Former Justice Department Lawyers Fire Back on Voting-Rights Reversal They Say Betrays Two Decades of Enforcement

by Dan Froomkin

The Justice Department's recent about-face on a voting rights case was such a betrayal of long-standing DOJ policy that a group of former political appointees and career lawyers filed an amicus brief with the Supreme Court on Friday, citing more than two decades of consistent enforcement of the rule in question – until Trump.

In a possibly unprecedented move, the former Justice lawyers essentially made an argument on behalf of the Department as an institution, representing itself in opposition to its current leadership.

"Amici submit this brief in their individual capacities to provide the Court with the Department’s longstanding view of the Question Presented, the view the current administration has abandoned," the brief says.

At issue is an Ohio law that calls for purging voters from the registration rolls if they fail to vote during three election cycles then don't respond to a mailing. The American Civil Liberties Union sued in April 2016 to prevent the state from purging potentially hundreds of thousands of registrations before the presidential election.

The Justice Department then filed an amicus brief -- signed by two career lawyers from the Civil Rights Division as well as political appointees -- urging the Sixth Circuit Court of Appeals to block the purge, which it did.

But in one of the most abrupt of several reversals by the Trump-era Justice Department, the acting solicitor general in early August filed a brief – with no career lawyers signing – that argued the exact opposite, to the Supreme Court.

Historically, the Justice Department has explained to states that the National Voter Registration Act of 1993 (NVRA) very clearly prohibits them from removing people from the rolls simply for not voting. (There are, after all, a lot of reasons someone may choose not to vote.)

The law does allow for states to strike people from the rolls after they have already been identified as possibly dead or moved away – "and then" the person has not voted in two or more election cycles.

Seen in that order, the act of not voting simply confirms the person isn't there anymore. It's not the precipitating factor.

But in July's filing, the acting solicitor general announced that the department had changed its mind. "After this Court’s grant of review and the change in Administrations, the Department reconsidered the question. It has now concluded that the NVRA does not prohibit a State from using nonvoting as the basis for sending a Section 20507(d)(2) notice," he wrote.

"A lot of folks who had worked at the Department on the NVRA were very upset by the change of course," said Samuel Bagenstos, a University of Michigan law professor who served as the No. 2 official in the Civil Rights Division for two years during the Obama administration. "And it seemed very notable that there were no career attorneys signed on the brief."

Bagenstos drafted a response. The 17 signatories include senior Justice Department officials under Obama and Clinton, such as Eric Holder, Tom Perez, and Bill Lann Lee, as well as longtime Civil Rights Division career attorneys James P. Turner, who served from 1965 to 1994, and J. Gerald Hebert, who served from 1973 to 1994.

Former Justice Department officials routinely file amicus briefs, but Bagenstos said he couldn't recall another example like this one, with such a variety of signatories, and to the Supreme Court.

"I think this is certainly an unusual filing because we think that the Solicitor General's Office is really betraying a longstanding position of the department," he said. "It's not something that's been batted back and forth by administration after administration."

Bagenstos said part of the motivation was the filing of a brief filed by the Antonin Scalia Law School Supreme Court Clinic in March entitled "Brief of former attorneys of the Civil Rights Division of the United States Department of Justice."

Its six signatories included Bradley Schlozman and Hans von Spakovsky. The two men are considered notorious in voting-rights circles for their zealous attempts to establish the existence of non-existent voter fraud and throw people off the voter roles – a practice known to disproportionately affect minority and elderly voters who tend to vote Democratic.

Both were political appointees in the George W. Bush administration's Civil Rights Division. A DOJ Inspector General's report found that Schlozman had violated federal law by screening new hires for their political views and lying to Congress about it.

Von Spakovsky was most recently in the news for his futile attempt to deny authorship of an email he wrote on behalf of the Heritage Foundation. The email demanded that no Democrats, mainstream Republicans or academics should be allowed to join him on Trump's much-mocked Advisory Commission on Election Integrity -- because then it would fail at its mission to conclude that voter fraud exists.

Ironically, the Civil Rights Division even under Schlozman and von Spakovsky continued to interpret voting law as prohibiting the purging of voters for not voting.

