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Related Materials
: May 24, 2001
Statement Before the Commission
I appreciate the opportunity to make this presentation to the distinguished
members of the National Commission on Federal Election Reform. The 2000 election
placed the election process in this country under a level of scrutiny probably
never seen before. Beginning on election day the concerns of thousands of
citizens about the election and election issues have been received by the
Department. We have been examining closely those legitimate concerns which fall
within the jurisdiction of the statutes we enforce to determine whether legal
action is warranted and what role we might play to assist in ensuring that the
election process continues to reflect a high degree of confidence.
At the outset, it is important to remember that the conduct of elections is
primarily the responsibility of state and local election officials. The
Department's role is defined by the voting rights statutes it has the
responsibility to enforce. This paper is designed (1) to provide a summary of
the enforcement program of the Voting Section, with an emphasis on those parts
of the program which relate to the conduct of elections; (2) provide an overview
of the Voting Section's activity in response to the 2000 election; and (3)
describe the Attorney General's Voting Rights Initiative.
I. Statutory Basis for the Voting Section's Enforcement Program
- The Voting Rights Act: The vast majority of the Voting Section's resources
are devoted to enforcement of the Voting Rights Act of 1965, as amended. Close
to one-half of the Section's are dedicated to enforcing Section 5 of the Act.
This is the part of the Act that requires "covered" jurisdictions to
submit any voting change to the Department of Justice for review to consider
whether the purpose or effect of the change is to put minority voters in a worse
position than they were under the existing law. With new redistricting plans
being drawn in these jurisdictions after the release of the 2000 Census, there
will be a dramatic increase in Section 5 work requiring additional Section
resources. The Voting Section also has placed emphasis on enforcement of Section
2 of the Act, the provision which prohibits, nation-wide, voting standards,
practices or procedures that deny or abridge the right to vote on the basis of
race or language minority status. This part of the program has focused primarily
on methods of election, such as at-large voting systems, which dilute the voting
strength of the minority voters.
Several provisions of the Act and the Section's enforcement program more
directly address the conduct of elections. These are discussed below:
- Federal Observers: Since the 1965 Act was passed, the Voting Section has
developed an active program for observing or monitoring elections. The Section's
federal observer program permits federal observers at federal, state and local
elections to enter polling places to observe and report their observations of
the election process to the Voting Section. The authority for assigning federal
observers to federal, state and local elections is found in the Voting Rights
Act. These provisions were designed to ensure that newly enfranchised
African-American citizens would be able to vote, have their votes counted, and
be free from discrimination, intimidation or harassment when they did vote. That
remains the basic purpose of federal observers today. Amendments to the Voting
Rights Act in 1975 provide protection for language minority groups such as
Native Americans, Asian Americans, and Hispanics. Since then, and particularly
in recent years, federal observers have also been assigned to monitor elections
involving these language minority groups.
The Attorney General's authority to certify jurisdictions for federal
observers is limited to the "covered" jurisdictions listed above. The
Act also provides for certification of jurisdictions for placement of federal
observers by order of a federal court. Such orders may be entered anywhere after
a lawsuit has been initiated by the United States or an aggrieved person under
any statute to enforce the voting guarantees of the Fourteenth or Fifteenth
amendments and where the court has found a violation of either of these
constitutional provisions.
On a more limited basis, the Voting Section has in the past sent one or two
attorneys without observers to monitor election-day activities. These occasions
arise when, prior to an election, information is brought to our attention
indicating that potential violations of the statutes we enforce, such as the
Voting Rights Act and the National Voter Registration Act (discussed below), may
occur at the election. Such attorney monitoring usually takes place in locations
where the presence of federal observers is not authorized by the Voting Rights
Act.
- Language Assistance Provisions of the Voting Rights Act: Sections 203 and
4(f)(4) of the Voting Rights Act are the language minority provisions of the
Act. They require certain covered jurisdictions with significant populations of
limited English speaking voters to affirmatively provide bilingual written
materials (except where the relevant language is historically unwritten), and
other assistance to limited English speaking voters. The Department of Justice
has published detailed guidelines concerning these provisions.
Much of the enforcement work pursuant to these provisions has been done
through lawsuits resolved by consent decrees. These consent decrees address
language assistance issues concerning Native Americans in Arizona, New Mexico
and Utah, Hispanic voters in Lawrence, Massachusetts, and Passaic, New Jersey,
and Chinese-speaking voters in Alameda County, California.
Since entry of these consent decrees, the Voting Section has worked closely
with these jurisdictions to ensure compliance with the language assistance
requirements. On most occasions, we have consulted with election officials
before elections on their plans for implementing the actions required by Section
203, and have placed federal observers at elections. On one occasion, when we
encountered significant non-compliance, an independent monitor was appointed by
the court.
