It’s no surprise that the Justice Department is preparing for the midterm election next week. What is a surprise is that Attorney General Eric Holder’s DOJ is continuing a Bush-era program — in name at least — that came under fire due to the Republican administration’s push for voter fraud prosecutions.
The Ballot Access and Voting Integrity Initiative began eight years ago under then-Attorney General John Ashcroft. This year, under a Democratic administration, the initiative is “ongoing” and is part of the Justice Department’s 2010 Election Day Program, according to a joint press release from two Obama-nominated U.S. Attorneys in Wisconsin.
A Justice Department spokesperson told TPMMuckraker that they would have a formal announcement out of Justice headquarters sometime this week.
“We’re committed to helping ensure free and fair elections, as well as prosecuting instances of election fraud, where the facts, evidence and the law support such action,” a Justice Department spokesperson told TPMMuckraker of the program.
But for now, here’s how Wisconsin’s top two federal prosecutors described the effort:
Eight years ago, the Justice Department established a nationwide Ballot Access and Voting Integrity Initiative. The goals of this ongoing Initiative are to increase the Department’s ability to deter election fraud and discrimination at the polls and to prosecute these offenses whenever and wherever they occur. The Department’s 2010 Election Day Program furthers these goals, and also seeks to ensure public confidence in the integrity of the election process by providing local points of contact within the Department for the public to report possible election fraud and voting rights violations while the polls are open on election day.
When the voter integrity program was formalized during the Bush Administration, “DOJ was over-focused on voter fraud (cases and prosecutions were few and far between) and totally unresponsive to claims of intimidation, harassment or discrimination,” former DOJ lawyer J. Gerald Hebert told TPMMuckraker in an e-mail.
“I have no problem with federal law enforcement advising the public that they will pursue all cases aggressively,” Hebert wrote. “But if I see calls to DOJ about serious problems of intimidation or discrimination not being aggressively pursued, then we have a problem.”
It’s too early to judge DOJ’s efforts, says Hebert. But he noted that so far this week, DOJ “seems responsive to complaints alleging the targeting of minority voters (and efforts to intimidate them) in Houston and Dallas.”
It was the previous administration’s focus on voter fraud — they declared it a “high priority” — that disturbed many civil rights leaders because laws to prevent fraud can have a disparate impact on minority constituencies. The push for voter fraud prosecutions was so intense, in fact, that several U.S. Attorneys that the Bush Administration felt did not adequately pursue voter fraud prosecutions were amongst those infamously dismissed under former Attorney General Alberto Gonzales.
To get a sense of what this effort consisted of during the Bush administration, here’s an excerpt from Ashcroft’s speech introducing the initiative, via Scott Horton.
Votes have been bought, voters intimidated, and ballot boxes stuffed. The polling process has been disrupted or not completed. Voters have been duped into signing absentee ballots believing they were applications for public relief. And the residents of cemeteries have infamously shown up at the polls on election day.
Political war stories like these are often told with a grin, but these failures of our democracy are no laughing matter. There is nothing funny about winning an election with stolen votes. And there is no occasion for mirth by the campaigns that commit these offenses. All of us pay the price for voting fraud.”
Despite the flaws of the program during the Bush administration, another former Justice Department official didn’t think the use of the program’s name was necessarily problematic in and of itself.
“I would have to concede that not everything that was started during the Bush administration is inherently defective,” former Civil Rights Division lawyer Robert Kengle, now of the Lawyers’ Committee for Civil Rights Under Law, told TPMMuckraker.
“As far as Ashcroft went, I think his concern was more the fraud aspect. He was convinced that there was massive fraud and that if he put this initiative together, it would uncover the massive fraud that existed in his mind. As it turns out, they looked and looked and turned up practically nothing,” Kengle said. “Ashcroft was not entirely bad, and they did include the access component as part of the program, and so I think that still survives.”
Kengle does not know the precise outline of the Justice Department’s 2010 effort, but he has an idea of what they are striving for.
“I think they are trying to bring what they would consider an appropriate balance between the two” — both combating fraud and ensuring access to the polls — Hebert said. “I think it is important that there be a consistent message going out to the U.S. Attorneys about what the polices are and what to do so that you don’t have people going out and freelancing.”
The Civil Rights Division’s 2010 election game plan will be announced the same week as the conservative controlled U.S. Commission on Civil Rights is expected to slam the Justice Department for how it handled the civil voter intimidation case against members of the New Black Panther Party back in 2008.
DOJ is also catching flack from Republicans over what they say is inaction on enforcement of the Military and Overseas Voter Empowerment (MOVE) Act. The Department’s blogger-in-residence Tracy Russo took to the web last week to not-so-subtly defend the record of the administration on military voting rights, pointing out 12 agreements DOJ reached with states to bring them up to compliance or make arrangements to ensure military votes were counted. DOJ reached an additional agreement on Friday with Illinois, where military voting has become a hot issue in the Senate campaign.