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.