By Dan Eggen
Washington Post Staff Writer
Saturday, December 10, 2005
The Justice Department has barred staff attorneys from offering recommendations in major Voting Rights Act cases, marking a significant change in the procedures meant to insulate such decisions from politics, congressional aides and current and former employees familiar with the issue said.
Disclosure of the change comes amid growing public criticism of Justice Department decisions to approve Republican-engineered plans in Texas and Georgia that were found to hurt minority voters by career staff attorneys who analyzed the plans. Political appointees overruled staff findings in both cases.
The policy was implemented in the Georgia case, said a Justice employee who, like others interviewed, spoke on condition of anonymity because of fears of retaliation. A staff memo urged rejecting the state's plan to require photo identification at the polls because it would harm black voters.
But under the new policy, the recommendation was stripped out of that document and was not forwarded to higher officials in the Civil Rights Division, several sources familiar with the incident said.
The policy helps explain why the Justice Department has portrayed an Aug. 25 staff memo obtained by The Washington Post as an "early draft," even though it was dated one day before the department gave "preclearance," or approval, to the Georgia plan. The state's plan has since been halted on constitutional grounds by a federal judge who likened it to a Jim Crow-era poll tax.
The policy shift's outlines were first reported by the Dallas Morning News. Sources familiar with the change said it was implemented by John K. Tanner, the voting section chief, who is a career employee.
In response to a request to comment yesterday, Justice Department spokesman Eric Holland wrote in an e-mail: "The opinions and expertise of the career lawyers are valued and respected and continue to be an integral part of the internal deliberation process upon which the department heavily relies when making litigation decisions." He declined to elaborate.
Tensions within the voting section have been rising dramatically, culminating in an emotionally charged meeting last week in which Tanner criticized the quality of work done by staff members analyzing voting rights cases, numerous sources inside and outside the section said. Many employees were so angered that they boycotted the staff holiday party later in the week, the sources said.
Under Section 5 of the Voting Rights Act of 1965, Georgia, Texas and other states with a history of discriminatory election practices are required to receive approval from the Justice Department or a federal court for any changes to their voting systems. Section 5 prohibits changes that would be "retrogressive," or bring harm to, minority voters.
For decades, staff attorneys have made recommendations in Section 5 cases that have carried great weight within the department and that have been passed along to senior officials who make a final determination, former and current employees say.
Preventing staff members from making such recommendations is a significant departure and runs the risk of making the process appear more political, experts said.
"It's an attempt by the political hierarchy to insulate themselves from any accountability by essentially leaving it up to a chief, who's there at their whim," said Jon Greenbaum, who worked in the voting section from 1997 to 2003, and who is now director of the Voting Rights Project at the Lawyers' Committee for Civil Rights Under Law. "To me, it shows a fear of dealing with the legal issues in these cases."
Many congressional Democrats have sharply criticized the Civil Rights Division's performance, and Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) said this week that he is considering holding hearings on the Texas redistricting case. Sen. Edward M. Kennedy (D-Mass.) said in a statement yesterday: "America deserves better than a Civil Rights Division that puts the political agenda of those in power over the interests of the people its serves."
Attorney General Alberto R. Gonzales and other Justice officials have disputed such criticism, saying that politics play no role in civil rights decisions. In a letter to Specter this week, Assistant Attorney General William E. Moschella criticized The Post's coverage and said the department is aggressively enforcing a range of civil rights laws.
"From fair housing opportunities, equal access to the ballot box and criminal civil rights prosecutions to desegregation in America's schools and protection of the rights of the disabled, the division continues its noble mission with vigor," Moschella wrote.