The Merced County Voting Rights Act violation drama

Fresno Bee
Merced County voting rights ruling to affect Valley agencies…Michael Doyle, Bee Washington Bureau…2-24-13
WASHINGTON -- A Merced County legal victory has unexpectedly pulled it into one of the biggest U.S. Supreme Court cases in years.

The county's 2012 triumph was to successfully bail out from federal control under the Voting Rights Act. But now some conservative skeptics charge that legal victory was tainted by Justice Department politics.

The claims, in turn, compelled the county to invest in a Supreme Court brief to defend itself in advance of a key court argument on Wednesday.

"The county was surprised to become a subject of discussion in the (voting rights) case," Merced County Counsel James N. Fincher said Friday. "One of the reasons the county chose to pursue the bailout was to avoid being a political football in unrelated legal battles."

The bailout, or escape, from certain Voting Rights Act obligations means Merced County and some 84 political entities included within it, from school districts to city councils, no longer need Justice Department permission before making voting-related changes. A three-judge panel approved the bailout in August after the Justice Department assented following a two-year study.

Merced County fell under the Voting Rights Act in 1975 because of a combination of English-only ballots and low 1972 voter turnout that county officials attribute to the large transient military population at the former Castle Air Force Base.

The requirements in Section 5 of the act, referred to as preclearance, cover everything from the purchase of new voting machines to the redrawing of new political boundaries.

The law, though, also includes an out. If a covered jurisdiction can show that it hasn't engaged in discriminatory practices during a 10-year period, it can escape preclearance, just as Merced County and about 190 other jurisdictions have.

"Congress included a structure that has a door that swings both ways," NAACP Legal Defense and Education Fund President Sherrilyn Ifill said Friday.

Voting Rights Act skeptics counter that the law's preclearance section is too rigid and dated, and some contend recent bailout approvals were stage-managed to show Supreme Court justices that the law is flexible.

"The Department of Justice now thinks a flurry of bailouts, some of them obtained improperly, will convince the Supreme Court that Section 5 is not much of a burden and should survive," former Justice Department official J. Christian Adams wrote in December, adding that Merced County was "ineligible for bailout."

Similar arguments have been made in National Review Online and in legal pleadings, with conservatives specifically criticizing the bailout expert hired by Merced County, attorney J. Gerald Hebert.

The attacks, in turn, prompted Merced County to spell out the bailout details dating back to 2009. These specific efforts ranged from county officials twice flying to Washington, D.C., to numerous interviews with local residents and a sweeping search to determine past compliance with the preclearance requirements.

Eric Holder Cons the Courts to Save Voting Rights Act (PJ Media Exclusive)
J. Christian Adams

According to Justice Department documents obtained by PJ Media, Eric Holder’s DOJ has launched a legal strategy to uphold the constitutionality of the Voting Rights Act by deliberately disregarding statutory law, and by failing to inform courts about it in collusive litigation.

Perhaps the biggest case to be heard this term by the United States Supreme Court is Shelby County v. Holder...Shelby County, Alabama, has challenged Section 5 coverage under the Voting Rights Act of 1965. Section 5 requires the federal government to approve every change involving elections in 16 states, even changes as small as what time a county registration office is open. To help preserve this submission obligation, Eric Holder’s Justice Department has conducted an elaborate legal ruse in court litigation — and plans to do the same to the United States Supreme Court.

Because states are given the power to run their own elections in the Constitution, Section 5 rests at the farthest frontier of federal power. The DOJ had previously called Section 5 a “substantial departure … from ordinary concepts of our federal system.” 

States may “bail out” from the coverage requirements of Section 5 if they satisfy a clearly defined statutory checklist. This bailout provision lies at the heart of DOJ’s strategy to preserve Section 5, and at the heart of the litigation ruse involving jurisdictions across the country.

It isn’t hard to understand. Satisfy a bailout list, then file a friendly lawsuit against DOJ to escape coverage. DOJ will usually enter a consent decree with a plaintiff. The problem is that the list isn’t easy to satisfy. More on that in a bit.

In 2009, the Supreme Court almost struck down Section 5, the provision most recently used to block voter ID in Texas. The 2009 case involved a challenge to the law by a Texas utility district. Chief Justice Roberts, writing for the Court, warned that the law was constitutionally suspect, but used a strained reading of a bailout provision to uphold the law. Because the utility was a political subdivision that didn’t register voters, nobody thought it could obtain a bailout. Nevertheless,

Roberts, writing for the eight-member majority, said it could.

Eric Holder’s Justice Department views the 2009 Texas case as the key to the law’s survival. Because the Roberts court bent the language of the statute to permit a bailout in 2009, DOJ now thinks a flurry of bailouts, some of them obtained improperly, will convince the Supreme Court that Section 5 is not much of a burden and should survive.

Cranking out as many bailouts as possible is the deliberate DOJ strategy to convince Chief Justice Roberts and Justice Kennedy that Section 5 should survive because it really isn’t a heavy burden.

But when the justices learn that the bailouts are being mass-produced with collusion and deception, perhaps Kennedy and Roberts will find a new reason to strike down the law.

