Change to Voting Rights Act makes it harder to monitor U.S. elections | McClatchy Washington Bureau

November’s presidential election is the first in more than 50 years in which the federal government won’t send a full complement of specially trained observers to monitor elections in states, like Mississippi, with long records of discriminatory voting practices.

After the Supreme Court’s 2013 decision in Shelby County v. Holder weakened a core provision of the Voting Rights Act of 1965, the U.S. Department of Justice can deploy special election observers from the Office of Personnel Management only where authorized by a court order.

Because of that requirement, the department will deploy a smaller number of its own staff attorneys and other personnel to monitor elections next month in roughly half the states.

Unlike the special observers, the department staffers won’t have the authority to view activity inside polling places and locations where votes are tallied unless they get approval from local officials.

That potential loss of access to real-time voting operations is causing concern among civil- and voting-rights activists about the integrity of Mississippi’s vote process.

“Not having that seat on the front lines creates a disadvantage,” said Kristen Clarke, the president and executive director of the Lawyers’ Committee for Civil Rights Under Law, one of the nation’s leading civil rights organizations. “I think you need to be inside the polling sites shoulder to shoulder with poll workers and observing carefully every aspect of the process to ensure all voters are treated fairly.”

Federal observers “watch the election process, to collect evidence, to deter wrongdoing, to defuse tension and to promote compliance” with federal law, according to a recent speech by Vanita Gupta, the head of the civil rights division at the Justice Department. They also look for different treatment of voters based on race and whether materials and assistance are provided for non-English speakers and voters with disabilities.

In recent years, local Mississippi elections have been a frequent target of that Justice Department scrutiny. From June 2009 to September 2013 the department sent election observers to 31 jurisdictions in the state following complaints of possible discrimination.

Republican presidential nominee Donald Trump is asking supporters to monitor polling places as “Trump election observers” in order to “stop crooked Hillary from rigging this election.”

Based on Trump’s rhetoric about voter fraud, some fear the presence of untrained, partisan Trump observers could lead to increased episodes of voter intimidation – which has long been a problem in Mississippi.

“To know the tricks that have been played here in Mississippi – for instance, people posing as federal agents and asking individuals to identify themselves, challenging voters’ eligibility and using intimidation tactics to dissuade individuals from voting. This causes me a lot of concern that we won’t have the kind of backup that’s desperately needed” from the observers, said Constance Slaughter-Harvey, a Democrat who served as Mississippi’s assistant secretary of state for elections from 1984 to 1996.

In a statement, Mississippi Secretary of State Delbert Hosemann said that despite their inability to observe activity inside Mississippi polling places without permission following the Shelby decision, federal monitors had continued to be “granted the same access to observe within a polling place as state observers” from his own office and from the state attorney general’s office.

“We have always and (we) will continue to accommodate any federal observer sent to the state to observe our elections,” wrote Hosemann, a Republican.

Whether local elections officials extend the same courtesy to federal monitors on Election Day is anybody’s guess. The Justice Department has not yet disclosed what states and counties their attorneys and staffers will be sent to.

Because most polling place problems and irregularities are due to bureaucratic errors rather than malfeasance, election officials across the partisan spectrum want to minimize those errors and may appreciate the assistance of federal monitors, said Dale Ho, who heads the Voting Rights Project of the American Civil Liberties Union.

“But the places where we’ve seen voter intimidation with the cooperation of people working around a party or with local officials, I would guess in those circumstances the prospect of cooperation is low,” Ho added.

A total of 153 counties in 11 states have been certified for visits by federal observers since 1965. Mississippi’s 51 certified counties lead all states. That’s 62 percent of Mississippi’s 82 counties.

“It’s rational to think that the places that have had the worst histories of discrimination – and I don’t mean ancient history, I mean recent histories of discrimination – are going to continue to be the hot spots. We know about Mississippi,” Ho said.

The Voting Rights Act allowed the attorney general to send observers to monitor elections in Mississippi and eight other states with widespread and persistent discrimination in voting if there were “meritorious complaints from residents, elected officials or civic participation organizations” that efforts to deny or hinder the right to vote “on account of race or color or (membership in a minority language group) are likely to occur.”

The observers watch and record polling-place activity in coordination with federal civil rights attorneys and local election officials.

Elections in the Mississippi cities of Hattiesburg, Brookhaven, Greenwood, Isola, Meridian, Philadelphia and Ruleville were monitored by the Justice Department in 2013, along with Como and Clarksdale. Federal observers also monitored elections in Tunica, Clay, Copiah, Humphreys, Jefferson Davis, Panola, Quitman, Sunflower and Tallahatchie counties following discrimination complaints in 2011.

Two separate elections in Bolivar, Noxubee and Wilkinson counties were also monitored in 2011. And in 2009, they monitored local elections in the towns of Como, Drew, Greenwood, Isola, Louise and Meridian.

After every election, Hosemann’s office requests information about any problems that federal observers have encountered in Mississippi. But the Justice Department hasn’t provided “any meaningful reports of harassment or intimidation in recent years,” Hosemann’s statement said.

In previous presidential elections, Hosemann’s office has deployed its own observers to 25 to 40 counties, but he isn’t sure how many will be deployed this year. Any problems the state observers encounter on Election Day will be reported first to Hosemann’s election division and then to a local election official, district attorney or police department to resolve.

On Election Day in 2012, the Justice Department sent 780 trained observers and department personnel to 51 locations in 23 states. In next month’s election, the Justice Department can send the special observers from the Office of Personnel Management only to a handful of jurisdictions in Alaska, California, Louisiana and New York where they have been authorized by court order.

The downsizing was required after the Shelby decision struck down a requirement that the Justice Department or a federal court preapprove voting-rule changes in Mississippi and eight other states with histories of disenfranchising minority voters.

The decision invalidated the formula for determining which jurisdictions were subject to the so-called “pre-clearance” provision. And because the same problematic formula helped determine where observers could be sent without a court order, the department is no longer able to dispatch federal observers at the attorney general’s discretion.

The decision “severely curtailed” the department’s ability to ensure voting rights for all, Attorney General Loretta Lynch said during a speech earlier this month in Newark, New Jersey.

“Indeed, this fall will be our nation’s first presidential election in almost 50 years without the full protections of the Voting Rights Act,” Lynch told the audience.

The Justice Department will deploy “a robust number of trained department personnel into roughly half of the nation’s states this fall – at least as many states as in 2012, despite the setback of Shelby County,” Lynch continued. “This expert team will watch the proceedings carefully to make sure that the elections are conducted fairly and in accordance with federal voting rights laws.”

The nonpartisan Election Protection coalition provides a national hotline (866-OUR-VOTE) to assist voters in every state with questions or concerns about their rights and the upcoming election.

CORRECTION: An earlier headline on this story wrongly referred to election monitors as “observers,” and incorrectly said it was a first for them to need permission to be in polling places.