I appreciate the opportunity to make this presentation to the distinguished members of the National Commission on Federal Election Reform. The 2000 election placed the election process in this country under a level of scrutiny probably never seen before. Beginning on election day the concerns of thousands of citizens about the election and election issues have been received by the Department. We have been examining closely those legitimate concerns which fall within the jurisdiction of the statutes we enforce to determine whether legal action is warranted and what role we might play to assist in ensuring that the election process continues to reflect a high degree of confidence.

At the outset, it is important to remember that the conduct of elections is primarily the responsibility of state and local election officials. The Department's role is defined by the voting rights statutes it has the responsibility to enforce. This paper is designed (1) to provide a summary of the enforcement program of the Voting Section, with an emphasis on those parts of the program which relate to the conduct of elections; (2) provide an overview of the Voting Section's activity in response to the 2000 election; and (3) describe the Attorney General's Voting Rights Initiative.

I. Statutory Basis for the Voting Section's Enforcement Program

  • The Voting Rights Act: The vast majority of the Voting Section's resources are devoted to enforcement of the Voting Rights Act of 1965, as amended. Close to one-half of the Section's are dedicated to enforcing Section 5 of the Act. This is the part of the Act that requires "covered" jurisdictions to submit any voting change to the Department of Justice for review to consider whether the purpose or effect of the change is to put minority voters in a worse position than they were under the existing law. With new redistricting plans being drawn in these jurisdictions after the release of the 2000 Census, there will be a dramatic increase in Section 5 work requiring additional Section resources. The Voting Section also has placed emphasis on enforcement of Section 2 of the Act, the provision which prohibits, nation-wide, voting standards, practices or procedures that deny or abridge the right to vote on the basis of race or language minority status. This part of the program has focused primarily on methods of election, such as at-large voting systems, which dilute the voting strength of the minority voters.
    Several provisions of the Act and the Section's enforcement program more directly address the conduct of elections. These are discussed below:
    1. Federal Observers: Since the 1965 Act was passed, the Voting Section has developed an active program for observing or monitoring elections. The Section's federal observer program permits federal observers at federal, state and local elections to enter polling places to observe and report their observations of the election process to the Voting Section. The authority for assigning federal observers to federal, state and local elections is found in the Voting Rights Act. These provisions were designed to ensure that newly enfranchised African-American citizens would be able to vote, have their votes counted, and be free from discrimination, intimidation or harassment when they did vote. That remains the basic purpose of federal observers today. Amendments to the Voting Rights Act in 1975 provide protection for language minority groups such as Native Americans, Asian Americans, and Hispanics. Since then, and particularly in recent years, federal observers have also been assigned to monitor elections involving these language minority groups.
      The Attorney General's authority to certify jurisdictions for federal observers is limited to the "covered" jurisdictions listed above. The Act also provides for certification of jurisdictions for placement of federal observers by order of a federal court. Such orders may be entered anywhere after a lawsuit has been initiated by the United States or an aggrieved person under any statute to enforce the voting guarantees of the Fourteenth or Fifteenth amendments and where the court has found a violation of either of these constitutional provisions.
      On a more limited basis, the Voting Section has in the past sent one or two attorneys without observers to monitor election-day activities. These occasions arise when, prior to an election, information is brought to our attention indicating that potential violations of the statutes we enforce, such as the Voting Rights Act and the National Voter Registration Act (discussed below), may occur at the election. Such attorney monitoring usually takes place in locations where the presence of federal observers is not authorized by the Voting Rights Act.
    2. Language Assistance Provisions of the Voting Rights Act: Sections 203 and 4(f)(4) of the Voting Rights Act are the language minority provisions of the Act. They require certain covered jurisdictions with significant populations of limited English speaking voters to affirmatively provide bilingual written materials (except where the relevant language is historically unwritten), and other assistance to limited English speaking voters. The Department of Justice has published detailed guidelines concerning these provisions.
      Much of the enforcement work pursuant to these provisions has been done through lawsuits resolved by consent decrees. These consent decrees address language assistance issues concerning Native Americans in Arizona, New Mexico and Utah, Hispanic voters in Lawrence, Massachusetts, and Passaic, New Jersey, and Chinese-speaking voters in Alameda County, California.
      Since entry of these consent decrees, the Voting Section has worked closely with these jurisdictions to ensure compliance with the language assistance requirements. On most occasions, we have consulted with election officials before elections on their plans for implementing the actions required by Section 203, and have placed federal observers at elections. On one occasion, when we encountered significant non-compliance, an independent monitor was appointed by the court.