Earlier this year, the DOJ entered into a collusive bailout with Merced County, California. Justice Department documents reveal that the bailout was completed without complying with the bailout checklist.

Before a bailout may occur, the Voting Rights Act plainly requires ten years of complete submissions of all election changes to the DOJ. They must “have complied with [Section 5], including compliance with the requirement that no change covered by Section 5 has been enforced without preclearance under Section 5.” (42 U.S.C. Section 1973b(a)(1)(D).) Simple stuff — if you want to bail out, you need to have submitted everything you were supposed to for a decade. Moreover, every subjurisdiction must have complied with the requirement. So if a state wants to bail out, every covered county must also have submitted every
change for federal approval for the previous decade.

Also, bailout is available only if no final judgment, “settlement or agreement” has been entered into in a voting case that ends an unapproved practice. If a county enters a settlement involving unapproved changes under Section 5, then bailout isn’t available.

Merced County, California, was doubly doomed. But no worries — Eric Holder is in the bailout business, and bailouts come cheap.

Enter the attorney for Merced County — former DOJ Voting Section lawyer Gerry Hebert. Hebert is on a crusade to notch as many bailouts as possible before the Supreme Court hears Shelby. He is a true believer in federal oversight of voting, and his clients are tools to keep it in place. Hebert also has a slimy history from his days at the Justice Department Voting Section, which Hans von Spakovsky covered in detail here. The important part:

    He once cost American taxpayers $86,626.24 in attorneys’ fees and costs awarded against the Justice Department for bringing an unjustified case under the Voting Rights Act.

    Not only did Hebert lose, but Justice was castigated by the Eleventh Circuit Court of Appeals in U.S. v. Jones, 125 F.3d 1418 (1997), for what it concluded was “a very troubling case.” (Hebert is listed as the Justice counsel of record in the
district court opinion, U.S. v. Jones, 846 F.Supp. 955 (1994)).

Hebert brought a case accusing defendants of intentional racial discrimination that the Fifth Circuit Court of Appeals said was bogus. In addition to Merced, Hebert also now represents New Hampshire in their rush to bail out from the Voting Rights Act even though the DOJ has given the state a Granite State Free Ride for decades and refused to enforce the law there.

According to DOJ documents which were not provided to the federal court, Merced County didn’t have just one un-precleared change in the previous decade. It had multiple un-precleared changes, and the Department of Justice documents plainly
recognize this fact. “In total, for the County, the cities, the school districts and all other jurisdictions that had conducted an election during the past ten years, our investigation resulted in the submission of a number of previously unprecleared changes,” the Justice Department memo to Assistant Attorney General Tom Perez states.

Hit the eject button, no bailout for Merced. At least that’s what the law says.

But it gets worse. Merced County was also ineligible for bailout because they settled a case involving the failure to submit over two hundred annexations for Section 5 preclearance through 2006 — including 29 that occurred in the decade prior to seeking bailout.  Seattle law school professor Joaquin Avila warned DOJ lawyers that Merced could not seek a bailout because of this settlement.  Remember, bailout isn’t available if a county has entered into a final judgment or settlement regarding Voting Rights Act violations, something Merced plainly did.

When it came time, however, to submit a consent decree to the federal court, the Justice Department conveniently failed to mention that Merced enforced dozens of un-precleared changes in the previous decade. The consent decree also makes no mention of the hundreds of un-precleared annexations which were enforced. In fact, the consent decree falsely states the contrary and states that no change was enforced without first obtaining preclearance. It falsely states that no consent decree or settlement was entered into, contrary to the settlement reached by Avila. (Read the false pleadings here at page 2 and 3.)

Simply, the three-judge federal panel was conned by DOJ, including Judge Thomas F. Hogan, Circuit Court Judge David Tatel, and Judge Amy Berman Jackson.

We refer you to the following link if you wish to read Merced County's amicus brief in the case now being heard before the US Supreme Court, Shelby County, Alabama v. Eric Holder, US Attorney General et al.

This is an issue caught up in the polar winds of Washington DC politics. Both Adam, author of the article above, and J. Gerry Hebert, lawyer for Merced County at one time, worked for the Civil Rights Division of the federal Department of Justice, the division that oversees compliance with the Voting Rights Act of 1965.

The main claim of Merced's amicus brief is that racial prejudice had nothing to do with the violations of the VRA in 1972, that it was entirely a matter of federal government malfeasance: the feds didn't count the population or the votes correctly and failed to see the influence of the population of Castle Air Force Base which, because service personnel voted in their home precincts in 1972, its two precincts dragged the county below a threshold of 50 percent voter participation.

There is something unclear here but we don't yet have the documents to prove it. Merced had and has many more than enough precincts to balance out what happened in two Atwater precincts. There also seems to be a confusion between the number of people eligible to vote and the number of people registered to vote. Without a clear distinction neither the DOJ nor Merced County's brief nor the Fresno Bee article above makes much sense on the issue of population. Fifty percent of what?

Overall, as students of Merced County affairs for more than a decade, overwhelming evidence of Merced County mis-, mal- and nonfeasance of its affairs -- particularly when ordered to by a court of law -- suggests to us that Adams is correct