Lawyers' Committee Expresses Disappointment with U.S. Department of Justice Decision to Terminate Critical Federal Observer Program

Federal Observer Program Provided Critical Protection to Voters Inside Polling Sites Located in Vulnerable Communities

WASHINGTON, D.C., July 18, 2016 -- The Justice Department (DOJ) has stated that it will no longer deploy federal observers inside polling sites, a long-standing and critical component of its election monitoring efforts.  The Justice Department announced that it will cease dispatching federal election observers to polling sites, based on the their interpretation of the 2013 U.S. Supreme Court decision in Shelby County v. Holder.  The DOJ also issued a Fact Sheet further outlining the decision.  Federal election observers, specially trained individuals with authorization to enter polling locations and review the counting of the votes, have historically played a critical role monitoring elections to ensure that all voters are able to freely cast a ballot.

“The Justice Department’s decision to terminate the core component of its federal observer program has a significant impact on the 2016 election landscape,” said Kristen Clarke, president and executive director of the Lawyers' Committee for Civil Rights Under Law (Lawyers’ Committee).  “Literally, tens of thousands of federal observers had been dispatched to observe elections inside polling places in some of the most vulnerable communities across our country.  Federal observers helped to block and deter discriminatory conduct that might otherwise go undetected.  Without federal observers, greater vigilance will be required to fight voter suppression and discrimination at the polls.  While we disagree, the Justice Department's decision to terminate the federal observer program further underscores the need for Congress to take action now to restore the Voting Rights Act in the wake of the Supreme Court's 2013 Shelby County decision.”

Discriminatory conduct that plays out inside the polls on Election Day ranges from challengers that contest the eligibility of minority voters inside polling sites, to election officials failing to uniformly and evenly apply rules governing the voting process.  Federal observers are trained to document and record evidence that can be used in future litigation and often their presence can neutralize and discourage discriminatory conduct that might otherwise occur.

Under Section 8 of the Voting Rights Act, the Attorney General can dispatch federal observers to a jurisdiction covered under Section 4(b) of the Voting Rights Act when it has received “written meritorious complaints” of concerns about racial discrimination concerning an election or otherwise determines such discrimination is likely to occur absent the observers.  Though the Supreme Court's Shelby ruling regarding the unconstitutionality of the coverage formula for Section 5 preclearance did not reach or speak to continued use of the coverage formula for federal observers, the Department of Justice has interpreted the Shelby decision so that it also applies to observer coverage.  The Department has indicated that it will continue to monitor elections through smaller deployments of DOJ staff members.  In addition, federal observers will continue to be deployed when authorized by court order.

In the wake of the Justice Department's decision, the Lawyers' Committee will seek to expand its Election Protection program which is the nation's leading nonpartisan election monitoring program.  Unlike DOJ observers, Election Protection monitors are not able to monitor elections from inside polling places. However, through expanded presence on the ground, the Lawyers' Committee and its partners will work to ensure that voters in vulnerable communities are provided critical support from monitors stationed outside polling sites and through its 866-OUR-VOTE hotline.