If you think this election will be rigged, blame the United States Supreme Court.
Back in 2013, the Court gutted the formula component of the Voting Rights Act in the case of Shelby County v. Holder.
Under that formula, any state that had a voter turnout or registration rate of less than 50% as of 1964, and had any history of discriminatory restrictions — like literacy tests or English-only ballots — was required to get pre-clearance from the Justice Department before changing its voting laws.
The Supreme Court held that this formula was sociologically outdated and it’s failure to use more recent data was unconstitutional. This holding did not deem the Voting Rights Act unconstitutional, but it did eliminate a key mechanism used to enforce it.
As a result, the Justice Department’s Civil Rights Division lost its right to require states with a history of racial discrimination to get its pre-authorization before making any changes to voting laws: i.e. drawing electoral districts, placing restrictions on early voting, or requiring specific forms of voter identification
Meanwhile, voting rights advocates reeled, state election officials rejoiced, and the nation mistakenly believed that the only real consequence of Shelby would be the facilitation of voter identification laws or gerrymandering.
In reality, the consequences of this decision are more far-reaching, and should be at the heart of any informed discussion on whether the presidential election is indeed rigged.
As a trial attorney in the Voting Rights Section of the Justice Department’s Civil Rights Division, I have monitored many local, state and federal elections.
Any suggestion of rampant, extensive voter fraud is sheer hyperbole. What is an issue, however, is how polling officials conduct elections, whom they decide to let (or not let) vote, and how they determine which ballots to count.
Self-interested groups intimidating voters at the polls is also an important issue in this, and with numerous polling sites across the country, the only way to know about this is through election monitoring.
There are three kinds of election monitors: Justice Department Voting Rights attorneys; Federal Election Observers who have been assigned to a handful of states that have been sued by the Department for voting-related discrimination; and Federal Election Observers who have been dispatched to states subject to the pre-authorization formula.
Federal Election Observers are trained to observe whether polling officials are discriminating against voters or otherwise violating federal law. They can’t interfere, but they are instructed to alert someone who can.
At the polls, their presence has a prophylactic effect. After the election, their observations can become evidence in a federal lawsuit.
Federal Election Observers have the authority to enter and monitor any polling place with or without the permission of the election officials. Justice Department attorneys, on the other hand, are at the mercy of polling officials who can turn them away if they so please.
It’s the third category, formula-based Federal Observers, who comprise the majority of election monitors. At the behest of the Attorney General and the Justice Department, thousands are routinely dispatched to polling places throughout the country. Or they were, at least.
Although the Supreme Court clearly said the Justice Department could no longer use the formula for pre-authorization, the Court never said that the Department couldn’t use the formula to determine where to send Federal Election Observers. But that’s precisely how the Justice Department interpreted Shelby, nonetheless.
Consequently, the Department has chosen to sideline Federal Election Observers in any state not already subject to a court order. Instead, they will send perhaps a few dozen Justice Department Trial Attorneys in their place.
Why would a Department led by a Democratic political appointee do this, knowing that it may have a detrimental impact on Democratic voters? Ironically, because of democracy.
Democracy divides power among the three branches of government. When the Supreme Court struck down the formula provision, it was exclusively within the purview of Congress to replace it.
Congress never did, leaving the Justice Department without the authority to use that formula to determine either which states require pre-authorization or where to send Federal Election Observers.
I suppose the Justice Department could create its own formula and use it to determine where to send Observers, but that’s akin to making law, which the constitution expressly forbids. And let’s not forget, it is Congress that must foot the bill for sending Federal Observers.
The same Congress that failed to create a new formula is unlikely to fund an Observer program based on one created by another branch.
What could this mean for voters?
Polling officials will be on an honor system in deciding whether the voters are entitled to vote, in which language they are entitled to receive a ballot, whether they can have assistance, and whether any provisional ballots should be counted.
When the polls close, any inappropriate counting or unlawful destruction of ballots will go unnoticed and unreported.
Timely resolution of systemic voter issues will be impracticable, and can only be dealt with after the fact, through protracted litigation — well after the Inauguration of the next President of the United States.
It will not be the interference of Big Brother that may affect the election. It will be the notable absence of a few thousand of them.
This time, Big Brother took a proverbial seat and borrowed Lady Justice’s blindfold.
