  They are here .  One could reasonably conclude these will govern redistricting next year.  Stay tuned for an analysis of the effect of these regulations.  Also, it is worth noting that the Bush Justice Department failed over the course of eight years to issue new Section 5 regulations.  The Bush DOJ couldn’t issue new regulations over the course of two terms, and after a year, the Obama DOJ has managed to do it.

Will the Holder Justice Department lodge an objection to a plan that prohibits people from being able to vote, and that a Federal court has already held was evidence of an illegal intent to racially discriminate? 

Ike Brown, the Chairman of the Noxubee County (MS) Democratic Executive Committee has made a submission to the Justice Department.  The submission seeks to empower the Democratic executive committee, which is largely Ike Brown, to prevent some people from participating in the Democratic primary.  Under Section 5 of the Voting Rights Act, the Department of Justice must preclear any change in voting in a number of states, particularly in the south.  The preclearance power is designed to prevent instances of racial discrimination before they occur.  All changes must be submitted to the DOJ Voting Section for approval prior to implementation.   You can read the amateurish submission here.

Brown’s attempted exercise of this power in the past has been found to violate federal law.  A federal court in 2007 held that Brown violated the Voting Rights Act by engaging in intentional racial discrimination.  One example of illegal activity was that the defendant Ike Brown sought to scare voters away from voting by listing their names in a newspaper and announcing they may be subject to challenge if they tried to vote.  Brown flexed this imaginary power, so he said, because there were really “stealth Republicans” and he didn’t want them in his primary.  Mississippi has open primaries.   District Court Judge Tom Lee (S.D.M.S.) knew better.  He found Brown sought to exclude people from voting in the primary because of race:

 “The question is whether Brown’s action with respect to this list of 174 voters was actuated by these party loyalty concerns or whether this was pretext for a true purpose to discourage white voters from coming to the polls, or some combination of the two. The court has carefully weighed the evidence and finds that while party concerns were a factor in Brown’s actions, race played a role as well. . . . In sum, the court is of the opinion that Brown had the names of these white voters published in part because of party loyalty concerns, but also as an attempt to discourage white voters from voting in the 2003 Democratic primary.”  494 F. Supp. 2d 440 (S.D. Miss. 2007)

So fast forward to 2010.  Behavior which a federal court has decided was motivated by an illegal racial intent – the intent to create a scheme where Ike Brown could prevent voters from participating in an election because of their race – is now before the Justice Department for approval. Ike Brown is seeking the sanction of the Justice Department to engage in the same activity which a court held demonstrated Brown’s racial intent to discriminate.  One would imagine this would be an easy call.  Certainly there are some honorable people in the Voting Section who recognize this as a no-brainer and realize an objection can lie against Brown’s proposed change.  But these might not be ordinary circumstances.  The cop-out would be to issue an no determination letter – concluding for example that since Brown’s behavior in 2003 and 2007 was so egregious that he was banned by the court from administering elections until 2012, then he really couldn’t make a submission.  This would be a cop-out based on an inaccuracy.  Brown is still in charge of the Democratic Party in Noxubee and still can make the rules.  Plus, the Court did NOT ban, despite a request from the United States to do so, the many others on the Executive Committee from participating in the election process.  Of course this change would still be in effect once Brown and his henchmen regain control of the electoral process.

Under normal Section 5 procedures, the Department of Justice is supposed to contact minority contacts within the jurisdiction and get their input on any submission.  Will this happen?  They might start with the list of 174 voters Brown sought to prevent from voting based on their race in 2003.  Or, they could contact individuals the United States called at trial who were victims of Brown’s racial discrimination.  Will they make these phone calls?  Will they seek the input of the previous victims of his racially discriminatory scheme?  Electionlawcenter.com will determine whether the prior victims of Brown’s racial discrimination have been contacted by the Department for thier input and report back. 

And will the Department issue an objection against Ike Brown?  Some smart and honorable people at the Department certainly know how simple this question is.  They will likely raise the point to their superiors, perhaps even recommend an objection.  But will the Assistant Attorney General for Civil Rights lodge an objection against a powerful Democrat, albeit a vile racially motivated one?  We’ll watch closely and wait.  In the meantime, the public can lodge their views at:

Chief, Voting Section
Civil Rights Division
Room 7254 – NWB
Department of Justice
950 Pennsylvania Ave., N.W.
Washington, DC   20530

202-307-2767       

Every complaint, document, fax, email becomes part of the record on the submission.  Every complaint will be read.  A decision must be made by July 13, 2010. 

