DOJ, White House pursued an aggressive legal effort to restrict voter turnoutReal Cities/McClathcy
By Greg Gordon McClatchy Newspapers
April 19, 2007
WASHINGTON - For six years, the Bush administration, aided by Justice Department political appointees, has pursued an aggressive legal effort to restrict voter turnout in key battleground states in ways that favor Republican political candidates.
The administration intensified its efforts last year as President Bush's popularity and Republican support eroded heading into a midterm battle for control of Congress, which the Democrats won.
Facing nationwide voter registration drives by Democratic-leaning groups, the administration alleged widespread election fraud and endorsed proposals for tougher state and federal voter identification laws. Presidential political adviser Karl Rove alluded to the strategy in April 2006 when he railed about voter fraud in a speech to the Republican National Lawyers Association.
Questions about the administration's campaign against alleged voter fraud have helped fuel the political tempest over the firings last year of eight U.S. attorneys, several of whom were ousted in part because they failed to bring voter fraud cases important to Republican politicians. Attorney General Alberto Gonzales could shed more light on the reasons for those firings when he appears Thursday before the Senate Judiciary Committee.
Civil rights advocates charge that the administration's policies were intended to disenfranchise hundreds of thousands of poor and minority voters who tend to support Democrats, and by filing state and federal lawsuits, civil rights groups have won court rulings blocking some of its actions.
Justice Department spokesperson Cynthia Magnuson called any allegation that the department has rolled back minority voting rights "fundamentally flawed."
She said the department has "a completely robust record when it comes to enforcing federal voting rights laws," citing its support last year for reauthorization of the 1965 Voting Rights Act and the filing of at least 20 suits to ensure that language services are available to non-English speaking voters.
The administration, however, has repeatedly invoked allegations of widespread voter fraud to justify tougher voter ID measures and other steps to restrict access to the ballot, even though research suggests that voter fraud is rare.
Since President Bush's first attorney general, John Ashcroft, a former Republican senator from Missouri, launched a "Ballot Access and Voter Integrity Initiative" in 2001, Justice Department political appointees have exhorted U.S. attorneys to prosecute voter fraud cases, and the department's Civil Rights Division has sought to roll back policies to protect minority voting rights.
On virtually every significant decision affecting election balloting since 2001, the division's Voting Rights Section has come down on the side of Republicans, notably in Florida, Michigan, Missouri, Ohio, Washington and other states where recent elections have been decided by narrow margins.
Joseph Rich, who left his job as chief of the section in 2005, said these events formed an unmistakable pattern.
"As more information becomes available about the administration's priority on combating alleged, but not well substantiated, voter fraud, the more apparent it is that its actions concerning voter ID laws are part of a partisan strategy to suppress the votes of poor and minority citizens," he said.
Former department lawyers, public records and other documents show that since Bush took office, political appointees in the Civil Rights Division have:
-Approved Georgia and Arizona laws that tightened voter ID requirements. A federal judge tossed out the Georgia law as an unconstitutional infringement on the rights of poor voters, and a federal appeals court signaled its objections to the Arizona law on similar grounds last fall, but that litigation was delayed by the U.S. Supreme Court until after the election.
-Issued advisory opinions that overstated a 2002 federal election law by asserting that it required states to disqualify new voting registrants if their identification didn't match that in computer databases, prompting at least three states to reject tens of thousands of applicants mistakenly.
-Done little to enforce a provision of the 1993 National Voter Registration Act that requires state public assistance agencies to register voters. The inaction has contributed to a 50 percent decline in annual registrations at those agencies, to 1 million from 2 million.
-Sued at least six states on grounds that they had too many people on their voter rolls. Some eligible voters were removed in the resulting purges.
The administration's presence was felt last year in at least one state legislative battle over voter identification.
In Missouri, where Republican Sen. Jim Talent was fighting to hang onto his seat and hold the U.S. Senate for the GOP, a Republican-backed photo ID requirement cleared the state House of Representatives by one vote in May 2006 after an intense lobbying effort in which backers alleged voter fraud in heavily Democratic St. Louis and Kansas City.
"The White House was heavily involved" in the effort to win passage, state Rep. Bryan Stevenson, the Republican floor leader, said in a telephone interview. Stevenson said he wasn't privy to the details of the White House efforts.
In late 2001, Ashcroft also hired three Republican political operatives to work in a secretive new unit in the division's Voting Rights Section. Rich said the unit, headed by unsuccessful Republican congressional candidate Mark Metcalf of Kentucky, bird-dogged the progress of the administration's Help America Vote Act (HAVA) and reviewed voting legislation in the states.
One member of the three-person political unit, former Georgia elections official and Republican activist Hans von Spakovsky, eventually took de facto control of the Voting Rights Section and used his position to advocate tougher voter ID laws, said former department lawyers who declined to be identified for fear of reprisals.
Those former employees said that Spakovsky helped state officials interpret the Help America Vote Act's confusing new minimum voter identification requirements. He also weighed in when the Voting Rights Act required department approval for any new ID law in 13 states with histories of racial discrimination.
