HD 54: Stranger And Stranger

Jeff is wondering if the Departmentof Justice ever approved the rule that the Democrats just used to eliminate Patricia Todd and Gaynell Hendricks. Here is his report. (See the previous two posts for the background to this post).

Basically, the rule was adopted in 1974 and submitted to DOJ for approval under the Voting Rights Act. Jeff links to this document, that shows DOJ received the request, but asked for more information prior to ruling. Whether they got the information or not, I don’t know, but they never ruled. Hence, DOJ never certified that the rule change complies with the Voting Rights Act.

I don’t think this matters.

First, DOJ has to object to rule changes within sixty days of submission, or else the changes are approved. Whether a request for more information tolls the period, I don’t know. But surely it doesn’t toll it for thirty two years.

Second, I’m not sure if the act would apply to intra-party rules anyway. DOJ – the good folks enforcing the act – has this to say about when a party needs pre-clearance (emphasis added):

Certain activities of political parties are subject to the preclearance requirement of Section 5. A change affecting voting effected by a political party is subject to the preclearance requirement: (a) If the change relates to a public electoral function of the party and (b) if the party is acting under authority explicitly or implicitly granted by a covered jurisdiction or political subunit subject to the preclearance requirement of Section 5.

For example, changes with respect to the recruitment of party members, the conduct of political campaigns, and the drafting of party platforms are not subject to the preclearance requirement. Changes with respect to the conduct of primary elections at which party nominees, delegates to party conventions, or party officials are chosen are subject to the preclearance requirement of Section 5. Where appropriate the term “jurisdiction” (but not “covered jurisdiction”) includes political parties.

In my mind, requiring candidates to submit financial disclosures to party official – which is what the 1974 rule does – is squarely within “the conduct of political campaigns.”

But I’m not an election law specialist. And even if I was, I wouldn’t make any firm predictions about this fiasco. So take this post with a grain of salt.

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9 Comments on “HD 54: Stranger And Stranger”

  1. Danny Says:

    I am glad to see your comments on this. You are smarter about these things than I am, but as I tried to reason it out, I couldn’t figure that a lack of DoJ clearance for a 1974 rule that is (until yesterday) unobserved for 18 years would be the turning point for the whole shebang.

    But it is an interesting sub-text.

    Thanks for your good thoughts.

  2. Matt Fridy Says:

    I think you’re wrong about the tolling issue. While it is true that the AG only has 60 days to object to a change, according to 28 CFR 51.37, if the AG makes a request for additional information, the 60-day period does not begin to run until receipt of that additional information. Thus, the party rule relied on by the Democrat committee has not been precleared. Its age does not mean that it has been precleared.

    As far as whether the preclearance requirement of Section 5 applies to a party rule, I think it does in this case. Case law surrounding the scope of section 5 holds that its reach is very, very broad, encompassing almost everything related to elections, even only tangentially related. I will be very surprised if section 5 does not apply to this party rule.

  3. Wheeler Says:

    even so, its been thirty two years since the request for more information. surely that qualifies as something like sitting on your rights. i’d like to know if doj ever followed up on the request.

    as for the second point, like i said, i’m no expert so i’m not up on the caselaw. but this rule is so far removed from people’s ability to vote, that the coverage would have to be really, really, broad to reach it. like commerce clause broad, i.e., it covers whatever the government wants it to cover.

  4. Kathy Says:

    Wheeler, it might not decisively overturn the subcommittee’s decision, but it might be a good negotiating point. How many other changes weren’t cleared? The party might not want to open that can of worms. Who knows? Very little about this whole mess has made sense.


  5. […] Kudos to Jeff for doing the research and reporting on this issue–although Wheeler at Alablawg isn’t sure if this matters or not. My previous post on this topic is here. Filed under: US Politics | |Send TrackBack […]

  6. Matt Fridy Says:

    The point on the 32 years is that, if the DOJ asked for more information and that information was not forthcoming, then it’s treated as if the request for preclearance was never made. Once that information is provided, then the 60-day period begins to run. If it’s never provided, then the 60 days does not begin to run, and it’s as if a request was never made.

    If section 5 covers this situation, then the Democrats cannot enforce the rule that they used to disqualify the candidates because the rule did not receive preclearance. It does not matter that the rule is old. So long as it was passed after the effective date of Section 5 in this jurisdiction, then it had to be precleared in order to be enforceable.

  7. Matt Fridy Says:

    Given the ruling today by the State Executive Committee, I guess we’ll never know. Does anyone know whether the Section 5 issue come up at all at the Executive Committee meeting?

  8. Kathy Says:

    No, Matt, it didn’t. But Patricia’s attorney brought an affidavit from a former party chair stating that the relevant portion of the bylaws had been repealed and replaced with a rule in line with the 1988 law.

  9. Wheeler Says:

    so i guess we’ll never know.

    unless it comes up in the lawsuit i am sure we will hear about first thing monday mornig.


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