Opinion: DOJ must "preclear" Michigan and Florida Do-Overs

[Adelante]

This discussion is from a reader of Marc Ambinder's blog today:

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.

http://marcambinder.theatlantic.com/archives/2008/03/preclearing_michigan_and_flori.php

[papau]

1. the Federal Court ruling ending state control of primaries may well apply here

[Adelante]

3. In what way, papau?

I'm not up on it. Thanks.

[papau]

5. Florida has a pre-approval law - which will not be enforced after the court decision - the

only way that this could affect Section 5 of the Voting Rights Act. is in terms of speed of approval and attitude toward approval.

Under 28 C.F.R. 51.34, Michigan and Florida can request expedited consideration of any preclearance request. While the DOJ doesn't have to grant expedited consideration, this mail-in redo seems suitable for expedited consideration and prompt preclearance. Indeed with John Tanner out as chief of the Voting Section, perhaps the review will be not delayed for political reasons.

[flor de jasmim]

2. Thanks for posting this - one more thing to think about

[madfloridian]

4. And Monday's court hearing is another complication.

http://journals.democraticunderground.com/madfloridian/1897

The plaintiff has said that in addition to this lawsuit DiMaio v DNC, they would also file an injunction to stop a revote.

This is all such a huge mess. Florida would have voted last Tuesday and had a huge influence with no doubts cast. Ironic.

[damntexdem]

6. I don't suppose the DNC had to 'preclear' the original declaring the votes would be invalid.

But what the hey -- if the Dems try to establish votes in FL and MI, and if the DOJ won't allow them, then the voters of those states can blame the Bushistas who run the DOJ.