Posted March 13, 2008 by J. Gerald Hebert

"He Said, She Said" at the EAC

In the face of two directly contradictory accounts by two EAC Commissioners regarding significant outside pressure to suppress a report on voter fraud (possibly from the Bush White House or from Capitol Hill), the Inspector General punted.  The flawed and vaguely worded report issued by the IG involving a “Voter Fraud and Voter Intimidation Report” from the Election Assistance Commission raises more questions than it answers. 

The report itself should not be the final word on the subject and congressional hearings should be held to get to the bottom of this controversy.  The best way to square the contradictory accounts by the Commissioners is to have both answer questions under oath to see if their memories improve under such circumstances. 

The report not only fails to resolve these contradictions, it fails to come to a conclusion about the ultimate question of whether an EAC Commissioner was pressured into blocking the report.  When it comes to the matter of possible White House (or other) involvement, the language of the report turns vague, imprecise, and inconclusive.  The conclusions of the report that there was no White House or other outside pressure to alter the report’s language may well turn out to be true, but the IG report does not resolve the question of whether the White House or some other external force attempted to block the release of the report altogether. 

According to the IG’s submission letter, the report concludes that the investigation found that “no changes were made to the report due to improper reasons or political motivations.”  (Emphasis added).  What the report did conclude is that the entire Election Administration Commission project was “poorly conceived and managed” and “was set to fail from the beginning[.]”  While this is sad commentary on a federal agency, perhaps some of it is owed to the fact that the agency is in its infancy.  Time will tell if the agency, which has been underfunded and whose potentially important role has largely been minimized by Congress, will eventually serve the American public in a way that enhances our democracy, rather than undermines our confidence in it. 

Commissioners DiGregorio, Martinez, and Davidson:

EAC Commissioner Paul DeGregorio comes off in the report as a rather straight shooter (more on that later in this blog).  Too bad the same can’t be said of former EAC Commissioner Ray Martinez.  Martinez, a Democratic appointee to the EAC (now off the EAC), is prominently featured in a part of the report where the IG discusses possible outside influence in the report. 

According to the report, Martinez said that fellow Commissioner Donetta Davidson (a Republican appointee) came to him with tears in her eyes and told Martinez that she was being pressured not to release the voter fraud report.  This pressure apparently came around June 2006, the timing of which is meaningful.  This was around the same time that the White House and DOJ were putting pressure on U.S. Attorneys to help Republicans in the fall elections by pushing them to pursue voter fraud cases. 

Incredibly, Martinez told the IG that he does not know who was putting pressure on Davidson and did not ask her at the time (and still doesn’t know or care).  Is that really credible?  A fellow commissioner comes into your office on the verge of crying, she complains she is being pressured, you feel compassion for her and want to help her, and you don’t ask who is pressuring her?  Adding to the improbable nature of Martinez’s claim is that fact that he actually changed course in his position on releasing the consultants’ voter fraud report after he was visited by Davidson: where he once had pushed for the report’s release, he now “backed off.”  

Also, the report states “ Martinez denied having direct knowledge that his impromptu conversation with Davidson took place because of a phone call from the White House to Davidson[.]”  Does this mean that Davidson told Martinez she had a conversation with the White House, but since Martinez wasn’t a party to the call he has no “direct knowledge” of it?   Maybe Martinez was called by a U.S. Senator or House Member, and not someone from the White House.  When Martinez says in the report that Davidson told him she was getting pressure but says he doesn’t know from whom she was getting it, does that mean that she said the White House or some congressional office had called her but she didn’t name the specific person who had called her?  The language used in the report intimates that Martinez has some knowledge or information about a possible White House call to Davidson (albeit second hand), but the report doesn’t nail down this point.   

Where the IG’s report gets especially sloppy on this subject is in discussing an interview with an EAC attorney who Martinez reportedly told about the pressure being put on Davidson.  We don’t know from reading the IG report if Martinez told the EAC attorney that Davidson was being pressured “by the White House”.  This is because the IG report uses vague and imprecise language.  It does not state unequivocally, for example, that Martinez told the EAC attorney that Davidson told him she was being pressured by the White House.  Nor does it say if Martinez told the attorney anything about White House pressure or even used the words “White House.”  The report instead simply says the EAC attorney didn’t have personal knowledge of the incident, knew only what Martinez told him, that he personally didn’t know the source of the pressure on Davidson, what form it took, or if it could have come from some place other than the White House.  That can all still be true, even if Martinez told the unnamed attorney that the White House (or someone else) was pressuring Davidson, but the IG report doesn’t provide the specifics about what Martinez actually told the EAC attorney.  Again, pretty sloppy IG reporting.

