In an extraordinary move, U.S. District Judge Keith Watkins has given Alabama Gov. Bob Riley (pictured at right) the title of "special master" and placed him in charge of developing an overdue statewide voter registration database. The decision was over the objections of Democratic Secretary of State Nancy Worley and the Alabama Democratic Conference. The request of the Justice Department to move the responsibility for the voter database to a partisan elected official is unusual. Typically, the government would seek an order telling a state official what to do, or it would ask to have a nonpartisan person appointed as a special master.
Alabama is one of several states that have missed the deadline for implementing a statewide voter registration database and the Department of Justice (DoJ) has taken strikingly different approaches to the state’s that are not yet in compliance. Riley was given until Aug. 31, 2007 to set up the statewide voter registration database. A statement from Gov. Riley was quoted in an Associated Press article "The appointment of a special master is not something I sought, but I accept the judge's appointment and will work in a non-partisan manner to make Alabama compliant with the law. It's inexcusable that our state isn't already compliant."
The contentious hearing on Wednesday in which deep and long-standing disagreements between the Governor and Secretary of state were aired, was described by the New York Times as resembling a “kangaroo court”. The Justice Department and the Alabama attorney general, Troy King, both argued that Governor Riley should control the voter database. Mr. King, a Republican, was appointed to his job by Governor Riley after serving as his legal adviser, and when Ms. Worley (pictured at left) realized that Mr. King would not represent her interests, she asked him to let her hire a lawyer to argue her side but the judge refused. Watkins also denied motions by Democratic Party Chair Joe Turnham and Alabama Democratic Conference Chair Joe Reed to intervene in the case arguing that the porocess had proceeded in a "non-partisan" fashion in the case and that the HAVA Committee, bi-partisan and composed of 23 individuals, was the "model to implement."
In a local news report, Turnham said after the ruling that it was "predictable". "The appointment of a special master should have been a broader stakeholder group than inputted into the appointment of a special master," Turnham continued. "The party did not object to the special master appointment, to the ruling the other day. What we fear is there's been no statement of how this particular new system could impact minorities and disadvantage voters. This is not a state where things have gone smoothly for the last half century."
In his order denying the motions of Turnham and Reed, Watkins said "the Court is not convinced that the movants have met any of the criteria as they must to become intervenors." The judge will issued a more detailed opinion later. He did allow attorney Edward Still to speak on behalf of both men at Wednesday morning's hearing.
The news report continued:
Still called the appointment of the governor to the role of special master "a shift in power between the two officials" (the secretary of state to the governor). Saying he was concerned that "a federal court is redistributing this power...and it is not being done by elected representatives."
Still also said he was concerned about the governor turning over his power as special master to another person and talked about other states in which the federal government had filed suit because of failure of the states to set up a compliant voter registration system. He said the governor's office had no expertise in "running a voter registration system." He also voiced concerns over partisan implications and said the Republican Party "has an interest in ballot security" which Still alleged "usually winds up targeting Democratic voters" specifically he mentioned the poor and the elderly. And he alleged the Justice Department and the Alabama Attorney General's Office were "meeting in private and determining the governor was the best person to run voter registration."
Robert Popper, speaking for the DOJ, said "there had to be a breakdown" in the system to "force implementation." He said "situations differ from state-to-state" because of different vendors, challenges, and laws and said HAVA implementation was "not a horse race" and not meant to frustrate the electoral events that do occur.
Popper said implementation of the voter database was "akin to building a bridge" and "not like redistricting where every line you put down hurts one party or the other." He voiced surprise at "suggestions that partisan considerations would be entered into with the Court" and said he did not know what to make of the idea that "DOJ is beholden to a Republican president." He added it was unfair for opponents of the appointment of Governor Riley as Special Master to "say DOJ is enforcing the law in a way that helps one state but hurts another" and remarked he believed Alabama was the only state that had not as yet selected a vendor for the database implementation process.
The judge sustained the objections to the proposed plan and denied the defendants' proposed timeline. He ruled the Court "will adopt the defendants' HAVA compliance plan generally with certain modifications of the timeline and non-substantive provisions" and ordered that "HAVA compliance must be achieved by Defendant State of Alabama on or before August 31, 2007" and laid out benchmarks for accomplishing that task.
The judge then went on to discuss issues related to the 2008 primary election and said the U.S. had "objected to the plan's unhurried timeline with no set deadline" and that the "United States further requested that the Court appoint a Special Master to administer the HAVA compliance plan."
On May 1 the DoJ filed suit against the state and Secretary of State Worley on May 1 and on May 30 Judge Watkins issued his oral findings on the case. On June 7, Watkins issued a memorandum and order granting Declaratory Judgment and Preliminary Injunction. On July 20, a hearing on a proposed compliance plan was held before Judge Watkins and a plan was submitted by Worley on June 29. In a finding dated July 21 the Court found that, under the circumstances, the defendants have achieved a reasonable level of HAVA compliance with respect to the November 2006 general election and the potential for disruption of the November 2006 general election substantially outweighs any benefit of taking further action with the database until after November.
The New York times editorial concluded:
The Justice Department has enormous power over state elections. It is important that this power be used in a way that appears — and is — nonpartisan. Undercutting a Democratic secretary of state, and taking the extraordinary step of handing her powers to a Republican governor, meets neither test. The Justice Department is giving the impression that it is less concerned that elections be lawful and fair than that they come out a particular way.
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