Protect Minority Voting Rights in Nov. 2 Election

Media 10.19,04

Recipient: Assistant Attorney General, Civil Rights

R. Alexander Acosta
Assistant Attorney General
Civil Rights Division
United States Department of Justice
950 Pennsylvania Avenue
Washington, D.C. 20530

Dear Assistant Attorney General Acosta:

On behalf of the Leadership Conference on Civil Rights (LCCR), the nation’s oldest, largest, and most diverse civil and human rights coalition, we write today to alert you to some urgent concerns regarding minority voting rights, as jurisdictions prepare for the November 2 general election, and to highlight a number of jurisdictions around the country where we believe the presence of federal election observers, pursuant to the Voting Right Act, 42 U.S.C. 1973, et seq., or Civil Rights Division attorney monitors, would help mitigate potential voter intimidation and vote suppression.

For many years, LCCR has been actively involved in efforts to ensure the protection of minority voting rights. Many of our member organizations engage in voter empowerment and election protection activities that seek to promote civic participation, as well as litigation and other efforts to prevent the disfranchisement of minority voters. In recent years, and particularly in the wake of the 2000 general election, many voters in the communities that we represent have become increasingly sensitive to these issues.

U.S. Attorney’s Offices Press Releases
In recent days, it has come to our attention that you and Christopher Wray, Assistant Attorney General for the Criminal Division, sent a memo to all 93 United States Attorneys requiring that they send out a press release “immediately prior to the November elections” that will “advise citizens of the Department’s interest in deterring voting rights abuses and fraud during these elections.” We are troubled by this directive.

As you know, and as Department of Justice policy clearly reflects, voter fraud investigations – or the threat of such investigations coming close to an election – can lead to voter suppression. Therefore, we urge you to make clear to U.S. Attorney’s offices that any press release informing the public about the Department’s efforts to preserve voting integrity should simply provide contact information for those who witness fraud, rather than outline penalties and types of activities that are vulnerable to fraud (i.e., providing assistance to voters at the polls), which could scare some voters off or cause them not to seek legitimate help if they need it.

Provisional Ballots
We are extremely concerned about the Division’s recent decision to file an amicus curiae brief opposing the position of the Michigan NAACP and others plaintiffs in Bay County Democratic Party v. Land, No. 04-10257-BC (E.D. Mich.). Rather than simply opposing the position of the NAACP and other civil rights groups – that under the Help America Vote Act (HAVA) a state may not throw out provisional ballots accidentally cast in the incorrect precinct – the Division went even further. Instead, the Division went so far as to claim that no private litigation may be brought under 42 U.S.C. § 1983 to enforce HAVA, and that HAVA does not confer individual rights at all. This flatly disregards the overwhelming concern about the deprivation of individual rights in 2000 that gave rise to HAVA, including the provisional ballot requirement. There is no good reason for the Civil Rights Division to take such an anti-civil rights position, and it should be promptly reconsidered.

Florida Polling Place Changes
As you know, numerous polling places in Florida have been severely damaged or destroyed by the recent onslaught of hurricanes, thus necessitating widespread changes in polling place locations just weeks before the November general election. Given the confusion that this will likely precipitate, it is important that all jurisdictions in Florida and other states similarly affected ensure adequate public notice of polling place changes. For counties covered by Section 5 of the VRA, those changes must be submitted for Section 5 preclearance, to guard against an adverse impact on minority voters. Adequate notice of polling place changes is particularly important in light of the Florida Supreme Court’s recent decision concluding that provisional ballots cast in the wrong polling place in that state will not be counted.

Armed Personnel at the Polls
We have also recently heard reports that state and local election officials in the Washington, D.C., area may be requesting the presence of armed police officers in the polling places on Election Day. The Washington Post reports that election officials in Chesterfield County, near Richmond, Virginia, have already decided to post an armed police officer at each of the county’s 62 polling places for all of Election Day. As you are well aware, the placement of armed officers at the polls will lead to widespread intimidation of voters, with a particularly negative impact on minority voters. This issue was highlighted during the 2000 election in Florida, when police checkpoints near African-American polling places scared some voters away from the polls. While we all are concerned about security on Election Day, the use of armed officers must be avoided in all but the most extreme cases. Therefore, we urge you to issue a statement to election officials across the country making clear that the use of armed personnel at the polls is to be avoided, barring direct information about a credible security threat at a particular location.

GAO Report
We are also concerned by statements in the recently released report by the Government Accountability Office (GAO) that the Justice Department has not established procedures for documenting voting irregularities or voter intimidation and has no clear-cut policy for responding to such accusations. Given the importance of ensuring that the Department can quickly respond to concerns from the field on Election Day and that any problems that occur can be documented for effective follow-up and possible litigation, we urge you to take the steps necessary to create an organized and efficient complaint system on Election Day.

Federal Observers and Monitors
We understand that the Civil Rights Division, as is its usual practice, has undergone a nationwide assessment of where the deployment of observers and monitors would be most useful. The Civil Rights Division’s role in making these important assessments is the key to a successful observer program on Election Day and any suggestions that we may offer cannot in any way relieve the Division of its obligation, with its superior resources, to perform that important function. We also understand that you will be sending observers and monitors to areas where the Division is monitoring the implementation of consent decrees, and where you are engaged in active investigation of potential violations of the Voting Rights Act. At the same time, we appreciate your reaching out to us for additional insight into where Civil Rights Division involvement would be most useful.

As you know, it is often difficult for us to assess precisely where problems will occur with minority voter intimidation and vote suppression much in advance of Election Day. However, as a general matter, voter intimidation is likely to be most problematic in states and counties where the election is closely contested, and where there is significant racial bloc voting, i.e., where minority voters tend to vote as a bloc to support one candidate. Examples of concerns that we are hearing from across the country include:

  1. Michigan and Minnesota
    The Secretary of State of Minnesota has indicated that the state will not be accepting tribal IDs as a form of photo identification on Election Day. The state of Michigan has given conflicting statements on this issue. If these restrictions remain in place on Election Day, t