Returning the ghost of Eric Holder to the Justice Department

It appears that the Democrats’ federal election takeover bill, H.R. 1, may not pass the U.S. Senate, but a new proposal threatens to be as bad as the first.  

Beware the John Lewis Voting Rights Advancement Act — a backdoor way of implementing some of the worst provisions of H.R. 1 and stopping commonsense election reforms like voter ID.  

This legislation summons the ghost of Eric Holder, the former attorney general who abused federal power under Section 5 of the Voting Rights Act of 1965 to badger states such as Texas, South Carolina, Florida and North Carolina over election integrity laws. 

Section 2 of the Voting Rights Act is a permanent, nationwide provision that prohibits racial discrimination in voting. Section 5 was a temporary measure that required the worst states — places like Alabama, Georgia, and Mississippi — to get pre-approval (or preclearance) of any changes in their voting laws from the U.S. Justice Department. The conditions prevailing there in 1965 justified this impingement on state sovereignty, but those conditions no longer exist.  Eight years ago, the U.S. Supreme Court tossed out Section 5, ruling in Shelby County v. Holder that 40-year old data did not justify continued federal oversight.  

The newly introduced act would resurrect the Section 5 preclearance process and give control over state elections to leftwing lawyers in the Biden Justice Department. Lawyers in the voting section of the civil rights division — where both of us once worked — would have the power to approve or reject the smallest change in state election procedures, from polling locations to redistricting to voter ID laws. 

We witnessed this power being abused while we were at Justice. But, the Holder Justice Department took abuse of preclearance power to a whole new level, blocking states from implementing citizenship verification and voter ID requirements. 

Here’s how it works. Suppose Florida wants to verify the citizenship of new registrants; under the act, that state would first have to obtain approval from the Justice Department. Yet, the civil rights division (and thus taxpayers) has been forced over the years to pay millions of dollars in attorneys’ fees and costs for making meritless objections to proposed changes by states that had been submitted to the DOJ for preclearance. In 1994’s Johnson v. Miller, these expenses were accompanied by a scathing opinion charging that “the considerable influence of ACLU advocacy on the voting rights decisions of the United States attorney general is an embarrassment.” The federal court was “surprised” that DOJ “was so blind to this impropriety, especially in a role as sensitive as that of preserving the fundamental right to vote.”    

Similarly, in 1997 (U.S. v. Jones), the 11th Circuit Court of Appeals said it was “unconscionable” that the division had filed a lawsuit “without a proper investigation of its truth.” The court expressed the hope that it would “not again be faced with reviewing a case as carelessly instigated as this one.” 

How can this happen? A 2013 report by the DOJ inspector general found that the voting section hired a majority of its lawyers from just five left-leaning organizations: the ACLU, La Raza, the NAACP, the Lawyers’ Committee for Civil Rights, and the Mexican American Legal Defense Fund.  

Matters have not improved; leftists hold the reins in Biden’s Justice Department. On May 5, Principal Deputy Assistant Attorney General Pam Karlan flexed her federal muscles to threaten the Arizona legislature on its court-managed audit of Maricopa County 2020 election records. Her public letter accused the legislature of violating federal voting laws through its audit, a position that is completely wrong under the law. 

In the entire history of the Justice Department, it has never interfered with, nor investigated, a single election audit. That’s because it has no legal authority to do so. Karlan even made the claim that auditors can somehow retroactively “intimidate” voters whose ballots were already cast.  

The DOJ’s actions in the Arizona case exemplify the dangers to come under any Voting Rights Advancement Act scenario that would give partisan political appointees in the civil rights division the power to veto any state election law or rule they don’t like — without having to go to court to prove that it is actually discriminatory.   

Leftist voting groups may be willing to trade H.R. 1 in the short run for the Voting Rights Advancement Act today. Doing so would return the center of gravity back to D.C. on voting process issues and remove power further from the people, which is exactly what they want.  

Christian Adams is the president and general counsel for the Public Interest Legal Foundation. Hans von Spakovsky is a senior legal fellow at the Heritage Foundation. Both are former Justice Department career lawyers and both served on the Presidential Advisory Commission for Election Integrity.