The Justice Department (DOJ) has stated that it will no longer deploy federal observers inside polling sites, a long-standing and critical component of its election monitoring efforts. The Justice Department announced that it will cease dispatching federal election observers to polling sites, based on the their interpretation of the 2013 U.S. Supreme Court decision in Shelby County v. Holder. The DOJ also issued a Fact Sheet further outlining the decision. Federal election observers, specially trained individuals with authorization to enter polling locations and review the counting of the votes, have historically played a critical role monitoring elections to ensure that all voters are able to freely cast a ballot.
From an AG Lynch speech to LULAC:
That decision did great damage. It seriously undermined Section 5 of the VRA, which required jurisdictions with the most troubling histories of voter discrimination to receive federal approval, or “preclearance,” before they could change their election rules. Section 5 was in many ways the heart of the Voting Rights Act and its neutralization was a serious blow with far-reaching consequences. First and foremost, the Department of Justice can no longer block voting restrictions before they take effect. For example, in 2011, the state of Texas passed a restrictive voter ID law that requires voters to produce documents that more than half a million Texas voters simply do not have. Seven federal judges have reviewed this law and seven federal judges have found that it violates the Voting Rights Act – three of them before Shelby County and four of them after. The case is currently before the full Fifth Circuit, with a decision due any day. But because of Shelby County, Texas’s law remains in force while we wait for a final decision – and it is not the only one. Because of Shelby County, other states have also enacted laws that restrict voting rights. And these laws have the potential to distort elections by making it harder for voters – especially low-income and minority voters – to access the ballot box.
Shelby County had other consequences as well. It has forced the Justice Department to rely much more on local groups and individuals to alert us to potentially unlawful acts, since jurisdictions no longer have to self-report. In the past, we have also relied heavily on election observers – specially trained individuals who are authorized to enter polling locations and monitor the process to ensure that it lives up to its legal obligations. Unfortunately, our use of observers is largely tied to the preclearance coverage formula that the Supreme Court found to be unconstitutional in Shelby County and so our ability to deploy them has been severely curtailed. Rest assured, we will continue to monitor elections to the extent that we can, but because of Shelby County, we will be sending out fewer people with fewer capabilities this November.
The kind of harm we see – in places that pass restrictive laws that we now spend years fighting on the back end, instead of preventing on the front end; the harm that comes when we don’t have the same number or kind of “eyes and ears” in polling locations that we did before –cannot be undone. And in the year 2016, in the United States of America, it should not be tolerated. Nor does it have to be. In its ruling, the Supreme Court made clear that Congress has the ability to establish a new system for determining which jurisdictions are subject to preclearance – a step that would restore Section 5 to its full effect and restore our capacity to protect. I have repeatedly urged Congress to embrace this opportunity. And today, once again, I call upon the people’s branch to stand up for the people’s voice. In a nation of the people, by the people and for the people, no eligible citizen should be denied the right to vote, no matter who they are or where they live. And the representatives of the people should guarantee that right – not tomorrow, not after the election, but right now.
Now, the good news is that even without Section 5, the Voting Rights Act remains a potent tool. Its other provisions remain in effect. And there are many other important voting rights laws that our Civil Rights Division is using to ensure and to widen access to the ballot. We entered into an agreement with the State of Alabama to ensure its compliance with the National Voter Registration Act, which requires states to provide eligible citizens with the opportunity to register to vote through motor vehicle agencies. Our action eased the way to vote for the more than one million Alabama residents who interact with the state motor vehicle agency annually. We have also made certain that communities in Virginia establish accessible polling places for voters with disabilities. We have secured access for Latino voters in Napa County, California, to the Spanish-language ballots and assistance to which they are legally entitled. We have worked to ensure that uniformed service members deployed at home and abroad are able to send in their absentee ballots in plenty of time for them to be counted – because the men and women fighting to defend our rights should never be denied theirs. When others bring cases, we join the fight there as well: since the beginning of 2014, we have filed briefs in private lawsuits in 14 different states that address issues ranging from district lines and registration opportunities to ID rules and language access. And as we prepare for the first presidential election since the Shelby County ruling, we are mobilizing all of the resources left at our disposal to monitor the process as thoroughly and effectively as possible.