Freedom Line Blog

Less than a month after the Supreme Court lifted an outdated “preclearance” formula off the backs of states like Texas, Eric Holder’s Justice Department is trying to reinstate the restrictions by inviting judicial activism.

The move comes in response to the Supreme Court’s invalidation of a coverage formula in Section 5 of the Voting Rights Act. Previously, states with a history of racial discrimination had to seek Justice Department approval – preclearance – before enacting any changes to their election laws. The problem for states like Texas is that the formula for deciding which jurisdictions are required to submit to preclearance hasn’t been updated in decades, making it virtually impossible to get out from under the federal government’s thumb.

In striking down Section 5’s coverage formula, the Court said that Congress is free to create a new formula based on current data. But with the legislative branch divided, few think any action is imminent.

And so, in keeping with the Obama administration’s motto “We Can’t Wait,” Attorney General Holder announced today that his department won’t wait for Congress to update the law. Instead, lawyers at Justice are filing lawsuits against Texas and other jurisdictions seeking to reinstate preclearance on a case-by-case basis.

The cost to taxpayers will be huge, since both sides of the “v.” are government employees. Each federal judge hearing a case will act as a mini-Congress by making factual findings before crafting a rule of law to determine the outcome. Of course, these decisions will be litigated up the lengthy federal appellate chain; all the way to the Supreme Court, if possible.

What makes this an affront to the constitutional design of separation-of-powers is the deliberate intent of one arm of the executive branch to invite members of the judiciary to make laws that Congress will not pass.

Granted, for well-connected attorneys like Holder it’s cheaper to litigate the Left’s pet projects on the taxpayer’s dime rather than as a private lawyer working pro bono. But as Texas Republican Governor Rick Perry said in response, Holder’s actions really amount to “utter contempt for our country’s system of checks and balances.”

As an addendum to my column on Eric Holder’s disastrous tenure as U.S. Attorney General, the AG was kind enough to deliver a speech on the Voting Rights Act in Austin, TX, Tuesday night.  Though Holder castigated two Republican examples of voter fraud – both of which were swiftly remedied by the Justice Department – he (unsurprisingly) failed to mention any investigation into the well-documented voter fraud conducted by supporters of Tim Johnson (D-SD) and Al Franken (D-MN) during their successful bids for U.S. Senate.

Omissions aside, Holder made an all-too-typical argument: claiming for government the privilege of taking yet another activity away from otherwise responsible adults.  Here’s Holder’s take:

All eligible citizens can and should be automatically registered to vote.   The ability to vote is a right – it is not a privilege.   Under our current system, many voters must follow cumbersome and needlessly complex voter registration rules.   And every election season, state and local officials have to manually process a crush of new applications – most of them handwritten – leaving the system riddled with errors, and, too often, creating chaos at the polls.

Fortunately, modern technology provides a straightforward fix for these problems – if we have the political will to bring our election systems into the 21^st century.   It should be the government’s responsibility to automatically register citizens to vote, by compiling – from databases that already exist – a list of all eligible residents in each jurisdiction.   Of course, these lists would be used solely to administer elections – and would protect essential privacy rights.

So Holder thinks that overburdened, cash-strapped governments can extract accurate registration data while protecting each individual’s privacy rights.  (You trust, Big Sis, don’t you?)  He thinks that registering to vote and casting a ballot are so important that ordinary citizens can’t be counted on to do the process themselves.  And he believes, along with his liberal activist friends at the ACLU and ACORN, that the reason for low voter turnout after decades of federal approval of political map drawing, “public interest” lawsuits filling the court system, and Motor Voter laws that automatically register licensed drivers to vote is not enough government control over who votes and how often.

You’ve got to hand it to big government liberals like Holder: at least he’s consistent.