The campaign for District of Columbia voting rights took an unexpected twist yesterday when it was revealed that Attorney General Eric H. Holder Jr. brushed aside the opinion of the Justice Department’s Office of Legal Counsel, which had concluded that defending the District's right to vote was unrealistic.
The Washington Post reports that Holder instead turned to the office of the solicitor general, which told him the legislation would be defensible. Holder is an adamant supporter of DC's right to vote, and did not publicize the original opinion from the Office of Legal Counsel.
The revelation means there is a greater chance that DC voting rights legislation would go to the Supreme Court if Congress passed it, which advocates say could happen as early as next month. It also opens up the Obama administration to the same types of criticism that Democrats launched at Bush in his waning years that legal decisions were politically motivated.
"Holder came in saying that he would run a different kind of Justice Department that would not be politicized," said Ilya Shapiro, Senior Fellow in Constitutional Studies at the Cato Institute. "If John Ashcroft or Alberto Gonzales had done this, the outrage from the mainstream media would be deafening."
Asking the solicitor general for a second opinion is not unprecedented, but highly unusual, Shapiro said. More importantly, it is the solicitor general's job to support positions of the administration, so getting an opinion from them is an odd choice for inquiring about a controversial legal matter.
The Wall Street Journal issued a scathing criticism of Holder’s action, saying that the findings of the solicitor general – that DC voting rights could be defended – was “miraculous” and that it “should end the canard that only Republican Justice Departments are political.” The solicitor general’s opinion on the legality of the issue upturns legal opinions dating back to the JFK administration.
The act not only proposes adding an additional voting seat to the District – which most constitutional law scholars find entirely ridiculous – but another to Utah, which is probably next in line for an additional House seat. The bill had been stalled earlier this year after it had been attached to DC gun rights legislation.
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