In November 2004, Arizona residents passed Proposition 200, the toughest state voter ID law to date, which requires applicants to provide proof of citizenship and voters to produce a photo ID on Election Day. The Voting Rights Act state requires states to show that such laws wouldn't impede minorities from voting and gives the Justice Department 60 days to approve or oppose them.
Career voting rights specialists in the Justice Department soon discovered that more than 2,000 elderly Indians in Arizona lacked birth certificates, and they sought their superiors' approval to request more information from the state about other potential impacts on voters' rights. Spakovsky and Sheldon Bradshaw, the division's top deputy and a close friend of top Gonzales aide Kyle Sampson, a former Bush White House lawyer, denied the request, said one of the former department attorneys.
Later in 2005, career lawyers wrote a memo recommending that the department oppose a new Georgia law requiring voters to present a $20 photo ID. They argued that the requirement would discriminate against poor blacks, but that was quickly rejected.
Toby Moore, a political geographer who was one of five career civil rights specialists who reviewed the law, said the only dissenter to the recommendation was a newly hired lawyer, Joshua Rogers, a member of the National Republican Lawyers Association, a partisan organization interested in election issues.
Moore said that John Tanner, who'd just been appointed the new section chief, "doctored the memo ... reversing many of our findings," and used the occasion to change procedures so that he alone could make future recommendations.
A Georgia state judge, acting on a suit by civil rights groups, struck down the law as unconstitutional.
Moore, now the project manager for American University's Commission on Election Reform, said he believes that administration officials felt the Voting Rights Section was populated by "recalcitrant, embedded, liberal Democrats ... and they were determined to plant their DNA, change the institution and bring it to bear on behalf of Republican interests."
Spakovsky, who declined to be interviewed, also played a role in an expansive interpretation of the new federal election law.
The Help America Vote Act directed states to create central, computerized voter registration lists, to make a "reasonable effort" to remove ineligible names and to match new applicants' driver's licenses and Social Security numbers to those in state databases.
A failure to match wasn't grounds for rejection: Tiny variations such as the inclusion of a middle name or misplaced figure could prevent a match. But when confused state officials asked the Justice Department about the requirement, Spakovsky offered a harsh reading of the law.
In a letter on Sept. 8, 2003, he advised Judith Arnold, Maryland's counsel for election laws, that the application "must be denied" if an applicant's data failed to match that in driver's license and Social Security databases. He wrote that "the prudent course" would be to let those voters cast provisional ballots that would count only if their registration information were verified later.
His guidance was posted on the Voting Rights Section's Web site.
Some states, including California, Florida, Maryland, North Carolina, Pennsylvania, Texas, Virginia and Washington, began to reject applicants whose credentials didn't match.
The rejections prompted a lawsuit and protests by civil rights groups, which halted the practice.
The practice was "a barrier to voting," said Wendy Weiser, director of the Democracy Program at New York University's Brennan Center for Justice, whose suit in Washington state led to a court injunction.
Catherine Blinn, Washington state's assistant elections director, said in a sworn statement last year that her state was merely following guidance from the Justice Department and cited Spakovsky's letter to Maryland.
Just before the 2006 election, the California Secretary of State's Office rejected more than 20,000 registration applications, including 43 percent of Los Angeles County's new applicants. Those rejections were reversed before Election Day amid a public clamor.
Former Secretary of State Bruce McPherson, a moderate Republican, said in a phone interview that Justice Department officials reviewed his office's regulations and okayed the rejections, but gave no hint that they exceeded federal law.
The Bush administration also has shifted enforcement priorities under the National Voter Registration Act, known as the "Motor Voter" law because it provides for registration at state vehicle licensing and public assistance agencies.
In the last six years, the number of voters registered at state government agencies that provide services to the poor and disabled has been cut in half, to 1 million.
Instead of forcing lax agencies to increase registrations, the Justice Department sued at least six states and sent threatening enforcement letters to others requiring them to scour their election rolls for potentially ineligible voters.
Deputy Director Michael Slater of Project Vote, a national voter registration group, called this "selective enforcement. ... They've focused on purging of voters from registration rolls at the expense of enforcing provisions that encourage registration."
He said that Kentucky eliminated 4,000 people from its list of voters, but "did it poorly, and took off people who lived there and tried to vote."
One of the Justice Department suits was filed against Missouri's Democratic Secretary of State Robin Carnahan. Last week, U.S. District Judge Nanette Laughrey in Jefferson City, the capital, threw out the suit, noting that the motor voter law was intended to increase voter participation and eliminate fraud.
The judge wrote that the Justice Department had offered no evidence that anyone had been denied his right to vote as a result of deficiencies in voter rolls, and "nor has the United States shown that any voter fraud has occurred."
For more information on the Georgia litigation, as well as other major election law litigation: http://moritzlaw.osu.edu/electionlaw/litigation/common-cause.php