Bush administration lawyers are now attempting to overturn decades of legal precedence by claiming that under the Help America Vote Act only Attorney General John Ashcroft — and not individual voters–have a right to ask federal courts to enforce voting rights. [includes rush transcript]
Bush administration lawyers are attempting to overturn of legal precedence by claiming that only Attorney General John Ashcroft and not individual voters have a right to go to federal courts to enforce the right of citizen’s to vote. This according to the Los Angeles Times.
In legal briefs filed in Ohio, Michigan and Flordia, the Bush administration is arguing that only the Justice Department, and not voters themselves, may sue to enforce the voting rights set out in the Help America Vote Act which was passed after the 2000 election.
Veteran voting rights lawyers say this would overturn decades of legal precedent and could greatly affect any legal challenge to Tuesday’s election.
According to the paper, since the civil rights era of the 1960s, individuals have gone to federal court to enforce their right to vote, often with the support of groups such as the NAACP, the AFL-CIO, the League of Women Voters.
Even the Supreme Court has backed the idea of private suits. In 1969, the justices issued a ruling in a case related to the Voting Rights Act of 1965 that "the achievement of the act’s laudable goal would be severely hampered ... if each citizen were required to depend solely on litigation instituted at the discretion of the attorney general."
- Steve Mulroy, former Justice Department voting rights litigator. He now teaches law at the University of Memphis.
JUAN GONZALEZ: We’re also joined on the telephone by Steven Mulroy, an assistant professor at the University of Memphis Law School and a former Justice Department attorney. Welcome to Democracy Now!
STEVEN MULROY: Thank you very much. I’m glad to be here.
JUAN GONZALEZ: Professor Mulroy, could you talk to us about this L.A. Times article that came out in terms of the Justice Department taking the stand that it is the, under HAVA, the new voting rights protection act, that only the Justice Department can sue on behalf of citizens for voting rights violations?
STEVEN MULROY: Right. I haven’t seen the article, but I didn’t leave, someone might have talked to me about it. The issue is whether there is what you call a private right of action under the statute. Sometimes statutes will expressly provide that not only federal agencies, but private individuals will have the right to enforce the federal statute through a private suit. Sometimes they won’t expressly provide, but an implied right of action is discerned by the courts. Sometimes the court will discern that there is no private right of action. It’s a legal question. With respect to HAVA, the help Americans Vote Act that was passed two years ago by congress, the Department of Justice has taken the position in the lawsuits under HAVA that are sprouting up around the country, there is no private right of action. This is a controversial position. I think it’s debatable on the merits, but the interesting thing is some people have criticized the justice department because it’s not completely unprecedented for the Justice Department to take this position, but somewhat unusual. Normally, you would think that the agency that’s charged with enforcing the law would welcome assistance from private groups in also enforcing the law. And in the past, there have been some instances where there were similar issues with respect to the Voting Rights Act and the department of justice took the position there was a private right of action. As recently as 1996, in a case called Morris v. Republican Party, which went all the way up to the Supreme Court, with respect to section 10 of the Voting Rights Act, the justice department took on the position in litigation that there was a private right of action, so I think it caused some surprise, and some dismay among voting rights advocates when the department of justice recently took the position that there was no private right of action under HAVA.
AMY GOODMAN: And what about the fact that it’s ultimately all in the control of John Ashcroft.
STEVEN MULROY: Well, from the perspective a progressive or a person who is very concerned about preserving Voting Rights Act, certainly that could lead to suspicions, because, you know, I mean I don’t think we need to recite the record of John Ashcroft for the last several years. If you don’t trust the current Attorney General to vigorously enforce protections, you know, regarding voter access to or do it in a fair manner, then one natural check in the system would be if you had a private right of action, that’s one of the advantages of having a private right of action in something as fundamental as voting rights in that area. So, obviously, that’s a concern.
AMY GOODMAN: Going back to the headline. In '69, the Supreme Court issuing a ruling in a case related to the Voting Rights Act of 1965 saying, quote, "The achievement of the act's laudable goal would be severely hampered if each citizen were required to depend solely on litigation instituted at the discretion of the Attorney General."
STEVEN MULROY: Well, first of all, that is a correct quote. The Supreme Court has said that. Second of all, I personally believe that that’s true. I agree with that statement on the merits. I think with something as fundamental as protecting Voting Rights Act, you want to have a broad interpretation of private rights of action. So, I agree with all of that. I mean, you know, as a technical legal matter, sometimes, you know, when you look at what the legislative intent is, when you look at the language, you look at the legislative history, sometimes there’s a legal matter. There is an argument for saying there is no private right of action. I haven’t thoroughly researched this issue, but from what I know of it, it really sounds like it would be a good idea to have a private right of action. I was surprised when I heard that D.O.J. took the position that it did.
AMY GOODMAN: We want to thank you for very much for being with us, Steven Mulroy, ex-voting rights litigator for the U.S. Justice Department, now a law professor at the University of Memphis, and Ohio state senator Teresa Fedor. This is Democracy Now!