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Posted June 20, 2007 by J. Gerald Hebert

Hans von Spakovsky’s Defense: I don’t recall; I was only the messenger; and I can’t talk about it because it’s privileged

There were multiple times during his testimony before the Senate Rules and Administration Committee last week that Hans von Spakovsky was less than forthright.  Nominated by President Bush to serve on the Federal Election Commission, von Spakovsky appeared before that Committee and answered questions that had been raised about his controversial tenure from 2003 to 2005 in the Civil Rights Division of the United States Department of Justice. 

His answers for the most part consisted of a three prong defense: I don’t recall; I was not making the decisions, just carrying out orders as the messenger; and I cannot say what my position was because that is privileged information.  So while von Spakovsky has been given five days to prepare answers to very specific claims made against him by five former DOJ career attorneys and one professional staffer--persons von Spakovsky dismisses as pursuing a partisan agenda although he offers no proof--I doubt he’ll have much to say in his answers.  Nevertheless, I have a couple of initial observations based on his often evasive and misleading testimony. 

On a number of occasions, von Spakovsky invoked a privilege and refused to reveal positions he took on matters at DOJ.  It struck me as strange that von Spakovsky could describe the process through which various decisions were made, identify the DOJ officials who made the decision, acknowledge that he weighed in with a recommendation on the decision to be made and to whom he made it, discuss the merits of the decision that was made, and then invoke privilege when asked about his own personal recommendation.  That’s especially odd where the person has been nominated for an office that requires Senate confirmation and very specific and serious questions have been raised by former DOJ attorneys about his involvement in a number of those same specific matters.  See letters from former DOJ career attorneys and professional staff to the Committee dated June 11 and June 18. Those questions go directly to von Spakovsky’s fitness for holding a position on the Federal Election Commission. 

In fact, von Spakovsky could easily ask DOJ to waive the privilege if he wanted to speak candidly.  Presumably, DOJ has already done so in connection with many of the e-mails and memos related to the US Attorneys’ firing scandal.  Moreover, DOJ has waived the privilege in the past when DOJ officials were nominated for higher posts, as DOJ did when Civil Rights Division Assistant Attorney General William Bradford Reynolds was nominated to become Associate Attorney General in the Reagan Administration.  (Reynolds’ nomination was turned down when internal memoranda involving a voting rights case, Rogers v. Lodge, revealed information inconsistent with his testimony).

Another point that I found troubling in von Spakovsky’s testimony was his claim that he obtained approval of ethics officials at DOJ before publishing the anonymous law review article that defended voter ID laws.  He hesitated when asked if he received the approval in writing from the ethics office.  In my two decades as an attorney at DOJ, I cannot recall a single instance when the ethics office ever gave me, or one of my colleagues, oral advice.  Everything at DOJ is put in writing because matters of ethics are often among the most serious and difficult matters faced by any practicing attorney.  So it seems unlikely to me that von Spakovsky received oral approval from the ethics office.  If so, he should be required to name the individual who gave it to him.  If the approval was in writing, he should be required to produce it.  Given what I know about the ethics process in the Civil Rights Division, I doubt either took place.  Let me explain.

As a former DOJ career attorney who sought ethics advice on a number of occasions, I also was under the distinct impression that publishing articles anonymously was frowned upon.  After all, DOJ attorneys publish articles all the time and are required to make the disclaimer that the views expressed in the article are those of the author and do not necessarily reflect the official views of DOJ.  More troubling than whether he got approval to write the anonymous article, however, is von Spakovsky’s failure to disqualify himself in the Georgia voter ID matter after publishing an article that essentially showed he had already made up his mind about the law.   That was not a close call and he should have done so.

In addition von Spakovsky’s testimony was particularly misleading as it related to the Texas congressional redistricting case.  During his testimony, von Spakovsky said that the decision of DOJ to preclear the Texas map was the correct one.  Recall that eight career attorneys unanimously recommended that the Department of Justice reject the plan on the grounds that it was retrogressive to minority voting strength.  Their 73 page memorandum concluded: “In sum, the proposed plan reduces the level of minority voting strength because it eliminates the ability that minority voters have in Benchmark 15, 23, and 24 to elect candidates of choice.”

When asked by Senator Feinstein about the decision of the political appointees to approve the Texas plan over the objections of the career professionals, von Spakovsky said:  “…I think subsequent events, including the subsequent events, and court cases show that the decision made by the department was the correct one.”    Now I must say that as one of the attorneys who represented congressional Democrats during those “subsequent events and court cases,” I was anxious to hear his explanation.  I believed in 2003, and I continue to believe today, that the Texas re-redistricting plan violated Section 5 of the VRA.

So what did von Spakovsky say about the subsequent events and court cases?  He spoke twice about the Texas case, and in the course of doing so made several points that warrant comment. 