    3. Section 2 Actions Addressing Election-Related Discrimination: The nation-wide prohibition in Section 2 of the Act against voting standards, practices or procedures which deny or abridge the right to vote on account of race or language minority status provides another basis for attacking election related discrimination. Since the 1960s and 1970s, most election-day discrimination problems that we have encountered have been worked out in consultation with state and local officials, and the number of such enforcement cases has been relatively low. However, in the last year, the Voting Section initiated two Section 2 cases challenging election-related discrimination: (1) a case alleging discrimination and intimidation of Arab-American voters at the polls; and (2) a case alleging discrimination against Hispanic candidates through efforts of local officials to change the residency requirements for candidates. Both cases resulted in consent decrees which, among other things, authorized the Department to send federal observers to ensure the fairness of future elections.
      In addition, there are provisions in the Voting Rights Acts of 1957 and 1965 that prohibit intimidation of voters and provide for civil suits to enjoin such actions. There are similar criminal voter intimidation statutes. On their face, these provisions are not limited to intimidation based on race or color; but, the case law, for the most part, has interpreted these provisions as applying only to intimidation based on race or color. A significant number of civil cases involving intimidation claims were brought in the past, primarily in the 1960s and early 1970s. More recently in the 1990s three such cases have been filed.
  • The National Voter Registration Act (NVRA or "Motor Voter" law): This law was passed by Congress in 1993 and applies only to federal elections. The statute explicitly states its purpose as follows: (1) to establish procedures designed to increase the number of eligible citizens who register to vote in elections for federal office; (2) to make it possible for federal, state, and local governments to implement this Act in a manner that enhances the participation of eligible citizens as voters in elections for federal office; (3) to protect the integrity of the electoral process; and (4) to ensure that accurate and current voter registration rolls are maintained. The NVRA's uniform registration mandates are explicitly designed to expand voter registration opportunities and decrease racial disparities in voter registration.
    The NVRA became effective in most states on January 1, 1995. It requires that each state provide for motor vehicle, agency-based and mail-in voter registration, as well as uniform and non-discriminatory registration list maintenance procedures. The NVRA further prohibits purging registered voters for not voting, and requires that registrants who move within a registrar's jurisdiction be allowed to vote even if they did not tell the registrar about the change of address before the election.
    Enforcement responsibility under the NVRA has been assigned to both the Federal Election Commission (FEC) and the Department of Justice. The FEC, in consultation with the chief election officers of the states, prescribes regulations and provides guidance for carrying out the provisions of the NVRA, and has developed a mail voter registration form. It is also required to submit a report to Congress every two years which assesses the impact of the NVRA on the administration of federal elections and makes recommendations for improvements in procedures, forms and other matters affected by the Act. The Department of Justice is given authority to bring civil actions seeking injunctive relief necessary to ensure compliance with the Act.
    When the law first went into effect in 1995, the Voting Section successfully defended the Act's constitutionality in a series of cases throughout the country. After several federal court orders finding the NVRA constitutional, recent enforcement efforts have been designed to ensure that states are implementing and ensuring compliance with the Act's provisions. In one case, the Department alleges that a State, 12 state agencies, and one agency of the City of New York, have failed to comply with the agency-based voter registration provisions of the NVRA.
  • Uniformed and Overseas Citizen Absentee Voting Act (UOCAVA): This law is designed to ensure that absent uniformed services voters and overseas voters can register and vote absentee in elections for federal office. Primary administrative responsibility is with the Department of Defense's Voter Assistance office. The Department of Justice is authorized to enforce the law in federal court. All lawsuits have been brought after referral from the Department of Defense. Over thirty enforcement actions have been initiated after such referrals and virtually all have been quickly resolved by consent decree.
    Suits are typically referred because a State did not provide ballots to overseas voters in enough time for those ballots to be returned, thus violating UOCAVA. Relief typically is obtained on an expedited basis and usually includes a requirement that the state accept overseas ballots 10-15 days after the election date, and take other steps to ensure such violations do not recur.
  • Statutes Designed to Protect Disabled Voters: Several laws provide protections for disabled voters. Section 208 of the Voting Rights Act requires that election officials permit voters who are blind, disabled or unable to read or write to be given assistance by a person of the voter's choice.
    The Voting Accessibility for the Elderly and Handicapped Act of 1984 (VAEHA) is a federal statute that requires that polling places at federal elections be accessible to persons with disabilities and the elderly. However, there are two exceptions to this requirement: (1) in the case of an emergency, as determined by the chief election officer of the state; and (2) if the chief election officer of the state determines after surveying all potential polling places and concludes that no accessible polling place is available, and the political subdivision is unable to make one temporarily accessible. In the latter circumstance, it is sufficient for states that have conducted the required survey to assign disabled voters to an alternative accessible place or to provide an alternative means for casting a ballot on the day of the election (such as by absentee ballot). In recent years, bills have been introduced in Congress to strengthen protections for disabled voters.
    The Americans with Disabilities Act (ADA), which addresses accessibility problems more globally and comprehensively, is enforced by the Disability Rights Section of the Civil Rights Division. The Voting Section is currently working with the Disability Rights Section to identify a more effective enforcement strategy for addressing the needs of disabled voters.

