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Testimony of Roger Clegg, President and General Counsel Regarding the US Department Plans to Monitor Voting Rights Enforcement in 2008 Presidential Election before the U.S Commission on Civil Rights

On June 6, CEO president Roger Clegg testified before the U.S. Commission on Civil Rights regarding “The U.S. Department of Justice’s Plans to Monitor Voting Rights Enforcement in the 2008 Presidential Election.”

Mr. Clegg stressed that preventing illegal voting is just as legitimate an aim as ensuring lawful voter access.

TESTIMONY OF ROGER CLEGG, PRESIDENT AND GENERAL COUNSEL,

REGARDING THE U.S. DEPARTMENT OF JUSTICE’S PLANS TO MONITOR VOTING RIGHTS ENFORCEMENT IN THE 2008 PRESIDENTIAL ELECTION

BEFORE THE UNITED STATES COMMISSION ON CIVIL RIGHTS

June 6, 2008

Thank you, Mr. Chairman, for the opportunity to testify this morning before the Commission.

My name is Roger Clegg, and I am president and general counsel of the Center for Equal Opportunity, a nonprofit research and educational organization that is based in Falls Church, Virginia. Our chairman is Linda Chavez, and our focus is on public policy issues that involve race and ethnicity, such as civil rights, bilingual education, and immigration and assimilation. I should also note that I was a deputy in the U.S. Department of Justice’s Civil Rights Division for four years, from 1987 to 1991.

Law-enforcement agencies have two tasks with regard to voting: making sure that legitimate voters are not kept from voting, and making sure that fraudulent voters are kept from voting. Both tasks are important. I won’t say that they are equally important, since most Americans are offended more when they read about a person denied the right to vote who shouldn’t be than when they read about someone illegally voting. On the other hand, this is not quite the usual criminal-law situation where we can blithely assert that it is better to let ten guilty men go free than imprison one innocent one. After all, when someone votes illegally, he cancels out the vote of a lawful voter, so arithmetically--if not psychologically--the impact is the same as if that lawful voter had been turned away from the polls.

Those who have been kept from voting in recent memory--both lawfully and unlawfully--have disproportionately included members of groups that have tended to vote Democratic. On the other hand, my sense is that illegal voters have also tended to vote Democratic (see, e.g., http://www.heritage.org/Research/Legalissues/lm23.cfm). Consequently, Democrats are happy to insist that nobody be hindered from getting to the polls, even if this means that some illegal voters get to the polls as well; from the Democrats’ perspective, it is win-win. I would add in this regard that probably Democrats would by and large want to define “illegal voters” more narrowly; I have noted, for instance, that the Left is more likely to favor letting criminals, noncitizens, the mentally incompetent, and children vote--the only groups now generally restricted from voting. See http://pajamasmedia.com/blog/get_out_the_vote_who_shouldnt/ Conservatives, on the other hand, are willing to be more adamant about ensuring that illegal voters not vote, and are more comfortable with saying that criminals, for instance, shouldn’t have the right to vote in the first place.

This partisan divide complicates the Justice Department’s job. If it focuses effort on making sure that illegal votes are not cast, then Democrats and their ideological allies will criticize the Department--and, if this happens during a Republican administration, they will claim its policies are politically motivated. The Democrats will assert that voter fraud is nonexistent or at least exaggerated--a dubious claim, in my view (again, see http://www.heritage.org/Research/Legalissues/lm23.cfm, as well as http://www.heritage.org/Research/LegalIssues/lm22.cfm)--and that the Department’s efforts should instead be limited to ensuring more voter registration and access. And we would expect Republicans to object if the Department--especially in a Democratic administration--were to focus on ensuring voter access while turning a blind eye to voter fraud and illegal voting, and indeed I have some recollection that this happened to a degree in the Clinton administration.

It’s not necessarily a bad thing that we have this kind of public discussion about what sort of job the Justice Department is doing and ought to do, but the discussion ought to be civil and responsible, and it ought to make allowances for the fact that it is as legitimate for the Department to take steps that stop illegal voting as it is for it to take steps that protect legal voting.

Let me conclude by saying that in the recent past too many of the criticisms aimed at the Department have been neither civil nor responsible. Instead, there appears to be an effort to use personal vilification and character assassination to intimidate Department officials into adopting policies that favor one side over the other. It is ironic that those launching these attacks claim that the Department has been politicized, when it is they who have this aim.

Thank you again, Mr. Chairman, for the opportunity to testify today. I look forward to any questions you and the other Commissioners may have.

Articles, etc. on Felon Voting by CEO’s Roger Clegg:

"Commentary - Should felons have the right to vote? - NO: Felon disenfranchisement is actually a good idea" Examiner.com, July 24, 2008

Roger Clegg, "Voting Rights on a Slippery Slope," Pajama Media, November 30, 2007

Roger Clegg, “Franchise Protection,” Wall Street Journal, August 26, 2006, at page A11.

Roger Clegg et al., “The Bullet and the Ballot? The Case for Felon Disenfranchisement Statutes,” 14 Journal of Gender, Social Policy & the Law 1 (2006).

Roger Clegg, “Perps and Politics,” National Review Online, October 18, 2004

Roger Clegg, “Who Should Vote?,” 6 Texas Review of Law & Politics 159 (Fall 2001).

Testimony of Todd Gaziano and Roger Clegg before the House Judiciary Committee’s Subcommittee on the Constitution (Oct. 21, 1999)

TESTIMONY OF ROGER CLEGG, PRESIDENT AND GENERAL COUNSEL,