Posted July 20, 2007 by J. Gerald Hebert

Von Spakovsky’s Answers Only Raise More Questions

FEC nominee Hans von Spakovsky has now submitted responses to numerous allegations that during his tenure at the Department of Justice (DOJ) he undermined the mission of the Civil Rights Division where he worked.  I have gone through his responses and have the following observations, limiting this posting to his responses on the Georgia voter ID law. 

On first blush, I concede that one has to get pretty immersed in the details of the cases or matters referenced in his response to see how misleading von Spakovsky really is.  So let’s just take a few of them one at a time and examine what he says and see if it holds up against the truth (hint: it doesn’t). 

Hiding Behind the Veil of Privilege and Confidentiality

It is interesting that von Spakovsky repeatedly cites a letter sent by DOJ Assistant Attorney General William Moschella in October 2005 to Senator Kit Bond explaining the basis for the Department’s decision to preclear the Georgia voter ID law.  He cites the letter, which he acknowledges does reveal the inner deliberations of the Department of Justice, i.e. what the data submitted by Georgia “showed” DOJ officials. (p. 11).   As von Spakovsky informed the Senate: “Information about the recommendation of the Section Chief that would normally be privileged has been previously provided to Congress by the Department of Justice.”  (Page 3, note 2).  It is very likely that von Spakovsky wrote the letter for Moschella to sign, or, at a minimum, had a heavy hand in it. 

Yet when pressed on what his own recommendation was in the Georgia case, he invokes confidentiality and privilege.  It seems to me that neither DOJ nor von Spakovsky can have it both ways.  The documents in question contain the views of someone who has been nominated by the President for a federal post.  The Senate Rules Committee should not allow von Spakovsky or DOJ to waive privilege on some documents when it suits their purposes, but invoke it on documents regarding the very same subject matter when it does not.

The Georgia Voter ID Law and the Conflict of Interest

Von Spakovsky states that there was no conflict of interest in a review of the Georgia voter ID law.  He compares his case to that of a judge who previously has published a law review article on a subject and then rules in a case involving that same subject matter.  In such a case, says von Spakovsky, the judge is not required to recuse herself, and neither was he.   There are several problems with this analogy.

First, von Spakovsky should have been equally concerned about the ‘appearance of impartiality’ as he now claims to be about actual impartiality.  These are not just catchphrases; they are what ethics rules require.  As the DOJ ethics rules make clear: “Generally, an employee should seek advice from an ethics official before participating in any matter in which her impartiality could be questioned.”  (DOJ Ethics Handbook, “Impartiality Standard,” p. 2) (emphasis added).  And federal regulations also state that “[a]n employee who is concerned that other circumstances would raise a question regarding his impartiality should use the process described in Section 2635.502 to determine whether he should or should not participate in a particular matter.”  (Section 2635.501).  At the very least, even if one accepts von Spakovsky’s assertions that he evaluated the Georgia voter ID law impartially, the appearance of a conflict was a problem here.  Simply put, he held strong and deep-seated views about the propriety of voter ID laws like the one that Georgia was sending to the Department of Justice for approval under the Voting Rights Act.  Given those views, even if he could have been impartial, doesn’t it seem reasonable that a person might question his objectivity and impartiality ?  And isn’t it also true that given his preconceived, published views, he should have disclosed those views to the parties in the Georgia case ?  I think there’s little doubt about the answers to these questions from an ethics point of view.   At a minimum, he should have disclosed to those who were opposing the Georgia law that he held the views as expressed in the Publius article and sought an ethics approval to participate in the Georgia matter.  He did neither and the decision ultimately issued by the section mirrored his opinions in the Publius piece and ignored the counsel of the vast majority of the section’s professional staff.

Second, unlike the judge in his analogy, von Spakovsky failed to make his previously published views known to anyone.  His views on voter ID were published anonymously under the name of Publius.