First, von Spakovsky made the following statement:   

“The question in that case, uh, madam chairman, under section 5 was whether or not they met the retrogression standard.  What the retrogression standard means from a redistricting standpoint, basically, is you have to preserve the status quo.  So if, for example, out of the 32 congressional districts that Texas had, 8 of them were protected majority-minority districts, then when they drew up a new plan, they had to protect and draw 8 majority minority districts.  The memorandum which came up from the voting section, said that ‘no there weren’t 8 majority minority districts in the state; there were eleven.’  The problem with that claim is that the prior redistricting plan, which was the benchmark plan for comparison had been drawn up by a federal court in 2001 in a case called Balderas.  And in that case, the three judge panel said there were eight majority-minority districts. 

This oversimplification was wrong.  The Balderas court did not conclude there were eight majority-minority districts, it concluded that there were eight “Voting-Rights-Act-protected majority minority districts.”  (Emphasis added).  Balderas v. State of Texas, slip op. at 6 ( November 14, 2001).  At the time of the Balderas decision, in 2001, there were three additional districts that were majority-minority in population, but the Balderas court did not consider those districts to be “protected” under the Voting Rights Act.  Thus, when the Voting Section subsequently reviewed the Texas map in 2003 and measured it against the 2001 map imposed by Balderas, the career attorneys in the Voting Section correctly noted:

“In 11 of the districts, minority persons make up a majority of the total population with Hispanics making up a majority in seven while African-Americans do not make up a majority of the total population in any district.  In the remaining four districts, a combined minority population constitute a majority of the voting age population  (VAP).  With regard to those districts, Hispanics are a majority of the VAP in seven, while African-Americans are a majority in none.  The remaining 4 districts have a combined minority majority VAP.  … This is the benchmark for our analysis.”

Voting Section Memo at p. 2.  This is not just a matter of von Spakovsky being less than precise.  He attempted to defend the merits of his actions by resorting to mischaracterizations of cases or actions taken.  At first blush, his answers or explanations may even seem to some like they make sense.  But to those who deal with voting rights issues on a daily basis and are familiar with the various cases or matters on which he was questioned, his answers are sloppy, riddled with inaccuracies, and misleading.

Mr. von Spakovsky then continued his criticism of the career staff’s memorandum saying,

“And to give you just one example of one of the claims that was simply wrong in the leaked memorandum, the Balderas court said there were two African-American majority-minority districts in Texas.  The leaked memorandum said no, that there were actually four.” 

As can be seen from the above quotes, the Voting Section’s memo never stated that there were four African American majority minority districts.  In fact, the Voting Section career staff correctly observed that there were none.  What the Voting Section correctly found was that there were four districts in which the combined minority population (Hispanic plus African-American) exceeded 50%:  “In the remaining four districts, a combined minority population constitute a majority of the voting age population (VAP).”

In his rush to show that he and other political appointees were correct to overrule the career staff recommendation, von Spakovsky led the Committee to believe that the Voting Section was wrong in its application of the most basic of statistical facts.  In fact, it is von Spakovsky who got it wrong.  But there is more, much more.

Later in the hearing, again in response to a question from Senator Feinstein, von Spakovsky offers this gem about the Texas congressional litigation that followed the Department of Justice’s 2003 decision to preclear the plan:

“The three-judge panel in the Texas case did not overturn the decision.  And when the Supreme Court overturned its decision it only found a problem with one district out 32 and that district was based on a compactness argument that is not a consideration under section 5.”

There are several problems with this statement.  The three-judge panel did not overturn the Department of Justice’s decision to preclear the plan because federal courts are precluded from reviewing Section 5 preclearance decisions of DOJ.  Von Spakovsky must know that basic rule of law, and yet makes a misstatement which again serves only to mislead Committee members by implying that the three-judge court left the DOJ decision intact.  In fact, the three-judge court did no such thing.  See Morris v. Gressette

The rest of von Spakovsky’s answer states that “when the Supreme Court overturned [the three-judge court’s] decision it only found a problem with one district out 32 and that district was based on a compactness argument that is not a consideration under section 5.”  Here again, he is wrong.

The Supreme Court’s decision to invalidate congressional district 23 was based on a decision that the dismantling of that congressional district violated Section 2 of the Voting Rights Act.   There is no constitutional requirement that districts be compact.  While the Court did look to another congressional district that the state claimed to be drawn as a replacement for district 23 and found that the replacement district was not compact, the Court’s decision finding that the state violated the Voting rights Act (Section 2) was not because “that district was based on a compactness argument[.]”  As the Court said, “[i]n sum, appellants have established that Latinos could have had an opportunity district in District 23 had its lines not been altered and that they do not have one now.”  The Supreme Court also said:  “the majority of Latinos who were in old District 23 are still in new District 23, but no longer have the opportunity to elect their candidate of choice.”  This is virtually identical to what the Voting Section career staff had concluded in their 2003 memorandum when they concluded that the dismantling of District 23 constituted a retrogression in Latino voting strength:   “There is classic retrogression in the benchmark District 23.  The district loses 12 percentage points to go from majority Hispanic to a majority Anglo district.  With the extreme level of polarization in the district, Hispanic voters simply no longer have any ability to elect a candidate of their choice.”  DOJ Memo at 68. 

