Posted June 19, 2007 by J. Gerald Hebert Career DOJ Attorneys Beg to Differ with von Spakovsky TestimonyLast week, Hans von Spakovsky, who has been nominated by President Bush for a seat on the Federal Election Commission, testified before the Senate Rules and Administration Committee. He was asked at the time about a letter that had been sent to the Committee by seven former career professionals in the Voting Section of the Civil Rights division, raising various claims about von Spakovsky’s role during his tenure at the Department of Justice. Now those career professionals, after reviewing von Spakovsky’s testimony, have written a second letter (see below) contradicting von Spakovsky and raising concerns about statements he made. They assert in very specific detail, for example, that von Spakovsky’s testimony conflicts with their own recollections and, in several instances, they note that von Spakovsky’s testimony was factually wrong. Their letter also responds to von Spakovsky’s unsupported claim that the reason these career professionals wrote their original letter to the Senate committee was to advance their own partisan agenda. The full text of the letter follows: June 18, 2007 The Honorable Dianne Feinstein Dear Chairperson Feinstein and Ranking Member Bennett: We are writing as a follow up to our letter of June 11 in opposition to Mr. Hans von Spakovsky’s nomination to the Federal Election Commission (FEC). We have reviewed his testimony to the Committee on June 13 and write to address some concerns we have over these statements. Specifically, the following areas of testimony conflict with our recollection of events at the Voting Section in the Department of Justice’s Civil Rights Division: 1. Mr. von Spakovsky attempted to paint a picture of his role in the Civil Rights Division’s front office as one of a simple “middle manager,” merely providing legal advice and recommendations to his superiors and then delivering the decisions made by his superiors to Voting Section staff. This characterization differs significantly from our experience with Mr. von Spakovsky. From the time he assumed the role of Counsel to the Assistant Attorney General in early 2003 until he left in December 2005, Mr. von Spakovsky spent virtually all of his time on voting matters and assumed the role of de facto Voting Section chief replacing the career Section Chief in most of his statutory responsibilities and traditional duties managing the Section. Mr. von Spakovsky assumed a position on the EAC Advisory Board that was reserved explicitly by Section 214(a)(13) of the Help America Vote Act (HAVA) for “the chief of the voting section . . . or the chief’s designee” even though the Section chief had never designated Mr. von Spakovsky for this position; assigned staff to cases; took over lead review in a major case; rewrote performance evaluations of career staff; and set Section priorities. During our combined tenure at the Voting Section, we have never seen a political appointee exercise this level of control over the day to day operations of the Voting Section. Indeed, testimony previously given by Bradley Scholzman, Mr. von Spakovsky’s supervisor, to the Senate Judiciary Committee reinforces the degree to which front office oversight of the Section was delegated to Mr. von Spakovsky. Moreover, as discussed in our June 11 letter, he consistently used this position to promote partisan political interests through narrow interpretations of HAVA, refocusing the Department’s National Voter Registration Act (NVRA) enforcement activities, refusing to allow investigations under the Voting Rights Act based on discrimination in African-American and Native American communities, and redirecting limited resources to a partisan search for unsubstantiated allegations of voter fraud. 2. Mr. von Spakovsky conceded that he wrote an April 15, 2005 letter to Arizona, which opined that the state did not need to provide provisional ballots to voters who did not present identification when voting. This was a reversal of the Division’s previous interpretation, and in direct conflict with the letter and spirit of HAVA. In fact, five months later Mr. von Spakovsky admitted drafting another letter reversing this position after a disagreement with the Election Assistance Commission that led one of the EAC’s commissioners to protest that Mr. von Spakovsky was unnecessarily pressuring him to change his position on the issue. In addition, contrary to his testimony, Mr. von Spakovsky did not seek information or input from career staff when he wrote the April 15, 2005 letter. After the April 15 letter was received by Arizona, an Arizona government official contacted Voting Section career staff seeking more information about the Department’s new position on provisional balloting. Neither the attorney who fielded the call nor the Section chief had ever seen nor heard of the letter. The Section chief sent an email to other staff attorneys about the letter and none had seen nor heard of it. The Section chief called then-Assistant Attorney General Alex Acosta for an explanation of why and under what process the policy of the Section on provisional ballots had changed. Mr. Acosta indicated to the Section chief that he had never seen this letter. According to the letter’s signature, the policy was approved by former Principal Deputy Assistant Attorney General Sheldon Bradshaw. Curiously, however, Mr. Bradshaw left the Division approximately five days before the letter was sent. 3. Mr. von Spakovsky testified that he received approval from appropriate Department officials before he published Securing the Integrity of American Elections: The Need for Change, 9 Tex. Rev. Law & Pol. 277. The article, which advocated on behalf of restrictive voter identification provisions, was published at about the same time that Mr. von Spakovsky began his active role in the Section’s consideration of a similarly restrictive measure in Georgia. Despite Mr. von Spakovsky’s implication that publication of the article was pursuant to Department of Justice policy, our experience over decades and multiple administrations was decidedly different. Traditional practice when officials at the Department write scholarly articles is for those articles to be signed by the author and to include a disclaimer that the views in the article do not necessarily reflect the views of the Department. It is clear from his explicit views in the article that his mind was made up about identification provisions and how they relate to voting, yet neither he nor his superiors (whom he testified were aware of the publication of the article), took steps to recuse him from consideration of the proposed Georgia law. Moreover, the views expressed in the article were consistent with his unwillingness to consider evidence that weighed against preclearance in the Georgia submission. The role of the Department in reviewing voting laws submitted to the Attorney General under Section 5 of the Voting Rights Act is the same as the District Court of the District of Columbia when a jurisdiction decides to file a Section 5 declaratory judgment action. See 42 U.S.C. § 1973c. Indeed, a decision to preclear cannot be reviewed by a court. Participating in the preclearance process while serving as a vigorous advocate for provisions like this across the country created an insurmountable conflict of interest. 