Noxubee County, Miss., occupies a special place in American political history. The abusive power of the county's storied political machine isn't so remarkable, nor is the fact that a corrupt black Democrat built it. Plenty of jurisdictions have, through the ages, boasted the same ugliness. Noxubee's distinction is that this tiny, majority-black town is where President Bush's Justice Department chose to make its stand against racial discrimination at the polls.
In 2005, Bush's lawyers hit Noxubee with the first-ever suit charging blacks with violating the Voting Rights Act by disenfranchising whites. Few argue the details of the case—whatever his motives, Noxubee's Democratic boss, Ike Brown, was clearly cheating. But when considered in the broader context of the Bush administration's voting rights record, the case points to a larger, more troubling crime.
Over the past eight years, the Bush administration has perverted the Justice Department's electoral role beyond recognition. The department's Voting Section, which is part of the Civil Rights Division, was built as the last, best line of defense for blacks against local-level thugs who—acting out of racism, partisanship or both—sought to disenfranchise black voters. Today, the department is an anti-democratic puppet master, supporting and directing local corruption with one hand and harassing officials who seek to do their job honestly with the other. And with local jurisdictions around the country barreling into what promises to be one of the most administratively challenging elections ever, the department is not only failing to help, it's often getting in the way.
At the time the Noxubee suit was filed, Bush's Justice Department had not brought a single case seeking to protect African Americans from voting discrimination. And despite all that we have seen over the past several election cycles—from dirty tricks like vote "caging"to clearly illegal efforts to suppress voting through intimidation and misinformation—the Bush administration has, to date, brought just three cases on behalf of blacks, according to Gilda Daniels, a former senior staff member in the Voting Section who quit in disgust in 2006.
"The feeling was that there was no interest in bringing cases on behalf of African Americans," says Daniels, who had been in the department since 1995. She joined a mass exodus from the Voting Section after the 2004 election. The section's director, 37-year veteran Joseph Rich, was among those who left. According to Rich, now senior counsel with the Lawyers' Committee for Civil Rights Under Law, more than half of the staff quit or got reassigned.
Justice Department divisions are staffed by legal technicians like Daniels, but led by political appointees who set the agenda for their work. In a Senate Judiciary Committee hearing last month, the Civil Rights Division's current political leader, Acting Assistant Attorney General Grace Chung Becker, defended the department's record by noting that the division has brought more cases challenging language barriers at the polls than ever.
That claim is less impressive than it seems. "Those are the easy cases," Daniels explains. The Census Bureau determines, based on demographics, which jurisdictions must provide multilingual ballots, and compliance is a black-and-white question. Moreover, with immigrant populations exploding, it's no surprise that language cases would increase as well. It was clear to the division's lawyers that language cases were the only ones the political leadership would green-light. And therein, Daniels says, was the problem.
That's because the political leadership's true interest was then, and continues to be, cajoling election officials into frustrating rather than encouraging participatory democracy. The department's firing of eight U.S. attorneys in 2006 for what appears to have been political reasons has been widely reported, and this week, at the behest of the inspector general, Attorney General Michael Mukasey appointed a department prosecutor to further pursue the case. But the firings are just the most high-profile example.
The department is crusading against voter registration under the guise of fraud prevention. Every jurisdiction conducts regular "purges" of its voter roll to clean the list of people who have died or moved or are otherwise no longer eligible. Following the huge Democratic turnout in 2004, the Voting Section launched an all-out assault to make states use these purges to kick voters off the rolls without due process. In 2005, the department filed suit against four states that refused to cooperate and sent threatening letters to several more. At least three of the fired U.S. attorneys had refused to pursue these cases, since they had no merit.
A review this week by the Brennan Center for Justice confirmed that 39 states and the District of Columbia reported purging more than 13 million voters from registration rolls between 2004 and 2006, with little to no transparency. "The secret and inconsistent manner in which purges are conducted make it difficult, if not impossible, to know exactly how many voters are stricken from voting lists erroneously," the report explained, adding, "when purges are made public, they often reveal serious problems."
The Brennan Center for Justice and other watchdog groups have established that actual voter fraud is "extremely rare" and pales in comparison to voter disenfranchisement. Ironically, the Justice Department's full-bore assault on phantom fraud is making it more difficult for even well-meaning election officials to meet the administrative demands of historically high voter registration over the next couple of weeks. And it's doing nothing whatsoever to police those who are being willfully negligent.
Meanwhile, watchdogs are furiously sorting through registration data in battleground states to determine where problems are occurring and to predict where resource shortages may cause chaos on Election Day. That, of course, should be the Justice Department's job. The Voting Section is supposed to send monitors to polling places in each election to watch for irregularities. When there's a chronic problem, those monitors contact the department's election lawyers to intervene. But by and large, their job is to collect data that can be used to target preventive resources in the upcoming election.
In 2004, says Daniels, the department destroyed this time-tested system by sending untrained hacks out as monitors—and putting them in all the wrong places. Ohio, which had long since been identified as a trouble spot, had just two monitors for the entire state, says Daniels. "Some of the 'election coverage' merely consisted of an attorney with a cell phone in the U.S. attorney's office," she testified during the Senate hearing last month.
In one positive sign, Becker announced last week that the department has agreed to stop sending out monitors who are actually prosecutors and FBI agents—people who aren't trained in spotting voting rights violations but who do intimidate voters, particularly first-time voters and people of color. It's a sign of just how bad things have gotten that advocates roundly welcomed this pitiful concession as a step forward.
Kai Wright is a regular contributor to The Root.