- The Washington Times - Thursday, June 4, 2009

The Obama Justice Department broke with two Bush-era approaches to citizenship and immigration this week, rejecting a Georgia system to verify the eligibility of voters on grounds that it hurt minorities and expanding the right of illegal immigrants to appeal their deportations.

On Wednesday, Attorney General Eric H. Holder Jr. reversed an order by his predecessor, Michael B. Mukasey, and bolstered the legal rights of immigrants facing deportation, saying that immigrants can fight orders to leave the U.S. on the grounds of poor legal representation at their deportation hearings.

That decision was announced two days after the Justice Department banned Georgia from using a system to verify that voter registrants are U.S. citizens, saying it discriminated against racial minorities. In doing so, the Justice Department overruled a local election decision for just the second time since Mr. Obama took office, in this case by ruling on the side of those who want to expand voter access and against Georgia lawmakers who said voter fraud was the bigger danger.

“I just think it is an outrageously stupid decision,” Hans A. von Spakovsky, a former career Justice Department lawyer who worked on voting-rights issues and is now a visiting legal scholar at the conservative Heritage Foundation, said of the Georgia case. “I still can’t believe they would do something this dumb.”

Mr. von Spakovsky was involved with the Justice Department’s decision four years ago to allow Arizona to implement a similar system that required people to present proof of citizenship when registering to vote.

Arizona and Georgia are among the nine states, along with parts of seven others, that the landmark 1965 Voting Rights Act requires to receive permission from the Justice Department before making changes to voting procedures.

Georgia was sued on the grounds that its new system, which had not been approved in advance by the Justice Department, prevented naturalized citizens from voting. During the case, a judge directed the state to get approval from the Justice Department, and Monday’s denial invalidated the verification system.

The Obama administration recently defended that part of the Voting Rights Act, known as Section 5, in a case in front of the Supreme Court, arguing that it is still necessary to prevent voter discrimination.

The rulings also were made a week after The Washington Times reported that Justice Department political appointees reversed career lawyers and dropped a voting-intimidation case it already had won against members of the New Black Panther Party.

Mr. von Spakovsky said the differences in the Justice Department’s handling of the Arizona and Georgia cases shows how arbitrarily the Voting Rights Act is applied, based on nothing more than the administration in power.

“I think the department’s actions in this case is just further evidence of why the Supreme Court ought to find this provision unconstitutional,” he said.

The Justice Department disputed that the Georgia and Arizona systems are identical, saying that Arizona’s did not produce a disparate effect on minorities.

“To suggest that the systems in Georgia and Arizona are the same simply because they seek to verify citizenship ignores the differences between the two systems. While the citizenship verification procedures in Arizona were cleared, Georgia’s submission did not meet the same burden of proof, partly due to reliance on information concerning citizenship status that may have been several years old, a problem that was not present in Arizona,” said Justice Department spokesman Alejandro Miyar.

Georgia recently passed a separate law explicitly patterned after Arizona’s that the Justice Department must also decide whether to approve.

The Georgia voter verification system matched voter registrations against driver’s license applications, which require applicants to disclose their citizenship status. The Justice Department concluded the information in the system is often out of date and frequently flags immigrants who have become citizens since receiving driver’s licenses.

“The impact falls disproportionately on minority voters,” Loretta King, acting assistant attorney general of the Justice Department’s Civil Rights Division, wrote in a letter to the state.

Ms. King’s letter provided no numerical data on the racial impact of Georgia’s verification rules, although it did charge that more than 60 percent of the registrants who had been flagged were able to prove they were citizens, either by birth or naturalization, and thus eligible to vote.

Georgia Secretary of State Karen Handel, whose office created the system, said the Justice Department’s decision will “allow non-citizens to register to vote.” Her office also disputed the Justice Department’s conclusion that the verification system was discriminatory.

“Not a single person has come forward May 2007 to June 2009 and said, ‘I wasn’t able to vote because of this verification,’ ” said Deputy Secretary of State Rob Simms. “Not one.”

In 2007, Georgia implemented its system to comply with the 2002 federal Help America Vote Act (HAVA), and state officials complained that the Justice Department ruling puts them in a legal bind.

“They are basically ordering us to be out of compliance with HAVA,” Mr. Simms said.

In addition, the state pointed out, 42 percent more blacks and 140 percent more Hispanics voted in Georgia in 2008, the first statewide election since the new system was implemented, than in 2004, the previous presidential-election year.

But liberal-leaning civil rights organizations that opposed Georgia’s system have praised the Justice Department’s decision.

“The Department of Justice’s objection recognizes that the state of Georgia has attempted to disenfranchise not only Latino citizens but Asian-American and African-American citizens as well,” said Elise Sandra Shore of the Mexican American Legal Defense and Education Fund.

“The Department’s letter reaffirms the importance of the Voting Rights Act and rejects the discriminatory voter identification measures that primarily affect minorities and other under-served communities,” she said.

Similar groups also have come out in favor of the department’s move Wednesday, which aims to ensure immigrants have competent legal counsel during deportation proceedings.

Mr. Mukasey decided near the end of the Bush administration in January that the Constitution did not give immigrants the right to fight deportation on the basis of having received poor legal help. He said the Justice Department could reopen individual cases on such grounds, but that would be a discretionary choice, not a legal right.

Mr. Holder’s decision reversed that order, saying, among other things, that there had been too little time for public comment. His statement said he would order Justice to produce a new set of rules on effective counsel in deportation cases.

“We are gratified that Attorney General Holder has expressed a higher regard for the fundamental principles of due process and improving the integrity of immigration court decisions,” said Ben Johnson, executive director of the American Immigration Law Foundation.

Jon Feere, an analyst at the Center for Immigration Studies, called the Holder decision a needless expansion of the rights of immigrants that would “unjustly delay deportation.”

“I am somewhat concerned that Holder’s proposal will give non-citizens one too many bites of the apple,” said Mr. Feere, whose group advocates tighter controls on immigration. “Aliens are not granted the same constitutional protections that citizenship guarantees.”

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