The Left’s Army of Election Law “Experts”
They Are Getting Ready for the 2012 Election
(PDF available here: OT1011)
Liberal foundations, public interest law firms and advocacy groups have created a permanent network of experts and organizations devoted to an arcane but critical task: monopolizing the narrative on election laws and procedures. Cloaking their actions in the rhetoric of civil rights and the right to vote, they seek to affect the outcome of the election. They challenge any effort to protect the integrity of the ballot box by denying the possibility of vote fraud and crying “Jim Crow.”
Americans used to believe their elections ran smoothly: You left the voting booth, the votes were counted and reported. Although voters lacked first-hand knowledge, they had faith that whomever gets the most votes wins. The presidential election of 2000 changed all that. The 36-day battle for the presidency revealed mechanical flaws in the electoral system; it showed elections can be decided in courtrooms instead of at the ballot box. In 2000 competing teams of highly paid lawyers argued over hanging chads, military ballots, and uniform statewide counting standards. Like a 15-round heavyweight prize fight, one team of election lawyers eventually knocked the other out.
These days Americans have grown accustomed to elections that end in legal maneuvering, but they assume both sides are evenly matched and similarly funded. Even if today’s electoral fights aren’t front page news, the public expects each contender to have a battery of lawyers and experts, equally prepared to tangle in court or before the media over the rules and procedures of the election.
That assumption is false. With the 2012 national election fast approaching, it’s important to understand that the Left is fully engaged. It is ready to dispute how the next election is organized and administered by state and local election officials. The conduct of that election has genuine consequences—and the battle over the interpretation of election law next year is already taking place.
Left-Wing Groups Dominate Election Law
Leftists dominate the field of election law. Like so many other institutions, from academia to foundation philanthropy to the media “experts” who cover every corner of our electoral system, they have financial sponsors who understand that there are battles to be fought over election law and voting systems long before voters cast their ballots. The dominance of the Left affects both the outcome and the integrity of elections, and the future course of the nation.
Conservatives can find plenty of money for issue advertisements, get-out-the-vote drives, and independent expenditure campaigns. But if the battle over the rules of the game isn’t engaged months and years in advance, all that ground-game money can go to waste.
Ask former Sen. Norm Coleman (R-Minn.) who lost his seat in 2008 because the Left mastered a number of electoral process issues long before Election Day. By the time Coleman’s legal team realized what was happening, it was too late. It was outgunned by election specialists who were permanently in place and on call. Coleman’s 2008 loss to television comedian Al Franken gave Democrats a filibuster-proof majority in the Senate ready to ram through explosive spending and big government policies.
The field of election law contains many issues that have become subjects of legal wrangling: voter photo identification statutes, citizenship verification requirements, welfare agency voter registration, military voting rights, felon voting, the integrity of the voter rolls, foreign language ballots, and forced voter assistance. Section 208 of the Voting Rights Act guarantees every disabled voter can take someone into the booth with them to help, but disability is defined very broadly and most states have no mechanism to validate the disability. Hence, teams of assistors often impose help on voters, and end up voting the ballots for the voter.
Many liberal foundations, law firms, and advocacy groups have institutionalized election expertise in all these areas. Their mission is clear: They aim to change the outcome of elections through strategic litigation. While they may cloak their positions in the rhetoric of civil rights, their legal goal is essentially ideological and partisan: put their candidates into office. Whenever someone challenges this agenda, race is often reflexively tossed into the debate.
An important book describing how radical activists have borrowed the pedigree of the civil rights movement to advance a partisan and left-wing policy agenda is Shelby Steele’s White Guilt: How Blacks and Whites Together Destroyed the Promise of the Civil Rights Era (Harper Collins, 2006). Steele describes how activists gain a tactical advantage by injecting the question of race into every policy discussion ranging from the scope of federal power to the size of the welfare state. Beaten down by racial guilt, many Americans surrender as soon as race is introduced into any policy debate. It is a grand ruse, and one that’s been happily adopted by those who would tinker with electoral rules to gain partisan advantage.
On Sept. 8, 2011, a Senate Judiciary subcommittee held a hearing that demonstrated this lopsided state of play. The hearing was about state laws that require voters to display photo identification before they vote, proving that they are who they claim to be. The opponents of voter photo ID assembled a panel for the hearing. It included Justin Levitt, a professor at Loyola law school in Los Angeles who is well known for denying the reality of vote fraud. Leavitt is also associated with the Brennan Center, an institute at the New York University School of Law that attacks election integrity efforts. Also testifying was Judith Browne-Dianis, co-director of the Advancement Project, another nonprofit that facilitates voter fraud while masquerading as a civil rights organization.
