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Standards, Tests, and Questions: The von Spakovsky Nomination

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I've been following with interest the debate between Gerry Hebert, Bob Bauer and Brad Smith on Hans von Spakovsky's nomination to the FEC (courtesy Rick Hasen Election Law blog coverage). Mr. Hebert urges the Senate Rules Committee to reject von Spakovsky's nomination on the well-documented grounds that he has used his position as Counsel to the Assistant Attorney General for Civil Rights to advance his partisan agenda at the expense of our nation's voting rights laws. Mr. Bauer responds by suggesting that Hebert has used stark differences of law and policy between him and von Spakovsky to infer, but not prove, personal failings on the part of the nominee that would render him unfit for the position. Hebert responds to one of Bauer's points-that he hadn't assessed von Spakovsky's performance at the FEC- by documenting instances where von Spakovsky demonstrated bias and disrespect towards the organizations appearing before him. Mr. Smith drops Bauer's respectful tone and rebukes Hebert for suggesting that his interpretation of the law is "the law" and von Spakovsky's is "wrong." The debate about whether von Spakovsky's overt partisanship should disqualify him from the FEC or whether that would merely punish him for holding unpopular, but legitimate, views on federal voting laws misses an important point. It's not just the von Spakovsky is a partisan, in fact, cynics might suggest that makes him well-qualified by the FEC, but that the positions he took before and during his time at the Justice Department worked to the disadvantage of minority voters. In other words, the issue is race, not partisanship. But before I make that point, it is worth advancing one of Mr. Hebert's points. Tests While Mr. Hebert is too experienced an attorney to need my help bolstering his case, I would suggest there is another test von Spakovsky has failed: whether he can impartially enforce the law regardless of his personal belief. With the respect to the National Voter Registration Act, he proved he could not. Representatives of Project Vote and Demos met with von Spakovsky, then-Voting Section Chief Joe Rich and trial attorney Chris Herren to present evidence that states were failing to comply with Section 7 of the NVRA. Section 7 requires state public assistance agencies to offer voter registration opportunities to clients and applicants. This is not an insignificant issue. Registrations declined from 2.6 million in 1995-1996 to just over 1 million in 2003-2004. Field observations and discussions with both election officials and social service providers easily revealed that declining registrations were the result of noncompliance rather than, say, high registration rates among public assistance-eligible populations. In my own conversations with election officials and government social service providers in a number of states, I readily elicited acknowledgement s of noncompliance. Von Spakovsky refused to pursue these concerns. Joe Rich tells me he asked von Spakovsky for authority to investigate states' compliance with Section 7 but von Spakovsky refused to respond. Justice Department officials later discouraged us from advocating for Section 7 enforcement, noting that all investigations had to be approved by the front office and that no such approval could expected on this matter. There's no doubt increased compliance would lead to increased registration among low-income Americans. McClatchy DC Bureau reporter Greg Gordon notes in an article on the subject that "After Tennessee settled the lawsuit, the state's public assistance agencies took 173,927 registration applications in 2003-04 - more than triple the number in the previous two-year period." Tennessee was one of only two Section 7 cases the Justice Department brought during the Bush administration; the other involved voter registration at a New York campus facility serving disabled students. Tennessee's results are consistent with our own experience. Demos, our partner in efforts to improve compliance with Section 7, reports on the results of reforms undertaken by North Carolina to improve public agency registration: "Eleven percent more voters were registered in the single month of February 2007 than in the entire year of 2005 in the 30 counties providing complete data for that month." There was, however, at least one NVRA provision­-or rather, sentence- that von Spakovsky found to his liking. Section 8 requires, among a number of other things, that states "conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters." USC 42 § 1973gg-6(4) In January 2005, von Spakovsky instructed Rich to compare state voter files with census information to determine which states may have more voters than the eligible voting age population, which presumably would indicate states that had failed to purge their voter rolls. (Interestingly, Karl Rove shared this concern in a speech before the Republican National Lawyers Association: "What is it -- five wards in the city of Milwaukee have more voters than adults? With all due respect to the City of Brotherly Love, Norcross Roanblank's (ph) home turf, I do not believe that 100 percent of the living adults in this city of Philadelphia are registered, which is what election statistics would lead you to believe. I mean, there are parts of Texas where we haven't been able to pull that thing off.") This project evolved into a "nationwide effort to assess compliance with Section 8" as John Tanner described it in a letter to North Carolina dated April 17, 2007, in which he demands a copy of the state voter file. (North Carolina's response is here.) But even here, partisan considerations prevailed. McClatchy's Greg Gordon reported that the Justice Department brought seven Section 8 cases against states whose chief election officials are Democrats while ignoring states with similar or worse voter registration files run by Republicans. Von Spakovsky's interest in voter purges is well-documented in his own writing and through his service on the advisory board of the Voting Integrity Project, an organization that has seems to have followed the life circle of its ideological successor, the American Center for Voting Rights. Von Spakovsky did not live up to his obligation to set aside his past partisan interest and enforce the law in an evenhanded manner; instead, in the case of the NVRA, he ignored overwhelming evidence that states weren't complying with one provision while taking vigorous measures to enforce another. It takes some effort to overlook the fact that von Spakovsky has turned the Justice Department's Voting Section into yet another Republican "ballot security" program. Standards But there is one issue that has so far gone unexamined in this nomination debate: race. Perhaps the debaters are too polite. It seems clear that what unites von Spakovsky's work-voter ID, the Texas redistricting plan, purges, voter fraud-is not just that it advances his political party's interests but that it does so by impeding minorities from voting and choosing their political representatives.
