“In some sense it’s not surprising that the Bush administration has shown such disdain for protecting voting rights,” said Karlan, founding director of Stanford’s Supreme Court Litigation Clinic. “After all Bush was elected due to a series of voting rights failures…The stage was set for what we’ve experienced over the last eight years.”
Karlan was highly critical of the administration’s 2002 Help America Vote Act (HAVA), a law meant to curb the type of election-year controversy that surrounded Bush’s 2000 election by mandating improvements in state voting systems.
“The act started out as a reaction to the debacle of the 2000 election, but in the end it’s done very little to guarantee a new right to vote and it’s sown a lot of confusion along the way,” Karlan said. “Part of this is because the act seeks to perpetuate the idea of matching voters on the voting rolls to various other lists that are maintained by the government, but it turns out that those lists are often quite inaccurately maintained.”
Logistical problems abound and many voters are disenfranchised when, because of clerical errors or slight differences like the inclusion or exclusion of a middle name or initial, cause mismatches between voter rolls and other lists, Karlan said.
The Bush administration directed its efforts towards combating voter fraud even where there was little or no evidence of fraud, Karlan said, citing Crawford v. Marion County Board of Elections, an Indiana case involving an Indiana law that requires every voter to obtain government-issued photo identification. State legislators passed the law in 2005, saying that it would end voter impersonation fraud – despite the fact that no such fraud has ever been prosecuted in the state. Critics charged that the law was a partisan attempt by Republican lawmakers to block poor and minority voters, many of whom don’t drive or travel, or who would have trouble obtaining government ID, from voting.
“Indiana promulgated one of the most draconian voter fraud laws in the country, and the Bush administration supported that law,” Karlan said. The Supreme Court upheld the law in a 6-3 vote earlier this year.
Karlan also criticized the Bush administrations highly publicized politicization of the Department of Justice (DOJ), both in hiring practices and in siding with political staff to overrule the decisions of career professional staff, specifically in voting rights cases. Specifically, political staff in the Civil Rights Division overruled career staff recommendations against redistricting and new voter laws in Georgia, Arizona, and Texas.
“Career staff recommended that these laws be objected to, because these laws have a disproportionate effect on minority voters,” Karlan said. “A politicized Department of Justice cannot perform its tasks fully and fairly.” Approximately 60 percent of the career staff of the voting rights section at DOJ left during the Bush administration, she added.
Karlan recommended that the next administration proactively move to protect voting rights.
“They should, like the Johnson administration, draft a bill to protect voting rights that actually moves the law forward,” she said. She recommended that elections be run by non-partisan officials, rather than partisan secretaries of state.
Karlan also recommended a more serious examination of election issues well before elections, so that problems won’t be worked out in the courts while voting is going on.
“Once the election is ongoing, it’s not only confusing, but it becomes so clear what the partisan balance of any particular decision is that both the courts and the public know the outcome, know the result of the litigation, and it can destroy faith in the integrity of the system” she said.
“I think if you had asked the U.S. Supreme Court in the spring of 2000, to decide hypothetical case like Bush v. Gore, you never would have gotten the result that we got. But the temptation was so great at the end, both because the Republican justices on the Supreme Court thought the Democratic justices on the Florida Supreme Court were playing fast and loose with the rules, and because they realized all they had to do was chose from an array of outcomes one that matched their policy preferences.”
The Lessons Learned series is co-sponsored by the Program in Public Law and the Duke Journal of Constitutional Law and Public Policy.