Former DoJ Official Changes Testimony on Voter ID Law

In April of 2005, Hans von Spakovsky, then a senior lawyer in the Justice Department’s Civil Rights Division, almost singlehandedly disenfranchised thousands of voters. Without consulting career voting rights attorneys, Spakovsky wrote a letter that incorrectly advised Arizona’s secretary of state that the state should prevent voters from receiving a provisional ballot if they did not have proper ID.

When von Spakovsky — whose nomination as commissioner on the Federal Elections Commission is still pending — testified before the Senate Rules Committee last month, he claimed that he’d consulted with lawyers in the voting rights section before drafting the letter. “This was not me acting by myself, “he testified. “You know, I would have been consulting with the other attorneys there [in the voting section] to do it.”

But that wasn’t true, as Joe Rich, the chief of the voting section at the time, told TPMmuckraker. Rich is one among six veterans of the section who wrote the committee to object to von Spakvosky’s nomination, calling him “the point person for undermining the Civil Rights Division’s mandate to protect voting rights” when he worked at the Justice Department. Calling von Spakovsky’s testimony “a flat out misrepresentation,” Rich said that none of the career attorneys in the section had been aware of the letter — even then-Assistant Attorney General Alex Acosta, who oversaw the Civil Rights Division, had not known about it. The letter went out under the signature of Sheldon Bradshaw, a senior political appointee in the division, on his last day.

In written answers (pdf) submitted to the committee weeks later, von Spakovsky changed his tune: “As I recall, I may not have consulted with the Section prior to drafting [the letter].” Von Spakovsky did not note that this was at variance with his spoken testimony. He continued, however, to say that he thought that he did consult with the section on a follow-up letter, sent in September. That letter, of course, reversed his earlier advice.

Von Spakovsky made the change not only at the urging of career voting section lawyers (who’d only heard of his April letter from Arizona officials), but also at the urging of the Election Assistance Commission, which was created by Congress in 2002, in part, to advise the states on the implementation of the Help America Vote Act.

When von Spakovsky sent his advisory letter in April, 2005, EAC Commissioner Ray Martinez was not happy. “”Attached is a letter opinion that was issued on Friday by DOJ (Office of Civil Rights) regarding [the AZ issue],” Martinez wrote in an email to the other EAC commissioners:

“This comes as a major (and unwelcomed) surprise. This is a very serious issue. DOJ has taken the position that [Arizona] may impose ID requirements on all voters, including those casting a provisional ballot. While the underlying rationale of the DOJ opinion is one which I vigorously disagree with, the more serious transgression, from my perspective, is that there was absolutely no coordination (or at least a “heads up”) between DOJ and EAC on this matter (despite the fact that we are including DOJ in every discussion dealing with our guidance authority). Clearly something has gone awry here. My recollection is that Hans clearly stated early in our tenure that now that EAC was up and running, we were to assume the responsibility of interpreting HAVA, while DOJ was the enforcement agency.”

You can see the email here.

Von Spakovsky finally drafted the September letter reversing the earlier letter after consistent pressure from the EAC’s chairman Paul DiGregorio. The White House eventually replaced DiGregorio as chairman with Caroline Hunter, a former deputy counsel to the Republican National Committee, last September. According to McClatchy, “DiGregorio confided to associates that he was told that von Spakovsky influenced the White House’s decision not to reappoint him, said the two people close to the panel.”

It’s not clear when the Senate Rules Committee will finally vote on von Spakovsky’s nomination. Despite Democratic opposition to his nomination, he may still be confirmed due to possible retaliation by Republicans against Democratic commissioner nominees. Von Spakvosky’s been on the commission since January, 2006, when President Bush placed him there by recess appointment.