Preclearing Michigan and Florida

Reader Bruce Adelson writes:

I am a former Senior Attorney (career, not a political appointee) with DOJ's Voting Section. I am now in private practice. I am unaffiliated with any political campaign.

In response to the issue about whether DOJ must "preclear" Michigan and
Florida's proposed do-over primary or caucus, the answer is yes. There is no
question about this.

Portions of Florida and Michigan are "covered" by Section 5 of the Voting
Rights Act. This coverage means that "changes affecting voting" in these
covered parts of the two states must be precleared or approved by DOJ or the
federal trial court in Washington, D.C. before they take effect. Failure to
preclear these changes makes them illegal under federal law.

By way of background, in 2004, when the Michigan Democratic Party proposed
Internet voting for its presidential primary, this was a "change affecting
voting" and had to be precleared. No political party in Michigan had
previously conducted an election over the Internet so the proposed 2004
Internet voting was a voting change.

I was the DOJ attorney who discussed this issue with the Michigan Democratic
Party, reviewed the party's submission to DOJ, and recommended preclearance.
DOJ approved the change and the state party's Internet voting in the 2004
primary election proceeded.

The do-over elections being discussed for Michigan and Florida would
similarly be "changes affecting voting" since they would be new elections
held on previously unscheduled election dates. Under Section 5 of the Voting
Rights Act, these changes must be precleared by DOJ or the federal trial
court in Washington, D.C.

By law, DOJ has 60 days to approve, reject or request more information about
any changes affecting voting after DOJ receives a request to preclear the
change. You are correct that the federal court in DC would take much longer.

Sounds fairly clear to me.

Comments

NHPR’s Laura Knoy: “So, if you value the DNC calendar, why not just pull out of Michigan? Why not just say, Hey Michigan, I’m off the ballot?”

Hillary Clinton: “Well, you know, It’s clear, this election they’re having is not going to count for anything”

Here’s a link to the short (edited) byte with the interviewer’s question and the response:

http://www.jabberwonk.com/flinker.cfm?cliid=zydzt

Here’s a link to the unedited longer byte with her full answer:

http://www.jabberwonk.com/flinker.cfm?cliid=u01y4

Here’s the link to the full original NHPR interview on 10/10/07 :

http://www.nhpr.org/node/13858

I think that is it pretty clear that she has “changed” her position on this now that she is not winning.

Posted by Jimmy Crackcorn | March 13, 2008 11:16 AM

Does anyone know the practical meaning of this- i.e. how long it would actually take to get approval from the DOJ if/when they submit a plan, and whether there are expected to be legal challenges?

Posted by mangolassi | March 13, 2008 11:45 AM

mangolassi-

For obvious reasons, DOJ isn't going to sit on the request for 60 days. I rather suspect they'd break records in turning around a response; to do otherwise would provoke a tremendous backlash.

What's interesting to me about Adelson's response is that any new election, not just vote-by-mail, would apparently need preclearance. A state-run but party-financed primary in Michigan would presumably be cleared fairly promptly. Vote-by-mail in either state could easily be rejected, for very valid reasons. And even if it were approved, we could expect lawsuits throwing the matter into court.

Posted by FlyOnTneWall | March 13, 2008 11:56 AM

Do Carter and Gore Need to Head Down to Florida?

Dear President Carter and Vice President Gore:

This following is an email I sent to the DNC. I sincerely urge each of you would get involved in this situation.

[QUOTE]If the democratic party doesn’t understand why votes count, in Florida no less, then we are truly, truly lost. Do we need Jimmy Carter to come and oversee elections in THIS country now? What the hell!?!

I don’t care what Florida’s republican politicians did to tick off the DNC. I don't care what any politicians did to tick off the DNC. Voters deserve to have their votes counted. Voters in Florida went out in record numbers and VOTED in good faith. Voting is the cornerstone of democracy. And what a pathetic way to rationalize giving Obama an advantage - not counting votes in Florida. Where have I heard this before?!?

This is voter suppression, and I don't care who is suppressing it or what their excuses are - IT IS WRONG, and we all know it.

