Mitchell’s appointment came through the US Commission on Civil Rights, a six-decade-old commission intended to develop civil rights policy and help enforce federal civil rights laws. Her selection came as a result of a partisan feud on the Civil Rights commission following Trump’s appointment of two new members last year, making the commission split 4-4 between Democrats and a Republicans, commission members told CNN.
The fight on the Civil Rights Commission over Mitchell’s appointment to the election advisory board — a move that sparked alarm among election law experts given her role in Trump’s election subversion efforts — underscores how Trump’s appointments across the government and for obscure boards and commissions have beleaguered the Biden administration ever since Trump left office.
Michael Yaki, a Democratic commissioner on the Commission on Civil Rights, charged that the four conservative commissioners, led by Trump appointee J. Christian Adams, held the “entire agenda of the Commission hostage” until they were given power to name an election board designee. Ultimately, the Civil Rights Commission agreed to have the Republicans put forward two names for the election advisory board, and the Democratic commissioners would choose between them.
The Republicans put forward Mitchell — and Adams — for the Democrats to choose between.
“This was a Hobson’s choice between the lesser of two great evils to keep the Commission running: a lawyer who has led the right-wing efforts to destroy the voting rights of black and brown people in this country, or a lawyer who backed-up Trump’s election lies that resulted in the January 6th insurrection,” Yaki told CNN.
Adams said in an interview with CNN that if anyone wants to complain about Mitchell’s appointment, they should voice their concerns to the Democratic commissioners. “It was their pick. They picked Cleta Mitchell,” he said. “I think the Democrats on the commission made a good choice. Of course, they could have picked me too. We gave them two really good choices.”
In response to Yaki’s criticism of his record on civil rights, Adams said, “I’ve done more for African American voting rights in the last 10 years than he’s done in a lifetime.”
The Election Assistance Commission was created through the Help America Vote Act, a bipartisan law passed in 2002 after the controversial 2000 presidential election recount in Florida, to serve as a clearinghouse for election administration information and provide voluntary guidance to states. The law also established the board of advisors that Mitchell was named to, though the 35-member board does not have any specific powers beyond advising the commission. Its membership includes appointees from the federal government, Congress and other groups like the Civil Rights Commission.
One board member lamented to CNN that the advisory board really doesn’t do much.
Still, election law experts said Mitchell’s appointment was troubling, given her role in Trump’s election subversion.
“Cleta Mitchell helped Donald Trump try to overturn the results of a valid election. She should not be sitting on a board that helps states advance fair elections and democratic processes,” said Rick Hasen, a law professor and co-director of the Fair Elections and Free Speech Center at the University of California Irvine School of Law.
The commission issued a cryptic statement Tuesday after Mitchell’s appointment was disclosed, saying, “The EAC does not make or approve appointments to the 35-member Board of Advisors. Board members are directly appointed by a wide variety of organizations.”
Mitchell said in a statement to CNN she was “very honored that the Democrats on the USCCR selected me in a strong display of bipartisanship.”
In response to criticisms about her efforts to help Trump overturn the 2020 election result, Mitchell said that the Electoral Assistance Commission was created through legislation that resulted from “Democrats’ hysteria over the ‘legitimacy’ of the 2000 presidential election.”
A divided commission
Trump appointed Adams and Stephen Gilchrist to the Commission on Civil Rights in August 2020, changing the commission’s composition from a 6-2 liberal split to one that was evenly divided. Both were appointed to six-year terms that expire in 2025.
The commission’s bylaws say no more than four members of one party can serve on the commission at the same time, though liberal-leaning independents have often given Democrats the majority. With a 4-4 split, each side has veto power, as a majority is needed to approve any actions.
Adams is a former George W. Bush administration Justice Department official who is president of the Public Interest Legal Foundation, a non-profit group that’s filed lawsuits pushing for the purging of state voter rolls and been involved with other election litigation. Mitchell is chair of the organization’s board of directors.
Yaki said that earlier this year Adams and the other three Republican commissioners ground the Civil Rights Commission’s agenda to a halt over the appointment to the election advisory board. That included an investigation into FEMA discrimination in response to Hurricanes Harvey and Maria and a report on bail reform, according to Yaki.
“They were focusing on the (EAC) Board of Advisors as if it could be some sort of platform for changing election security and voter fraud –and it really isn’t, but they are just trying to, I guess, throw their people wherever they can,” Yaki said.
Adams said the commission’s Republicans would “keep holding it hostage until there’s bipartisanship.”
“It’s a 4-4 commission. As soon as the Democrats recognize that the commission can get work done,” he said.
Transcripts of the commission meetings show the commissioners initially agreed to rule changes that would allow a procedure for the appointments in April, in which the Democratic commissioners would choose between two Republicans for the role. But the appointment was not made until the committee voted to put Mitchell on the advisory board in August. The first time Mitchell’s name is mentioned in the commission’s public transcripts was when she was voted for in August.
Yaki, who has served on the Election Assistance Commission advisory board, was supposed to be the Civil Rights Commission’s second appointment, but he stepped down from the election board instead. The Civil Rights commission will vote to appoint a new Democratic EAC advisory board member on Friday, whom Yaki said has “a history of civil rights leadership.”