Joe Biden’s secret voter plan

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JOE BIDEN’S SECRET VOTER PLAN. It wasn’t terribly big news on March 7, 2021. President Joe Biden, then less than two months in office, signed an executive order “promoting voting rights,” in the words of the Washington Post, to “make voting easier,” in the words of the New York Times. Both papers played the story as a modest Democratic measure to push back against Republican efforts to “roll back voting access,” as the Washington Post put it, and to counter former President Donald Trump’s “months-long assault on the voting process,” as the New York Times said.

Executive Order 14019 directed what is known as an “all of government” initiative, meaning Biden ordered all federal agencies to be involved, to increase voter registration among groups that have historically been part of the Democratic coalition. “Black voters and other voters of color have faced discriminatory policies and other obstacles that disproportionately affect their communities,” the order said. “These voters remain more likely to face long lines at the polls and are disproportionately burdened by voter identification laws and limited opportunities to vote by mail.”

It was standard Democratic boilerplate — and mostly false, at that. Democrats have long pushed the “voter suppression” story even as data showed it was a myth. But March 2021 was the month in which the Georgia legislature, controlled by Republicans, was debating a new voting law, and Biden and other Democrats were making hysterical, over-the-top pronouncements about “Jim Crow 2.0.” Maybe they believed it. Maybe they didn’t. The goal was to pass two bills that were at the top of the Democratic agenda in Washington: the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act. Together the bills, if passed and signed into law, would nationalize elections and remake voting laws on terms favorable to the Democratic Party. But Democrats, barely in control of the Senate, could not pass such a baldly partisan bill without some Republican support — and there was none of that.

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So the executive order would have to do. To send home the message of “voting rights,” and to give press coverage a historic civil-rights setting, Biden rolled out the order on the anniversary of “Bloody Sunday” in a taped message to be played at the Martin and Coretta Scott King Unity Breakfast in Selma, Alabama.

But the order itself, according to media coverage, didn’t do much. “This executive order is pretty limited in scope,” reported CNN. “The executive order is relatively limited in scope,” the New York Times said. “It calls upon officials at federal agencies to study and potentially expand access to voter registration materials, especially for those with disabilities, incarcerated people and other historically underserved groups. It also orders a modernization of the federally run Vote.gov website to ensure that it provides the most up-to-date information about voting and elections. But the order does not directly address efforts by many Republican-led state legislatures to restrict voting, including measures that would roll back the mail voting established in many states during the pandemic.”

It all sounded like a partisan but relatively weak move. But there were still questions: Did we know the whole story? What would Executive Order 14019 actually do? Yes, the order was filled with platitudes, but what concrete actions would result? Republicans had reason to be suspicious, in part because the voting measure fit into a pattern: Democrats, frustrated by their inability to pass top priorities in Congress, turned to executive authority to do as much as they could without the bothersome process of legislating.

Biden’s executive order directed the heads of all federal agencies to send the White House “a strategic plan outlining the ways identified under this review that the agency can promote voter registration and voter participation.” That could mean anything, especially when one considers that it would be devised and enforced by Democrats angry that they were not able to win passage of their voting scheme on Capitol Hill. The public needed to know what was going on. After all, there is no public concern more important than the issue of elections and voting.

On July 30, 2021, a conservative but nonpartisan think tank called the Foundation for Government Accountability sent a Freedom of Information Act request to the Justice Department asking for documents showing how the department is complying with Biden’s order. The foundation was particularly interested in the specific plan the department came up with — what was the DOJ actually going to do to implement the president’s wishes? “Please provide your agency’s strategic plan developed pursuant to President Biden Executive Order 14019 … outlining ways you identified for your agency to promote voter registration and voter participation,” the request said.

The Justice Department’s answer was…nothing. A year passed, and the Justice Department did not turn over a single document. So the foundation went to court, and as a result, a federal judge ordered the Justice Department to turn over the material. The judge set a deadline of Sept. 8, 2022. The Justice Department waited until the last day and turned over…next to nothing. It sent a batch of emails and a few documents that turned out mostly to be staffers corresponding with each other over who would be present at which meeting.

Most importantly, the Justice Department refused to turn over its strategic plan. None of it. This is what the chief of the Freedom of Information branch of the Civil Rights Division told the foundation:

After review of the Civil Rights Division documents responsive to your request, the Division has identified (15) pages of material representing the STRATEGIC PLAN for the Implementation of Executive Order 14019, Promoting Access to Voting. I have determined that these materials are to be withheld in full pursuant to Exemption 5 of the Freedom of Information Act, 551(b)(5), which pertains to certain inter- and intra-agency records protected by civil discovery privileges, in this instance the deliberative process and presidential communications privileges.

To withhold the plan, the Justice Department relied on what has long been called the most abused exemption — Exemption 5, also known as (b)(5) — of the Freedom of Information Act. “This incredibly large cutout is often called the ‘withhold it because you want to’ exemption,” wrote journalist and FOIA advocate Nate Jones in 2014. “According to stats compiled by the Associated Press, (b)(5) use is at an all-time high.” Even though later reform reduced its use a little, Exemption 5 is still an indispensable tool for administrations seeking to hide what they are doing.

So the strategic plan, the document that would give the world some information on what the administration is doing to enact Biden’s order, remains a secret. But that’s not all. The Justice Department is withholding lots of other information, as well.

For example, an April 1, 2021, email from the White House to about 30 officials discussed an interagency policy meeting that would take place on April 9. The email included, apparently, a list of questions and topics to be discussed. “Please note that the questions below, and the topics we plan to cover in this meeting, relate to the provisions of the Executive Order applicable to all agencies,” the White House wrote. And what were the topics? We don’t know — because the Justice Department blacked them out, citing, again, deliberative process privilege. There was another section, apparently listing some suggested reading, called “Read-Aheads,” and the DOJ blacked that out, too. There was a section titled “Agenda,” and the DOJ blacked that out, too.

Fast-forward to a May 13, 2021, email describing a May 21 meeting. “Below, please find the agenda for the May 21 interagency meeting,” it read. And what was the agenda? It was all blacked out. Deliberative process privilege again.

One July 9, 2021 email to Pamela Karlan, a Stanford University professor who was at the time on leave serving as an assistant attorney general in the Civil Rights Division, began, “Hi Pam, I looked at the” — and after that, all was blacked out. Deliberative process privilege. A later email contained 10 full pages of nothing but black.

Remember that the main concern of the Foundation for Government Accountability is that the Biden administration is using the power of the federal government for partisan political purposes to influence elections. There are also fears that the administration might be taking on a federal role in elections that the Constitution leaves to the states. “The American people deserve to know if the Biden administration’s unprecedented action is fair and non-partisan, or if it is designed to help one political party over the other,” Tarren Bragdon, head of the foundation, said in a statement. “Why are they ignoring public record requests for strategic plans on federal voter registration efforts? Why are they treating these documents like they are classified information dealing with nuclear weapons? Midterms are approaching, and the DOJ’s failure to disclose information raises troubling issues. They need to reveal these public documents to keep our elections fair.”

One troubling clue did make it past Justice Department censors. On July 12, 2021, the Justice Department held a “listening session” with outside activists working on voting rights. The group included dozens of people, all of them from left-leaning groups. There were 10 from the American Civil Liberties Union, five from the Campaign Legal Center, three from Demos, three from the Southern Poverty Law Center, five from the Leadership Conference on Civil Rights, two from Black Lives Matter, and many others. The list would not reassure anyone hoping that the Justice Department is working in a scrupulously nonpartisan way. But of course, we don’t really know what the department is doing because the administration is keeping it a secret.

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