The Supreme Court’s ruling last year that gutted the Voting Rights Act didn’t just free southern states from federal supervision of their voting laws. It also, far more quietly, put an end to a decades-long program in which the federal government sent election observers to prevent race-based voter intimidation. And with crucial midterm elections fast approaching, voting rights advocates are expressing grave concern. The issue is highlighted as part of a major new report on ongoing racial discrimination in voting, released Wednesday by a coalition of civil rights groups to mark the 49th anniversary of the signing of the Voting Rights Act (VRA). Bob Kengle, a former head of the DOJ’s voting section, called the demise of the observer program “a big loss.” Kengle is now with the Lawyers Committee for Civil Rights Under Law, which led the coalition that compiled the report. The department’s election monitors have in the past played a crucial role in protecting the right to vote. They’ve often been called in by election officials to ease tensions at the polls and avert potential instances of race-based intimidation or irregularities, sometimes reporting problems to lawyers at DOJ. And in recent years, they’ve worked to ensure compliance with the VRA’s provisions on non-English speakers, helping to bring lawsuits by documenting polling places that aren’t offering materials to serve those groups.
As an example of how the presence of observers can avert problems, Kengle recalled a local Mississippi Democratic primary in the ’80s. After observers reported to him that a big stack of absentee ballots at a heavily black precinct was left uncounted, Kengle said he told the party chairman he would seek a court order if the problem wasn’t fixed. It quickly was.
Since 1995, Mississippi alone has had 1,850 federal observers to monitor elections, and Texas has had 1,123. Twenty other states, from Massachusetts to Alaska, have had observers.
But according to a CNN report last month, the Justice Department has concluded that thanks to last year’s ruling in Shelby County v. Holder, it no longer has the authority to unilaterally assign poll observers, other than in jurisdictions where court orders require it.