The Justice Department has a longstanding policy regarding the prosecution of election law or voter fraud cases: the closer to the election it gets, the more cautious prosecutors should be about bringing indictments. The reason is simple. Bringing an indictment close to the election can intimidate minority voters, affect voter turnout and potentially even influence the result of the election.
But Bradley Schlozman -- the former U.S. Attorney for Kansas City and controversial
deputy head at the Civil Rights Division -- broke with the policy. Not only that, but there's evidence that he rushed four indictments to land just before last November's election.
Indeed, timing aside, even Schlozman's decision to pursue the cases at all is questionable in light of established Justice Department practice. Although trumpeted as cases of voter fraud, the cases alleged only registration fraud, and there's no evidence that those registrations were intended to result in actual fraudulent votes. For that reason, other U.S. attorneys have passed on pursuing similar prosecutions. But Schlozman, who'd worked to push voter I.D. laws while in the Civil Rights Division, leapt at the opportunity.
The more you learn about Schlozman's decision to indict four voter registration recruiters for the Association of Community Organizations for Reform Now (ACORN) five days before last year's election -- Missouri's Jim Talent was battling Claire McCaskill in one of the closest Senate races in the country --, the worse it looks.
News coverage of the indictments tended to buttress the notion that liberal groups like ACORN were conspiring to steal the election. The indictments were covered by Fox News (where a Kansas City election official was quoted as saying that it was "the worst case of registration abuse in the last quarter century"), as well as the AP, CNN, and other nationwide outlets. Schlozman announced in a statement that "This national investigation is very much ongoing."
It had been the longstanding practice of the Justice Department not to bring such indictments so close before an election. That's according to Joe Rich
, the former head of the Justice Department's Civil Rights Section, and a Justice Department manual
written by Craig Donsanto, head of the Election Crimes Branch at Justice, which advised that âFederal prosecutors and investigators should be extremely careful to not conduct overt investigations during the pre-election period or while the election is underway.â
Even Alberto Gonzales himself said
just two weeks ago that "We have guidance about that, doing those kind of investigations near an election," to be "sensitive about the effect it has on particularly minority participation."
But if Schozman was trying to be sensitive, he didn't show it. In addition to issuing the statement that the "national investigation" into ACORN's registration of mostly poor, minority voters was "very much ongoing," Schlozman also announced
the next day that his office would be monitoring the election for fraud. An assistant U.S. attorney would be on duty all day to "ensure public confidence in the integrity of the electoral process."
And there is evidence that the indictments were rushed to come down before Election Day.
According to Elyshya Miller, ACORN's head organizer for Kansas City, ACORN identified certain forms as potentially fraudulent and turned them over to prosecutors in late October; four organizers were responsible. A week later, all four organizers were indicted by a grand jury.
But in their evident haste to indict, the prosecutors made a mistake -- they indicted the wrong person. Three weeks after the election, Schlozman's office dropped the charges against one of the defendants, Stephanie Davis, admitting that her identity was used without her permission. It was not until January of this year that Schlozman's office finally indicted one Caren Davis, who was apparently the person they were really after. Caren Davis' lawyer Dana Altieri told me that Davis is currently undergoing a psychiatric evaluation to determine whether she is competent to stand trial.
But let's look at the indicted crimes themselves. The four defendants were accused of forging the registration forms for a grand total of six voters (Caren Davis was responsible for three). In some cases, the defendants simply made people up; others forged the registrations for real people.
As The New York Times has noted, "the forms could likely never be used in voting." Other U.S. attorneys had declined to pursue similar cases -- in fact, despite Schlozman's "national investigation," these were the only charges filed against ACORN organizers nationwide in 2006.
Two of the fired U.S. attorneys provide an answer why.
The former U.S. Attorney for Little Rock Bud Cummins told Salon that in cases like this, the fraud is perpetrated upon ACORN, not by them. The organizers forge registrations in order to justify their $8.00/hour wages. Elyshya Miller, the organizer from ACORN, explained to me that the group frequently hires people who are in "desperate situations," who "really need something at the time."
Schlozman's cases, the Times reported, were "similar to one that [former U.S. Attorney for New Mexico David] Iglesias had declined to prosecute, saying he saw no intent to influence the outcome of an election."
Two of the four defendants have pled guilty -- neither have been sentenced.
Schlozman's office has sought to justify the timing of the indictments by saying that they were reviewed by Justice Department officials Washington. If true, that would raise even more questions: who there decided to depart from department policy and approve the indictments? Why?
Will Thomas contributed reporting to this piece.