Judicial Watch has long been at the forefront of the fight for election reform, battling to clean up voter rolls and informing the public about threats to the integrity of the electoral system. Today, clashes over election laws are raging in state legislatures and Congress. The fight is often ugly, with cries from the Left of a new “Jim Crow” regime—the laws that suppressed and segregated Blacks in the aftermath of the Civil War—echoing across the land.
The election integrity crisis is unfolding on many fronts. One of the most serious threats comes from Congressional attempts to move control of elections from the states into the federal government. Judicial Watch Senior Attorney T. Russell Nobile recently testified before a committee of the House of Representatives on legislation that would dramatically increase the role of the Justice Department in overseeing elections.
The first attempt by Democrats to reshape the American electoral system in the Biden era was stymied last week when a moderate member of their own party balked. The action in Washington now shifts to the bill known as H.R. 4—the John Lewis Voting Rights Act.
“The truth is that H.R. 4 goes far beyond any civil rights law enacted during the height of the civil rights era,” Nobile told Congress. “Rather, it is part of a grander plan to shift control of American elections away from individual state legislatures and into the hands of a single federal bureaucratic department. It accomplishes this by giving the attorney general a previously unseen level of authority over elections.”
Before joining Judicial Watch, Nobile served as a trial attorney for the Justice Department, enforcing election laws and bringing cases under the Voting Rights Act, the Civil Rights Act, and the National Voter Registration Act. He warns that buried deep in H.R. 4 is a provision that gives the attorney general sweeping new constitutional authority to bring civil rights cases—including cases that have nothing to do with voting.
The new provision grants the attorney general authority to intervene in “any act prohibited by the 14th or 15th Amendment” of the Constitution.
Nobile warns that the “little-noticed provision will abolish a long-standing legal principle.” For more than 200 years, Congress and the courts have declined to give the attorney general authority to bring such cases.
Nobile explains: “Under current law, the attorney general is only authorized to bring civil rights claims under specific statutes, typically those statutes prohibiting discrimination, and has no authority to sue directly for certain violations of the Constitution.” H.R. 4 changes that. The “proposed change is a major power shift, allowing the Justice Department to become involved in a whole range of 14th Amendment cases that previously it would have been unable to pursue.” For example, under the new provision, the attorney general could bring a case challenging a state abortion regulation, or intervene as a party in lawsuits to support 2nd Amendment restrictions.
That’s not the only sweeping change envisioned by H.R. 4. The legislation also would reinterpret the keystone Section 5 of the Voting Rights Act. As Nobile notes, Section 5, passed into law in 1965, “was a temporary, extraordinary remedy to address an extraordinary problem…intentional state-sponsored and/or state-supported efforts to disenfranchise Blacks” in many Southern states by preventing voter registration and suppressing turnout.
Section Five “presumed that any voting change by a covered jurisdiction was implemented out of discriminatory intent or effect, until the jurisdiction proved otherwise. The Supreme Court ruled this presumption of guilt without a trial was justified in the context of the terrible racial discrimination occurring in 1965,” Nobile notes.
But Section 5 was meant to be a temporary solution and expire after five years. Instead, Congress kept it in effect for sixty-six years, until the Supreme Court intervened in 2013 with the Shelby County decision. Shelby threw out the decades-old “temporary” solution, ruling that it was unconstitutional and outdated.
H.R. 4 seeks to put it back—and expand it to other parts of the country.
Nobile notes that permanent provisions of the Voting Rights Act, such as Section 2, still prohibit discrimination “and provide the tools needed for the Justice Department or private litigants to challenge election standards, practices, or procedures that are enacted with discriminatory intent or that result in minorities having less opportunity than others to participate in the electoral process.”
H.R. 4 goes even further, Nobile warns, by granting the Justice Department “new nationwide preclearance” power—that is, preapproval power from the attorney general or the courts—targeting a wide array of “popular voter integrity provisions,” including “voter identification and list maintenance.”
With the country in an uproar over voting and elections, the Democrat-sponsored H.R. 4 looks more like a naked power grab than a reasoned response to the facts on the ground. For example: the Justice Department has brought only a trickle of Section 2 actions since Section 5 was thrown out by Shelby eight years ago. That would not be the case if rampant voter suppression existed.
More telling: detailed data studies show that Black voter registration in the Southern states previously covered by Section 5 has “completely rebounded and, in some instances, exceeds White registration rates,” Nobile notes.
The data show that “eight years after Shelby County, registration disparities in Texas, Florida, North Carolina, Louisiana, and Mississippi—all previously covered (in whole or part) by Section 5—are all below the national average. In fact, Black registration in Mississippi is 4.3% higher than White registration.”
The 2020 election saw a higher turnout across all racial groups. Turnout disparities in previously covered Section Five states like “Mississippi, North Carolina, Georgia, Florida, and Texas were all smaller than the national average,” Nobile notes. “In fact, the disparities in turnout in Massachusetts, Wisconsin, Oregon, Colorado, New Jersey, and New York were higher than the turnout disparities in these former Section 5 states. Again, turnout for Blacks in Mississippi outperformed that of Whites.”
Facts are stubborn things, after all. “However one views any talking points about ‘rampant voter suppression,’” Nobile notes, “the data cannot be ignored: registration and turnout data in 2020 far exceeds that in 1965. When Blacks now register and turn out at higher rates in places like Mississippi, it is simply not credible to claim that Jim Crow style voter suppression currently exists.”
Read Judicial Watch Senior Attorney T. Russell Nobile’s remarks before the House Subcommittee on the Constitution, Civil Rights and Civil Liberties here. More on Section 5 of the Voting Rights Act here. And more on the Shelby County decision here.