Sunday, October 31, 2010

How to Do Almost Everything Wrong

I stumbled across a brilliant example of how to do statutory analysis almost entirely wrong. National Review alleges that the Justice Department is being politically manipulated to produce outcomes more favorable to the GOP establishment in Alaska by Democrats in Washington. Specifically, they're up in arms that the DOJ didn't step in to prevent the Alaska Elections Division from putting up a big list of names of write-in candidates in polling places. The incumbent senator, Lisa Murkowski, is running as a write-in after she was primaried by Republican candidate Joe Miller.

I personally think that if the Justice Department were to step in here, it would be an unbelievable overreach by the federal government into an area that is explicitly delegated to state control in Article I § 4 of the Constitution.
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of chusing Senators.
Besides the 17th Amendment, which required that Senators be elected by popular vote, there have been no other changes to the constitution regarding federal elections. The states have the final power to control all manner of election-related regulations. In fact, the outcome that the National Review is decrying was decided by the Alaskan Supreme Court, the body with final say over Alaskan elections.

Unless the Supreme Court wants to go the Bush v. Gore route and take a second whack at destroying the political question doctrine, the state court's say is final. So why is the National Review whining about the DOJ? It didn't file an amicus brief or involve itself in the litigation at all. It did nothing to support either side of the dispute. That isn't even alleged. The National Review wants the unelected non-political DOJ to come into Alaska like imperial armies and force Alaskan polling places to take down lists of names. The National Review thinks that the DOJ has this power because (and this is in the words of their article):
But there’s another wrinkle in this story. Alaska, like a number of southern states, is covered under Section 5 of the Voting Rights Act. This means Alaska cannot make any change in its voting laws or procedures without first getting them cleared by the Voting Section of the U.S. Department of Justice, or a federal court in Washington, D.C...

Upon receiving a Section 5 submission, the Voting Section has a responsibility to conduct a thorough review of the proposed change to determine whether it would have a discriminatory effect, or was intended to discriminate against minority voters. Yet the Section pre-cleared the change on October 26, the day after the lawsuit was filed, apparently without doing any investigation.
By the way, I don't know what "pre-cleared" is, but it sounds like saying, "yeah- we're going to check this out, but it looks good so far." Republican activists are bringing a lawsuit that includes a native to allege that not including a list of names in Aleut and 'Eskimo'[sic(?)] and stripping party identification from the list violates the voting rights act. That's a pretty funny theory, but let's step back from partisan madness for a second. Whose rights are trampled by having a list of names up on the wall? How is this discriminatory? The requirements that Alaska include native languages on voting materials is relevant to the printed instructions which allow access to the ballot. The voting rights act makes sure that Native Alaskans have directions on how to cast votes, polling place location, and registration information because without them, they would be disenfranchised. The same logic does not apply to additional information about candidates hung in polling places. Ancillary signs in the room (e.g. "Exit") do not have to be tri-lingual in order for Alaska's voting laws to pass VRA muster. Whatever attorney NRO and the Koch Brothers have hired to make it sound otherwise has a long, long hill to climb.

The claim also contained in the article that voting-voting-rights-act covered states are barred from listing candidates separate from party identity is also deeply nonsensical. The case they cite in North Carolina involved party identification on a ballot disappearing. On election day, when an Inuit or Aleut voter looks at her ballot, nothing will have changed from the day before the Alaskan Supreme Court said it would be ok to display lists of write-in candidates' names on the wall. There will still by Scott Adams (Democrat) facing Joe Miller (Republican) and two little black ovals, and under it, a spot with instructions about how to vote for a write-in candidate in the voter's language. The lists on the wall are simply not a voting rights issue. If they were, they could simply be reproduced in Native languages across the state with ease.

The deeper frustration that these people are voicing is that the election machine of Alaska is still in the hands of the state GOP establishment, which supports Lisa Murkowski. There was an abrupt policy change that did not go through the normal (and possibly legally required) process which allowed Lisa Murkowski to pick up a couple more voters who intended to vote for her but couldn't remember what her name was. I think that that's a legitimate frustration. However, blaming the federal Department of Justice for the Alaskan court's decision is childish. Their goal is to make the federal government interfere with state elections in the absence of a compelling infringement on a class's voting rights. It's nakedly politically motivated, and the best part is that the NRO first paragraph is
For a good preview of how politics, rather than law, may drive decisions in the Obama Justice Department next year when redistricting gets underway, go north, young man, and cast your eye on the Senate race in Alaska. The latest shenanigans by Alaskan election officials and the Voting Section of Justice’s Civil Rights Division show a dangerous willingness to bend regulations in furtherance of political objectives.
It sure does get ugly when people try to politicize the Justice Department.

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