By Dan Eggen
Washington Post Staff Writer
Monday, January 23, 2006
The Justice Department's voting section, a small and usually obscure unit that enforces the Voting Rights Act and other federal election laws, has been thrust into the center of a growing debate over recent departures and controversial decisions in the Civil Rights Division as a whole.
Many current and former lawyers in the section charge that senior officials have exerted undue political influence in many of the sensitive voting-rights cases the unit handles. Most of the department's major voting-related actions over the past five years have been beneficial to the GOP, they say, including two in Georgia, one in Mississippi and a Texas redistricting plan orchestrated by Rep. Tom DeLay (R) in 2003.
The section also has lost about a third of its three dozen lawyers over the past nine months. Those who remain have been barred from offering recommendations in major voting-rights cases and have little input in the section's decisions on hiring and policy.
"If the Department of Justice and the Civil Rights Division is viewed as political, there is no doubt that credibility is lost," former voting-section chief Joe Rich said at a recent panel discussion in Washington. He added: "The voting section is always subject to political pressure and tension. But I never thought it would come to this."
Attorney General Alberto R. Gonzales and his aides dispute such criticism and defend the department's actions in voting cases. "We're not going to politicize decisions within the department," he told reporters last month after The Washington Post had disclosed staff memoranda recommending objections to a Georgia voter-identification plan and to the Texas redistricting.
The 2005 Georgia case has been particularly controversial within the section. Staff members complain that higher-ranking Justice officials ignored serious problems with data supplied by the state in approving the plan, which would have required voters to carry photo identification.
Georgia provided Justice with information on Aug. 26 suggesting that tens of thousands of voters may not have driver's licenses or other identification required to vote, according to officials and records. That added to the concerns of a team of voting-section employees who had concluded that the Georgia plan would hurt black voters.
But higher-ranking officials disagreed, and approved the plan later that day. They said that as many as 200,000 of those without ID cards were felons and illegal immigrants and that they would not be eligible to vote anyway.
One of the officials involved in the decision was Hans von Spakovsky, a former head of the Fulton County GOP in Atlanta, who had long advocated a voter-identification law for the state and oversaw many voting issues at Justice. Justice spokesman Eric W. Holland said von Spakovsky's previous activities did not require a recusal and had no impact on his actions in the Georgia case.
Holland denied a request to interview von Spakovsky, saying that department policy "does not authorize the media to conduct interviews with staff attorneys." Von Spakovsky has since been named to the Federal Election Commission in a recess appointment by President Bush.
In written answers to questions from The Post, Holland called allegations of partisanship in the voting section "categorically untrue." He said the Bush administration has approved the vast majority of the approximately 3,000 redistricting plans it has reviewed, including many drawn up by Democrats.
Holland and other Justice officials also emphasize the Bush administration's aggressive enforcement of laws requiring foreign-language ballot information in districts where minorities make up a significant portion of the population. Since 2001, the division has filed 14 lawsuits to provide comprehensive language programs for minorities, including the first aimed at Filipino and Vietnamese voters, he said.
"We have undertaken the most vigorous enforcement of the language minority provisions of the Voting Rights Act in its history," Holland said.
Some lawyers who have recently left the Civil Rights Division, such as Rich at the Lawyers' Committee for Civil Rights Under Law and William Yeomans at the American Constitution Society, have taken the unusual step of publicly criticizing the way voting matters have been handled. Other former and current employees have discussed the controversy on the condition of anonymity for fear of retribution.
These critics say that the total number of redistricting cases approved under Bush means little because the section has always cleared the vast majority of the hundreds of plans it reviews every year.
The Bush administration has also initiated relatively few cases under Section 2, the main anti-discrimination provision of the Voting Rights Act, filing seven lawsuits over the past five years -- including the department's first reverse-discrimination complaint on behalf of white voters. The only case involving black voters was begun under the previous administration and formally filed by transitional leadership in early 2001.
By comparison, department records show, 14 Section 2 lawsuits were filed during the last two years of Bill Clinton's presidency alone.
Conflicts in the voting-rights arena at Justice are not new, particularly during Republican administrations, when liberal-leaning career lawyers often clash with more conservative political appointees, experts say. The conflicts have been further exacerbated by recent court rulings that have made it more difficult for Justice to challenge redistricting plans.
William Bradford Reynolds, the civil rights chief during the Reagan administration, opposed affirmative-action remedies and court-ordered busing -- and regularly battled with career lawyers in the division as a result. During the administration of George H.W. Bush, the division aggressively pushed for the creation of districts that were more than 60 percent black in a strategy designed to produce more solidly white and Republican districts in the South.
These districts were widely credited with boosting the GOP in the region during the 1994 elections.
Rich, who worked in the Civil Rights Division for 37 years, said the conflicts in the current administration are more severe than in earlier years. "I was there in the Reagan years, and this is worse," he said.
But Michael A. Carvin, a civil rights deputy under Reagan, said such allegations amount to "revisionist history." He contended that the voting section has long tilted to the left politically.
Carvin and other conservatives also say the opinions of career lawyers in the section frequently have been at odds with the courts, including a special panel in Texas that rejected challenges to the Republican-sponsored redistricting plan there. The Supreme Court has since agreed to hear the case.
"The notion that they are somehow neutral or somehow ideologically impartial is simply not supported by the evidence," Carvin said. "It hasn't been the politicos that were departing from the law or normal practice, but the voting-rights section."
In Mississippi in 2002, Justice political appointees rejected a recommendation from career lawyers to approve a redistricting plan favorable to Democrats. While Justice delayed issuing a final decision, a panel of three GOP federal judges approved a plan favorable to a Republican congressman.
The division has also issued unusually detailed legal opinions favoring Republicans in at least two states, contrary to what former staff members describe as a dictum to avoid unnecessary involvement in partisan disputes. The practice ended up embarrassing the department in Arizona in 2005, when Justice officials had to rescind a letter that wrongly endorsed the legality of a GOP bill limiting provisional ballots.
In Georgia, a federal judge eventually ruled against the voter identification plan on constitutional grounds, likening it to a poll tax from the Jim Crow era. The measure would have required voters to pay $20 for a special card if they did not have photo identification; Georgia Republicans are pushing ahead this year with a bill that does not charge a fee for the card.
Holland called the data in the case "very straightforward," and said it showed statistically that 100 percent of Georgians had identification and that no racial disparities were evident.
But an Aug. 25 staff memo that recommended opposing the plan disparaged the quality of the state's information and said that only limited conclusions could be drawn from it.
"They took all that data and willfully misread it," one source familiar with the case said. "They were only looking for statistics that would back up their view."
Mark Posner, a former longtime Civil Rights Division lawyer who teaches election law at American University, noted that Justice could have taken as many as 60 more days -- rather than seven hours -- to issue an opinion because of the new data.
Staff writer Thomas B. Edsall and researcher Julie Tate contributed to this report.