4. We are also concerned with Mr. von Spakovsky’s characterization of the shifting enforcement priority established under the voter purge program he directed in 2005. During our tenure, Mr. von Spakovsky rejected requests from several voting rights advocacy groups to enforce that part of the National Voter Registration Act (NVRA) which requires social service agencies to provide voter registration opportunities, despite the fact that there is substantial evidence that registration at social service agencies has plummeted during this administration. This type of activity expands the right to vote, especially for minorities and the disabled, and yet Mr. von Spakovsky placed no resources into this area and no cases were filed. Instead, Mr. von Spakovsky shifted the Voting Section’s NVRA enforcement priorities to enforcement of the voter purge provisions of the law. This was problematic as the pressure on states to purge their voter rolls came at the same time as state election officials were implementing new, often unprecedented statewide voter registration databases. Moreover, in at least two instances (Washington and Missouri), the positions he pushed encouraging voter purges were rejected by federal district courts. 5. Mr. von Spakovsky testified he had very little memory of the 2004 incident involving a directive of the Minnesota Secretary of State regarding voter identification for Native American voters who do not live on reservations. It is likely that the directive would have disenfranchised thousands of Native American voters had a federal court not found it discriminatory. Mr. von Spakovsky testified that he failed to recollect this particular matter because it was one of a deluge of requests that flooded the Voting Section in the run up to the election. This matter, however, received unique treatment from Mr. von Spakovsky and his colleagues in the front office. On no other occasion was the Section Chief told that a matter was especially “sensitive” nor that each step of an investigation had to be approved by Mr. von Spakovsky or by Mr. Schlozman. Furthermore, Mr. von Spakovsky testified that he thought it made sense to restrict the Section’s contact on the matter to the Secretary of State rather than the Hennepin or Ramsey County Boards of Elections who registered the complaint with the U.S. Attorney’s office. According to his testimony, Mr. von Spakovsky restricted the contact out of an interest in expediency, because the Secretary of State issued the directive. However, at the time, Mr. von Spakovsky communicated to the Section chief that it would be better to call the Secretary of State to avoid a leak. It is important to note that interviewing Hennepin and/or Ramsey county election officials was necessary to find what they had actually been told by the Secretary of State. 6. Mr. von Spakovsky defended his enforcement record by alluding to two Section 2 cases that had been approved internally but were never filed in court because of a subsequent change in circumstances. It is inconsistent that Mr. von Spakovsky discussed internal decision-making when testifying about these cases while at the same time asserting that nebulous claims of privilege prevented him from answering the Committee’s questions concerning his recommendations in the Georgia and Texas matters. More importantly, he did not mention the several matters in which Voting Section staff recommended lawsuits be brought on behalf of African-American and other minority voters (each with a strong evidentiary record requiring action) that the front office either refused to approve, or on which they unnecessarily delayed action for as long as a year and a half. Nor did he mention an important policy change concerning approval of Section 2 investigations. Until Mr. von Spakovsky came to the front office, the Section chief had authority to approve such investigations, but at about the same time as his arrival in the front office in 2003, the policy was changed, requiring Mr. von Spakovsky’s approval for all such investigations. This led to far fewer investigations and occasions when requests to merely begin an investigation into a matter were rejected. Finally, we want to respond to a suggestion made during the hearing that the signatories of the June 11 letter had their own partisan interests in mind in writing to the Committee and advocating for the defeat of Mr. von Spakovsky’s nomination. As we have mentioned before, we served proudly through Republican administrations and Democratic administrations. We welcome discussion about ideas and relish intelligent debate about principles, but as civil servants we committed ourselves to enforcing federal civil rights laws without fear or favor. We were required to be apolitical while protecting a political process. We relished that challenge. Our decisions sometimes disappointed Democrats and sometimes disappointed Republicans, but always honored our belief that it is the voters who are protected by the statutes the Section enforces, not the political parties. We oppose Mr. von Spakovsky’s nomination because he made it impossible for us to carry out that essential mission in our service at the Voting Section. We appreciate the Committee’s commitment to uncovering the role that Mr. von Spakovsky played in the changing priorities and policies within the Voting Section and in the politicization of the Civil Rights Division. We are committed to preserving the legacy, potential and commitment of the career civil servants who have dedicated their lives to protecting our nation’s Civil Rights. Unfortunately, the changes that Mr. von Spakovsky oversaw at the Department threaten that tradition. We look forward to your continued investigation into his role in initiating that change. Sincerely, Joseph D. Rich Robert A. Kengle Stephen B. Pershing Jon Greenbaum David J. Becker Bruce Adelson Toby Moore |
|