    II. Post-2000 Election Activity of the Voting Section

    Prior to the 2000 election, the Voting Section engaged in the same pre-election preparation it does before all elections to determine where to send federal observers. On election day, the highest number of federal observers in recent years observed elections. There were 317 federal observers located in nine states. Most of the Voting Section's staff coordinated the observer activity and additional attorney staff were sent to monitor elections at two other jurisdictions where observers could not be authorized. In addition, we were aware that before the election that the NAACP's National Voter Fund was working to ensure fair elections throughout the country. As part of our preparation for the 2000 election, the Section took steps to coordinate its election efforts with their representatives.

    Immediately after the November 7, 2000 election, the Voting Section was deluged with calls and complaints from citizens from almost every state in the country. A large majority of these calls raised concerns about the election in Florida. For the most part, these callers expressed their frustration and concern about the election. There were some who expressed concrete complaints, but many of these raised issues which did not indicate potential violations of the voting rights statutes the Voting Section enforces.

    We received more substantive complaints concerning possible violations of the Voting Rights Act and the NVRA from several civil rights organizations. Chief amongst these was the NAACP which, among other information it provided, referred to us logs of complaints they had received and transcripts of hearings they conducted in November. Almost half of the complaints they referred involved allegations of violations of federal voting rights laws from Florida and included a variety of election-related issues, the most common of which were registration issues.

    After review of these complaints, the Section initiated the highest number of investigations into potential election-related violations of federal law in many years. Most are from Florida (12), but there are also several (6) from other states. These complaints concern a wide variety of issues covered by the statutes that we enforce. The largest number of investigations concern possible violations of the NVRA, both the registration and purge provisions of the Act. This reflects the fact that the highest number of complaints that we reviewed raised registration issues covered by the NVRA. Thirteen of the investigations undertaken remain active and are ongoing.

    III. The Attorney General's Voting Rights Initiative

    On March 7, 2001, the Attorney General announced a Voting Rights Initiative aimed at ensuring voter access and the integrity of the voting process. The Initiative includes two important prongs. First are increased efforts to prevent voting rights abuses. This prong includes (1) appointment of a senior counsel for voting rights to spearhead and coordinate efforts to address proposals for election reform; and (2) increased monitoring of elections. Second are increased efforts to enforce voting rights laws by the Civil Rights Division's Voting Section. This prong also includes close liaison with the Criminal Division's Public Integrity Section (as well as the Civil Rights Division's Criminal Section) to ensure vigorous enforcement of criminal voter fraud and intimidation laws. Attached is the transcript of the March 7 announcement of this Initiative.

    The Senior Counsel for Voting Rights will be appointed after confirmation of the new Assistant Attorney General for Civil Rights. In the meantime, the Voting Section has been closely following election reform activities. It is carefully monitoring the progress of both state and federal election reform legislation. Of particular interest is the recently passed Florida legislation. Our initial review of this legislation indicates that it is quite comprehensive and seeks to address many of the issues growing out of the 2000 election. It should be very useful to other legislatures and organizations that are studying election reform. It also is relevant to many of the Section's ongoing investigations because several of its provisions address issues which are the subject of those investigations.

    Since announcement of the Initiative, the Voting Section has also been engaged in extensive efforts to increase its monitoring of elections to ensure compliance with voting rights laws. Federal observers have monitored elections in Passaic, New Jersey (on two occasions); Cicero, Illinois (on two occasions); Clarksdale, Mississippi (on two occasions); Webb, Mississippi; Macon, Mississippi; and Irving, Texas. In addition, Section attorneys have monitored elections in St. Louis, Missouri, Selma, Texas, and Reading, Pennsylvania.

    The Section has also been attending meetings and conferences - such as this one - at which election reform issues are the subject of the meeting or conference, and at which reports of many of the task forces addressing election reform have been present.

    Once again, thank you for this opportunity to appear at this meeting.