Posted May 6, 2009 by J. Gerald Hebert

Facts: 1 Spakovsky Speculations: 0

When commentators don’t have any facts to back up what they’re saying, they often speculate what they believe the facts to be.  Speculation can sometimes be close to the truth, but is often flat out wrong—as is the case with Hans von Spakovsky’s latest post about Voting Rights Act Section 5 bailouts.

So here are some specific examples, with facts, not speculation, that show once again that Spakovsky’s commentary is loaded with sloppy misinformation and wildly inaccurate speculation about how the bailout provision has worked. 

Spakovsky criticizes Neal Katyal, Deputy Solicitor General of the United States, who responded to a question from Justice Scalia about the bailout provisions.  According to Spakovsky, “Katyal responded by claiming that the reason states and other political subdivisions don’t bail out is because they are happy being supervised by Justice and do not mind the federal intrusion into their sovereignty.”  That’s not exactly, of course, what Katyal said.  What Katyal said (quite accurately) was this: “what the testimony [before Congress] found was that States are able to bail out, but they don't, and this goes back to my point to Justice Kennedy, because today States are finding that preclearance actually serves their interests.…” Transcript at 37-38.

Mr. Katyal correctly recalled that the record before Congress was that certain states subject to the preclearance requirements of the Voting Rights Act did cite benefits to them going through the preclearance process.  In addition, the States of North Carolina, Arizona, California, Louisiana, Mississippi and New York (each subject, in whole or in part, to the preclearance requirements) made precisely this point in their amici brief before the Supreme Court, stating:

 “In contrast to the minimal burdens of Section 5, the preclearance process affords covered jurisdictions real and substantial benefits. First, the preclearance process encourages covered jurisdictions to consider the views of minority voters early in the process of making an election law change. This involvement has minimized racial friction in those communities. Second, the preclearance process has helped covered jurisdictions in identifying changes that do in fact have a discriminatory effect, thus allowing them to prevent implementation of discriminatory voting changes. Third, preclearance prevents costly litigation under Section 2. Preclearance provides an objective review of a State’s election law changes. That review process tends to diminish litigation challenging election law changes.”

Amici Brief of Covered Jurisdictions at 3.

Furthermore, Spakovsky states that it is “rubbish” to assert that covered states do not mind the federal intrusion into their sovereignty.  Why he personalizes the criticism against the Deputy SG is beyond me, since six of the covered states contradict Spakovsky on precisely this point in their amici brief: “The preclearance requirements of Section 5, as those requirements have been applied and administered, however, do not constitute a significant intrusion on States and their political subdivisions.”  Amici Brief of Covered Jurisdictions at 2.  Factual statements, not Spakovsky’s inaccurate speculation and hyperbole, should provide the basis for arguments about why States don’t bailout.   

As for his comments about the bailout process itself, Spakovsky simply couldn’t be more factually inaccurate.  He claims that “[b]ailout can be an extremely expensive ordeal, particularly for cash-strapped municipalities and counties.  Hiring a voting-law attorney to troop to Washington with a handful of expert witnesses can easily run into the tens and hundreds of thousands of dollars.”  Such statements by Spakovsky show that he fails to understand both the litigation process and the bailout process.  Of course, that certainly doesn’t stop him from speculating (inaccurately) about both.  

I have represented all seventeen of the jurisdictions that have obtained a bailout.  The cost of a bailout today is less than $5000.  A brief filed in the Supreme Court by jurisdictions that have bailed out cites this dollar figure.  Furthermore, in not a single bailout case have I hired an expert witness.  The way the bailout process usually proceeds is that the jurisdiction informs DOJ that it wants to bailout, provides DOJ with certain information and then DOJ attorneys conduct their own review and make a determination about bailout eligibility.  If DOJ finds that bailout eligibility has been established, then a consent decree is negotiated and drafted, and submitted to a three-judge court for approval. 

To my knowledge, Spakovsky has never represented any covered jurisdiction seeking a bailout, litigated a bailout case, or even reviewed the documents that bailed out jurisdictions submitted to DOJ or the courts to obtain one.  His failure to do so is likely the reason that he lacks a basic understanding of the simplicity of the process.  So he states without any proof that bailout is “an extremely expensive ordeal” when the reality is that those who have gone through the process say that it is affordable, and that “the entire bailout process for Amici Bailed Out Jurisdictions was smooth, transparent, and straightforward.”  Amici Brief for Bailed Out Jurisdictions at 15.