Von Spakovsky’s reason for why he published the article anonymously makes no sense.  He says: “…although I could have written the article under my own name with a disclaimer, I did not want to engage in any action that could possibly lead anyone to conclude that the views expressed were ‘the views of the agency of the United States.’”  Department of Justice policy frowns on anonymous publication.  Moreover, if this was truly von Spakovsky’s concern, he had a simple, effective alternative that would have protected the Department’s interests without shrouding himself in secrecy.  As von Spakovsky notes, federal regulations state quite clearly that when publishing an article, a writer must accompany it with a reasonably prominent disclaimer stating that the views expressed in the article do not necessarily reflect the views of the agency.  That disclaimer, of course, is needed, because a federal employee is expected to identify him/herself as the author of an article.  Instead, the Publius article contained a cryptic disclaimer—that the views expressed contained only the views of the author and not his employer, without identifying either one.  By publishing anonymously, von Spakovsky raised far more questions about just whose views he was expressing than he would have if he had followed regulations and published the article under his own name with a disclaimer.

It is also worth noting that von Spakovsky purports to be concerned about the appearance of impartiality by the Justice Department. Yet apparently, no such concerns arose later, when he was handling the Georgia case and failed to reveal his identity as the author of an article expressing strong views on the very issues he was about to review. 

Von Spakovsky now has admitted he never received written approval from the DOJ ethics officer to publish the article.  He claims he received oral approval.   It is highly unlikely that any ethics officer at DOJ gives oral opinions on ethics questions that are posed.  In my twenty-plus years of experience at DOJ and my years since leaving the Department, when I asked for an ethics opinion involving cases I wanted to pursue in private practice, every ethics opinion was given to me in writing, for my own professional protection as well as the institutional interests of the Department of Justice.  Interestingly, von Spakovsky fails to provide the name of the ethics officer who gave the alleged oral approval.

To support his position that publishing the article was acceptable, von Spakovsky cites a legal opinion from Walter Dellinger, a Clinton DOJ official.  The Dellinger opinion concerns the First Amendment right of United States Attorneys to testify before Congress.  It does not support the issuance of anonymous articles, nor does it deal with any matter relating to von Spakovsky.  More importantly, it does not at all address the important ethical considerations implicated by a government official who publishes his views on a matter that may (and, in fact, did) come before him, and the concerns that such publication would raise regarding that official’s impartiality, both perceived and actual.  This ethical concern, which was very much an issue regarding the Publius article, was simply not an issue in the Dellinger memorandum.

But even in von Spakovksky’s portrayal of the alleged oral approval, it does not appear he or Sheldon Bradshaw (von Spakovsky’s supervisor) informed the ethics officer that the article would be published anonymously. Mr. von Spakovsky states:

“I provided a draft of the entire article to the Principal Deputy Assistant Attorney General, Sheldon Bradshaw, to review, and the draft included the name of the    author, Publius. At Mr. Bradshaw’s suggestion after he reviewed the article, we called the designated Civil Rights Division ethics officer for advice on the rules governing publication of a legal article in a law review. We were advised orally that any employee of DOJ could publish an article as long as the employee followed 5 C.F.R. §2635.703(a) and §2635.807(b).”

To defend himself against charges that his publication of the article was inconsistent with DOJ ethics rules, von Spakovsky says that since “[he] did not use [his] title or provide any information that would lead the public to believe that the views expressed were ‘the views of the agency or the United States,’ [he] fully complied with the regulations and was able to publish the article.” If that’s the case, then why did von Spakovsky publish the article anonymously but include the disclaimer that the views expressed therein were those of the author and not necessarily those of his employer?  Perhaps the disclaimer was inserted because the ethics officer told him to do so ?  This suggests that the ethics officer never saw the article and thus did not know it would be published anonymously. 

The Alleged “Very General” Publius Article

Von Spakovsky also claims his views expressed in the Publius article on voter ID “recommended very generally that voter identification requirements be adopted to improve the integrity of elections from a public policy standpoint.”  (Letter at 3).  Really ?  Take these excerpts from the Publius article and you tell me, do these seem “very general” to you ?

On criticism of HAVA’s ID requirements, the Publius article states:

“There are two problems with this identification requirement: it applies to only a  small percentage of the electorate, one made even smaller by some states’ interpretation, and the types of documents that meet the identification requirements are too broad.

“Proving or verifying the voter’s identity should also apply across the board to all  voters when they register to vote and when they vote at the polling place, not just to new voters.”  (p. 287).