Browne-Dianis agreed when subcommittee chairman Dick Durbin (D-Ill.) asked whether voter ID laws make it harder to elect Democrats. “When you look at the groups that will be disproportionally impacted,” she responded, “there clearly is a correlation.” Browne-Dianis added that students tend to vote for Democrats and tend to lack photo ID, which the self-proclaimed non-partisan Advancement Project regarded as another reason to reject election integrity measures like voter ID.
Browne-Dianis, like many of her colleagues, engages in racially tinged overstatement. She likened a Florida election law to a “Jim Crow” law because it requires that voter registration groups like ACORN quickly hand over to the state the registration forms they gather.
Besides Levitt and Brown-Dianis, Durbin could have filled the panel with dozens of other well funded left-wing election law specialists eager to support his opposition to voter ID. By contrast, Heritage Foundation expert Hans von Spakovsky is one of very few election law experts prepared to rebut the overblown claims of people like Browne-Dianis and Levitt. The Left has scores of soldiers; the Right but a few. There is no middle to speak of in this field.
Left-wing election law soldiers are paid salaries by dozens of well-funded nonprofit legal and policy advocacy groups, including ACORN-affiliated Project Vote, Advancement Project, Asian American Legal Defense Fund (AALDF), Asian Pacific American Legal Center, Brennan Center for Justice, Common Cause, DEMOS, League of Women Voters, Mexican American Legal Defense and Education Fund (MALDEF), NAACP Legal Defense Fund, and National Association of Latino Elected and Appointed Officials (NALEO). These and other groups often work against conservative candidates and the rule of law by attacking election rules and procedures.
Not surprisingly, sizeable contributions from George Soros’s philanthropies go to these organizations. For example, Soros’s Open Society Institute has given grants to Project Vote ($1 million since 2007), Demos ($2,475,000 since 2003), Common Cause Education Fund ($2,025,000 since 2001) and MALDEF ($323,200 since 2001), according to the FoundationSearch philanthropy database.
The Left’s election law army continually files lawsuits citing federal and state statutes, including the 1965 Voting Rights Act and its amendments, the 1993 “Motor Voter” law, and the 2002 Help America Vote Act. It stations teams of election observers in polling places around the nation. It regards every election as a potential resource to fuel its litigation and to promote citizen “outrage” before the media at any attempt to prevent voter fraud.
There are very few election law experts willing and able to oppose the army of the Left.
A Litigation Agenda to Win Elections
The Left has incorporated an aggressive litigation strategy to implement its agenda through the courts. Numerous groups, well versed in the intricacies of federal election law, bring lawsuits to poke and prod state officials into adopting policies which have partisan electoral implications. There is no conservative counterpart to this aggressive strategy.
Consider this website description of the Advancement Project’s mission. Although written in “foundationese,” its intent is revealing:
To implement our theory of change, Advancement Project operates on two planes: locally, we provide direct, hands-on support for organized communities in their struggles for racial and social justice, providing legal and communications resources for on-the-ground efforts; nationally, we actively broaden and extend the practice of community-centered racial justice lawyering through training, networking, creation of tools and resources, media outreach and public education. We also operate a communications department that, in partnership with allies, uses sophisticated strategies to raise awareness of racial and social inequities and generate public will for progressive and systemic change.
The board of the Advancement Project board includes Bill Lann Lee, Bill Clinton’s assistant attorney general for civil rights, and singer-activist Harry Belafonte. Its 2009 revenue is $5.2 million, and it has received funding from George Soros. Here are some of the state cases it is pursuing.
The Advancement Project challenged a 2005 Florida law regulating third-party (e.g. ACORN) voter registration activities. Florida law requires that when a third party such as ACORN solicits people to sign voter registration forms it must turn them in within 48 hours. This protects citizens by giving them time to ascertain whether they have been registered to vote. In past elections citizens have arrived at the polls only to find that a group like ACORN did not turn in their voter registration form on time or at all.
Soon after the law was enacted liberal groups like the NAACP and the League of Women Voters took a look at the law and denounced these changes as “Jim Crow” rules intended to prevent minorities from voting. Section 5 was first passed in 1965 and used a voter turnout formula in the 1964 election to trigger federal oversight over states which had tests or devices as a precondition to voting. Those states which met the trigger standards were required to seek federal approval for any election change, no matter how small. This even included such minor matters as changing the time the voter registration office opened from 9:00 a.m. to 9:15 a.m.
