electionline Weekly

In Focus This Week

Former DOJ Civil Rights attorney becomes focus of FEC hearings
Committee has “serious concerns” about commissioner’s past

By Kat Zambon
electionline.org

While four nominees sat before the Senate Rules and Administration Committee as their nominations to the Federal Election Commission (FEC) were deliberated, the vast majority of the questions focused on one nominee, Hans von Spakovsky, former counsel to the assistant attorney general for Civil Rights Division in the U.S. Department of Justice (DOJ).

Specifically, some senators questioned von Spakovsky’s recent history at DOJ including his role in pre-clearing a photo-ID law in Georgia – later enjoined by a judge – and his power over the Voting Section as a Republican political appointee.

“Serious concerns have also been addressed to the committee with regard to one of the commissioner’s past conduct in the Department of Justice,” said Sen. Dianne Feinstein, D-Calif., the committee’s chair. “These concerns … they go to the very heart of what we have seen to be a politicization of the Justice Department under the current Administration,” she said.

While von Spakovsky has been working at the FEC for the past 18 months, he and two other commissioners at the FEC are serving terms as the result of recess appointments made in January 2006. None have yet faced Senate scrutiny, and continued inaction would mean von Spakovsky, Steven Walther and Robert Lenhard would be unable to serve after the summer recess as the presidential election fast approaches.

According to statute, the FEC needs affirmative votes from four out of six commissioners to move forward with legal and administrative issues so unless the Senate works quickly to confirm at least three new commissioners before their recess, “… the FEC would lack a majority of four votes to conduct essential business,” Feinstein explained.

The president would likely then appoint three new commissioners during the recess without the Senate’s advice or consent. “This situation could be a recipe for disaster as America moves into the 2008 presidential and congressional election cycle with record campaign spending,” she said.

Ranking member Sen. Robert Bennett, R-Utah, largely concurred with Feinstein and spoke about a run-in he had with the FEC as a freshman senator. Bennett was told that because of the partisanship at the commission, the three Democrats would vote in favor of an investigation while the three Republicans would vote against it.

 It left me with a fairly bad taste in my mouth about the way the FEC worked,” he said. As for the present batch, Bennett said all should be confirmed by the Senate.

For his part, von Spakovsky talked about his experience at the agency so far, and his desire to ensure the election process remains open to both candidates and campaigns.

“The biggest lesson I have learned in my time at the FEC is that the rules must be clear, straightforward and easy to understand,” von Spakovsky said. “We have to ensure that ordinary Americans who want to run for office or serve in a campaign are not discouraged from doing so because they cannot understand the rules governing campaigns.”

Citing his parents’ experiences fleeing Nazi Germany and Communist Russia before eventually meeting in a German refugee camp and coming to the United States., von Spakovsky said, “I have understood from a very early age how important it is to safeguard not just our right to vote but our ability to participate in the political process.”

His understanding was immediately questioned by Feinstein after the other nominees offered their opening statements. 

When asked about his decision to pre-clear a law requiring all voters to show photo ID at the polls in Georgia, von Spakovsky said, “I’ve seen many claims that I made this decision … I was not the decision maker,” adding that the decision was made by Brad Schlozman, currently the associate counsel to the director of the Executive Office for U.S. Attorneys and Alex Acosta when he was acting attorney general.

Six former DOJ attorneys disagreed with von Spakovsky’s self-characterization as a middle manager in a June 18 letter (a follow-up to a June 11 letter) to Feinstein and Bennett. The letter explained that von Spakovsky “assumed the role of de facto voting section chief replacing the career section chief” and assumed a role on the U.S. Election Assistance Commission (EAC) advisory board reserved for the section chief or his designee.

“During our combined tenure at the voting section, we have never seen a political appointee exercise this level of control over the day-to-day operations of the voting section,” the letter said, adding that the testimony given by Schlozman “reinforces the degree to which front office oversight of the section was delegated to” von Spakovsky.

In response to questions from Sen. Richard Durbin, D-Ill., about the law review article he authored in support of photo ID requirements for voters under the pseudonym “Publius,” von Spakovsky said he followed DOJ ethics rules forbidding employees from disclosing confidential information and from using their titles when writing for publications 

Justin Levitt, counsel to the Democracy Program at the Brennan Center for Justice agreed with those who signed the letter and said that von Spakovsky should have recused himself at a June 7 event held by the Brennan Center and the Lawyers’ Committee for Civil Rights Under Law. However, von Spakovsky “did not recuse himself from the Georgia case. In fact, he took the lead on it,” Levitt said.

