Posted July 11, 2007 by J. Gerald Hebert
“Clearly something has gone awry here.”
New documents released by the Election Assistance Commission (EAC) provide more details about von Spakovsky’s involvement in a controversial letter to Arizona voting officials back in 2005 that effectively encouraged state officials to violate the Help America Vote Act (HAVA). The Arizona incident only serves to further crystallize the picture that has emerged of von Spakovsky as a petty partisan who perverted the mission of the Department of Justice, a mission that has for many years served as the front line of defense for the right to vote.
To date, von Spakovsky’s role in the Arizona controversy has only been partially reported. In his testimony before the Senate Rules Committee, von Spakovsky admitted that he had drafted the April 15, 2005 letter to the Arizona Secretary of State advising that states could deny provisional ballots to voters lacking ID without running afoul of HAVA – a letter that went out under Principal Deputy Assistant Attorney General Sheldon Bradshaw’s name, who had left DOJ five days previously. According to then-career attorneys in the Department of Justice’s Voting Section, this policy was directly inconsistent with previous Department of Justice positions as set forth in briefs filed with courts. Especially inappropriate was the fact that von Spakovsky wrote this letter without any input whatsoever from career staff. Furthermore, he never informed the Voting Section chief or even von Spakovsky’s boss, then-Assistant Attorney General Alex Acosta. Both were confused or unaware of the letter when Arizona officials called to ask about the DOJ’s “new” position on the rights of voters to cast a provisional ballot. When it came to their attention, they both agreed this was a complete change from previous interpretations of the provisional ballot requirement in HAVA. That von Spakovsky could send such a letter under the name of a DOJ official who had already left the Department and without even the knowledge of his superior shows how false and misleading von Spakovsky’s testimony was to the Senate Rules Committee when he claimed he was merely a mid-level manager who carried out orders from higher-ups.
Von Spakovsky was wrong – though surely, given his penchant for limiting voting rights and imposing stiff voter ID requirements, he wished he were right. As e-mails from EAC commissioners quoted below make clear, HAVA requires election officials to permit any voter it has determined is ineligible to vote, including voters who appear without appropriate voter ID under state law or HAVA, to vote by provisional ballot. And as Election Law Professor Dan Tokaji has written, “DOJ didn't just get the law wrong; its interpretation of HAVA simply isn't a plausible one. … Such sloppy work by DOJ can only fuel the impression that its interpretation of election laws is being influenced by partisan political considerations.”
After what we now are aware was much wrangling between the EAC and von Spakovsky, the DOJ was forced to retract its original letter on September 1, 2005. In a second letter to the Arizona Secretary of State – also penned by von Spakovsky but sent under the name of scandal-plagued then-Acting Assistant Attorney General Brad Scholzman – the DOJ “clarified” that HAVA requires states to provide first-time voters who registered by mail who appear to vote without the required voter ID the opportunity to cast a provisional ballot.
What we now know is not only did von Spakovsky fail to consult with career attorneys in the Voting Section or the Assistant Attorney General about his legally incorrect Arizona letter, but also that the new EAC documents show Von Spakovsky also failed to consult with anyone at the EAC before sending the original erroneous letter to Arizona.
Von Spakovsky’s refusal to work with the agency responsible for implementing HAVA is made clear in this April 17, 2005 e-mail from EAC Commissioner Ray Martinez to the other members of the EAC discussing von Spakovsky’s original, erroneous letter to Arizona. The title of Martinez’s e-mail is “Surprise DOJ Opinion on Voter ID in AZ” (Bates stamp 026239) and it reads:
"Attached is a letter opinion that was issued on Friday by DOJ (Office of Civil Rights) regarding [the AZ issue]. This comes as a major (and unwelcomed) surprise. This is a very serious issue. DOJ has taken the position that AZ may impose ID requirements on all voters, including those casting a provisional ballot. While the underlying rationale of the DOJ opinion is one which I vigorously disagree with, the more serious transgression, from my perspective, is that there was absolutely no coordination (or at least a “heads up”) between DOJ and EAC on this matter (despite the fact that we are including DOJ in every discussion dealing with our guidance authority). Clearly something has gone awry here. My recollection is that Hans clearly stated early in our tenure that now that EAC was up and running, we were to assume the responsibility of interpreting HAVA, while DOJ was the enforcement agency." (Emphasis added).