Section 5 requires that election law changes must be approved by the Department of Justice (DOJ) or a federal judge. Florida Secretary of State Kurt Browning submitted the changes to the Justice Department for approval. Activist groups criticized the law and the Justice Department’s Voting Section assigned Elise Shore, a former MALDEF attorney with a militant and partisan reputation, to review the Florida law.
Florida responded by rescinding its request for Justice Department approval and turned instead to a federal court to win approval (which it has yet to obtain). That action was immediately challenged by the left-wing election law army, which intervened in court to block it.
States should take careful note: When a state submits a change to the Justice Department for approval in its election procedures, it will be forced into backroom deals involving federal officials who formerly worked for the activist groups. When states seek approval from a federal court, the activist group interveners will at least be forced to operate in the open and be subject to court rules.
In September 2008, just before the elections, Advancement Project challenged Michigan’s purge of names from the voter rolls. As voters die or move away from the electoral districts where they are registered to vote, purging names prevents illegal votes. Indeed, Section 8 of the “Motor Voter” law requires states to purge ineligible voters from its voter rolls. But the law also provides activist groups like Advancement Project with a legal opening to block purges if they can show that it is somehow improper. By filing its lawsuit the Advancement Project forced the cancellation of the state’s purge of tens of thousands of possibly ineligible voters.
It should be noted that the law also allows private plaintiffs to sue to force purges when they are needed. In a clear demonstration of the imbalance of forces in the battle over election law, no private plaintiff in the 17 year history of the law has ever used the statute to promote voter roll integrity by demanding a needed purge of ineligible voters.
Advancement Project brought a case challenging Colorado’s purge of names from its voter rolls. Just before the November election, the group sued to restore 30,000 names that Secretary of State Mike Coffman purged from the voting rolls of that swing state. The lawsuit was joined by the Service Employees International Union, Colorado Common Cause and Mi Familia Vota. As in Michigan, the names of potentially ineligible voters remained on the voting roster for the 2008 presidential election. A new Colorado Secretary of State, Scott Gessler, has since determined that many non-citizens participated in the 2010 election. He has identified nearly 12,000 people who may be non-citizens on Colorado’s voter rolls. (Greeley Gazette, June 11, 2011)
Many election lawyers of the Left also leverage their influence outside of the courtroom to affect Justice Department policy. For instance, Kristen Clarke at the NAACP Legal Defense Fund (LDF) opposes the inclusion of federal criminal prosecutors among the hundreds of Department of Justice volunteers who man the polls as election observers. The federal observer program deploys almost 1,000 federal employees around the country on Election Day to monitor polling place behavior and record any problems.
Why not tap experienced criminal prosecutors as poll-watchers? Clarke, a former DOJ Voting Section lawyer before joining the NAACP LDF, argues that minority voters will avoid going to the polls if they sense the presence of a criminal prosecutor.
The Department of Justice under both the Clinton and Bush administrations rejected this nonsense. But in 2008, with Barack Obama on the ballot, Clarke and her allies launched a campaign to remove criminal prosecutors from voting precincts. They privately lobbied the Bush DOJ and publicly criticized the longstanding policy. Apparently the NAACP LDF thought the political stakes were too high to risk deploying highly trained professionals apt to recognize wrongdoing at the polls. Amazingly, the Bush administration acceded to their demand and federal criminal prosecutors were not included among the squads of election observers. Instead, DOJ recruited its part-timers and retirees for the job. Don’t expect the Obama administration to change this policy. Some of the activists who agitated over the issue are now running the Civil Rights Division.
Then there’s Tova Wang, who hits the airwaves at every possible opportunity. Her report, “Voting in 2010: Lessons Learned,” concluded that there was no voter fraud in the most recent election. Wang, “Senior Democracy Fellow” at Demos, another Soros-funded group, reached this conclusion two days after the election, hardly enough time for careful study but enough time for it to receive extensive media coverage. Wang is also affiliated with the liberal Century Foundation, where she previously directed an election reform working group.
The efforts of the Left pay off over and over again. Leftist election law practitioners benefit from the permanent structures that support their work. They have financial resources, offices, and hardwired networks. Eager leftist law students clamor to volunteer their time. Skilled courtroom practitioners enjoy vibrant academic support from law professors. And as I know from firsthand experience, they enjoy the support of the Justice Department under Attorney General Eric Holder.
Whether preventing the secretaries of state in Michigan and Colorado from purging the voting rolls of ineligible voters in 2008 and 2010, or grandstanding about the purported “return of Jim Crow” when third party groups are required to turn in voter registration forms in a timely fashion, these groups corrode the integrity of the electoral process.