"That is pretty much during the time of peak efforts by the Bush Administration to politicize voting rights enforcement, and yet even then you have a continued articulation of the same position, that laws such as Ohio are inconsistent with federal law," Bagenstos said.

The one exception the Schlozman/von Spakovsky brief claims to find is a 2007 settlement agreement with the City of Philadelphia, primarily about providing Spanish-language assistance. But Bagenstos said that agreement was "very clunkily written" and did not reflect a change in the policy.

Bagenstos said he and the other former lawyers were particularly concerned that the Solicitor General's Office, which had presumably signed off on the earlier appellate-court brief opposing the Ohio law, had now reversed course.

"It's not that often that the Solicitor General's Office changes a longstanding position in the Supreme Court," Bagenstos said. "Usually the Solicitor General's office takes that kind of thing extremely seriously, even across administrations. They feel a strong pull to the precedent made by their office."

The Solicitor General is often referred to as the "Tenth Justice" as a result of frequent appearances before the Supreme Court representing the executive branch. The office typically recognizes that to maintain the deference the Court gives it, it must not swing from one position to another when administrations change.

On National Voter Registration Day, Reaching Americans After The Storm

by Hannah Fried and Alexis Prieur L’Heureux, founders, Access Democracy

September has been a terrible month for natural disasters in this country: wildfires lit up the Pacific Northwest; hurricanes battered southern states, Puerto Rico and the U.S. Virgin Islands; and flooding from these storms inundated entire communities. More than 13 million Americans have experienced direct impacts from these powerful events.

What we’ve learned from previous major natural disasters is that once the immediate crisis passes, communities will face a long road to recovery -- and that includes rebuilding a community’s election systems. In 2005, Hurricane Katrina displaced more than a million people, and cut the immediate population of New Orleans by more than half. In addition to replacing destroyed voting infrastructure, including hundreds of polling places, state and local governments had to contend with how to communicate with so many displaced voters, and whether to open voting sites outside state borders. Voters who evacuated were left to grapple with questions about when, or if, they’d go home -- forcing decisions about where they should register and how they would vote.

With mayoral and municipal elections coming on the heels of the hurricane, this all took place right at the very moment Louisianans would most want to send a message to their elected officials about the future of their hometowns. These challenges weren’t academic: they were deeply relevant, and, ultimately, depressed voter turnout. In the Lower Ninth Ward -- one of the hardest hit New Orleans neighborhoods -- voter participation in the spring 2006 municipal elections declined 40%. And following Hurricane Sandy, which hit the eastern seaboard about a week before the 2012 elections, the effects on voter participation were similar: the drop in turnout in areas most affected by the hurricane was more than three times that of the rest of the country.

September 26 is National Voter Registration Day. This presents an important opportunity to reflect on whether we are, as a country, doing all we can to protect every voter’s rights -- including those whose communities face natural disasters. This is especially necessary as climate scientists tell us that these kinds of disasters will continue to become even more severe. And the communities most exposed to physical destruction -- of their homes and businesses, and the infrastructure that keeps towns humming -- often find themselves most vulnerable to the loss of the right to vote.

We can draw important lessons from the painful rebuilding after Katrina, Sandy, and other natural disasters. What are some of the steps state and local officials can take to make voter registration more accessible following a disaster? And how can we make our democratic systems more resilient before a disaster even strikes?

  • Enacting online voter registration, which enables eligible voters to register, or update an existing registration, through a state website. This avoids having to receive and mail a paper form, or going to a local election office -- steps that can be burdensome for a displaced voter.
  • Enacting automatic voter registration, which adds an eligible voter to the voter rolls when she interacts with a government agency -- a common interaction for a displaced voter.
  • Facilitating communication between election officials in states or counties to which displaced voters have moved, so that voters are given consistent information concerning their ability to register and vote.
  • Including clear and accurate registration and voting information in all social service materials provided to displaced voters.
  • Training poll workers and other election officials about displaced voters’ unique needs, including their right to continue to be registered in their hometown, even if their future plans are uncertain.
  • Targeting voter registration drives to communities displaced by the disaster.
  • Extending the date by which citizens in the affected state must register, when a significant storm or other event hits close to the voter registration deadline.

