By Jaclyn Collier
Since the Voting Rights Act was enacted in 1965, the Department of Justice (“DOJ”) has held a critical role in working to end voter discrimination. Historically, the DOJ has sent out staff, as well as people who are trained by the Office of Personnel Management, to identify possible racial discrimination at polling stations. One group is made up of DOJ staff who monitor polling (“monitors”), but they have to be granted access to polling places by local and state authorities. The other two groups are people trained by the Office of Personnel Management to detect discrimination. Although one of these two groups had to be deployed by court order, the other was comprised of federal observers who were placed in jurisdictions where there was some evidence of potential racial discrimination. Both of these groups had full access to the polling stations.
In the 2013 case of Shelby County v. Holder, 133 S. Ct. 2612 (2013), the Supreme Court analyzed Sections 4 and 5 of the Voting Rights Act and determined that while “voting discrimination still exists,” the issue is “whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements.” Id. at 2619. The Court held that Section 4 of the Act was unconstitutional on the grounds that circumstances have changed “dramatically” since the Act was legislated and the extreme measures that were required at the time, despite the fact that they were intrusive on state sovereignty, were no longer required.
The upcoming election is the first Presidential election since the Court’s decision. Because of Shelby County v. Holder, Attorney General Lynch has decided to stop sending the federal observers to voting stations. This means that in places where evidence of possible racial discrimination has been detected, the people who were at the best vantage point to detect and deter discriminatory activity will no longer be embedded at the polling places. The DOJ will still be employing the use of monitors; however, they are not stationed inside the voting station and can be denied access by local or agency authorities. In instances where this occurs, the monitors will have no recourse available to them to enter. This significantly hampers the DOJ’s ability to obtain real-time information about what is happening in polling stations where there is a higher risk for voter discrimination.
According to the Washington Post, the DOJ plans to release an email address and a phone number for voters to contact if they encounter or experience any discrimination or harassment. See Sari Horwitz, Justice Department Significantly Reducing Number of Federal Observers Stationed Inside Polling Places, Washington Post, (Oct. 6, 2016), . These are good ways for voters to contact the DOJ, but the Department should leverage social media to bring these instances of possible discrimination to its attention faster. For example, instead of sending an email, social media users who experience discrimination can message the Civil Rights Division of the DOJ through Twitter. They can tweet at the Division’s twitter handle, @CivilRights or send direct messages. Direct messages are private between users and will not show up in the @CivilRights feed, providing privacy for Twitter users who do not want their comments to appear in the feed. In addition, the DOJ could use a hashtag (e.g., #2016VotingDiscrimination), which would allow them to better track these potential issues. Use of its Twitter handle would also help to raise awareness of voter discrimination issues because people would be able to search for tweets with the hashtag.
Voter discrimination is far from over and the lack of a polling place observer is a setback for the DOJ’s fight for civil rights. To better mitigate this loss, the DOJ should use the technological tools at its disposal to allow citizens to effectively take the place of those observers through real-time updates to the Department through Twitter.
Student Bio: Jaclyn is the Chief Content Editor of the Journal of High Technology Law. She is currently a 4L evening student at Suffolk University Law School. Jaclyn works at a financial services firm working on regulatory and compliance issues. She enjoys cooking, reading (thankfully), and hiking.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
