- The Washington Times - Friday, September 17, 2010

The Justice Department’s Civil Rights Division has lurched from multiple controversies into an outright embarrassment. In an order issued Sept. 16, U.S. District Judge John D. Bates of the District of Columbia gave Attorney General Eric H. Holder Jr.’s team the legal equivalent of a 2-by-4 across the head. The department’s handling of a voting rights case from Shelby County, Ala., has been so slipshod as to invite questions of its legal competence across the board.

Shelby County is challenging the constitutionality of the Voting Rights Act’s Section 5, an increasingly problematic requirement that election jurisdictions in several states, mostly Southern, secure “pre-clearance” from Justice for any change in voting practices. This includes minor details such as moving a polling place from a school gym to its cafeteria. The county writes, “in the last 10 years, [it] has sought pre-clearance numerous times, expended significant taxpayer dollars, time and energy to meet its obligations under Section 5 of the VRA, and has had at least one election delayed in order to ensure compliance.”

In a 2009 decision in a case from Austin, Texas, the Supreme Court barely saved Section 5 by deciding the case on narrower grounds while expressing doubts about its constitutionality. The Alabama county in the current case wants to decide the question once and for all.

The Justice Department loves Section 5 because it gives federal bureaucrats immense discretionary power. Last month, it dropped a Section 5 case against Georgia rather than risk having Section 5 declared unconstitutional. In the Alabama case, it tried to avoid questions over constitutionality by using diversionary arguments, which Judge Bates eviscerated as “fishing expeditions.” On the department’s request for evidentiary discovery, the judge wrote, “The parties have pointed to no authority, and the Court is unaware of any, that would support discovery under such circumstances.” Rejecting an argument by Justice, Judges Bates wrote in the county’s favor that “a contrary conclusion would be absurd.”

The Heritage Foundation’s Hans von Spakovsky and Roger Clegg of the Center for Equal Opportunity observed, “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.” Indeed, a competent Justice Department wouldn’t get slapped down so definitively. In ordering Shelby County’s case forward, Judge Bates served notice that the law takes precedence over raw assertions of privileged federal authority.