To make matters worse, the IG report says that “[d]uring our investigation, information was received that suggested that Commissioner Davidson had received outside pressure not to release the consultants’ [voter fraud] report.”  The IG’s report does say that “[specifically, the allegation was that an EAC attorney was aware that Commissioner Donetta Davidson had received pressure from the White House to not release the consultants’ report.”  Unfortunately, the IG report fails to identify the source of this information or allegation.

Davidson flatly contradicts Commissioner Martinez who she makes a point of saying is trustworthy.  She states that she never went to Martinez to complain about pressure to block the Wang-Sorobrov voter fraud report.  She says instead that she went to Martinez to complain about a voter ID report she did not agree with, and admitted to getting emotional over it.  Emotional after reading a voter ID report?  Even someone as passionate as I am about voting rights finds it hard to believe that an EAC Commissioner would get so emotional after reviewing a draft report on voter ID that they would go to another commissioner’s office with tears in their eyes over it.

One final point on Martinez’s comments to the IG investigators.  He says that after the emotional meeting with Davidson, he “believed the pressure [being put on Davidson] came from the same constituency of election officials that Davidson…brought to the position[.]”  I assume this means Republican officials.  But why doesn’t Martinez just say so?  Also, why doesn’t the IG state what the basis was for Martinez holding this belief?  Because the IG never asked?  If so, again, incompleteness and sloppy reporting. 

In another instance of sloppiness, although the IG report says that the contracts with Tova Wang and Job Serebrov are attached to the report, they have not been posted by the EAC.  I make this observation because a number of the comments made in the report go to the issue of whether Ms. Wang and Mr. Serebrov reasonably expected their report to be published.  If their contracts were silent on this issue, it is reasonable for a consultant hired to prepare a report for a federal agency to assume that the report to a public agency will be made public.  In retrospect, the agency could have posted the report on its website, solicited comments on it from the general public, included a disclaimer that the report does not necessarily reflect the views of the agency, and then issued a final report of its own after receiving public comments.  Further, even if the EAC staff felt it appropriate to edit the report, wouldn’t it make sense for agency employees to sit down with the consultants and offer suggested edits rather than simply to edit the report without telling the consultants and then issuing it under the consultants’ names? Indeed a terrific policy paper on this very topic has been prepared by the Brennan Center.  

Hans von Spakovsky Redux:

The IG’s report also provides some additional details about the efforts of Hans von Spakovsky to inject partisan politics into a federal agency’s work.  According to the report, one of the Republican appointees to the EAC (Paul DeGregorio) stated that von Spakovsky complained to him that the Republican consultant (Job Serebrov) hired to prepare the voter fraud report “was not an adequate Republican foil to [Tova] Wang’s liberalism and aggressive personality.”  DeGregorio added later in the report some particularly damning comments about von Spakovsky and his lobbying of EAC Commissioners: “too many of von Spakovsky’s decision are clouded by his partisan thinking,” said DeGregorio in the report, adding that “von Spakovsky thought DeGregorio should use his position [on the  EAC Commission] to advance the Republican Party’s agenda.”  DeGregorio concluded: “von Spakovsky certainly tried to influence [me]. There’s no question about that.” 

Martinez says that von Spakovsky had no undue or improper influence over the EAC in preparation of the report.  What we now know though is that von Spakovsky attempted to get the Republican consultant replaced by a more aggressive Republican (to offset the perceived aggressiveness Tova Wang) and that von Spakovsky urged DiGregorio to use his position at the EAC to promote the Republican Party agenda. Martinez even goes so far as to say that he saw “no problem” with von Spakovsky lobbying for political purposes.”  To Ray Martinez, who wrote a letter of support for von Spakovsky’s nomination to the FEC, that apparently doesn’t rise to the level of improper influence.   But to many of us, injecting raw politics and using political party platforms as the sole guide for federal agency decisionmaking is improper, and is why Congress should not let the flawed IG report be the last word.   

The IG report leaves a number of questions unanswered.  There is nothing in the report to suggest that anyone outside of EAC edited the report prepared by Wang and Serebrov.  The report does show at best a flawed process and mishandling by the EAC.  But the big fundamental question left unanswered is whether there was an effort from sources outside the EAC to block release of the report itself.  There is contradictory evidence on that score, as noted above. 

The public deserves to know if external pressure was brought to bear on the EAC to alter, delay or suppress the report.  It also deserves to get a full accounting of why a federal agency, to use the IG’s words, funded a project that was ill-conceived and mismanaged.  The IG’s report doesn’t fully answer these questions, but congressional hearings should produce answers.  That is especially important with an agency like the EAC, which will spend significant taxpayer dollars on projects in the years ahead that involve elections and ultimately the foundations of our democracy.