Posted November 16, 2007 by J. Gerald Hebert

von Spakovsky, Obama, and the "Race Card"

            Earlier today, I testified before the House Administration committee’s Subcommittee on elections regarding implementation of the National Voter Registration Act, voter fraud issues, vote caging, and the politicization of the Justice Department’s voting rights enforcement (especially under former DOJ officials Hans von Spakovsky and Brad Schlozman). 

            When I returned to the office, I was shown an absolutely absurd and ill-informed piece published by The Weekly Standard by AEI fellow Ed Blum.  In his article, Blum claims that Senator Barack Obama’s opposition to the nomination of Hans von Spakovsky to the FEC is playing the race card.[1]  In his zeal to defend von Spakovsky--who has been roundly criticized by virtually every civil rights organization, former DOJ attorneys and professional staff, and a number of U.S. Senators-- Blum makes numerous errors and proves he is the one, not Senator Obama, who is seriously uninformed about the facts.

            Blum, apparently not a lawyer though he seems willing to venture inaccurate legal opinions, says that the Georgia photo ID law that von Spakovsky approved when he was at the Justice Department did not have a racially discriminatory effect.  Wrong. 

            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.”  Mr. Blum is long on false accusations and short on accurate facts. 

            Blum also strays from the truth when he says that the federal court did not find that the Georgia photo ID law was discriminatory.  Here’s what the court said:  “unfortunately, the Photo ID requirement is most likely to prevent Georgia’s elderly, poor, and African-American voters from voting.  For those citizens, the character and magnitude of their injury – the loss of their right to vote – is undeniably demoralizing and extreme….”  See Order of November 18, 2005, at p. 94. 

            Blum claims that Senator Obama’s criticism of von Spakovsky over the Georgia voter ID is wrong because that case shows von Spakovsky made the right decision, and the Justice Department lacked the legal authority to block the photo ID bill as an unconstitutional poll tax under the Voting Rights Act.  According to Mr. Blum, Senator Obama in misinformed and “clearly not fluent in the legal intricacies of the Voting Rights Act.”  First of all, for Mr. Blum, a non-lawyer former stockbroker, to rate an attorney’s fluency with the law seems patently absurd to me.  But in any case, it is Mr. Bum who fails to understand the law.  In the case of the Georgia photo ID bill, the record showed that the fee requirements imposed on voters would work a particular hardship on the minority voters.  Thus, the Georgia photo ID would have produced a retrogressive impact on minority voters, which was the standard for deciding whether to approve or object to the Georgia ID bill.  As DOJ career attorneys correctly urged, before being overturned by von Spakovsky, “we recommend that an objection be interposed to [the Georgia photo ID bill] on the ground that the state has failed to meet its burden of proof to demonstrate that it does not have the effect of retrogressing minority voting strength.  Memo of August 25, 2005 at p. 51.

            Blum also asserts that criticism of von Spakovsky is misplaced with regard to his approval of the Texas congressional re-redistricting plan engineered by disgraced former Congressman Tom DeLay.  According to Blum, “the courts proved that von Spakovsky made the right legal call.”  Wrong again, Mr. Blum.  The Justice Department career staff correctly concluded that Mr. Delay’s redistricting plan would harm the voting opportunities of Latinos in South Texas.  Von Spakovsky overruled them and the Supreme Court of the United States ulti mately found that the plan harmed the Latino voters, exactly in the way that the career staff had said it would.   

            It’s hard to see how the courts proved von Spakovsky correct.  He belittles the fact that only one Congressional District was thrown out by the High Court.  Close to 700,000 people lived in that one Congressional District and the Court found that the re-redistricting stripped hundreds of thousands of Latino voters of the right to elect the candidate of their choice.  But hey, to someone with Blum’s sensitivities to the rights of minority voters, what’s a few hundred thousand voters to a vote suppressor like von Spakovsky ? 

            Blum’s ignorance of the law shows up once again in another point he makes about the Texas plan.  According to Blum, the Supreme Court’s decision striking down the Latino district did so using “a part [of the Voting Rights Act (Section 2)] that von Spakovsky and the voting section have no jurisdiction to enforce.”  There are flaws with Blum’s claim and they are eerily similar to the evasive and misleading testimony delivered by von Spakovsky himself before the Senate Rules Committee.  First, von Spakovsky’s decision gave approval to the plan under Section 5 of the Voting rights Act, and the Justice Department’s approval of a plan under that Section is not subject to review in any court.  So the legal correctness of von Spakovsky’s decision to overrule the career staff was never reviewed in the courts.  Second, if von Spakovsky had not let partisan motives seep into his decision to approve the Texas map, and DOJ had blocked it under the Voting Rights Act, then Latino voters would not have had to shoulder the burden and expense of a multi-year lawsuit to overturn the Texas district and protect Latino voting rights.  That’s the whole purpose of Section 5 of the Voting Rights: to place the burden of time and inertia on the shoulders of those who perpetrate discrimination, not on the victims.  Third, contrary to Blum’s claim, the Justice Department does possess legal authority to enforce Section 2 of the Voting Rights Act, and even non-lawyers (but apparently not Mr. Blum) know that.  The Justice Department could have sued to enforce Section 2 of the Voting Rights Act in Texas, but it didn’t. 

            Blum never served in DOJ’s Civil Rights Division in any capacity, and it shows.  He has no idea of the hiring practices there over the years.  Instead, he simply repeats the old familiar canard about the DOJ being filled with liberals, without any evidence.  If he took the time to read statements by those who actually were involved in the hiring process at DOJ, he would find out that there was no litmus test for DOJ lawyers until this Administration.  Indeed, in the late 1990’ when the Clinton Administration was in power, the Civil Rights Division hired Rachel Paulose for a slot in the Voting Section.  She was sufficiently ideologically appealing to the Bush Justice Department that they promoted her to be the U.S. Attorney in Minnesota (where she is now embattled as the subject of numerous complaints).

[1] http://www.aei.org/publications/filter.all,pubID.27108/pub_detail.asp