Discrimination Will Continue, But Who Will Notice?

Despite their long history of preventing discrimination, federal election observers will be mostly absent from polling stations this year—at a time when the assault on voting rights is particularly acute.

By Julie Fernandes

Tagged attorney generalDepartment of JusticeRacismVoting Rights Act

Last month, Attorney General Loretta Lynch announced that, for the first time in 50 years, the U.S. Department of Justice will not be able to send federal observers to the polls on Election Day this November to protect voters against racial intimidation and harassment when they attempt to vote. And this in a year where the possibility of racial intimidation at polling places across the country is particularly acute, given the racially charged rhetoric animating the presidential campaign.

The federal observer program, created in 1965 by the Voting Rights Act (VRA), was designed to ensure that newly enfranchised African-American citizens would be able to vote free from discrimination, intimidation, or harassment. Over the years, the program has been used by both Republican and Democratic Administrations to protect the integrity of the electoral process by ensuring basic access to polling places for all voters.

There are countless examples of the federal observer program being used to protect voters from racial discrimination at the polls. In 2012, federal observers monitoring an election in Shelby County, Alabama, documented the closing of doors on African-American voters before the voting hours were over, as well as voting officials using racial epithets to describe voters. That same year, observers were sent to Alameda and Riverside Counties in California to gather information regarding reports of serious failures to provide language assistance to voters who needed it. In 2011, a federal court relied on observer reports to conclude that Sandoval County, New Mexico, had effectively disenfranchised members of the Keres tribe. In 2010, during the early voting period in Harris County, Texas, federal observers documented intimidation and harassment targeting Latino and African-American voters by an organized, well-funded Texas-based organization with clear partisan electoral goals. And during a primary election in Grenada, Mississippi in 1999, white poll watchers showed up at polling sites with cameras that were used to take pictures of black voters who needed assistance casting their ballots, in an effort to intimidate them. Thankfully, as soon as these individuals found out that there were federal observers monitoring the election, they exited the polling site.

A former state election official from Forest, Mississippi, Constance Slaughter-Harvey, testified before Congress in 2006 that “when local election officials are placed on notice that their actions…are being monitored, there have been noticeable and significant improvements in the quality of the electoral process.” In another example, observers were sent to monitor elections in Sunflower, Mississippi, after residents alleged that law enforcement officers were arresting voters at the polls for traffic violations and other minor offenses.

This program has worked because observers are career federal employees from a wide range of agencies who are not tied to any state or local political or party apparatus. The federal observer’s job is only to watch, listen, and record. Penny Pew, the Elections Director in Apache County, Arizona, testified before Congress that the federal observers “do not interfere with the process” of voting and that the program “has proven successful…and has given us insight to the happenings at each polling place that would otherwise go unnoticed.”

In the 2004 general election, the Department of Justice sent 1,463 federal observers to monitor 55 elections in 30 jurisdictions in 14 states. This year, that number will be close to zero despite the fact that 17 states have restrictive voting laws in effect for the first time in an election cycle where the political rhetoric has been extremely racially charged at the national level.

Given the widespread support for this obviously effective program, how did we get to a 2016 general election where voters are less protected against racial harassment than at any time since the 1960s?

The answer is a combination of a cavalier Supreme Court and a dysfunctional Congress.

In 2013, the Supreme Court, in Shelby County v. Holder, invalidated the Section 4 coverage formula that determined which states and localities had the worst record of racial discrimination in voting and thus would be subject to the statute’s Section 5 preclearance program. This program required these states and localities to get federal preapproval for all of their proposed voting changes.

Section 5 meant that no new voting law could be implemented unless it was determined by the federal government that the law was not racially discriminatory. The law also required that places with preclearance obligations provide public notice of all their proposed voting changes and authorized the Attorney General to send federal observers to Section 4 localities to prevent racial intimidation at the polls.

Much has been said and written about the impact of the loss of preclearance in the places that were formerly covered. These impacts have ranged from the implementation of a racially discriminatory voter ID law in Texas, to the shutting down of polling places in the heavily Latino precincts in Maricopa County, Arizona, to the enactment of the sweeping voter suppression bill in North Carolina just weeks after the Shelby decision.

Though these issues may have garnered the most attention, the Supreme Court’s decision in Shelby did more than just eliminate the anti-discrimination “check” on proposed voting changes in states with a long history of racial discrimination. It eliminated the program that has worked for decades to effectively protect voters from overt racial intimidation at the polls on Election Day.

The Attorney General, prior to Shelby, could only send federal observers to places that were covered by the Section 4 preclearance formula. But since the Supreme Court invalidated that formula, no places are eligible to receive federal observers—no matter how strong the evidence for potential racial intimidation in that place on Election Day.

Short of overturning the decision, could anything be done? In its opinion in Shelby, the Supreme Court invited Congress to update the Section 4 formula and bipartisan leaders in Congress responded in early 2014. Republican Congressman James Sensenbrenner, along with Democrats, Congressman John Conyers, and Senator Pat Leahy, introduced the Voting Rights Amendments Act, which includes an updated coverage formula and an expanded federal observer provision that would allow the Attorney General to certify any county in America for federal observers if she certifies a real danger of racial intimidation at the polls.

The Sensenbrenner bill currently has 107 bipartisan co-sponsors in the House. House Speaker Paul Ryan says he, too, supports the Sensenbrenner bill. Democratic Representative Terry Sewell and Senator Pat Leahy have also introduced a bill—the Voting Rights Advancement Act—that also includes a “fix” to the federal observer problem, along with other strong reforms. However, neither the House nor the Senate has yet to advance either bill in any way.

With less than 100 days away from the November election, what is Congress waiting for?

Unless and until Congress acts to restore the VRA, including reviving the federal observer program, racial intimidation at the polls will occur undetected and undeterred across the country come November. The trees will be falling, but without federal observers on the lookout in cities, towns, and parishes across the Deep South and Southwest, will anyone notice?

Read more about attorney generalDepartment of JusticeRacismVoting Rights Act

Julie Fernandes was Deputy Assistant Attorney General for Civil Rights at the U.S. Justice Department from 2009-2011 and is currently the Advocacy Director for Voting Rights and Democracy at the Open Society Policy Center.

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