Jus­tice rules sig­nal shift on vot­ing, de­por­ta­tion

The Washington Times Weekly - - Politics - BY BEN CONERY

The Obama Jus­tice Depart­ment broke with two Bush-era ap­proaches to cit­i­zen­ship and im­mi­gra­tion last 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 June 3, 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 the June 1 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 De­par tment’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.”


At­tor­ney Gen­eral Eric Holder

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