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Justice Department switches sides in another huge voting rights case

by Tess Owen
Aug 8 2017, 12:00pm

Jeff Sessions has switched the Justice Department’s position in the middle of another landmark voting rights case — the second such switch under this administration.

The Justice Department, in a total 180 from the Obama administration’s position, has thrown its support behind Ohio in the state’s legal showdown with civil rights groups over a policy, started last July, of purging inactive voters from its rolls. The Supreme Court is set to hear the case next term; the justices will weigh whether the policy functions as a voter suppression tool and punishes Ohioans for simply exercising their right not to vote.

The reversal in the Ohio case, announced Monday, is the second abrupt switch that the DOJ under Sessions has made in a voting rights case. In February, the DOJ dropped an Obama-era challenge to Texas’ strict voter-ID law. Last month, a federal judge ruled that the law was designed to “intentionally discriminate” against non-white and low-income voters.

The DOJ’s decision to switch sides in both of those cases further fans the conflict over voting rights that’s heating up at all levels of government. Voting rights advocates have sounded alarm bells over Trump’s “election integrity commission” (tasked with investigating “voter fraud,” widely considered a myth), the implementation of state voter-ID laws, and racial gerrymandering alike. While the Obama Administration supported measures to make it easier to vote, the Trump Administration has sought to restrict voting, citing the dangers of voter fraud (According to election experts, you’re more likely to see someone struck by lightning than see a case of voter fraud).

Front and center in both voting rights reversals was John Gore, a Republican attorney temporarily overseeing the DOJ’s Civil Rights Division while Trump’s nominee undergoes confirmation. Gore was one of the four political DOJ appointees who signed off on the amicus brief filed Monday in support of Ohio’s voter purge policy. Similarly, Gore also authored the February brief announcing the DOJ’s intent to retreat from the Texas voter-ID . Gore’s involvement is noteworthy because he’s made a career out of defending restrictive voting policies, including racial gerrymandering and voter roll purging. According to an archived version of his bio on Jones Day, his previous firm, Gore was also “actively involved in legislative redistricting litigation.”

The fact that no career DOJ attorneys signed off on the brief was “very unusual,” according to Justin Levitt, an Obama-era justice official and now law professor at Loyola University.

Monday’s filing was a product of the DOJ’s Solicitor General Office, and while it’s relatively uncommon for the DOJ generally to switch sides halfway through a case, says Levitt, it’s “very uncommon” for such a dramatic legal about-face to come out of that particular department. “It’s like watching your lawyer switch sides in the middle of a case,” Levitt said, comparing the Solicitor General’s Office to the “keel of the boat” steadying the DOJ between different administrations.

A former career attorney with the DOJ said that while it’s not unprecedented for the DOJ to flip on an issue, the quick succession of reversals on issues from policing to LGBTQ rights to voting rights is “quite unsettling to the institutional norms of the Department,” particularly since the department normally goes to “great pains to preserve its credibility” and avoid the appearance of politicization.

“Monday’s filing was further confirmation of some of our worst fears about the Trump administration’s crackdown on voting rights,” said Vanita Gupta, former head of the Civil Rights Division at the DOJ and now director of the leadership conference. “Whether through repeated false statements about supposed mass illegal voting, creating a sham commission to pave the way for voter purges, or telling courts that it’s acceptable for states to remove eligible voters from the rolls without adequate evidence, the Trump administration is leading an attack on voting rights.”