Spakovsky is also wrong not just about the bailout process, but also about the substantive requirements.  He falsely claims that “the Voting Rights Act’s prerequisites for bailout are extremely onerous.”  Actually, they are easily established by any jurisdiction with a clean record of nondiscrimination in the voting process.  That’s what those who have gone through the bailout process have said their actual experience has been.  Spakovsky also errs in claiming that a “single disgruntled plaintiff can force the jurisdiction to remain under the thumb of the Justice Department.”  The test is not disgruntlement.  Rather, if a plaintiff shows that a covered jurisdiction has violated the voting rights of its citizens on account of race, color, or language minority status within the last ten years, and proves it in a court of law, then that is a sufficiently serious occurrence so as to preclude bailout.  Once ten years elapses after the court judgment finding a proven violation of the Voting Rights Act, however, the jurisdiction is eligible to bailout again. 

Nor is it true, as Spakovsky states (and perhaps Justice Kennedy may believe) that “the most trivial slip-up renders a jurisdiction ineligible for bailout for ten years.”  Here again, a simple review of the Voting Rights Act and its legislative history is all that it takes to disprove this false claim.  As Congress made clear, “voting rights … violations would not bar bailout ‘if the plaintiff establishes that any such violations were trivial, were promptly corrected, and were not repeated.’” S. Rep. No. 97-417, at 53, reprinted in 1982 U.S.C.C.A.N. at 231.

Spakovsky also inaccurately speculates about the career attorneys at DOJ and their approach to bailout.  He opines that “[m]ost career lawyers within the Civil Rights Division detest bailouts for both ideological and practical reasons.”  That has not been my hands-on, real-world experience.  Career attorneys have encouraged me to “keep ‘em coming.”  And there has never been any obstacle placed in the path of any of my clients (covered jurisdictions seeking bailout).  Spakovsky fails to cite a single jurisdiction that has had any claimed obstacle in their bailout path.  Here again, unfounded speculation. 

Finally, though he doesn’t refer to me by name, Spakovsky makes the absurd claim that obstacles to bailout have not been placed in the path of any of the seventeen (17) local governments I have represented during bailout because I am “a former Voting Section attorney, and [my] old colleagues in that office are willing to be flexible for [my] clients.”  He fails to cite any specifics about this alleged flexibility, but in any event it shows his lack of knowledge.  Of the 17 jurisdictions I have represented in bailouts, in not a single instance was the DOJ attorney representing the government a former colleague of mine.  I left DOJ in 1994, 15 years ago, and while some of my former colleagues are still there, the bailout matters usually (but not always) were either assigned to more junior attorneys who arrived at DOJ after I had left or to one DOJ attorney (who also was not at DOJ when I was there) and who developed a special expertise in bailout matters. 

Here is a list of bailed out jurisdictions and the lawyer’s name who represented DOJ in the case, and in all instances, the DOJ attorney who handled the case and negotiated the bailout consent judgment with me was not a former DOJ colleague of mine:  Essex (McCormick); Augusta (Gomez); Greene (Keefe); Warren (Adelson); Harrisonburg (Walsh); Rockingham (Walsh); Shenandoah (Valenzuela); Frederick (Valenzuela); Page (McCormick); Washington (McCormick); Salem (McCormick); Middlesex (McCormick); Botetourt (McCormick); Amherst (Wright); Roanoke (Tucker).

As for the claim that “[o]ne of the deputy chiefs in the Voting Section proposed that a jurisdiction seeking bailout be required, for ten years after the federal court declared it free from coverage, to submit any change affecting voting to the local branch of the NAACP for approval!”  I obviously was not a party to the conversation, but given Spakovsky’s other errors of commission and omission, I find this statement highly questionable.  Here is the likely incident that he refers to.  A jurisdiction that was seeking bailout had received some expression of concern from the minority community that with a bailout and thus the absence of a preclearance process, the minority community might not be able to stay abreast of voting changes proposed in their community.  DOJ asked me if the jurisdiction bailing out would be willing to set up a process to inform the minority community of changes they were making after bailout.  The county was happy to do so and this allayed the concerns of the minority community leadership.  Apparently, political appointees at DOJ in the Bush Administration did not want to sign a document that would provide for the bailed out county to notify minority leaders of voting changes post-bailout.  So the county simply agreed to do so informally (and to my knowledge is still doing so).  This is appears to be yet another illustration of Spakovsky’s hyperbole and revisionist history.  

The disdain, and lack of respect and civility that Spakovsky (and his cohort Brad Schlozman) showed for the dedicated professionals in the Civil Rights Division is now a matter of public record and set forth in the DOJ’s Inspector General’s reports.  So it’s no wonder that Spakovsky attempts to disparage them and impugn their good work with false and vague claims.  Fortunately, there is a body of evidence and hard facts that contradict the inaccurate claims of Spakovsky.  That evidence accurately portrays what really happened at DOJ during preclearance and bailout.  Though the facts are terribly inconvenient for his conspiracy theories, they make clear that Spakovsky’s speculations and pronouncements are without any validity whatsoever.