//  4/11/17  //  Commentary

Last week, we posted about a letter that was sent to Attorney General Jeff Sessions by a veritable rogues gallery of lawyers opposed to the enforcement of anti-discrimination provisions in federal voting rights law.  As we noted, “not only do Trump and Sessions’ more vocal supporters hope that this administration will stop using the Civil Rights Division to shield people of color from discrimination, but they also hope to use the Civil Rights Division as a sword to subject vulnerable minorities to still more discrimination.”

In a revealing moment, the letter’s authors recognized that their proposed evisceration of voting rights law required a change to DOJ’s employment policies: “The Assistant Attorney Generals in each component Division must preserve or reacquire hiring authority and not leave the decisions in the hands of career bureaucrats who are reliably opposed to President Trump’s agenda.” 

The sentence uses pleasant-enough sounding phrases, but its message could not be clearer, or more troubling.  It asks DOJ to: (1) make sure that only Trump’s political appointees control hiring, (2) not let anybody in unless they are philosophically committed to Trump’s vision of abandoning federal voting rights enforcement and thwarting a non-existent flood of “voter fraud”; and (3) exclude long-serving, experienced, and public-spirited civil servants from doing their jobs.  This amounts to little more than a call for an overt, unlawful, and frankly despicable politicization of the Division’s hiring practices and decisionmaking processes.

Today, led by United to Protect Democracy, a constellation of civil rights, voting rights, and good government groups wrote a letter to Attorney General Sessions reminding him of his obligations under federal law:

This recommendation appears to call for a return to the improper and illegal hiring practices undertaken at the Department of Justice in the mid-2000s, including in the Civil Rights Division, where actual or perceived political affiliation was used to make hiring and other personnel decisions.  We remind you that making hiring decisions or taking – or failing to take – other personnel actions (such as the assignment of cases) based on actual or perceived political affiliation is a violation of the merits system protections contained in the Civil Service Reform Act (CSRA) and other federal law.[1]  For example, the CSRA provides that “[a]ll employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation,”[2] and that “[e]mployees should be . . . protected against arbitrary action, personal favoritism, or coercion for partisan political purposes.”[3]  The CSRA also prohibits discrimination based on political affiliation.[4]  The Justice Department’s own regulations similarly prohibit such discrimination.[5]  These civil service laws were enacted to strengthen and preserve the accountability of our democratic government by replacing a system of political patronage with one where government officials were selected based on merit to serve all Americans . . . .

We agree with the authors of the March 28 letter on at least one count – the Civil Rights Division is the “crown jewel” of the Justice Department.  It has the awesome responsibility of enforcing our nation’s civil rights laws, and ensuring equal treatment and equal justice under the law for all Americans.  For that reason, the Division’s career staff must not be politicized by the incoming Justice Department political appointees, as suggested by the March 28th letter, and must be free to pursue the Division’s mission without inappropriate political interference.  If personnel decisions are made based on political affiliation or for political purposes, it would undermine the Division’s ability to carry out its important mission and the nation’s confidence in the even-handed application of the laws. 

This new letter discusses the Division’s troubled history of adhering to federal requirements on employment decisions.  It also notes several examples of manifest impropriety from the George W. Bush Administration, and urges Attorney General Sessions to affirm his commitment to applicable hiring law.

Given what we know about Trump and Sessions, we have little reason to hope that this Administration will vindicate the full promise of the Constitution and the Voting Rights Act.  If anything, it is likely to enable, defend, and praise a wide range of second generation barriers to the ballot, nearly all of which burden (sometimes deliberately so) racial minorities. 

Some will see that as little more than a standard partisan realignment, but that view is profoundly mistaken. In a world after Shelby County and Bush v. Gore, where we are led by a President who has repeatedly trashed America’s democratic process and lied about widespread voter fraud, this Nation faces the greatest threat since 1965 of backsliding into Jim Crow’s shadow.   Just this past Monday, in fact, a federal district court (again) found that Texas had enacted its “voter identification law” with a racially discriminatory intent—that is, for the purpose of disenfranchising African-American and Latino voters.  The Sessions-led DOJ had previously dropped the argument that Texas’s voter identification law was motivated by a discriminatory purpose, reversing the position taken by the Obama administration.

The Texas decision is part of a recent wave of assaults on voting rights.  And that recent pattern is partly why one insinuation in the conservative groups’ letter to Sessions is so misguided.  Specifically, the letter implies that DOJ employees are somehow politicized, or acting in a partisan manner, for “oppos[ing] …. President Trump’s agenda.”  But if, as the letter assumes, Trump’s “agenda” is to freely permit voting restrictions that disproportionately burden people of color, then “opposition” to that “agenda” is not political.  Far from it.  Instead, it reflects nothing more than a desire to enforce the law, which prohibits restrictions that “result in” discriminatory effects.  (One could also characterize this “opposition” as a desire to fulfill the President’s duty to “take care that the laws be faithfully executed.”) 

And if, as the letter assumes, Trump’s “agenda” is to suppress voting in the name of the bogey-man of voter fraud, then “opposition” to that agenda is also not political.  It instead reflects an understanding of the facts, and an appreciation of why our system of government is legitimate—it purports to be a representative democracy in which citizens can vote.

Even in these strange and trying times, we would like to think that our Attorney General will follow the law while staffing the division of DOJ that is charged with realizing the Constitution’s promise of a democracy that’s worth a damn—one that is open to all citizens, regardless of the color of their skin.  The letter sent by United to Protect Democracy should never have needed to be written.  And we hope that the concerns it raises remain nothing but speculative. 

If they don’t, we will face yet another crisis of democratic governance and legitimacy—and at a time when so many other institutions, too many, have already succumbed to chaos.


[1] See 5 U.S.C. §§ 2301-2302; 28 C.F.R. § 42.1(a).

[2] 5 U.S.C. § 2301(b)(2).

[3] Id. § 2301(b)(8).

[4] See id. § 2302(b)(1)(E).

[5] See 28 C.F.R. § 42.1(a).

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