- Section 2 Actions Addressing Election-Related Discrimination: The
nation-wide prohibition in Section 2 of the Act against voting standards,
practices or procedures which deny or abridge the right to vote on account of
race or language minority status provides another basis for attacking election
related discrimination. Since the 1960s and 1970s, most election-day
discrimination problems that we have encountered have been worked out in
consultation with state and local officials, and the number of such enforcement
cases has been relatively low. However, in the last year, the Voting Section
initiated two Section 2 cases challenging election-related discrimination: (1) a
case alleging discrimination and intimidation of Arab-American voters at the
polls; and (2) a case alleging discrimination against Hispanic candidates
through efforts of local officials to change the residency requirements for
candidates. Both cases resulted in consent decrees which, among other things,
authorized the Department to send federal observers to ensure the fairness of
future elections.
In addition, there are provisions in the Voting Rights Acts of 1957 and 1965
that prohibit intimidation of voters and provide for civil suits to enjoin such
actions. There are similar criminal voter intimidation statutes. On their face,
these provisions are not limited to intimidation based on race or color; but,
the case law, for the most part, has interpreted these provisions as applying
only to intimidation based on race or color. A significant number of civil cases
involving intimidation claims were brought in the past, primarily in the 1960s
and early 1970s. More recently in the 1990s three such cases have been filed.
- The National Voter Registration Act (NVRA or "Motor Voter" law):
This law was passed by Congress in 1993 and applies only to federal elections.
The statute explicitly states its purpose as follows: (1) to establish
procedures designed to increase the number of eligible citizens who register to
vote in elections for federal office; (2) to make it possible for federal,
state, and local governments to implement this Act in a manner that enhances the
participation of eligible citizens as voters in elections for federal office;
(3) to protect the integrity of the electoral process; and (4) to ensure that
accurate and current voter registration rolls are maintained. The NVRA's uniform
registration mandates are explicitly designed to expand voter registration
opportunities and decrease racial disparities in voter registration.
The NVRA became effective in most states on January 1, 1995. It requires that
each state provide for motor vehicle, agency-based and mail-in voter
registration, as well as uniform and non-discriminatory registration list
maintenance procedures. The NVRA further prohibits purging registered voters for
not voting, and requires that registrants who move within a registrar's
jurisdiction be allowed to vote even if they did not tell the registrar about
the change of address before the election.
Enforcement responsibility under the NVRA has been assigned to both the
Federal Election Commission (FEC) and the Department of Justice. The FEC, in
consultation with the chief election officers of the states, prescribes
regulations and provides guidance for carrying out the provisions of the NVRA,
and has developed a mail voter registration form. It is also required to submit
a report to Congress every two years which assesses the impact of the NVRA on
the administration of federal elections and makes recommendations for
improvements in procedures, forms and other matters affected by the Act. The
Department of Justice is given authority to bring civil actions seeking
injunctive relief necessary to ensure compliance with the Act.
When the law first went into effect in 1995, the Voting Section successfully
defended the Act's constitutionality in a series of cases throughout the
country. After several federal court orders finding the NVRA constitutional,
recent enforcement efforts have been designed to ensure that states are
implementing and ensuring compliance with the Act's provisions. In one case, the
Department alleges that a State, 12 state agencies, and one agency of the City
of New York, have failed to comply with the agency-based voter registration
provisions of the NVRA.
- Uniformed and Overseas Citizen Absentee Voting Act (UOCAVA): This law is
designed to ensure that absent uniformed services voters and overseas voters can
register and vote absentee in elections for federal office. Primary
administrative responsibility is with the Department of Defense's Voter
Assistance office. The Department of Justice is authorized to enforce the law in
federal court. All lawsuits have been brought after referral from the Department
of Defense. Over thirty enforcement actions have been initiated after such
referrals and virtually all have been quickly resolved by consent decree.
Suits are typically referred because a State did not provide ballots to
overseas voters in enough time for those ballots to be returned, thus violating
UOCAVA. Relief typically is obtained on an expedited basis and usually includes
a requirement that the state accept overseas ballots 10-15 days after the
election date, and take other steps to ensure such violations do not recur.
- Statutes Designed to Protect Disabled Voters: Several laws provide
protections for disabled voters. Section 208 of the Voting Rights Act requires
that election officials permit voters who are blind, disabled or unable to read
or write to be given assistance by a person of the voter's choice.
