Before the 2000 presidential election, most Americans assumed the mechanics of elections functioned smoothly. The thirty-six day battle for the presidency demonstrated otherwise. Today, most Americans still assume the institutions, firms and foundations that fight about election law disputes are equally matched and similarly funded as between left and right. That is a dangerously incorrect assumption, especially with the 2012 election fast approaching. From an election administration perspective, the 2012 presidential election is already upon us. And the Left is fully engaged.
Like so many other institutions, whether academia or the media, leftists dominate the field of election law, and the consequences are immediate and devastating. Worst of all, hardly anyone has noticed that these scores of leftist election experts enjoy a largely unopposed battlefield.
Leftist foundations, litigators and organizations have established permanent structures designed to alter election outcomes through policy advocacy and strategic litigation. Project Vote, DEMOS, the Asian American Legal Defense Fund (AALDF), the Brennan Center for Justice, the Mexican American Legal Defense Fund (MALDEF), the NAACP Legal Defense Fund, the Advancement Project, National Association of Latino Elected and Appointed Officials (NALEO), League of Women Voters, Asian Pacific American Legal Center and Common Cause are some of the groups that push election law in a direction hostile to conservatives, and the rule of law. Not surprisingly, money tainted by George Soros also flows downstream through various groups and institutes to the cause.
Literally hundreds of individuals man permanent stations, full time, at these groups. They benefit from tens of millions of dollars in funding. They bring lawsuits under federal and state statutes ranging from the Voting Rights Act, Motor Voter law and the Help America Vote Act. They station teams of election observers in polling places around the nation every election to fuel their litigation and their media efforts. Almost nobody opposes their efforts.
Their efforts pay off over and over again. Whether preventing Michigan or Colorado secretaries of state from purging the voting rolls of dead voters in 2008, or grandstanding about purported “voter intimidation” when law-abiding citizens in Houston, Texas deploy retirees to serve as poll watchers in 2010, these leftist groups are affecting the outcomes of elections.
Activists posing as nonpartisan academics, like Michael Waldman of the Brennan Center or Tova Wang of DEMOS, disingenuously claim voter fraud doesn’t exist. Wang is particularly dishonest. She released a report after the 2010 elections that there was no voter fraud. Wang’s conclusion came only two days after the election, hardly enough time for the careful study necessary for such a sweeping conclusion. Nevertheless, sycophants in the media lapped it up.
What do conservative groups have to oppose this coordinated leftist strategy of lies and litigation? Virtually nothing. The best effort is an ad hoc group of Republican lawyers. Other embryonic efforts have sprung out of the Tea Party movement, such as True the Vote in Texas or the Election Integrity Project in California. Like so many other things, conservatives are justifiably too busy making money or raising families to commit to a cause.
Of course there are some excellent Republican lawyers, but they often focus on high paying clients, and they don’t represent a permanent counterweight to the enormous leftist election law structures. They assemble just before the election then disperse, like minutemen. The Tea Party groups are making enormous strides, but they haven’t been through the whirlwind of a presidential election yet, certainly not one with a community organizer at the top of the ticket.
No permanent engine of intellectual opposition exists to the leftist election law industry.
In contrast, the leftist election law practitioners have permanent structures. They are well funded. They have resources, offices and hardwired networks. Eager leftist law students clamor volunteer time, seeking to change the world, like so many at their age do. The courtroom practitioners enjoy vibrant academic support from leftist law professors. And as I know from firsthand experience, they have the full weight of the Eric Holder-run Justice Department behind them.
When it comes to constructing the legal environment of election law, full-time leftists are the most engaged and energetic. They know how to beat part-time conservatives, either by mastery of the law, or by dominance of everyday attention to control the narrative.
Conservative public interest groups occasionally dabble in election matters. But their efforts, primarily defending Voting Rights Act vote dilution lawsuits, have dismal success rates. The most effective conservative election law effort has been jockeyed by Edward Blum of the American Enterprise Institute. He has bankrolled challenges to Section 5 of the Voting Rights Act and ensured that brilliant election litigators like Mike Carvin of Jones Day have what they need. But this is one tiny area that barely scratches the surface of the problem.
All of the prevailing winds in election law blow from the left. Instead of condemning New Black Panther Voter intimidation, Kristen Clarke of the NAACP LDF, defended it by seeking to have the Justice Department lawsuit dismissed. Instead of purging Michigan voter rolls of dead and ineligible felons, the Advancement Project sued Secretary of State Terri Lynn Land to stop any purge ahead of the 2008 presidential election. Instead of Georgia enforcing a voter photo identification law, the American Civil Liberties Union sues to stop it. Instead of Arizona ensuring that all voter applications are submitted by eligible citizens, groups like the Brennan Center for Justice and the Mexican American Legal Defense Fund have successfully undermined the law.
What lawyers oppose the Advancement Project, ACLU, MALDEF, the Brennan Center, Project Vote, Demos, LULAC and the NAACP when they bring these suits? Often it is government attorneys who rarely litigate such weighty election battles. Sometimes the government lawyers are sympathetic to the plaintiffs.
Millions of leftist dollars pour into election law wars before the lawsuits are brought. After the lawsuits are brought, the leftist groups intervene and swarm like sharks around a flailing victim. Just look at the pleadings and amicus briefs submitted in any major election law dispute. Not surprisingly, the victims often succumb, or accept their fate and die. The Rule of Law often dies along with it.
Leftist election litigators even have their own training academies. One is the Civil Rights Division of the Department of Justice. Dozens of lawyers at the most militant groups in the country cut their teeth in the Voting Section at DOJ where I used to work.
After the Obama administration took control of the division in 2009, Acting Assistant Attorney General Loretta King returned to the Clinton-era policy of refusing to hire anyone but leftists to work in the Voting Section. She implemented policies that placed prior employment with leftist organizations as a uniquely qualifying factor in being hired – even if it was as a volunteer. Only leftists need apply to enforce federal election laws before 2012.
Since the inauguration, the Voting Section at DOJ has seen a hiring blitz of lawyers from the SEIU, Advancement Project, Mexican American Legal Defense Fund, international communist groups, the NAACP, as well as those who provided pro bono representation to GITMO detainees. I have reviewed the resumes of every new attorney hire, and they do not contain a single lawyer with a non-ideological or conservative background.
As such, the Obama Justice Department has blocked requirements in Georgia that voters establish they are United States citizens, has sued Rhode Island and Louisiana demanding sweeping changes to push welfare recipients and drug addicts onto the voter rolls, and has failed to bring any lawsuits under federal law to ensure the voter rolls are free from dead and ineligible felons.
The election next year will determine the fate of a nation in a way few elections have. Unfortunately, the election law practitioners who represent the far-left fringe have a mighty head start. Whether they are DOJ attorneys turning a blind eye toward anti-Semitic New Black Panthers, or Soros-funded crusaders enabling voter fraud, hundreds of lawyers will cloak themselves in neutrality while working hard to obtain a particular outcome next November. Nobody should be surprised when they employ every means necessary to achieve exactly what they seek.