When the EAC pushed for a correct interpretation of the law, von Spakovsky pushed back, apparently attempting to pressure EAC Vice Chairman Paul DeGregorio through Jack Bartling, an aide to Senator Kit Bond. (Bates Stamp 026561).
On Aug. 29, 2005, EAC DeGregorio called von Spakovsky out:
"Is the email below from Jack Bartling a product of some phone calls you have made regarding the AZ case? Is it an attempt by you to put pressure on me—and the EAC? If so, I do not appreciate it. … You are well aware our legal staff has done considerable research on this issue and, if I recall correctly, you told me and Julie Thompson several weeks ago that our position that HAVA requires a state to give someone a provisional ballot, even if they do not show an ID when requesting the provisional ballot, was the correct legal position and HAVA interpretation. You also indicated that the previous DOJ position on this issue was to be withdrawn. … To me HAVA is very clear on this issue. Our interpretation is a strict interpretation of HAVA. No more—no less. … Perhaps if DOJ would have shared their AZ letter with us prior to it being sent, we would not be in this situation." (Bates Stamp 026560).
On Aug. 30, 2005, von Spakovsky responds:
"[W]e had a deal where I told you we would consider taking the position you were pushing even though we think it is too strict if you would correct the obviously wrong position on the citizenship checkbox. … The fact that your chairman does not want to do this because she does not want to anger her friends at the league of women voters is no reason for you to be railroaded into this." (Bates Stamp 026560).
To which DeGregorio replied on Aug. 30, 2005:
"First of all I do not agree to “deals,” especially when it comes to an interpretation of the law. What I did tell you at the time we discussed this issue was that a plan was already in the works for us to correct our position on the checkbox issue regarding our best practices, and that we would do so when we do another iteration of our best practices documents. There was no deal to do so immediately. To my knowledge this delay has nothing to do with our Chairman—at least she has never said anything to what you have suggested in your email to me.
"The letter from our assistant General Counsel was not a “threat.” It is, in fact, a courtesy we are extending to DOJ, since our positions are currently different on this issue. Had DOJ extended the same courtesy to us back when you sent your original letter to AZ, perhaps we would not be in this position. I believe that our staff has taken great pains to have good communications with DOJ on HAVA issues, and that DOJ has not extended to the EAC the same level of courtesy or communication." (Bates Stamp 026559).
Commissioner DeGregorio’s professionalism and commitment to the rule of law is to be commended. No one has said the same about von Spakovsky.
Setting aside for the moment how crude and unprofessional von Spakovsky’s ad hominem attack on then-EAC Chairwoman Gracia Hillman was, shouldn’t the de facto chief of the DOJ Voting Section be working with the League of Women Voters to ensure that voters have equal opportunity to voter registration opportunities and casting of ballots? Instead, von Spakovsky’s antipathy for this esteemed non-profit – and his patronizing attitude toward the then-EAC chair – is disturbing.
Why are these e-mails so damning? It’s not just that von Spakovsky was wrong on the law, perhaps intentionally, in order to advance a partisan voter-suppression agenda. It’s not just that he personally attacked those who were right on the law.
Congress enacted the Help America Vote Act in the wake of the debacles of the 2000 presidential election. It was to ensure that voters who had been wrongly purged from voter rolls or caged in voter suppression schemes could – at least – cast a provisional ballot and exercise their right to vote.
But instead von Spakovsky tried to twist HAVA into yet another weapon in his legal war on voting rights. That’s why the Arizona incident is so telling, and so troubling.