I wish Al Gore would jump in and take charge of this issue. He may be the only person with the credibility and neutrality to resolve this situation.

Besides, do you think voters in Florida and Michigan are going to be fine with being disenfranchised and vote for either democrat in November? Can we PLEASE stop shooting ourselves in the foot and savaging our own party and principles?!?

When democrats start playing fast and loose with votes so openly, something has gone very wrong. I think Howard Dean is being a complete ass about this. He should be more concerned with making sure voters are heard than shutting them out with stupid gamesmanship and "rules." It's NOT the voters fault all this BS went down the way it did. They showed up in good faith and VOTED.

I’m starting to think McCain deserves to win if Democrats are this hopelessly stupid and lost.

Respectfully,

Teri B . . .[/QUOTE]

[B]You can email Carter and Gore at: [email][e-mail][/email] and [email][e-mail][/email] [/B]

No matter which side you're on in the battle, if you're a Democrat, you know better than this, because we know what it's like to suffer because votes were suppressed and dirty-butterfly-ballot-tricks were used.

Seriously, have we completely lost our souls?

Posted by Teri B. | March 13, 2008 12:27 PM

Under 28 C.F.R. 51.34, Michigan and Florida can request expedited consideration of any preclearance request. DOJ doesn't have to grant expedited consideration, but I think a mail-in redo would obviously be suitable for expedited consideration and prompt preclearance.

Also, remember that John Tanner is no longer the chief of the Voting Section. There is every reason to believe that the Voting Section would handle the matter appropriately.

Posted by vrlawyer | March 13, 2008 12:31 PM

The Federal Court ruling ending state control of primaries may well apply here, if only on the margins. Bruce Adelson is a former senior trial attorney in the civil rights division and as such I respect his opinion - and therefore hope DOJ approvals are not delayed for political reasons.

Posted by papau | March 13, 2008 12:40 PM

It's not even about the 60 days. I don't know if people realize how tight of a turnaround they want. There's going to be a 30 day discussion period that ends on Saturday 4/12. The plan will only be finalized then. Then the DNC is going to get it on 4/14. In order for this to meet their timeframe, ballots would have to start going out by the Friday of that week. Does anyone think that both the DoJ and the DNC will be able to check over all of the details of what will probably be a controversial plan in under a week?

Posted by Zzyzx | March 13, 2008 12:51 PM

Mail-in elections of any sort are illegal in Florida.

Posted by David | March 13, 2008 12:59 PM

In my experience as a voting-rights attorney, I have seen DOJ process preclearance submissions in a matter of days. That's not the usual course, but it's possible. The Democratic party has very able attorneys who could put together a complete preclearance submission that would enable DOJ to process it very quickly.

Posted by vrlawyer | March 13, 2008 1:05 PM

Yeah 101.6102 does look pretty damning:

(2) The following elections may not be conducted by mail ballot:

(a) An election at which any candidate is nominated, elected, retained, or recalled;

Hard not to see this as a nomination election.

106.1.3 is worrisome too:

Ballots shall be addressed to each elector at the address appearing in the registration records and placed in an envelope which is prominently marked "Do Not Forward."

So the change of address issue is there.

Posted by Zzyzx | March 13, 2008 1:34 PM

And Texas?

Posted by RonK, Seattle | March 13, 2008 3:07 PM

There is no obvious potential for retrogression in these reruns, and the folks in charge of the Voting Section are once again competent professionals. Provided that there is no organized opposition from minority communities in either state (and I can't imagine there would be), I'd expect these to be turned around in less than a week.

Posted by Section 5er | March 13, 2008 7:49 PM

The simple answer which no one seems to have suggested is this:

1/2 of Florida & Michigan's delegates allocated on the basis of the primaries that occured.

1/2 of Florida & Michigan's delegates allocated on the basis of caucuses held in each state.

Thus, the Clinton people would get an advantage from the contests already held and the Obama folks would get an advantage from the caucuses yet to be held - it wouldn't cost as much money as "do-over" primaries or mail-in elections AND most importantly (speaking as a Democrat), it allows those people who did vote to have their votes counted (at least in some way).

Posted by Lara | March 13, 2008 10:35 PM