From voter ID laws to the perpetuation by our nation’s leaders of baseless claims about widespread voter fraud, attacks on the right to vote seem unending. As good neighbors and engaged citizens, we should always make sure that every member of our community is able to access democracy. And as we celebrate National Voter Registration Day in the wake of such terrible weather events, we should reach beyond our immediate borders to call for state and federal officials to adopt these common-sense recommendations, particularly in communities where natural disasters present still another threat to our democracy.

BREAKING NEWS: Trump announces women to be US Attorney nominees

by Victoria Bassetti, Brennan Center Contributor

In a departure from pattern, President Donald J. Trump announced his intent to nominate women to be US Attorneys on Friday. 

Before today, President Trump had selected only one woman and 41 men for positions as the top federal prosecutors in the Department of Justice's district offices. He had come under criticism for not nominating women as US Attorneys.  

In the president’s defense, his daughter Ivanka Trump earlier this year made headlines when she told CNN’s Gloria Borger, “There's no way I could be the person I am today if my father was a sexist.”

Friday's announcement of four new candidates included two women bringing President Trump's total to 46. It tripled the number of women set to assume the critical prosecutor jobs. Nevertheless, the proportion of prospective female US Attorneys lags significantly behind the proportion (22 percent) who held those positions in the Obama Administration. 

Indeed the lack of women put up for a US Attorney position mirrors a trend among all of this administration's nominees. A recent Newsweek report indicated that 80 percent of top federal posts are going to men in the Trump Administration, with 327 of 408 nominees President Trump has sent to the Senate being men. Ninety-three percent of all US Attorneys proposed by the president thus far are men. 

Friday's batch of prospective US Attorneys were Erin Nealy Cox for the Northern District of Texas, Duane A. Kees for the Western District of Arkansas, Matthew D. Krueger of Wisconsin for the Eastern District of Wisconsin, and Christina E. Nolan of Vermont for the District of Vermont.  

Cox and Nolan join Jessie Liu in the rarified ranks of women President Trump has selected to be a top prosecutor. Liu was nominated on June 12 to be the US Attorney for the District of Columbia and was confirmed to her post by the Senate in September.

If confirmed, Cox would be the top prosecutor in the district that includes the Dallas-Ft. Worth metropolitan area, the fourth largest in the United States with more than 7 million residents. Nolan would head up federal prosecutions in Vermont, the second-smallest state in the nation by population, with fewer than 630,000 residents. 

All four prospective nominees announced Friday have substantial prosecutorial experience. 

If the president wanted to achieve anything like parity in the ranks of US Attorneys with the nation's population, every single remaining nominee to come would have to be a woman. If he wanted to match President Obama's mark for women in the posts, 37 percent of the remaining slots would have to go to women. 

Opportunities and Obstacles to Prosecutors Seeking Reform

On Wednesday morning, the American Constitution Society and the National Bar Association presented “The Power to Promote Progress: Opportunities and Limits to Prosecutors Seeking Reform,” featuring a panel of current and former state and federal prosecutors discussing what it means to be a reform-minded prosecutor.

In the past few years—often in response to incumbent chief prosecutors’ failure to reflect the values and needs of their constituencies—cities and counties across the country have elected self-described “progressive prosecutors.” Recently elected prosecutors like Kimberly Foxx in Chicago, Kim Gardner in St. Louis (Missouri), Mark Gonzalez in Corpus Christi, Kim Ogg in Harris County and Aramis Ayala in Orlando, join the ranks of other reform-minded prosecutors like acting-DA Eric Gonzalez in Brooklyn, Cyrus Vance in Manhattan, Pete Holmes in Seattle, and James Stewart in Shreveport. In addition to elected leadership, reform-minded attorneys are also serving as line prosecutors in federal and state prosecutor offices across the country.

While prosecutors with progressive values are not new, more and more they are committing to undertake reforms not usually associated with those in law enforcement. These attorneys, many of whom are men and women of color, are seeking to leverage their roles as prosecutors to combat racial and economic disparities in the criminal justice system. Among other things, these prosecutors are focused on the need to reform the cash bail system, decriminalize low-level offenses, like marijuana possession and so-called quality of life crimes, and bolster support for undocumented immigrants when they're arrested. They seek to establish and give meaningful weight to conviction integrity units, hold police accountable for unjustified uses of force, pursue alternatives to incarceration, and support and protect members of marginalized communities.

