Suppressing the Vote

Thanks to rigorous work by the Brennan Center for Justice and the Lawyers' Committee for Civil Rights Under Law, it is clear that the US. Attorney scandal – as outrageous as it is on its own – is part of a much broader effort by the Bush Administration to use government institutions for partisan gain.

In their report – Using Justice to Suppress the Vote – the two pro-democracy, pro-civil rights organizations demonstrate that the Administration used federal agencies charged with protecting voters' rights to promote voter suppression, influence voting rules, and gain advantage in battleground states. This was achieved through a four-pronged strategy: dismantling the infrastructure at the Department of Justice; fomenting a fear of rampant voter fraud (which has subsequently been disproved – it actually occurs "statistically…about as often as death by lightning strike"); politically motivated prosecutions; and restricting registration and voting.

The actions of two Bush appointees who recently testified on the Hill – Hans von Spakovsky and Bradley Schlozman– are illustrative of the effort to restrict voter turnout in a manner that favors Republican candidates. In January 2006, von Spakovsky was given a recess appointment to the Federal Election Commission (the agency charged with enforcing the Federal Election Campaign Act – he's now having one helluva time in his confirmation hearing). Prior to that, he worked for three years as the appointed Counsel to the Assistant Attorney General in the Civil Rights Division at Justice.

In a letter to the Senate Committee on Rules and Administration, six former career attorneys – who worked under both Republican and Democratic Administrations spanning 36 years – wrote that von Spakovsky "played a major role in… inject[ing] partisan political factors into decision-making on enforcement matters and into the hiring process…. Moreover, he was the point person for undermining the Civil Rights Division's mandate to protect voting rights." The career attorneys say that von Spakovsky "assumed primary responsibility for the day to day operation of the Voting Section" and was handed "the authority to usurp many of the responsibilities of the career section chief…."

Von Spakovsky played a key role in fomenting a fear of voter fraud – even writing under the pseudonym "Publius" in June 2005 to "warn of its dangers" and support restrictive photo ID requirements. He asserted that there was "no evidence" that such laws disproportionately disenfranchise minority voters but there was indeed a widespread problem of ineligible voters influencing election outcomes.

At the same time – despite his article and having served on the Fulton County Board of Election – von Spakovsky saw no conflict of interest in taking the lead on reviewing Georgia's proposed photo ID requirement as the DOJ is required to do. He proceeded to approve the law, overruling the career staff's near unanimous decision that it violated the Voting Rights Act by weakening minority voting strength. Both the state and federal courts later ruled the law unconstitutional.

According to the letter from the six career attorneys the aftermath of the Georgia decision was "at least as disturbing as the decision-making process." The Deputy Chief who led the career team's review – a 28-year Civil Rights Division attorney with 20 years in the Voting Section – was involuntarily transferred without explanation. Three others left the Voting Section "after enduring criticism and retaliation." The single attorney who did not recommend against the Georgia ID law – a new attorney – "received a cash award." In all, over 55 percent of the attorneys have left the Voting Section since 2005.

Other stellar moments in the von Spakovsky tenure: overruling a unanimous recommendation from career attorneys against Tom DeLay's redistricting plan (the Supreme Court later ruled, "In essence the State took away the Latinos' opportunity because Latinos were about to exercise it."); overruling career staff who had sought more information regarding the impact of a new Arizona voter ID law on minorities (in the end, it blocked tens of thousands of voters from casting a ballot); pressuring a Republican commissioner, Paul DeGregorio, at the Election Assistance Commission to rescind a letter stating that Arizona had to accept federal voter registration forms that did not include proof of citizenship (DeGregorio e-mailed von Spakovsky asking if this was "an attempt by you to put pressure on me – and the EAC? If so, I do not appreciate it"; also, a proposed "deal" by von Spakovsky to have the Civil Rights Department reconsider its position on provisional ballots in exchange for cooperation on the new Arizona law garnered this response from DeGregorio, "I do not agree to ‘deals,' especially when it comes to interpretation of the law."); advocating for keeping eligible citizens off of the voter rolls if registration information can't be verified by a "computer match" (as inevitably will occur due to typos and other mistakes by election officials; when Washington State followed von Spakovsky's counsel the courts struck the law down); pushing voter purges in battleground states (the kind that contributed to the Florida 2000 debacle) before the 2006 election instead of enforcing federal requirements that states make voter registration more accessible; causing the DOJ to take the position that voters cannot go to court to enforce their rights under the Help America Vote Act (the first time the Voting Section took a position against voters' right to go to court) – this position was rejected by every federal court which considered it.