The Voting Accessibility for the Elderly and Handicapped Act of 1984 (VAEHA)
is a federal statute that requires that polling places at federal elections be
accessible to persons with disabilities and the elderly. However, there are two
exceptions to this requirement: (1) in the case of an emergency, as determined
by the chief election officer of the state; and (2) if the chief election
officer of the state determines after surveying all potential polling places and
concludes that no accessible polling place is available, and the political
subdivision is unable to make one temporarily accessible. In the latter
circumstance, it is sufficient for states that have conducted the required
survey to assign disabled voters to an alternative accessible place or to
provide an alternative means for casting a ballot on the day of the election
(such as by absentee ballot). In recent years, bills have been introduced in
Congress to strengthen protections for disabled voters.
The Americans with Disabilities Act (ADA), which addresses accessibility
problems more globally and comprehensively, is enforced by the Disability Rights
Section of the Civil Rights Division. The Voting Section is currently working
with the Disability Rights Section to identify a more effective enforcement
strategy for addressing the needs of disabled voters.
II. Post-2000 Election Activity of the Voting Section
Prior to the 2000 election, the Voting Section engaged in the same
pre-election preparation it does before all elections to determine where to send
federal observers. On election day, the highest number of federal observers in
recent years observed elections. There were 317 federal observers located in
nine states. Most of the Voting Section's staff coordinated the observer
activity and additional attorney staff were sent to monitor elections at two
other jurisdictions where observers could not be authorized. In addition, we
were aware that before the election that the NAACP's National Voter Fund was
working to ensure fair elections throughout the country. As part of our
preparation for the 2000 election, the Section took steps to coordinate its
election efforts with their representatives.
Immediately after the November 7, 2000 election, the Voting Section was
deluged with calls and complaints from citizens from almost every state in the
country. A large majority of these calls raised concerns about the election in
Florida. For the most part, these callers expressed their frustration and
concern about the election. There were some who expressed concrete complaints,
but many of these raised issues which did not indicate potential violations of
the voting rights statutes the Voting Section enforces.
We received more substantive complaints concerning possible violations of the
Voting Rights Act and the NVRA from several civil rights organizations. Chief
amongst these was the NAACP which, among other information it provided, referred
to us logs of complaints they had received and transcripts of hearings they
conducted in November. Almost half of the complaints they referred involved
allegations of violations of federal voting rights laws from Florida and
included a variety of election-related issues, the most common of which were
registration issues.
After review of these complaints, the Section initiated the highest number of
investigations into potential election-related violations of federal law in many
years. Most are from Florida (12), but there are also several (6) from other
states. These complaints concern a wide variety of issues covered by the
statutes that we enforce. The largest number of investigations concern possible
violations of the NVRA, both the registration and purge provisions of the Act.
This reflects the fact that the highest number of complaints that we reviewed
raised registration issues covered by the NVRA. Thirteen of the investigations
undertaken remain active and are ongoing.
III. The Attorney General's Voting Rights Initiative
On March 7, 2001, the Attorney General announced a Voting Rights Initiative
aimed at ensuring voter access and the integrity of the voting process. The
Initiative includes two important prongs. First are increased efforts to prevent
voting rights abuses. This prong includes (1) appointment of a senior counsel
for voting rights to spearhead and coordinate efforts to address proposals for
election reform; and (2) increased monitoring of elections. Second are increased
efforts to enforce voting rights laws by the Civil Rights Division's Voting
Section. This prong also includes close liaison with the Criminal Division's
Public Integrity Section (as well as the Civil Rights Division's Criminal
Section) to ensure vigorous enforcement of criminal voter fraud and intimidation
laws. Attached is the transcript of the March 7 announcement of this Initiative.
The Senior Counsel for Voting Rights will be appointed after confirmation of
the new Assistant Attorney General for Civil Rights. In the meantime, the Voting
Section has been closely following election reform activities. It is carefully
monitoring the progress of both state and federal election reform legislation.
Of particular interest is the recently passed Florida legislation. Our initial
review of this legislation indicates that it is quite comprehensive and seeks to
address many of the issues growing out of the 2000 election. It should be very
useful to other legislatures and organizations that are studying election
reform. It also is relevant to many of the Section's ongoing investigations
because several of its provisions address issues which are the subject of those
investigations.
Since announcement of the Initiative, the Voting Section has also been
engaged in extensive efforts to increase its monitoring of elections to ensure
compliance with voting rights laws. Federal observers have monitored elections
in Passaic, New Jersey (on two occasions); Cicero, Illinois (on two occasions);
Clarksdale, Mississippi (on two occasions); Webb, Mississippi; Macon,
Mississippi; and Irving, Texas. In addition, Section attorneys have monitored
elections in St. Louis, Missouri, Selma, Texas, and Reading, Pennsylvania.
The Section has also been attending meetings and conferences - such as this
one - at which election reform issues are the subject of the meeting or
conference, and at which reports of many of the task forces addressing election
reform have been present.
Once again, thank you for this opportunity to appear at this meeting.
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