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Posted July 5, 2007 by J. Gerald Hebert

More on Hans von Spakovsky and the EAC

Earlier this week I wrote that “it appears that von Spakovsky continued to inject himself into the EAC voter fraud controversy even after he had left DOJ and was serving as a recess appointment at the FEC.”  In the piece, I noted that von Spakovsky had written to economist/author John Lott regarding a report that had been written about voter fraud.  After reviewing more EAC documents over the holiday, it appears that von Spakovsky’s e-mail to Lott related to the Rutgers University Eagleton Institute of Politics / Ohio State University Moritz College of Law (Eagleton/Moritz) report on voter ID provisions and not the report on voter fraud issued by Tova Wang and Job Seberov.

Nevertheless, further review of the EAC documents show that von Spakovsky urged that the contracts awarded by the EAC to both Tova Wang and the Eagleton/Moritz be rescinded on the grounds that each held pre-conceived views on the topics that they were under contract to research. (See pages 026097, and 028070-028072).  In the case of Eageton/Moritz, von Spakovsky was highly critical of law professor Dan Tojaki at Moritz.  On August 18, 2005, von Spakovsky sent an e-mail to EAC Commissioners stating that “it is clearly an absolute necessity that the [EAC] researchers who are awarded contracts to conduct that research be objective and nonpartisan in their work.” (026096).  von Spakovsky continued: “It would be inappropriate and very damaging and embarrassing to the EAC (and the Board of Advisors) if this research is conducted by entities that have a preconceived opinion or bias on the issue being researched or are, in fact, advocates on the issue.”  (Ibid). 

The August 18, 2005 e-mail from von Spakovsky then states: “Unfortunately, hiring the faculty of Moritz to conduct research on provisional balloting and voter identification provisions calls into question whether the research can be conducted in an objective manner and reach conclusions that are not predetermined by the public and pre-existing views of the researchers.”   With regard to Dan Tokaji, von Spakovsky writes: “The associate director of the Election Law program at Moritz, Daniel Tokaji, is an outspoken opponent of voter identification requirements and commentator on provisional voting.”  (026096). 

Mr. von Spakovsky then calls attention to the fact that Tokaji (along with a number of other law professors) wrote a letter to DOJ that same day urging that the Department of Justice interpose an objection to Georgia’s voter ID bill.  According to von Spakovsky, the letter to DOJ proves Tokaji was “acting as an advocate on voter identification issues[.]”  (026097).  All of this, says von Spakovsky in the e-mail to EAC Commissioners, shows Tokaji has “strongly held, pre-existing notions about both provisional balloting and voter identification issues” that “raise serious concerns about the propriety of Moritz being provided with federal tax dollars to conduct non-partisan and impartial research into such a sensitive and high profile area of election law.”  (026097).  Based on all this, von Spakovsky believes that the Moritz study will contain conclusions that are “predetermined”, and he concludes by “strongly recommending that the contract be reconsidered by the EAC.” (026097).

Von Spakovsky gets a reply the next day from EAC Commissioner Ray Martinez defending the selection of Eagleton/Moritz  (026099-026100).  He notes first that the process of selecting Eagleton/Moritz was a widely advertised and competitive RFP process.  The Eagleton/Moritz submission was scored the highest by an EAC review panel.  Martinez also called von Spakovsky’s attention to the fact that the leader of the project for Moritz would be Ned Foley, not Dan Tokaji, though Tokaji would certainly be involved in the project.  Martinez notes that Eagleton/Moritz were contractually obligated to produce an “objective, sound, and unbiased research and analysis of this project.”  (026099). 

Perhaps most importantly, Martinez informed von Spakovsky that to ensure that the Eagleton/Moritz study was “objective and representative of all view points on these important issues,” Eagleton had proposed the creation of a peer review panel to review the work of Eagleton and Moritz on an ongoing basis.  All EAC Commissioners were given an opportunity to provide names of persons “to ensure appropriate political balance on this peer review panel,” said Martinez.  (026099).  

The same day that Martinez responded to von Spakovsky, he also wrote a memo to EAC vice chairman Paul DeGregorio expressing his “disappointment” over comments DeGregorio had made in an e-mail regarding “suspicions” that DeGregorio had expressed about Daniel Tokaji’s work.  According to Martinez, Degregorio had “accuse[d] Professor Tokaji of manipulating the work on this project based on your ‘suspicion.’  With all due respect, that unfortunate accusation borders, in my view, on a breach of professional decorum and I cannot let it go without a response.”  Martinez ends his memo to DeGregorio with this: “And as for the substance of Hans’ concern regarding Moritz, I stand by my email which I sent to everyone last night.”  (026106).