Thus, the very basis on which the Supreme Court struck down District 23 in the Texas case was the same as that which had been advocated by the career professionals at Justice--namely the elimination of a Latino opportunity district, District 23.  Thus, von Spakovsky was simply wrong when he testified that “court cases show that the decision made by the Department was the correct one.”  In fact, the opposite is true: the career professionals spotted the elimination of District 23 as a violation of Section 5 of the VRA because it retrogressed their voting strength.  The Supreme Court ultimately invalidated that District on the grounds that its dismantling violated Section 2.  But both conclusions rested on the same basic fact, that the dismantling of District 23 would harm Latino or Hispanic voters--a fact von Spakovsky ignored when he was at DOJ in order to advance Tom DeLay’s partisan map and a fact he conveniently omitted while under oath.

The whole point of preclearance is to place the burden of time and inertia on the shoulders of the perpetrators of discrimination rather than on the victims.  That is why states and political subdivisions bear the burden of proof in section 5 preclearance proceedings.  Minority voters bear the burden of time and expense when they have to go to court to protect their voting rights.  Under Section 2, plaintiffs bear a significant burden of proof to establish a Section 2 violation: they must prove that minority voters vote cohesively, that non-minority voters cast ballots as a bloc against minority candidates, and that an alternative district or districts can be drawn that will provide minority voters with an effective opportunity to elect their preferred candidate.  But they shouldn’t have to bear those burdens if the Department of Justice does its job of protecting minority voting rights during the preclearance process.  Justice failed to do that in the Texas case.  Not because career professional fell down on the job; because Hans von Spakovsky and Brad Schlozman wanted to approve the Texas map regardless of its retrogressive effects because it fit with their plan to use law enforcement machinery to advance partisan goals. 

A final point that struck me during the testimony was von Spakovsky’s answer regarding a direct question from Senator Durbin about the fact that the Voting Section filed no new cases on behalf of African Americans during his tenure there.  Here again, von Spakovsky played fast and loose with the truth.  Instead of admitting that it was true the Voting Section filed no new cases during his tenure on behalf of African Americans, and then offering some type of explanation, he instead changed the question.  His answer was that the Voting Section had “filed or litigated” two voting rights cases on behalf of African Americans.  (Emphasis added).  The two cases he cited were one in Tennessee ( Crockett County) and the other in South Carolina ( Charleston).  What he neglected to mention was the fact that in May 2000, six months before the November 2000 election, the Department of Justice had sent Crockett County a notice letter (standard procedure) informing the county that a Section 2 lawsuit had been approved against the County and offering to resolve the lawsuit by settlement.  Subsequent discussions did produce a settlement which was then filed with the court in April 2001.  So the lawsuit was approved under the Clinton Administration and resolved just a couple of months after Bush took office in January 2001.  Again, Senator Durbin asked about cases filed during von Spakovsky’s tenure (2003 to 2005), and this action preceded it by two years!  The second case cited by von Spakovsky involved a lawsuit against Charleston, South Carolina.  The Charleston lawsuit was filed during the Clinton Administration.  It is true that the Department of Justice continued to prosecute the case after the Bush Administration took over.  But here again, this all predated Hans von Spakovsky’s tenure by two years, and this was a case brought by the prior Administration.  In fact, Voting Section staff informed me that there was a rush to file the lawsuit before the new Administration took office because of fears that the Bush Administration would not file the suit.  In any event, dropping the suit because of the change in Administrations (something never done in any voting case that I can recall) would have proven too controversial to be weathered even by partisan appointees who had taken over the Voting Section. 

So Senator Durbin should look carefully at von Spakovsky’s explanations about these two cases that he promised to provide the Senator.  At the time of the hearing, you could tell that Senator Durbin seemed to think there was something fishy about von Spakovsky’s answers when he cited these two cases.  He was right to be suspicious.  The answers were misleading.

For the life of me, I find it hard to believe that Senators could vote for a resolution asking for AG Gonzales to resign and at the same time confirm Hans von Spakovsky for a seat on the FEC.  With Gonzales, we know little about his involvement in the US Attorney scandal and what we do know looks bad.  The Attorney General’s testimony to the Senate earlier this year has now been shown to be at best misleading, if not untruthful. 

But what the record shows about Hans von Spakovsky regarding the politicizing of the Justice Department is even worse.  He not only injected rank partisanship into the Civil Rights Division’s voting rights agenda at every turn, his actions actually harmed the voting rights of Americans.  His testimony to the Senate Rules Committee minimizing his role in the numerous instances of alleged wrongdoing, his failure to explain why he did not disqualify himself in the matter involving approval of the Georgia voter ID bill when just a few months earlier he had published an anonymous law review on the same topic (an article he failed to disclose), and his continued defense of decisions to approve the Georgia bill and the Texas re-redistricting plan, only confirmed what many of us already know:  Hans von Spakovsky’s record at DOJ makes him unworthy to sit on the FEC.  His nomination should be soundly rejected. 

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