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Posted October 25, 2007 by J. Gerald Hebert

House Hearing Will Spell More Trouble for von Spakovsky

Next week, the House Judiciary Committee’s Subcommittee On The Constitution, Civil Rights, And Civil Liberties will conduct oversight hearings into the operations of the Voting Section of the Civil Rights Division at the Justice Department.  One of the scheduled witnesses at the hearing will be the current chief of the Voting Section, John Tanner, who has served in that post since 2005.  Mr. Tanner recently made news with controversial remarks about the effect of voter ID laws on racial and ethnic minorities, and his remarks are sure to invite some sharp questioning.  

But there is another angle to Mr. Tanner’s upcoming testimony that should be explored and that involves the Justice Department’s decision in 2005 to give Voting Rights Act approval to a Georgia voter ID law.  That decision, one of the first made by John Tanner as chief, was controversial for several reasons.  First, the decision to approve the Georgia ID law was made despite recommendations from four career Justice Department staff members who recommended that the new law be disapproved.  Their concerns, backed up by over 50 pages of single-spaced analysis, were simply that the State of Georgia had not shown that the new voter ID law would not be particularly harmful to racial and ethnic minority voters.  Second, despite Justice Department approval, the new law was later struck down by a federal judge who declared it a modern day poll tax.  Third, it has been reported that the four career staffers who made the recommendation to block the Georgia law were later criticized for their analysis in front of other colleagues—a criticism that the staff members vehemently denied when confronted with it.

Mr. Tanner went out of his way in a recent speech in California to say that the decision to approve the Georgia law was his decision.  That may be technically true, but it is not the full story, and Mr. Tanner should not be singled out for blame or take sole responsibility for it. 

Under DOJ procedures, a decision to approve a voting change is almost always made at the Section Chief level.  But in cases where the voting change at issue is a highly controversial or high profile one, the Voting Section chief consults closely with his or her supervisors.  The reason for this is that decisions involving controversial changes invariable result in press stories, and higher-ups at the Justice department prefer knowing about such matters before they read about them in the newspapers. 

Mr. Tanner followed this practice of consulting with his supervisors in reviewing the Georgia voter ID matter, and the higher-ups were closely consulted and approved his recommendation and decision to approve the law (despite staff recommendations to the contrary).  Mr. Tanner’s supervisor at the time was Hans von Spakovsky, now a nominee to the Federal Election Commission, who was intimately involved in the decision to approve the Georgia law.  Former Voting Section staffer Toby Moore, who is also expected to testify at the oversight hearing next week, worked on the Georgia voter ID law while at Justice, and he recently told me that von Spakovsky was deeply involved in the decision to approve the Georgia voter ID law.  Groups opposed to the Georgia voter ID law, including the ACLU’s Voting Rights Project in Atlanta, confirmed that von Spakovsky attended a meeting they had with DOJ officials urging the Department of Justice to object to the Georgia voter ID bill.  Indeed, when attorneys with the ACLU’s Voting Rights Project later learned that von Spakovsky had previously published a law review article anonymously defending voter ID laws like Georgia’s but had failed to disclose his preconceived views to them during the DOJ review process or their meeting with him, they wrote to DOJ expressing concern that von Spakovsky’s failure to make such a disclosure breached ethical rules/duties.

What seems painfully obvious now to nearly everyone is that the Voting Section’s decision to approve the Georgia voter ID bill in 2005 was wrong, both factually and legally.  Consider what we now know about that decision.  The State of Georgia provided the Department of Justice with statistics that the State claimed showed the new ID requirement would not harm minority voters.  The State bore the burden of proof to show that the Georgia law would not adversely impact minority voters before it could get the new law approved.  During the course of DOJ’s review, the State advised the Department that its previously submitted statistics on the effect of the new law were flawed.  The State provided new data, but the staff members in the Voting Section were not given an opportunity to review these data, according to the career staff who worked on the Georgia matter, including Mr. Moore. 

Even though the Department of Justice could have taken the time to review and analyze these data, as it normally would do, the letter approving the Georgia voter ID law was transmitted to Georgia officials within 24 hours of the new data being submitted.  Why was there such a rush?  When Messrs. Moore and Tanner testify next week on this matter, this question will likely be explored.  The Judiciary Committee should require the Justice Department to produce all e-mails sent to Mr. Tanner by von Spakovsky during the pendency of the Georgia voter ID law.  That way, the Committee can see the almost hour by hour involvement that Voting Section staff say von Spakovsky played in the Georgia decision, particularly during the last few days that led to the ill-conceived decision to approve the law. 

As if all this weren’t bad enough, there is more.  The federal judge who later enjoined the Georgia voter ID law, declaring it a modern day poll tax, noted that “the photo ID requirement is most likely to prevent Georgia’s elderly, poor and African American voters from voting.”  Earlier this year, two Georgia political scientists (Hood and Bullock), one of whom (Bullock) has served as in expert witness/consultant in Voting Rights Act cases, analyzed the Georgia law and made findings that “Registered voters are significantly less likely to possess a driver’s license if they are from minority groups, especially blacks and Hispanics, and if they are older.”

So as the House Judiciary Committee takes testimony next week, Members should be mindful of von Spakovsky’s heavy involvement in many of the decisions made at Justice that undermined minority voting rights.  Mr. Tanner is in a position to talk about the politicization of the Voting Section under von Spakovsky, and he should do so.

The former chief of the Section, Joe Rich, who watched von Spakovsky take over the role of de facto Voting Section  chief, has written a detailed account of von Spakovsky’s numerous misdeeds during his tenure there.  No oversight hearing into the operation of the Voting Section under the Bush Administration would be complete without fully exploring the nature and extent to which minority voting rights were trampled upon as von Spakovsky manipulated the Section’s resources to benefit the GOP.  We shall see if the Judiciary Committee, which heard devastating testimony this week about the Department of Justice’s politically motivated criminal prosecutions, is up to the task. 

Based on the facts that have emerged already, many Senators have voiced opposition to von Spakovsky’s nomination to the Federal Election Commission.  Imagine the sordid details that will surely come to light if DOJ is forced to produce the behind the scenes documents and e-mails that show how von Spakovsky used his Government post to politicize our country’s most important and effective civil rights law, the Voting Rights Act.  

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