 At another point, von Spakovsky goes so far as to propose a specific amendment to HAVA. Regarding the claims of civil rights groups (like the ones who would later oppose Georgia’s voter ID bill), von Spakovsky’s Publius article states:         

“Contrary to arguments raised by civil rights organizations that [voter ID] requirements will reduce voter turnout by minority voters, there are no valid studies presenting objective data supporting such claims.  The objections are merely anecdotal and based on the unproven perception that minority groups such as African-Americans do not posses (sic) identification documents to the same degree as Caucasians (although there are no claims that minorities do not have the same opportunity to obtain such identification from state authorities).”  (p. 289)

The Publius article also states unequivocally that “there is no evidence to suggest” that imposing voter ID laws disenfranchise voters.  Of course, the Department of Justice objected to a Louisiana law that attempted to impose a voter ID law in that state because the measure would disenfranchise black voters.  Yet von Spakovsky says there’s “no evidence.”   Facts are irrelevant to someone with blind faith.  More to the point, the fact that von Spakovsky held such a strong absolutist position on voter ID laws as he was about to be one of the decisionmakers on the Georgia voter ID legislation just two months later would make a reasonable person question his impartiality. 

Hans von Spakovsky: Poll Taxes “Completely Irrelevant” to Minority Voting Rights

Von Spakovsky also misses the mark on the law when it comes to DOJ’s handling of the Georgia voter ID legislation.  He dismisses the fact that the Georgia voter ID law, which he played a key role in approving (along with one or two other DOJ attorneys, but over the objection of the remaining career attorneys), was later found to be unconstitutional by a federal judge.  According to von Spakovsky, the fact a federal judge later enjoined the Georgia voter ID law because it violated the 24^th amendment to the Constitution banning poll taxes (to get the ID required for voting, you had to purchase it) was “completely irrelevant” to DOJ’s analysis under Section 5.  This is ludicrous.  Apparently, von Spakovsky doesn’t remember that the poll tax was an outgrowth of the Jim Crow era.  The very basis for imposing it was to keep blacks from voting, precisely the claim made by those who were pressing the DOJ to block the law under the Voting Rights Act.  The federal judge who saw the voter ID bill as a poll tax had this to say about the law’s impact, an effect he felt justified imposing an injunction:

“Unfortunately, the 2006 Photo ID Act's Photo ID requirement is most likely to prevent Georgia's elderly, poor, and African-American voters from voting in the July 18, 2006, primary elections and subsequent run-off elections. The Court again observes that for those citizens, the character and magnitude of their injury - the loss of their right to vote - is undeniably demoralizing and extreme, as those citizens are likely to have no other realistic or effective means of protecting their rights.” Common Cause/Georgia v Billups, 439 F. Supp. 2d 1294, 1350 (N.D.Ga. 2006)

Thus, the federal court’s decision found that the law DOJ and von Spakovsky approved was likely to disadvantage blacks from voting and participating in elections.  That is a conclusion that would undeniably constitute retrogression under Section 5 (and thus provide a basis for denial of preclearance—exactly what the career staff claimed) because a bill “most likely” to disadvantage black voters will lead to a retrogression of black voting strength.  But von Spakovsky’s defense of voter ID laws is so ideologically driven that he dismisses such facts as “completely irrelevant.”  

It is, of course, true that at the time DOJ made its Georgia voter ID decision, the Department’s review standard (under a tortured reading of the Voting Rights Act by a 5-4 decision of the Supreme Court) was limited to retrogression.  Thus, even if a law violates the US Constitution, it is entitled to preclearance absent retrogression.  But given the history of the poll tax in the Deep South, and the likely adverse impact on black voters as later found by the trial judge, it is not “completely irrelevant” to a determination under Section 5 that the law being reviewed is a modern day poll tax.  Those facts are plainly relevant to the retrogression inquiry. 

The Skewed Process of DOJ Approval of the Georgia Voter ID law. 