Roger Clegg and Sharon Brown have a piece in the Sunday LA Times – “Felons Have Lost Their Right to Vote.”  

Clegg notes that Congressional legislation enacted in the last 20 years expressly included provisions recognizing felon disenfranchisement: “For example, both the National Voter Registration Act of 1993 and the Help America Vote Act of 2002 contain provisions aimed at facilitating felon disenfranchisement.”

Perhaps more importantly, Clegg also notes the Constitution itself recognizes it: “What’s more, the Constitution explicitly assumes that felons may be barred from voting. The 14th Amendment — which, like the 15th, was passed during Reconstruction to ensure equal treatment of African Americans — acknowledges that states can disenfranchise people for ‘participation in rebelion, or other crime.’ So an interpretation of the Voting Rights Act to bar felon disenfranchisement would not only be inconsistent with the intent of that statute, it would exceed Congress’ constitutional authority.”

The cause of felon disenfranchisement seems to be one the weaker agenda items of some.  When there is an express provision in the Constitution which recognizes the possibility, the burden ought to be pretty weighty if someone tries to establish disparate impacts.  What’s more, should disparate impact theory even work in this area?  If there is no demonstrable racial intent to felon disenfranchisement statutes (and that’s subject for another day) then how many Americans will tolerate the argument that because more criminals are of a certain race, then laws which punish those criminals are unconstitutional.  This is not a well advised argument for civil rights advocates to make, unless of course there is a raw political calculation.  And that would never happen, would it?

There is some lost history in all of the debate about felon disenfranchisement.  In the past, one of the punishments for committing a felony was the loss of an estate.  Actually, going back 250 years, many felonies in England were capital crimes.  But if the felon was not executed, then loss of their entire estate followed.  Because this punished families it was eventually abandoned.  But the loss of civic rights can be traced back to this history.  Felons gave up all at one time.  Today there is still a widespread and popular view that those who commit crimes against the people and government shouldn’t have a say in writing the laws which they have shown a propensity to break.

Port Chester, New York, will be holding elections on Tuesday June 15.  The Justice Department sued Port Chester under Section 2 of the Voting Rights Act in 2006.  The Department alleged that Hispanics could not elect candidates of choice under the at large system.    In an unconventional twist, the city suggested a cumulative voting system instead of the creation of single member districts. Under cumulative voting, a voter could cast six votes, even for the same person.  The idea is that this gives minorities the opportunity to elect their candidate of choice.

The biggest drawback to cumulative voting is that it tends to elect the most extreme candidates.  Because a candidate under a cumulative voting system can disregard entirely large portions of an electorate, candidates with more extreme, more niche views are given a better chance to win. Of course this is one explanation why alternative remedies receive such support among academics and the more extreme political factions.  When a candidate is relieved of the obligation to appeal broadly in a single member district, the more polarizing candidates tend to win.  Just what America needs right now.

If no Hispanic candidate wins the election on Tuesday, expect the Justice Department to ask the court to revisit the remedy.

In the meantime, Federal Observers will be present in Port Chester. Under a December 2009 order, the law that gave the Federal Government the right to monitor polls in places like Philadelphia, Mississippi and many places in the Deep South was extended to Port Chester in the suburbs of New York City.  This means that teams of individuals from the Office of Personal Management will be on the ground, in the polls, recording all that they see into federal observer reports.

Vic Rawl  did the impossible.  He lost to an unemployed man who did not do any campaigning whatsoever.  Or did he?

I’ve appeared in front of Judge Rawl on multiple occasions in Circuit Court.  He is a bright man, and even ran successful campaigns for S.C. House in the past.  Rawl, however, wants an investigation of Alvin Greene.

Rawl and others should be careful.  Absent some obvious and trickery, establishment figures like Vic Rawl ought not to be assuming that people don’t deserve to win the nomination just because something seems odd.  What is the probable cause?  That Greene is poor?  That he did less work that Rawl?  Sure, Greene had a public defender in his criminal case arising out of what he did in the library at a USC computer lab.  But just because someone is indigent one day does not mean they are indigent the next.  And at worst for Greene, this is probable cause that Greene lied to the court to get a public defender.

Nothing would surprise me in South Carolina.  Having spent many years in politics and campaigns in the Palmetto State, anything is possible.  South Carolina is the home of a certain political consultant who famously purchased neon spraypaint to deface campaign signs – his own candidate’s signs to elicit a sympathy vote.  So anything is possible in South Carolina.  Let’s wait and see.

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