Von Spakovsky said he did not recall complaints in 2004 that American Indians in Minnesota may be prevented from using tribal ID cards as identification at the polls and kept out of the voting booth. He also said he did not recall having a conversation with Joseph Rich, former chief of the voting section.

Rich has said that he was told to work with Minnesota’s Republican secretary of state and proceed with caution on the case, getting approval from superiors for all of his steps along the way. In Rich’s 37 years as a lawyer for DOJ’s civil rights division, including six years as chief of the voting section, “never had I ever been told to do that,” he said at the June 7 event.

Wendy Weiser, deputy director of the Brennan Center’s Democracy Program said that von Spakovsky promoted a “no match, no vote” standard for voter registration databases that would eliminate voters from the database if their entries don’t correspond perfectly with those in other databases. The “no match, no vote” standard has resulted in a 20-30 percent rejection rate of new registrants and been struck down by federal court.

In response to von Spakovsky’s inability to answer questions, Durbin commented that his memory lapses are apparently “an affliction to which many people in the Department of Justice suffer.”

Changing the subject, Bennett asked all of the nominees about their thoughts on voter ID laws and disagreed with the idea that “anyone who wants to clean up a voter roll … is part of a conspiracy to suppress the vote.”

“The civil rights division’s job is to enforce the National Voting Rights Act,” von Spakovsky said. “You have to engage in regular list maintenance,” which Congress reiterated with the database requirement in the Help America Vote Act, he said, “but you also have to be very clear that you’re following NVRA rules” and notify people when they’re being kicked off the list. 

However, Weiser challenged DOJ’s selective enforcement of NVRA under von Spakovsky, explaining that 0 percent of counties in New Jersey had more registered voters than the voting age population yet they were the subject of a lawsuit while 100 percent of counties in Alaska have more registered voters than the voting age population and has not been sued. “The purge lawsuits that were discussed, those were his initiatives in 2005,” Rich said of von Spakovsky.

“Let me get to the heart of the matter,” Feinstein said to von Spakovsky after some tense questioning from Durbin. “It’s very unusual for us to have a letter” signed by six career DOJ lawyers “that points out very clearly that you corrupted practices within the Department,” she said.

“Why should we vote to confirm you with this letter on the record?”

Von Spakovsky said that there are things in the letter that are simply inaccurate and wrong. “There are things that are claimed that are easily disprove-able,” he said and agreed to provide Feinstein with a point-by-point rebuttal to the assertions in the letter. 

Similarly, when von Spakovsky denied not filing lawsuits on behalf of minority voters, Durbin demanded proof. “I get your point and all I’m saying is get me the references to those cases,” he said.

Reading from a letter from former EAC commissioner Ray Martinez supporting von Spakovsky’s nomination to the FEC, Bennett defended von Spakovsky and reaffirmed his support for confirming all of the nominees. “I don’t want to break up a team … and I think we ought to confirm you all,” he said.

Additional DOJ investigations sought
Meanwhile, Sens. Edward Kennedy, D-Mass., and Sheldon Whitehouse, D-R.I., have asked attorney general Alberto Gonzales to investigate allegations that former interim U.S. attorney for Arkansas Tim Griffin engaged in an illegal voter suppression scheme to decrease turnout among minority voters according to The News-Sentinel.

Arkansas’s Democratic Sens. Blanche Lincoln and Mark Pryor both expressed their support for the investigation into whether Griffin was involved in caging efforts, in which letters marked “do not forward” are sent to minority voters and then used to challenge their provisional ballots, to suppress black voters in Jacksonville, Fla. before the 2004 elections, the Times Record reported.

Kennedy and Whitehouse said e-mails sent during Griffin’s time as an opposition researcher at the Republican National Committee show that he had knowledge of and supported a vote-caging plan. Documents also show that the Bush administration attempted to bypass Senate confirmation hearings on Griffin’s U.S. attorney nomination. Griffin resigned June 2 and has denied involvement in the caging efforts. “As I have said before, the allegations are malicious and false,” he said.