Would Bush's Justice Department Have To OK New Florida, Michigan Mail Primaries?

In order to get them in and have 'em count by June 10, lawyers for Barack Obama say the answer, unequivocally, is yes.

Here's the reasoning: while a federal judge last year upheld the DNC's right to interpret the rules of its own primary -- even if those rules meant the technical disenfranchisement of an entire state of voters -- the ruling did not touch on the form of the election itself.

When a party decides to change its rules in midstream, five counties in Florida and two counties in Michigan must ask the Department of Justice's Voting Section to make sure that the new rules do not violate the rights of any aggreived minorities. Alternatively, they can ask a federal judge to bless the new rules, but that would take, at the very least, six months.

According to the Obama campaign, voting rights act provisions that govern pre-clearance requirements apply to primaries. So the Florida Democratic Party and the Michigan Democratic Party would be required to submit to the Justice Department their vote-by-mail procedures for close inspection.

The politics are oh-so-iffy. The Civil Rights Division of DoJ does not have a gleaming reputation among Democrats. Recall that Hans Von Spakovsky, whose confirmation to the FEC the Democrats are holding up because of his record at the Justice Department, very much set the tone for the type of enforcement that the division has become known for over the fast few years.

"They don't want to have to go to Michael Mukasey and ask him, ask Hans van Spakovsky's voting rights section to make a decision on pre-clearance that could have an enormous ramification for the presidential nomination for the other party," one of Obama's lawyers said. "The party doesn't also want to recognize that the DoJ has any formal regulatory authority."

If the party decides to forgo pre-clearance and decides to take off without permission, well, lawsuits would block its path -- from minority groups worried that the vote-by-mail process would disenfranchise African Americans.

There is political gamesmanship in play as well. New primaries of any sort will undoubtedly decrease the popular vote margin between Obama and Clinton, the superdelegate margin between Obama and Clinton, and the elected delegate margin between the two -- the latter, probably very narrowly. And if the primaries are scheduled in early June, they'll give Clinton the final push of momentum.

A spokesperson for the DNC said the party was aware of the pre-clearance objection and was looking into it.

Aides to Hillary Clinton are, at my request, having lawyers look at the law and when they get back to me, I will get back to you.