Protestors gather outside of the U.S. Supreme Court in support of Section 5 of the Voting Rights Act of 1965, in Washington, Feb. 27, 2013.
Photo by Christopher Gregory/The New York Times/Redux

Voter intimidation fears spike as key midterms approach


The Supreme Court’s ruling last year that gutted the Voting Rights Act didn’t just free southern states from federal supervision of their voting laws. It also, far more quietly, put an end to a decades-long program in which the federal government sent election observers to prevent race-based voter intimidation. And with crucial midterm elections fast approaching, voting rights advocates are expressing grave concern.

The issue is highlighted as part of a major new report on ongoing racial discrimination in voting, released Wednesday by a coalition of civil rights groups to mark the 49th anniversary of the signing of the Voting Rights Act (VRA).

Bob Kengle, a former head of the DOJ’s voting section, called the demise of the observer program “a big loss.” Kengle is now with the Lawyers Committee for Civil Rights Under Law, which led the coalition that compiled the report.

The department’s election monitors have in the past played a crucial role in protecting the right to vote. They’ve often been called in by election officials to ease tensions at the polls and avert potential instances of race-based intimidation or irregularities, sometimes reporting problems to lawyers at DOJ. And in recent years, they’ve worked to ensure compliance with the VRA’s provisions on non-English speakers, helping to bring lawsuits by documenting polling places that aren’t offering materials to serve those groups.

As an example of how the presence of observers can avert problems, Kengle recalled a local Mississippi Democratic primary in the ’80s. After observers reported to him that a big stack of absentee ballots at a heavily black precinct was left uncounted, Kengle said he told the party chairman he would seek a court order if the problem wasn’t fixed. It quickly was.

Since 1995, Mississippi alone has had 1,850 federal observers to monitor elections, and Texas has had 1,123. Twenty other states, from Massachusetts to Alaska, have had observers.

But according to a CNN report last month, the Justice Department has concluded that thanks to last year’s ruling in Shelby County v. Holder, it no longer has the authority to unilaterally assign poll observers, other than in jurisdictions where court orders require it.

Kengle said he disagreed with that legal conclusion. In Shelby, the Supreme Court struck down Section 4 of the Voting Rights Act, which determined which areas had to submit their voting changes for federal approval.

“It remains to be seen whether DOJ’s decision to terminate its observer coverage in the formerly covered jurisdictions after the Shelby County decision will result in a substantial increase in voter intimidation.”
“It remains to be seen whether DOJ’s decision to terminate its observer coverage in the formerly covered jurisdictions after the Shelby County decision will result in a substantial increase in voter intimidation,” say the authors of the civil rights group report.

“The Department declines to comment,” a Justice Department spokeswoman told msnbc via email.

The lack of federal observers could be especially important this year, because a large minority turnout is key to Democrats’ chances in several of the southern states that will determine control of the U.S. Senate, including North Carolina, Arkansas, Louisiana and Georgia. In the latter two states, black voters will likely make up over half of all Democratic voters.

Aside from the issue of monitors, the report finds that despite the Supreme Court’s focus in the Shelby ruling on the progress made since the 1960s, race-based voter discrimination remains a “frequent and ongoing problem in the U.S.”

Compiled by the National Commission on Voting Rights after extensive public hearings held across the country over the last year, the 297-page report counted 332 successful voting rights lawsuits or denials of pre-clearance since 1995. And it found that the states previously covered under Section 5 of the Voting Rights Act were the worst offenders—with Texas at the top of the list.