The Independent View: Justice Department at the George Washington University Law School Symposium

Assistant Attorney General Perez spoke at the George Washington University Law School Symposium on Friday, November 16, 2012. He discussed the Civil Rights Division’s work to protect the fundamental civil right that is the lifeblood of our democracy: the right to vote.

Some of the changes addressed what we can do both to protect the right to vote, and to improve the voting process:

1. Ensure that every eligible person entering a social service office can register to vote.

2. It should be the government’s responsibility to automatically register citizens to vote, by compiling, from databases that already exist, a list of all eligible residents in each jurisdiction. Of course, these lists would be used solely to administer elections and would protect essential privacy rights.

3. Election officials should work together to establish a program of permanent, portable registration – so that voters who move can vote at their new polling place on Election Day. Until that happens, we should implement fail-safe procedures to correct voter-roll errors and omissions, by allowing every voter to cast a regular, non-provisional ballot on Election Day. Several states have already taken this step.

4. Same-day registration is a reform we should be considering seriously – it would both facilitate election administration and promote electoral participation. For the 2012 election, eight states plus the District of Columbia had same-day registration in place. (Two more states have recently enacted it and will implement it next year – California, and Connecticut.) And we know that it increases participation: in both the 2008 and 2010 general elections, each of the eight states with same-day registration had higher turnout of the voting-eligible population than the national average. In fact, for the 2008 presidential election, five of the six states with the highest turnout in the country were states with same-day registration. Preliminary turnout estimates for the 2012 election show that this pattern will likely continue.

5. Voter fraud is not acceptable. But we also need to reform deceptive election practices and dishonest efforts to prevent certain voters from casting their ballots. Over the years, we’ve seen all sorts of attempts to gain partisan advantage by keeping people away from the polls – from literacy tests and poll taxes, to misinformation campaigns telling people that Election Day has been moved, or that only one adult per household can cast a ballot. Senators Schumer and Cardin recently introduced legislation that would deter and punish such harmful practices. This bill has sparked and helped to advance a critically important dialogue across – and beyond – Capitol Hill.

6. Provisional ballots - In some states and elections, large segments of the electorate are required to cast a provisional ballot instead of a regular ballot on election day, for any of a number of reasons. The Justice Department will be considering whether we need to propose concrete solutions, such as national standards for counting provisional ballots for federal elections, to ensure that voters are not disenfranchised by moves close to an election, by appearing in the wrong polling place or precinct, or by poll worker errors.

7. It’s time to rethink our largely partisan system of state and local election administration. We risk leaving our election processes open to partisan mischief – or to the perception of such mischief. We should have a serious conversation about solutions to this risk, including developing an entirely professionalized and non-partisan system for administering our elections.

The Supreme Court agreed last week to hear a challenge to Section 5 of the Voting Rights Act this term, in the lawsuit filed by Shelby County, Alabama. The Justice Department is looking forward to demonstrating to the Court both that the statute is still constitutional and still has critically-important work to do. Section 5 is a linchpin of the Voting Rights Act, and is directed at specific areas where discrimination historically was deeply rooted. Under that important provision, certain “covered jurisdictions” are prevented from altering their voting practices until it can be determined that any proposed changes would have neither a discriminatory purpose nor effect. This process, known as “preclearance,” has been a powerful tool in combating discrimination for decades. And it has consistently enjoyed broad bipartisan support – including in its most recent re-authorization, when President Bush and an overwhelming and bipartisan Congressional majority came together in 2006 to renew the Act’s key provisions and extend it until 2031.

The reality is that – in jurisdictions across the country – both overt and subtle forms of discrimination remain all too common – and have not yet been relegated to the pages of history. In just the past few months we’ve seen numerous vivid examples of the continuing salience of the VRA.

Section 5 continues to play an important prophylactic role, encouraging non-discriminatory voting practices at the outset. In many of the Section 5 covered states, for example, the statewide redistricting process following the release of the decennial census data in this cycle began with a decision to identify the existing ability-to-elect districts, and to protect the ability of minority voters to elect their candidates of choice in those districts. And at the more local level, one county in Texas recently withdrew a preclearance submission involving polling place changes after DOJ requested more information on the reasons for the change. The County planned to move the polling place from a school to a private club. The school had been agreed upon in earlier litigation as a compromise polling place location within the county, while the club had been a historically segregated organization. In our request for more information, we explained that our investigation had identified concerns that the use of the proposed polling place could discourage minority voters from turning out to vote. The County withdrew the submission after that request. As Congress recognized in 2006, and as the D.C. Circuit recently agreed, these kinds of examples are further evidence that Section 5 promotes compliance by covered jurisdictions.

At the same time, the statute has very effectively been used to allow covered jurisdictions to “bail out” when they demonstrate a history of compliance. Our bailout work has increased dramatically since the Supreme Court’s decision in Northwest Austin. Since the current bailout provision became effective in 1984, bailout has been granted in 36 cases. Fully half of those bailouts have been granted since the Supreme Court’s decision in Northwest Austin. Several more cases are pending now, including a bailout lawsuit filed by the State of New Hampshire. The effectiveness of the bailout mechanism further demonstrates that Section 5 is proportionate to the harms it is aimed at eliminating. In short, Section 5 continues to be necessary, and our bailout work illustrates that it is not over-inclusive.

The Department of Justice will continue, whether through enforcement and litigation, or through legislation and policy measures to expand the democratic process to all eligible participants.