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HJC: DOJ And John Tanner, Part II

fallguy.jpgGuess we’ll see whether John Tanner ends up being the fall guy to save the Hans von Spakovsky FEC nomination. Or not. The HJC is holding a hearing today, beginning at 10 am ET which will be broadcast on C-Span3, on the DOJ Civil Rights Division. And just based on the witness list, it looks like it will be a fairly contentious oversight morning, to say the least.

Will try to liveblog as much as I can of the hearing this morning. As always, please try to keep comments to a minimum to help keep the blogging running smoothly. The more I have to switch threads because of high comment load, the more I may miss in terms of transcribing, and the further I get behind with the stop and start of the TIVO. So keep that in mind on the one liners and the zed race, and then just don’t do it. Thanks.



REP. CONYERS QUESTIONS: This is the sort of hearing where we get two different stories about what has and has not happened. We hear one thing from the employees in the section, and a wholly different story from you today on how things are going. The bottom line of all of this is that there wouldn’t have been any GA Voter ID law if your dept. had followed the recommendations of the career employees. Because you overturned their work, and decided to do something else entirely, we now have not just the Georgia ID law, but many other places where they are screaming about voter fraud issues. Mentions Rep. John Lewis from GA. Want to turn very quickly to OH – says he and Nadler were in OH and had a forum regarding voter issues. I want to tell you, I never met so many hundreds of people furious about the process that characterized the elections in OH in Nov., 2004. And yet you explain that…there were African Americans and whites, Democrats and Republicans, upset at the deceptive practices and purges that went on. Reads from letter regarding problems in Franklin County – “whites cast ballots before work in the morning, and African Americans cast ballots after work” – that was the only thing that people didn’t complain about. But there were people wrongfully purged from voter rolls, issues with the Secretary of State, and numerous other problems. Refers to book “What Went Wrong In Ohio.”

We have a lot of prosecutions in the voting rights section. We need to do a lot, lot more in your section. And I’m hoping you will take what will be directed to you is constructive. I’m concerned that we stop having happen what has occurred since the 2000 elections, and then you come here to stagger our imaginations to tell us that it has never been better. It has never been worse.

REP. PENCE QUESTIONS: Says to respond to Conyers, go ahead.

REP. PENCE QUESTIONS: Says to respond to Conyers, go ahead. Tanner thanks Conyers for his work in OH – it was Conyers and others work that led them to look into problems in Franklin County. Goes into the statistics in Franklin County which show that there were more voters per machine in white districts versus minority districts, they looked into it, and he based his decision based on the facts and the applicable law, and made the decision on whether they could prove a case in court on it. Pence really appreciates Tanner’s apology, and his three decades of commitment to civil liberties. Pence says he voted for the Voting Rights Act, and that he disagreed with some on his side regarding bilingual ballots – thought they were important. Enters a letter of recommendation from the American Arab Anti-Discrimination Committee. Going over accusations from last election about rights of minorities voters being infringed upon – what are you doing to correct those alleged experiences? Tanner really appreciates the question. Says they have begun reaching out to groups that monitor the elections, and to minority groups. Really appreciates the letter from the Arab-American group, because they may be the most vulnerable because of the situation the last few years. But also has worked with the NAACP, American Indian groups, and many others – need to identify problems on election day, but also to identify where they need someone to stand on election day. Between now and 2008, there is an awful lot to do.

Nadler welcomes Rep. John Lewis to the hearing.

REP. DAVIS QUESTIONS: Only one problem with letters of recommendation – only people with bad credit need co-signers. Not certain what you were apologizing for – making the statements or that people misunderstood them, so I want to give you some time to explain that. “Our society is such that our minorities don’t become elderly as much as white people do.” Did you say that? Tanner says that census data of life expectancy in GA is lower for African Americans – Tanner says it was a very clumsy statement, but that statistical data indicates that life expectancy is lower for minorities. Davis going through the statement point by point. Davis says that minorities in AL voted in the Presidential election – 73 percent; and for whites were 74 percent. And that the elderly voters – 40 percent of the minority voters were over 60, which was a high percentage than whites. Davis asked about Tanner saying that blacks were more likely to go to check cashing businesses than whites – do you have statistical information to that effect. Tanner says that you could get unbanked individual information from the Comptroller’s office, but he doesn’t have that information personally. Davis discusses the importance of making statements and decisions on actual numbers and not on stereotypical assumptions. If you are basing your decisions on stereotypes and not on facts, then that suggests to some of us that someone else should be doing the job. Tanner says that he was looking at numbers and not making assumptions, and he looks forward to addressing this issue. (CHS notes: Did he look at these numbers before this hearing, knowing that this issue was likely to come up given that the hearing was called because of these issues in the first place? Preparation, anyone?)