This incident isn’t an exception. Indeed, it’s not even the worst example of von Spakovsky putting partisanship ahead of Americans’ voting rights.
To recap the highlights (lowlights?) of the case against von Spakovsky’s appointment to the FEC:
- While at DOJ, von Spakovsky overruled the unanimous recommendations of career attorneys in order to pre-clear the Texas re-redistricting plan. The U.S. Supreme Court found that the plan violated the Voting Rights Act. While the legal standards were different, the Supreme Court’s decision found that the rights of Latino voters in South Texas had been diminished by the re-redistricting plan. If von Spakovsky had followed that same reasoning, he would have concluded that the plan was retrogressive of Latino voting rights, a position advanced by the career attorneys he overruled.
- While at DOJ, von Spakovsky participated in the decision to overrule the recommendations of career staff in order to pre-clear Georgia’s Voter ID law. A federal district court later found the Georgia voter ID law violated the 24th Amendment’s constitutional prohibition on poll taxes. Career staff who recommended against pre-clearing the Georgia plan were then targeted by von Spakovsky with false charges and retaliation.
- In making the later-overruled Georgia voter ID decision, von Spakovsky refused to recuse himself despite having published an anonymous law review article in favor of voter ID laws very similar to Georgia law.
- While at DOJ von Spakovsky rejected a career staff recommendation to seek more information about the impact of Arizona’s Proposition 200 on Native American and Hispanic voters during DOJ’s Section 5 preclearance review of this law. Proposition 200 imposed voter ID requirements for all voters when voting, and proof of citizenship requirements when registering to vote. Preclearance was approved on an expedited basis despite this recommendation.
- While at the DOJ, von Spakovsky attempted to interfere with an academic study on voter fraud undertaken at the request of the EAC that didn’t trumpet his ideological pre-conceptions, and, when he failed, he later (while an FEC Commissioner) encouraged outsiders to discredit the study.
- At a minimum, von Spakovsky repeatedly misled the Senate Rules Committee in his June 13 testimony by claiming, among other things, that he was just a mid-level manager at DOJ carrying out orders, and that the Supreme Court ruled the Texas congressional map illegal based on compactness.
To quote Commissioner Martinez, “[c]learly something has gone awry here” if someone with this record is seriously being considered for appointment to a federal agency tasked with guaranteeing open and honest elections for all Americans. Whether he was wrong on a clear point of law, or chose to ignore it in order to further his own partisan agenda, add the Arizona case to the stack of reasons von Spakovsky is unqualified to serve on the FEC.
I’ve called on the Senate to exercise its duty to ensure FEC commissioners are selected on the basis of “experience, integrity, impartiality, and good judgment.” Public servants at the EAC refused to cut deals when the voting rights of Americans were at stake. The U.S. Senate shouldn’t either.
I’ve written before (http://www.clcblog.org/blog_item-145.html) that the so-called “package deal” that would have all four FEC nominees voted up or down together is required neither by law nor tradition. If von Spakovsky is part of the “package deal”, the Senate should refuse delivery and return to sender!
Every new piece of information that has come to light during the Senate confirmation process about Hans von Spakovsky’s record – both while he served at the Department of Justice (DOJ) and later on the Federal Election Commission (FEC) – has made it clearer and clearer that he is not worthy of confirmation to serve on the FEC.
 Career DOJ Attorneys Beg to Differ with von Spakovsky Testimony (http://www.clcblog.org/blog_item-136.html)
 Career DOJ Professionals Urge Rejection of von Spakovsky's FEC Nomination (http://www.campaignlegalcenter.org/press-2667.html)
 Hans von Spakovsky’s Culture of Corruption (http://www.clcblog.org/blog_item-143.html)
 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 (http://www.clcblog.org/blog_item-137.html), Also see: Career DOJ Attorneys Beg to Differ with von Spakovsky Testimony (http://www.clcblog.org/blog_item-136.html)
 Hans von Spakovsky and the So-Called “Package Deal” (http://www.clcblog.org/blog_item-145.html)