Failure to Observe: The Federal Observer Program After Shelby County

Voters wait in line to cast their ballots.

An often overlooked consequence of the U.S. Supreme Court’s decision in Shelby County v. Holder is that the federal government no longer sends federal observers on its own initiative to document and deter instances of voter discrimination on Election Day.

For close to 50 years the federal observer program served as a check against official and unofficial discrimination at the polls. But last Friday, Attorney General Loretta Lynch confirmed that the Department of Justice will not send election observers at its usual scale this November because the program’s authority is tied to the Section 4 preclearance formula of the Voting Rights Act, which was rejected by a narrow majority of the Supreme Court in Shelby County. The loss of this federal oversight, which sought to ensure that all eligible voters have equal access to the ballot on Election Day, undermines the integrity of our democratic system.

Federal election polling place monitoring by DOJ has historically been conducted in one of two ways: either through federal observers who are stationed inside polling locations and watch voting procedures or through federal monitors who are present in a locality to respond to any potentially discriminatory voting problems as they develop. However, there are important differences between the two roles. Monitors are DOJ personnel that can be sent to any jurisdiction but require permission from the relevant jurisdictions to enter polling locations. Observers, on the other hand, were federal employees designated by the Office of Personnel Management. In the past, they were sent on the authority of the U.S. Attorney General and did not require permission from covered jurisdictions to enter polling locations. Until 2013, the federal observer program was the primary device for monitoring elections in jurisdictions where voting discrimination or intimidation might take place.

Federal observers were crucial to deterring discriminatory behavior, since state and local officials are less likely to try to suppress the vote or skirt the rules when they know they are being watched. Unfortunately, in the wake of Shelby County and the DOJ’s interpretation of that decision, the observer program is now largely defunct. The provision of the VRA that gives the DOJ authority to easily send observers to covered jurisdictions, Section 8, is linked to the coverage formula that the Supreme Court invalidated in Shelby County.

Although Shelby County technically addressed the constitutionality of the coverage formula as applied to the federal preclearance process, the DOJ has interpreted Shelby County to apply to any use of the coverage formula, including the federal observer program. Therefore, the DOJ recently confirmed that they have curtailed the program in response to Shelby County’s nullification of the coverage formula.

The end result is that in order to send federal observers to formerly covered jurisdictions, DOJ now needs either permission from the jurisdiction it wants to watch or a court order. However, jurisdictions where observers are most needed are the least likely to permit observers to enter, and obtaining court orders on a jurisdiction-by-jurisdiction basis expends significant time and resources. This makes it difficult for the DOJ to properly ensure that the right to vote is adequately protected nationwide.

For example, after North Carolina passed its infamous omnibus voter suppression bill, DOJ went to court seeking authority to send federal observers to monitor the November 2014 election. However, the court denied the request. Consequently, the federal government did not send federal observers to polling locations. During that election, numerous problems were reported across the state stemming from the new laws.

Shelby County’s effect on the federal observer program was felt keenly in 2014. While DOJ sent both “federal observers and department personnel” to 51 jurisdictions in 23 states in 2012, by 2014, DOJ “conduct[ed] in-person monitoring of polling place activities” in only 28 jurisdictions in 18 states. The DOJ’s 2014 statement didn’t mention whether any “observers,” rather than monitors, would be sent to protect voting. In other words, the Department of Justice cut its election protection activity nearly in half in just two years.

The DOJ is committed to continuing the observer and monitoring programs where it can. However, at present only a few counties and localities in Alabama, Alaska, California, Louisiana and New York are currently covered by court orders that independently allow the DOJ to send in federal observers.

What all this drives home is this: The failure of Congress to enact a new updated Voting Rights Act in the wake of Shelby County is hurting the ability of citizens to cast ballots free of discrimination and intimidation. Congress needs to restore the Voting Rights Act. Failure to do so not only prevents the DOJ from blocking discriminatory voting laws from taking effect, but it also effectively undermines the federal government’s ability to observe voting procedures and root out polling place discrimination.