A Weak Conservative Response
What do conservatives have to oppose the coordinated leftist strategy of intimidation and litigation? Very little. Often election lawyers are notoriously long-winded folks who talk about racial cohesion coefficients, statistical significance in discriminatory effect, deviation from normal procedures to prove racial intent, and turnout modeling. Most members of Congress and state legislators don’t care about such things unless they affect their reelection. That’s a mistake. The obscure terms are the mechanisms used to alter the electoral structure, and ultimately electoral outcomes.
The best effort to combat the Left is a somewhat ad hoc group of Republican lawyers. The Republican National Lawyers Association (RNLA) is a well managed organization that trains GOP lawyers, works to push policy ideas that improve election integrity, and deploys lawyers around the country to monitor many elections. But even on their best day, the RNLA cannot compete with the legal and policy juggernaut on the other side. Outside of a handful of paid staffers, RNLA lawyers are volunteers. The leftist organizations mentioned above have scores of lawyers and hundreds of employees, all of them paid.
Of course many political campaigns have counsel. But these lawyers have parochial interests and are usually overwhelmed with such immediate matters as Federal Election Commission compliance, contract reviews, and employee issues. Worse, they arrive in the heat of a campaign and do nothing to affect the rules of the game. They are not a counterweight to the expertise marshaled by permanent institutions set up by the Left to influence election law.
Some embryonic efforts have sprung from the Tea Party movement. True the Vote, a citizen volunteer organization in Texas, and the Election Integrity Project in California have programs to detect and report voter fraud. The groups review voter registration records looking for duplicate registrations, non-citizens, and suspicious patterns which may reveal violations of federal law, and they work as partners with election administrators and law enforcement. True the Vote also conducts an expansive Election Day monitoring program unmatched by anything coming from the Republican Party. True the Vote performs the electoral integrity due diligence that the Justice Department under Eric Holder should be doing, but won’t.
Before the 2010 election, True the Vote informed the Voting Section at the Department of Justice that in Harris County, Texas, it had uncovered multiple registrations for the same person and voter registration forms showing the registrant was a non-citizen. The form has a check-box asking “Are you a United States citizen?” Some registrants marked “no” but the Harris County registrar still put them on the voter rolls.
Very few conservative public interest legal firms show interest in electoral process or the mechanics of elections. However, the Washington Legal Foundation was involved in a Supreme Court case involving voter identification. Other law firms fund efforts to test the constitutional limits of Section 5 of the Voting Rights Act. Some groups have helped defend vote dilution lawsuits brought under the Voting Rights Act, usually unsuccessfully. But these few efforts are dwarfed by the other side.
No Help from the Department of Justice
The Department of Justice should play an important role in combating voter fraud, ensuring fairness in elections, and enforcing the law in a non-partisan manner. Unfortunately, under Eric Holder DOJ has become an ideological adjunct to the left-wing election law groups.
For instance, Section 8 of the National Voter Registration Act (“Motor Voter”) says states must implement reasonable procedures to help ensure only eligible voters participate in federal elections. But DOJ did nothing when it was informed that Harris County, Texas officials had registered non-citizens to vote. In November 2009, I sat in a conference room as Deputy Assistant Attorney General Julie Fernandes instructed me and the entire Voting Section that the Obama administration would not enforce this provision of the law because it did “nothing to promote minority turnout” and that “it only removes people from the voter rolls and doesn’t increase participation.”
The Voting Section at the Justice Department’s Civil Rights Division has become a training academy for leftist election litigators. Several lawyers from the most militant and ideological groups are hired for attorney positions that pay from $130,000 to $190,000 per year, plus benefits.
Under the Obama administration, Loretta King, acting Assistant Attorney General for Civil Rights, has returned to the Clinton-era policy of hiring in the Voting Section only those who have liberal ideological or partisan backgrounds. She has made prior employment with left-wing advocacy groups a uniquely qualifying factor in hiring decisions – even for volunteers. Only leftists need apply to enforce federal election laws. The Voting Section at DOJ has seen a hiring blitz of lawyers from SEIU, Advancement Project, MALDEF, and NAACP as well as lawyers who provided pro bono representation to Guantanamo detainees. A lawsuit filed by the Pajamas Media website against Holder’s Justice Department forced the department to hand over the resumes of 16 new hires to the Voting Section of the Civil Rights Division. There is not a single lawyer with a non-ideological or conservative background.