"Mr. von Spakovsky was central to the administration's pursuit of strategies that had the effect of suppressing the minority vote," said Joseph Rich, a former Justice Department Chief of the Voting Section.

Another key player in the politicization of the DOJ for partisan gain is Bradley Schlozman. His efforts to dismantle the political infrastructure at Justice were reported on the front page of the Washington Post this week. Schlozman was named Deputy Assistant Attorney General for Civil Rights in 2003 and, in 2005, was appointed Acting Assistant Attorney General for Civil Rights.

Schlozman oversaw the historic shift of the Civil Rights Division away from enforcing federal civil rights protections to ensuring a staff and an agenda that would further partisan goals. Career hiring and personnel decisions were removed from career managers and given to political appointees – negating a policy which had been implemented during the Eisenhower Administration in order to insulate civil servants from political gamesmanship. The mass exodus from the Voting Section occurred under Schlozman's watch, and seven career managers were removed from the Civil Rights Division. Career supervisors were ordered to alter performance evaluations – improving those for individuals who were supportive of Bush Administration positions, and weakening evaluations for others who failed to toe the line. Experienced civil rights attorneys were removed, transferred, or denied cases in favor of new hires who lacked experience but had the right conservative credentials.

In fact, one current lawyer speaking to the Post under condition of anonymity said of Schlozman's recent testimony to the Senate Judiciary Committee, "When he said he didn't engage in political hiring, most of us thought that was just laughable. Everything Schlozman did was political. And he said so."

Schlozman was involved in both the Texas redistricting and Georgia ID decisions to overrule career staff, and the personnel fallout that followed. But most disturbing was the use of a provision buried in the Patriot Act that allowed Schlozman to serve as an interim US Attorney in the Western District of Missouri without a Senate confirmation hearing. Schlozman replaced Todd Graves who had resisted a purge of voters from the rolls as Schlozman had urged. Once he was installed, Schlozman also brought four high-profile indictments against individuals working in low-income and minority communities for voter registration fraud just one week prior to the tight Senate contest between Republican incumbent Jim Talent and then-Democratic challenger Claire McCaskill. The result was bad press for McCaskill and other Democrats. Schlozman's decision was contrary to a longstanding, written Department of Justice Guidance stating: "Federal prosecutors and investigators should be extremely careful to not conduct overt investigations during the pre-election period or while the election is underway." (Schlozman recently had to change his initial testimony in which he claimed "that he ‘acted at the direction of the director of the Election Crimes Branch in the Public Integrity Section' in filing the indictments. This initial testimony "infuriated public integrity attorneys who… pride themselves on staying out of political disputes.")

In a recent op-ed, Rich wrote, "For decades prior to this administration, the Justice Department had successfully kept politics out of its law enforcement decisions. Hopefully, the spotlight on this misconduct will begin the process of restoring dignity and nonpartisanship to federal law enforcement."

So how can dignity and nonpartisanship be restored and even strengthened?

The Brennan Center for Justice and the Lawyers' Committee for Civil Rights Under Law suggest that von Spakovsky be rejected for an FEC position that – as Senator Barack Obama ☼ wrote – calls for a "record of nonpartisanship, fairness and judgment necessary to enforce election laws." Congress should also exhaustively investigate any government efforts to propagate fear of voter fraud, restrict voting rights, and suppress the vote. Finally, Congress should advance a truly nonpartisan fair elections agenda, including: the banning of inaccurate and partisan pre-election purges of the voter rolls; blocking discriminatory voter ID laws that could disenfranchise millions of voters; and enacting legislation that protects voters and electoral integrity such as the Deceptive Practices and Voter Intimidation Act, Count Every Vote Act, and Voter Confidence and Increased Accessibility Act .

Kudos to these two important civil rights organizations for recognizing the magnitude of this scandal and offering a plan to ensure that it doesn't happen again.

originally posted at http://www.thenation.com/blogs/edcut?bid=7&pid=207819