* Research is now showing that documentary voter ID requirements reduce minority turnout. An EAC report conducted by Rutgers University found that in the 2004 election in states requiring voters to present documentation establishing their identity at the polls, Latinos were 10 percent less likely to vote, Asian-Americans 8.5 percent less likely to vote and African Americans 5.7 percent less likely to vote. A subsequent study by two University of Georgia professors finds that African-Americans in Georgia disproportionately lack drivers' licenses or state ID cards and would therefore be disenfranchised at higher rates than Whites by Georgia's proposed voter ID law, which von Spakovsky approved over the objection of 5 out of 6 career staff. *The details of the Texas redistricting plan are by now well-known. Tom Delay engineered a redistricting plan that, according to a memo prepared by Voting Section career staff, "illegally diluted Black and Hispanic voting power in two Congressional districts" and "eliminated several other districts in which minorities had a substantial, though not necessarily decisive, influence in elections." Von Spakovsky and other political appointees approved the plan nonetheless. Republicans picked up 5 Congressional seats. *Voter purges, as I discussed above, were a particular interest of von Spakovsky's. As Joe Rich explains to Greg Gordon: "'Aggressive purging of the voter rolls tends to have a disproportionate impact on voters who move frequently, live in cities and have names that are more likely to be incorrectly entered into databases.'" "Primarily, he [Rich] said, this means poor, minority voters." *Voter fraud, as Barnard College Professor Lori Minnite has documented, is an accusation often leveled at minority or other historically disadvantaged groups in order to shape the electorate for partisan advantage. Voter registration drives, a particularly important part of Black politics, were often targeted. This proved to be the case as partisan operatives in 2004, and again in 2006, hurled accusations and filed frivolous lawsuits against organizations conducting voter registration drives in minority communities. Now, of course, it has become clear that even US Attorneys were not insulated from the politics of voter fraud. US Attorney David Iglesias was fired for not pursuing charges against a voter registration worker in New Mexico while Bradley Schlozman bent the rules to rush an indictment of four voter registration workers in Kansas City (MO) just days before the election, issuing news releases that were quickly parroted by the Republican Party.
The issue before the Senate Rules Committee is not where von Spakovsky stands on matters of law or policy but whether they will reward an individual whose career has been devoted to using state power to exclude people of color from the democratic process. Questions Regardless of whether von Spakovsky meets all the Committee's standards or passes all of its tests, he will certainly need to answer many questions. The Committee would benefit by probing to learn his role in removal of nine US attorneys, whether he helped facilitate the introduction of state voter ID bills, to what extend he pressured or cut deals with the EAC, and what his considerations were in enforcing the NVRA. And von Spakovsky has yet to answer for his decisions to pre-clear the Texas redistricting plan and the Georgia ID law. Finally, the Committee should seek to learn whether von Spakovsky was in communication with the White House and partisan operatives such as Mark (Thor) Hearne and Alex Vogel about voter fraud charges and investigations into voter registration organizations. Conclusion We are a society with clear divisions on issues of politics and policy. But one would hope that, 50 years after the Civil Rights movement, we could have a consensus that building a career on marginalizing minority voters is unacceptable. And for that reason, the Senate should carefully weigh von Spakovsky's nomination.


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