Bryan Sells is a new deputy chief at DOJ’s Voting Section. For nearly 10 years he was a senior staff counsel at the ACLU Voting Rights Project, where he opposed voter ID laws and challenged states seeking to verify the U.S. citizenship of persons registering to vote. Sells has called state felon disenfranchisement laws a “slap in the face to democracy.”
At the ACLU Sells was notorious for stoking racial animus to gain courtroom advantage, the tactic described by Shelby Steele. In supporting a boycott to punish Bennett County for alleged racial discrimination against an Indian sheriff, Sells frequently compared South Dakota to Alabama in 1963, bombast that greatly harmed race relations in the community. The problem was that the sheriff who was removed from office was indicted on more than a dozen charges.
Meredith Bell-Platts is the other new deputy chief in the Voting Section. She also is a 10-year veteran of the ACLU’s Voting Rights Project, where she attacked voter ID requirements as intended to prevent African-Americans from voting. Bell-Platts lost every challenge to Georgia’s voter ID law.
Anna Baldwin was field coordinator for Equality Florida, where she “coordinated lobbying and state legislative policy work on behalf of Florida’s gay, lesbian, bisexual, and transgender communities.”
Daniel Freeman previously had a fellowship at the New York Civil Liberties Union and interned at the ACLU.
Jenigh Garrett was for five years an assistant counsel at the NAACP LDF. She co-drafted an amicus brief in Crawford v. Marion County Board of Elections (2008) arguing that voter ID laws are unconstitutional (a position the Supreme Court rejected in an opinion by Justice John Paul Stevens).
Bradley Heard previously worked at the Advancement Project and founded the Georgia Voter Empowerment Project, whose stated mission is increasing the “civic participation levels of progressive-minded Georgians.”
Catherine Meza interned for the NAACP LDF, the ACLU of Northern California, MALDEF, and Centro Legal de la Raza.
Kelli Reynolds managed the NAACP’s National Redistricting Project.
Elise Shore worked for the Southern Coalition for Social Justice and was a regional counsel for MALDEF. Shore’s advocacy at MALDEF was largely responsible for the Department of Justice blocking Georgia’s law to verify that only citizens are registering to vote. DOJ invoked Section 5 of the Voting Rights Act, which Shore now enforces.
Elizabeth Westfall is an equal opportunity donor to Democratic presidential candidates ($7,000 to Barack Obama’s 2008 presidential election campaign and $4,400 to Hillary Clinton’s 2008 presidential campaign) and worked for six years at the Advancement Project, directing its Voter Protection Program. She was also a staff attorney at the Washington Lawyers’ Committee for Civil Rights in its Fair Housing Group, and worked on the Hill as a legislative assistant to then-Congressman Bill Richardson (D-N.M.).
These are but a few of the new attorney hires who will oversee the 2012 election. Unfortunately, their allies outside government are their former colleagues, election law practitioners on the far left fringe. And they have a mighty head start. Hundreds of lawyers will cloak themselves in neutrality while working hard to obtain a particular outcome next November. Nobody should be surprised when they employ every means necessary to achieve exactly what they seek.
All of the prevailing winds in election law blow from the left. Instead of condemning New Black Panther Voter intimidation, Kristen Clarke of the NAACP LDF defended it by seeking to have the Justice Department lawsuit dismissed. Instead of purging Michigan voter rolls of dead and ineligible felons, the Advancement Project sued Secretary of State Terri Lynn Land to stop any purge ahead of the 2008 presidential election. Instead of Georgia enforcing a voter photo identification law, the American Civil Liberties Union sues to stop it. Instead of Arizona ensuring that all voter applications are submitted by eligible citizens, groups like the Brennan Center for Justice and MALDEF have successfully undermined the law.
Where are the lawyers who will oppose the Advancement Project, ACLU, MALDEF, the Brennan Center, Project Vote, Demos, LULAC and the NAACP when they bring these suits? Often it is government attorneys who rarely litigate such weighty election battles. Sometimes the government lawyers are sympathetic to the plaintiffs.
Millions of leftist dollars pour into election law wars before lawsuits are brought. After a lawsuit is filed, additional leftist legal and advocacy groups intervene and swarm like sharks around a flailing victim. Look at the pleadings and amicus briefs submitted in any major election law dispute. Not surprisingly, the victims often succumb. The rule of law dies along with them.
J. Christian Adams is an election lawyer who served in the Voting Rights Section at the U.S. Department of Justice. He was formerly general counsel to the South Carolina Secretary of State and is now in private practice. His forthcoming book Injustice: Exposing the Racial Agenda of the Obama Justice Department (Regnery) releases this month. His website is www.electionlawcenter.com.