Bush’s Legacy on Voting Rights: A Story from Ohio

In June of 2005, John Tanner, the chief of the voting rights section, wrote Columbus, Ohio’s election officials to publicly assure them that the Justice Department had found no evidence of intentional African-American voter disenfranchisement in the 2004 election.

Not only was that an unprecedented move, former Department lawyers say, but the letter is another, and particularly galling, example of Tanner using the force of the Department to further Republican aims — in this case, to hamper future lawsuits or investigations concerning the problems in Columbus.

“It really looked like the Civil Rights Division was used to run interference for Republican election officials in Ohio,” former voting rights section deputy chief Bob Kengle told me.

At issue was the experience of thousands of voters in Franklin County, Ohio, in the 2004 election. Voters in mostly African-American precincts were forced to wait hours in long lines to vote. An investigation by Rep. John Conyers (D-MI) found that voters often waited as many as four to five hours, some as many as seven, deep into the night. The Washington Post reported that “bipartisan estimates say that 5,000 to 15,000 frustrated voters turned away without casting ballots.” The culprit, of course, was a scarcity of voting machines in those districts, one that seemed to follow a suspicious trend: “27 of the 30 wards with the most machines per registered voter showed majorities for Bush” and “six of the seven wards with the fewest machines delivered large margins for Kerry.”

But Tanner, who’s due to appear in a Congressional hearing, launched an investigation (more on that below) and found that “Franklin County assigned voting machines in a non-discriminatory manner,” as he wrote in a detailed 4-page letter to a local official. But if the distribution of the machines was non-discriminatory, why then were polling places in predominantly African-American areas forced to remain open for hours after the normal 7:30 PM closing time in order to accommodate the long lines?

Tanner explained that African-Americans simply vote later in the day:

…the principal cause of the difference appears to be the tendency in Franklin County for white voters to cast ballots in the morning (i.e., before work), and for black voters to cast ballots in the afternoon (i.e., after work). We have established this tendency through local contacts and through both political parties, and it accords with our considerable experience in other parts of the United States. Morning voters may wait in line several hours, as happened in white precincts, without keeping the polls open after 7:30 am; this is not the case, however, at sites where voters arrive after 5:30 p.m.

The letter is remarkable for a number of reasons, not least of which Tanner’s increasingly-evident generalizing style. This is the same man who explained that voter ID laws don’t discriminate against minorities, because minorities don’t grow old, and that African-Americans tend to get photo IDs more than whites because of racial profiling by police.

Needless to say, veterans of the voting rights section say that they’re not familiar with a tendency for African-Americans to vote later in the day. “I’ve never seen that before,” Joe Rich, a former chief of the section and 40-year veteran of the Civil Rights Division told me. Toby Moore, formerly a redistricting expert with the section who worked on the Ohio investigation with Tanner, called that a “convenient” explanation seized on by Tanner. “I never saw any indication that he was really investigating that,” Moore said.

Suspiciously, Tanner, the chief of the section, seems to have been the only section attorney investigating the matter. Moore, who traveled with Tanner to Ohio, said that no other lawyer came along on the trip and that he dealt with no one else on the investigation except for Tanner: “This was not handled the way other investigations were handled.” Bob Kengle, who spent more than 20 years in the Civil Rights Division, said that he couldn’t think of another type of investigation where no line attorney was assigned.

But that wasn’t the only first for the investigation. Kengle and Rich both said that the very composition of such a detailed letter was unprecedented. On occasion, both said, the Department had sent letters informing officials that the voting rights section had decided not to continue the investigation. But such letters were very short and revealed nothing about the results of the investigation to date. The reason for that was clear: offering a lengthy explanation for why the Department had not discovered sufficient evidence of discrimination would “poison the well,” Kengle told me, for outside groups attempting litigation on the issue, or even for the Justice Department to return later to investigate.

But Tanner seemed eager to poison the well. “It reads like a defense brief,” Kengle told me.

“Tanner bent over backwards to rule that black voters did not have a right to the same number of machines as white registered voters, and then went out of his way to make that ruling public,” said David Becker, a former attorney with the section, currently with People for the American Way. “It’s one of the most remarkably disconcerting things to come out of the voting section in a long time.”

For his part, Moore said that he doesn’t think that the evidence shows that Franklin County officials conspired to disenfranchise African-American voters. “Election officials are almost always more likely to be incompetent than venal,” he told me. “On the other hand, was it all because of different voting patterns? Or did black precincts get neglected? I know we didn’t try very hard to find out.”