State Attorney Aramis Ayala , one of the panelist for the event, noted early in the discussion that reform efforts like those she is undertaking, should not be thought of as a favor to the criminally accused, but rather understood as strategies in increase both public safety and fairness in the criminal justice system. Her fellow panelist, Thiru Vignarajah, a former Maryland Deputy Attorney General, echoed these thoughts, noting that it is often the prosecutor who is in the best position, more so than a defense attorney or judge, to protect the constitutional rights of the criminally accused.

The panel, which was moderated by Roger A. Fairfax, Jr. of the George Washington Law School, wrestled with a number of issues, including the expansiveness of prosecutorial discretion, the benefits and dangers of electing chief prosecutors, and the relationship between prosecutors and legislators. During a discussion about the role of line prosecutors in achieving reforms, Sonja Ralston, an appellate attorney with the Justice Department’s Criminal Division,[*] encouraged young prosecutors who may have concerns about a particular case to ask questions—based on cases, statutes, and legal standards—as a collaborative and less threatening way to raise concerns with colleagues, superiors or members of law enforcement they may find themselves working with.

Lenese Herbert, a former federal prosecutor and professor at Howard University School of Law, decried the toll she witnessed on prosecutors who pursued charges against police officers for unjustified uses of force, warning that prosecutors who tackle such cases should be prepared to be ostracized by their law enforcement partners, and perhaps even members of their own offices. It was this risk, and the media circus that can accompany police prosecutions, that led Ayala to conclude that the use of an independent prosecutor in police abuse cases is often the best approach. Vignarajah in contrast, suggested that local prosecutors should handle such cases, and that relying on independent prosecutors could otherwise reinforce the notion of a too-cozy relationship between prosecutors and police.

In the end, the panelists all agreed that, while reform-minded prosecutors cannot solve all the problems with our criminal justice system, they are key allies in any reform effort. They also encouraged reform-minded lawyers and law students, even those who don’t think of themselves as the law-and-order type, to consider the difference they might be able to make by serving in a prosecutor’s office. As Ralston noted, it’s important for young, reform-minded prosecutors to be in the room, because if they are, someone else will be.

[*] Ralston appeared in her personal capacity and her comments did not reflect positions of the U.S. Department of Justice.

 

Changes After Stockley Acquittal

by Kim Gardner, Circuit Attorney for the City of St. Louis

I am disappointed with the court’s finding in the shooting death of Anthony Lamar Smith. As the Circuit Attorney for the City of St. Louis, I remain committed to holding people accountable for violating the law, regardless of their race, gender, occupation, or station in life. My job is to ensure a fair and transparent process and to vigorously present the evidence in the best manner possible, and my team did exactly that.  

While officer-involved shooting cases are extremely difficult to prevail in court, I believe we offered sufficient evidence that proved beyond a reasonable doubt that Jason Stockley intended to kill Mr. Smith. However, in this case it was the judge’s duty to evaluate the evidence and deliver his findings. That’s how our system works.

In light of the verdict, it is time to take a harder look at how officer-involved shootings are addressed in our city. I understand and appreciate the many challenges that face our city’s police officers. It is very noble work. However, we need further examination and clarity in the laws that govern the use of deadly force by police officers.

I believe we must first change the way these cases are investigated. Police cannot continue to investigate themselves.

I am calling for an independent investigative body that works under the supervision of the Circuit Attorney that is solely dedicated to investigating the 25 officer-involved shooting cases that are under review by my office so the community has confidence that they are being handled fairly and objectively.

We are in trying times. I understand that some people are frustrated and angry. I am frustrated as well. There are things we can do.

We have the opportunity to show the world that, in the City of St. Louis, we can show our frustration in a strong yet peaceful manner. We can share what’s on our minds without destroying the very city we all want to make a better place. Destruction of our community is not the answer. Rather, we need to build alliance to reform the shortcomings of the current approach.

I am asking the community to use their energy and voice and join me in working with state and local lawmakers to establish better ways to seek justice in officer-involved shooting cases. I am asking for the community’s support in helping me secure the resources needed to quickly and objectively investigate these cases.

Presidential Pardons After Joe Arpaio

If Donald Trump issues a pardon to Joseph Arpaio he will likely be acting within his enumerated powers as president, but doing so in a manner that could undermine our legal system and the Constitution.