The procedures DOJ used to approve the Georgia voter ID law were also highly suspect, which suggests something sinister was going on.  But you need to know how the process is supposed to work to see how bizarrely the Georgia matter was handled.  Normally, when DOJ reviews a law under the Voting Rights Act, the staff recommends an objection or an approval in a memorandum.  The staff memo is accompanied by a memo from the Voting Section chief who usually (but not always) concurs in the recommendation and includes a short statement of the reasons for concurrence.  These recommendations are then transmitted to the Assistant Attorney General of the Civil Rights Division for approval.  In the case of a recommended objection, either from the staff or the chief or both, the memo is sent to the Assistant Attorney General (and usually transmitted through a Deputy to the Assistant Attorney General).  If the decision is made to approve the law despite the recommended objection, the letter is signed by the chief of the Voting Section.[1] 

From what we now know, the career staff drafted a very lengthy detailed memorandum recommending an objection to the Georgia law.  That memo was dated August 25, 2005.  The next day, the State of Georgia sent to DOJ another set of data that the State believed showed the voter ID law was entitled to preclearance.  According to the letter sent by former DOJ attorneys and professionals to the Senate Rules Committee, von Spakovsky rushed the decision to approve the Georgia law in the face of the new detailed data sent by the State and prevented the staff from even reviewing the new data.  As former DOJ professional Toby Moore who worked on the Georgia voter ID matter explained in a letter to the Senate Rules Committee:

 “The recommendation to object to the law, detailed in a memo exceeding 50 pages, was submitted on August 25, 2005. The next day, Georgia submitted corrected  data on the number of individuals who had state-issued photo identification. The career review team was prevented by Mr. von Spakovsky from analyzing this data and incorporating the corrected data into their analysis. Instead, there was an unnecessary rush to judgment and the law was summarily precleared on August 26, the same day the corrected data had been submitted.”

Former DOJ career attorneys’ letter to Senate Rules Committee available here.   

Once again, von Spakovsky never addresses any of this, choosing instead to hide behind the claim of privilege when it comes to the role he played in the matter and the recommendation he made.  It seems clear that the only way the Senate (or the House in its oversight hearings of the Voting Section) is going to get to the bottom of this is to issue a subpoena to DOJ and force their hand.  The DOJ case for stonewalling is weak because, as noted above and in von Spakovsky’s own letter, DOJ has already waived the privilege in the Georgia matter anyway.  

One final point on the “merits” of whether the Georgia bill should have been approved.  In his letter, von Spakovsky cites the letter of Moschella to Senator Bond detailing the reasons why the data submitted by Georgia supported approval.  But a more recent study of those data, done by University of Georgia political science professor Charles Bullock (typically used as an expert witness by Republicans in voting discrimination cases), reached the opposite view. Professor Bullock’s study found that hundreds of thousands of voters in Georgia did not have the required voter ID, a disproportionate number of whom were poor, elderly and, most importantly for the Voting Rights Act review, minorities. In short, these data provided further evidentiary support for the objection to the Georgia voter ID bill that the professional staff had recommended. 

The Senate and the House have a duty to make sure that the voting rights of all Americans have not been undermined by the very federal officials who are charged with protecting those rights.  The Georgia voter ID debacle is a good example of how the rule of law was perverted to reach a preconceived result, one that von Spakovsky had espoused just two months earlier in his anonymous Publius article.  Von Spakovsky may believe that he can throw a lot of details at the Senate Rules Committee hoping that his shenanigans will get lost in the weeds and the war of words.  But when one extracts these cases one by one and looks at them, and then puts them together and sees the pattern that emerges, one conclusion is inescapable. 

Regardless of which side of the aisle the Senators are on, they will do our country a great disservice if they confirm von Spakovsky for a seat on the FEC.  And that disservice will not be diminished if Senators confirm von Spakovsky while holding their noses.   The right to vote, and the equal opportunity that all Americans must enjoy to exercise it, is far too important to let politics run roughshod over it. 

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[1] It is noteworthy that this was not the process followed in another controversial DOJ decision: the decision to approve, over unanimous staff objections, the Texas congressional map. In that matter, the letter of approval came from the Deputy Assistant Attorney General, not the Section chief. In fact, the Voting Section chief at the time informed me recently that he heard about the approval of the Texas map from Texas officials who called his office to let them know they had been informed of the decision (apparently by DOJ political appointees, such as von Spakovsky and Bradshaw).