Posted May 1, 2008 by J. Gerald Hebert

von Spakovsky Gets It Wrong…Yet Again

Hans von Spakovsky is in the news again.  The controversial nominee to the FEC was quoted this week as saying that the decision in the Indiana case was a complete vindication of the Bush Administration’s positions on voting rights.   Reporting on the Indiana voter ID case earlier this week, the NY Times reported: “‘This decision not only confirms the validity of photo ID laws, but it completely vindicates the Bush Justice Department and refutes those critics who claimed that the department somehow acted improperly when it approved Georgia’s photo ID law in 2005,’ said Hans A. von Spakovsky, a former member of the Federal election commission and a former Justice Department official.”

It’s quotes like this that actually made the case against von Spakovsky’s nomination to the FEC.  Simply put, the Indiana case had nothing to do with the Justice Department’s approval of the Georgia voter ID law in 2005.  Just yesterday, in fact, in a meeting at the Justice Department, the acting chief of the Voting Section told a large group of civil rights organizations that the Indiana voter ID decision would have no impact whatsoever on DOJ’s review of any voter ID laws being reviewed by the Department under the voting Rights Act. 

Here’s the situation.  In 2005, Georgia asked for Voting Rights Act approval of a new voter ID law.  The law was controversial in several respects, and actually required voters to pay a fee in order to get an ID (unlike the Indiana case where the ID was free if you had the right documentation).  The career professionals in the Voting Section urged that the Department of Justice object to the new law because it would harm minority voters in Georgia .  But Hans von Spakovsky (along with former chief of the Voting Section, John Tanner), nevertheless approved the law anyway.  That law was then challenged in the courts and struck down as an unconstitutional poll tax.  Georgia went back and amended the law, again DOJ approved it, and a legal challenge to the revised Georgia voter ID law is pending in the courts.  Von Spakovsky’s claim that the Georgia voter ID law he approved is still on the books is every bit as hollow and misleading as his current crowing that the Supreme Court’s Indiana voter ID law decision somehow vindicates him.

The Indiana voter ID case decided in the Supreme Court was not decided under the Voting Rights Act.  It was a decision that rejected a facial constitutional challenge to the Indiana law.  The challengers alleged that the Indiana law was unconstitutional because it burdened the fundamental right to vote.  The Court rejected that argument.  The decision really has no relevance to the narrow racial/ethnic issues that DOJ reviews when a state covered under the Voting Rights Act submits a voter ID law to the Department for approval.  The Department of Justice’s review is limited to two issues: 1) whether the state can prove that the new law was not enacted with a racially discriminatory intent; and 2) whether the new law will ma ke minority voters worse off than they were before (known as the retrogression standard).

Perhaps von Spakovsky claims that the Indiana voter ID decision “refutes those critics who claimed that the department somehow acted improperly when it approved Georgia’s photo ID law in 2005” because he really believes it.  If so, he is deluding himself.  If von Spakovsky believes that Senators are likely to take his word that it does so, he is fooling himself.  Senators and their staffs know full well that the Supreme Court’s decision had nothing to do with the issues that the Department faced when it reviewed the Georgia law under the Voting Rights Act.  

The record a ma ssed by von Spakovsky at DOJ is full of abuse and misuse of the voting rights laws.  I have written about them on this blog over the last year. 

It is time to resolve the stale ma te over the FEC and President Bush and Senate minority leader Mitch McConnell have a duty to do so.  Senator Reid has proposed a way to bring about a fully constituted FEC and it is worth considering.  But regardless of how the FEC impasse gets resolved, one thing is clear: von Spakovsky does not deserve confir ma tion as one of the six Commissioners.  He can keep telling anyone who will listen that he was vindicated by the recent Supreme Court voter ID decision, but he’s flat out wrong.  And if he believes the Senate is likely to confirm him given his record of vote suppression at DOJ, then perhaps that it is the biggest delusion of all.