Another Embarrassment for the Holder DOJ

Another Embarrassment for the Holder DOJ

By Hans A. von Spakovsky & Roger Clegg
September 16, 2010 4:32 P.M.

The Obama Justice Department just got slapped down in a lawsuit filed by Shelby County, Alabama, challenging the constitutionality of Section 5 of the Voting Rights Act. Section 5 is the original “emergency” provision passed in 1965 that required certain states to get preapproval from the federal government for all voting changes, no matter how minor. After 40 years of extensions, Congress renewed this supposedly temporary provision in 2006 for another 25 years.

Shelby County sued Eric Holder, saying that today’s vastly improved conditions no longer warrant such extraordinary intrusion into local sovereignty over elections and voting, and that Congress did not have a legislative record of ongoing and systematic discrimination that would warrant renewal of this law. Worse, the main use to which the federal government puts Section 5 today is to coerce racial gerrymandering, a practice both unconstitutional and at odds with the original ideals of the civil-rights movement. Shelby County filed a motion for summary judgment shortly after filing its lawsuit, since its facial challenge to the constitutionality of Section 5 is a legal dispute, not a factual one, and no discovery is needed.

In its apparent desperation to delay a constitutional challenge to a portion of the Voting Rights Act, the now infamous Civil Rights Division opposed the motion for summary judgment, making three absurd arguments. The Division claimed it needed a long period of discovery to 1) determine whether Shelby County has standing to file suit; 2) explore whether Shelby could bail out (thus avoiding the constitutional question); and 3) gather information about the VRA’s constitutionality.

Judge John Bates of the District of Columbia federal district court gave short shrift to all of the Division’s arguments in an order issued today. The judge was obviously flabbergasted that the DOJ would argue that a county covered by the mandates of this federal law would lack standing: “At oral argument, the government was unable to articulate any reason why a covered jurisdiction subject to Section 5’s preclearance requirement — such as Shelby County — would lack standing to bring this type of action.”

The government was also forced to admit that Shelby County was not seeking bailout, so obviously there was no need for discovery on this issue. Again, the judge seemed amazed that the Division had raised such a nonsensical argument: “The government agreed at oral argument that neither it nor this Court could force Shelby County to accept bailout.”

Finally, Judge Bates concluded that the government’s claim that it needed discovery on the issue of constitutionality was “unwarranted.” The court’s analysis in a facial challenge to the constitutionality of congressional legislation is limited to the actual evidence Congress considered when it passed the legislation. When the judge asked the government at oral argument to identify a single case that held to the contrary, the Division’s lawyers were unable to do so.
What this means is the case will go straight to a legal fight over whether it was constitutional to renew Section 5 in 2006. The almost frivolous arguments raised by the Holder Justice Department to delay this case are just another example of how badly (and unprofessionally) that Department is being run.