Arpaio is the former sheriff of Maricopa County, Ariz., who was found guilty in July of criminal contempt for defying a federal court’s order barring the illegal profiling of immigrants and Latinos by his officers. Though he faces potential imprisonment of up to six months, he has not yet been sentenced, nor applied for clemency through the Justice Department process in effect since the Reagan administration that requires applicants to wait five years after completing their sentence and undergo a thorough investigation before they can be pardoned. Nevertheless, Trump has signaled that he plans to pardon Arpaio preemptively because he approves of Arpaio’s harsh treatment of immigrants.

Given the broad clemency authority granted to the President under the Constitution, it is unlikely that such a pardon could be challenged successfully in court. Article II of the U.S. Constitution vests in the president the power to grant “[p]ardons for offenses against the United States, except in cases of Impeachment.”

This provision has been interpreted broadly by the Supreme Court. In Schick v. Reed, 419 U.S. 256, 266 (1974), the Supreme Court upheld the power of the President to issue a conditional commutation, relying on an expansive interpretation of the pardon authority:

[T]he language of that [pardon] clause itself, and . . . the unbroken practice since 1790 compels the conclusion that the power flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress. Additionally, considerations of public policy and humanitarian impulses support an interpretation of that power so as to permit the attachment of any condition which does not otherwise offend the Constitution. The plain purpose of the broad power conferred by 2, cl. 1, was to allow plenary authority in the President to "forgive" the convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with conditions which are in themselves constitutionally unobjectionable.

Though it is highly unusual for a president to ignore completely the Justice Department process for processing pardons, there is nothing in the Constitution that prevents him from disregarding the established process and issuing pardons at any time. The power to pardon can be exercised before indictment or conviction, as President Gerald Ford did when he pardoned Richard Nixon for all federal offenses which he “committed or may have committed or taken part in.”

This authority also can be used to invalidate criminal contempt convictions, despite the potential of such pardons to undermine the judiciary. In Ex parte Grossman, 267 U.S. 87 (1924), the Court rejected a separation-of-powers argument that the president cannot pardon criminal contempt of court. Chief Justice Taft reasoned that the possibility that the pardoning power could be perverted so as to destroy the deterrent effect of judicial punishment is not an adequate basis for limiting the President's discretion to grant clemency. "Our Constitution," Taft wrote for a unanimous Court, "confers full discretion to pardon on the highest officer in the nation in confidence that he will not abuse it."  Id. at 121. If the power were abused, the remedy, according to the Grossman Court, would be resort to impeachment and removal.

However, despite the fact that Trump likely has the authority to pardon Arpaio, it would be unwise to do so. First, such a pardon may be unnecessary to protect Arpaio, an 85-year-old man, from imprisonment because it seems unlikely that the sentencing court would impose jail time on someone as vulnerable as Arpaio.

More importantly, such a pardon would undermine respect for the rule of law and could promote future violations of the Constitution. Arpaio was convicted of violating a judicial order that barred his department from violating the constitutional rights of individuals by detaining them based on their “race or Latino ancestry.” By pardoning Arpaio’s knowing violation of this order, Trump would be sending a clear message that government officers can disregard the Constitution, so long as they do so in a manner that would please Trump and his nativist supporters.

The potential for subverting the Constitution raises a slim possibility that an Arpaio pardon could be invalidated by the courts. Though Schick v. Reed, discussed above, construed the pardon power broadly, the Court pointedly noted that the pardon power could not be used in a manner that would “otherwise offend the Constitution” or be “constitutionally objectionable.” 419 U.S. 266. As I have argued elsewhere, surely it would violate the Constitution for the president to impose blatantly unconstitutional conditions on a pardon or use the pardon power in racially discriminatory fashion. See Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King, 69 TEX. L. REV. 569, 616-120 (1991). Professor Martin Redish has recently argued that such a pardon might also be overturned on Due Process grounds. However, such a judicial challenge would be unprecedented doctrinally, and would likely face significant justiciabilty and standing obstacles.

In the end, the most plausible remedy for such a wrong-headed pardon by Trump would be through recourse to political channels: impeachment and removal of the president by Congress, or repudiation at the voting booth by the people.