I have not yet discovered any response from von Spakovsky to Martinez, but it is clear from a subsequent e-mail sent by von Spakovsky that he was not satisfied with the outcome and the EAC’s decision not to rescind the Eagleton/Moritz contract.  Just two months later, von Spakovsky wrote to the EAC Commissioners again, this time raising similar concerns about the EAC awarding of a contract to Tova Wang (the subject of my blog piece on 7/3).  (026142).  In his e-mail to the Commissioners about Tova Wang’s contract, von Spakovsky notes that two months earlier he had written an e-mail “raising serious concerns over the awarding of a contract to Moritz College of Law given its clearly demonstrated pre-existing opinions about provisional balloting and voter identification.  Unfortunately, nothing was apparently done about this situation.”  (026142).

In the vast collection of EAC documents, I have not yet come across any other e-mails or correspondence from von Spakovsky about the Eagleton/Moritz report until the von Spakovsky e-mail in April 2007 (as von Spakovsky served on the Federal Election Commission to John Lott urging him to conduct a study that would discredit the Eagleton/Moritz study).  (025525-025526).   As I reported in my earlier blog, von Spakovsky offers up the assistance of EAC Commissioner Caroline Hunter to assist Lott in doing a report that would point out von Spakovsky’s perceived flaws in the Eagleton/Moritz report.  The von Spakovsky e-mail to Lott notes that it is important for someone like Lott to do a study critical of the Eagleton/Moritz study because “this study is now being trumpeted as proof that voter ID hurts turnout[.]”  (025526). 

Interestingly, just a couple of weeks before this von Spakovsky e-mail to Lott, the EAC issued a press release declining to adopt the Eagleton/Moritz study, expressing concerns regarding the data, analysis, and statistical methodology that were used to analyze voter identification requirements to determine if these laws have an impact on turnout rates. These concerns are similar to the ones expressed by von Spakovsky in his e-mail to Lott.  I have yet to find any emails or memos sent by von Spakovsky, while serving at the FEC, to any of the members of the EAC urging them not to accept the Eagleton/Moritz study and to be critical of its methodology.  But there may have been phone calls to that effect, and a good place to start getting answers would be to ask members of the EAC, and I think Caroline Hunter would be the first Commissioner I would ask. 


So what does all this have to do with the nomination of Hans von Spakovsky to serve on the FEC ?  The answer is plenty.  We see from the series of e-mails about Eagleton/Moritz and Tova Wang that despite peer review and the efforts at creating safeguards to ensure objective reports, von Spakovsky remained undaunted and unsatisfied.  He wanted both contracts rescinded because the researchers held views that were inconsistent with his own.  It is also quite clear that von Spakovsky was very much aware that if he thought someone had preconceived views on a subject, von Spakovsky felt those persons would be less than objective and render a decision or conclusion that reflected their own bias.  Yet von Spakovsky never applied this standard to himself.  Why didn’t von Spakovsky employ this same approach when he participated in DOJ’s decision to approve the Georgia voter ID law ?  Clearly, von Spakovsky had strongly held views on the propriety of voter ID laws; he had even published an anonymous law journal article on the subject vigorously defending such laws.  Despite this, von Spakovsky not only failed to disqualify himself from the decision to preclear the Georgia voter ID law while at DOJ, he actively participated in it.   His failure to disqualify himself led to the filing of an ethics complaint against him, by the attorney representing the minority citizens in Georgia who felt von Spakovsky should have recused himself. 

We do not know the extent to which von Spakovsky has continued his efforts to advance his partisan agenda after he was recess appointed to the FEC.  After all, the massive pages of documents released by the EAC would only contain von Spakovsky’s e-mails and conversations if they went to the EAC.  Perhaps he blind copied EAC Commissioner Hunter in his e-mail to Lott and that may explain why that particular communication is contained in the EAC documents.  One can only speculate how many other contacts von Spakovsky has made with individuals he hoped could be enlisted to discredit research that did not jibe with his own preconceived notions.  As I noted in my earlier post on this topic, the e-mail to Lott does show that his days of using his federal position to advance a political and partisan agenda are far from over. 

One final nugget set forth in the EAC documents.  While serving at the FEC, von Spakovsky wrote an e-mail to EAC Commissioner Donetta Davidson in January 2007 enclosing documents that she “might be able to use on voter ID.”  (027810). One was an article that von Spakovsky wrote for the Federalist Society entitled “Increasing the Security of Elections: The Effect of Identification requirements on Turnout of Minority Voters”.  On the first page of the article, von Spakovsky writes:  “Voter fraud is a well documented and existing problem in the United States.  In the next paragraph he writes that investigations in Milwaukee, Wisconsin “found thousands of fraudulent and suspicious votes in that city, in a state where John Kerry won by only 11,384 votes in the 2004 election.”  (027886).  And who are among the authorities cited by von Spakovsky for these two statements ?  His own law journal article that he published under the name Publius!   So Hans von Spakovsky has finally found someone who agrees with his take on voter ID laws:  himself. 

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