REP. KING QUESTIONS: Do you believe that your statement was supported by data and empirical fact? Tanner says it is a sorrowful fact, but yet, life expectancy there is lower among minority groups. For the other statements, there are data supporting that. I welcome new information. If the facts support your statement, then why do you think you are here before the committee? King takes his question back because Tanner started to actually answer it. Nadler interrupts – this hearing is not solely because of the statements, this is one in a series of hearings on problems in the voting rights section – this hearing was scheduled long before he made his public statements, and would have occurred whether or not he had made them. King goes on to again attempt to impugn the hearing purpose by apologizing for impugning the hearing purpose. How many investigations have you launched – you said you have brought 23 cases? There would be more than 23 cases – probably upwards of a hundred cases being investigated. Should the law be color-blind? Tanner says that Voting rights Act is a very important remedial law which is meant to correct an egregious history of discrimination, and it applies to all Americans equally. King says he thinks it is not color blind, and then cuts off Tanner when he tries to disagree. King trying to get to whether organization which work with “illegal immigrants” – have they asked you to meet with a jurisdiction that has enforced laws on illegal immigration. Tanner says that they have brought issues to his attention where there have been potential voting rights problems. King asks specifically about Prince William County – Tanner says they’ve talked about it, but haven’t discussed specific investigations.

REP. WASSERMAN-SHULTZ: Starts off with questions on Florida – and the fact that the DOJ has been able to produce scant evidence of questions of voter fraud. Only about 103 cases of voter fraud cases ever, and most of those were mistaken form issues. Asks about whether lists have been drawn up under Section 8 enforcement questions by his section – asking because Katherine Harris purged over 100,000 voters in Florida, and a number of those were done inaccurately. Tanner says he welcome the opportunity to address that issue. Says his section doesn’t do voter fraud – his section does voter access cases. If your section has nothing to do with voter fraud, then why are you pursuing enforcement on this? Tanner says there are list maintenance issues. There has to be notice to the voter, etc. – W-S says she understands the need for enforcement, but what concerns her is the priority that your office has made in pushing this forward as such an important priority. In her lifetime, it has been treated as an administrative function, but your section has been treating this is an urgent priority. Talking about Missouri – in 2002, they removed 50,000 people from the rolls, but in 2005 you pressured them to remove even more – the case they filed was dismissed in 2005. Dispute between the two of them on what the primary purposes – W-S points out that Tanner is conveniently not talking about the second purpose, which was to pressure the state to purge more people from the voting rolls. Tanner says the complaint speaks for itself.

REP. ELLISON QUESTIONS: Going back to the statements – are you apologizing because of the reaction that people had to your statements? Tanner says the statements were clumsy. Ellison asks what was clumsy about what Tanner said. Tanner says he was addressing the narrow issue of the statistics needed to show a violation of federal law, the tone and tenor of his remarks. Back and forth on the difference between misinterpretation and tone and the remarks themselves. Ellison points out that the statistical issue of how various constituencies age was also irrelevant to whether an individual voter ID bill should apply or not. What is a poll tax? The 24th Amendment speaks to poll taxes – bans them. What does it cost in GA to get an ID? Tanner says that Georgia now has no cost IDs – at the present time, yes. Previously there had been a cost involved. Asks about Indiana and Arizona? Tanner is not familiar.

REP. SCOTT QUESTIONS: Questions on election of majority/minority district dismantling to create even districts. And then on the 50 percent question for districts – Tanner says it is an open question under the law. Would you pre-clear that? Tanner says he doesn’t believe he’d do that, but each submission has to be decided under its own facts and the law, but wouldn’t pre-clear it without looking at the evidence. Coalition district? Tanner says that the facts of the specific case and the reliability of coalitions, but the law clearly bans the retrogression. Do I understand that the Voting Rights section is subject to a pending discrimination suit? Tanner says he has to discuss personnel matters in a private forum. Were partisan politics illegally involved as an allegation in this suit? Tanner says that this has not been a problem in the Voting Section under his watch. Disperate impact on minorities and, specifically, on African Americans – GA voting law. Tanner says case was dismissed, and Scott asserts that the law was changed which resulted in dismissal – Tanner says dismissed while law was being changed. Go through the four out of five career people who objected to the Georgia ID law – the four objecting had been there several years, and the one agreeing with it had been there for 3 months. Questions about potential awards to Rogers and retaliation against those who were objecting to the GA ID law. Tanner says he doesn’t know about that – no.

Recess for a vote on the floor. Be back momentarily.

Back in session. Nadler introducing the next panel. Laughlin McDonald, Toby Moore, Bob Driscoll, and Julie Fernandes. Witnesses sworn in for testimony.

McDONALD OPENING: As we know, the voting section of the DOJ has a major role in enforcing voting rights. One of its major responsibilities is to conduct major reviews of voting changes in jurisdictions covered by Section 4 and Section 5. Unfortunately, partisan politics allegations of bias have undermined this – it creates a lack of confidence in the section and, indeed, a lack of confidence in Section Five itself. This shifts the burden of proof to those who have been victims of discrimination, in contravention of the Voting Rights Act. A recent example was the preclearance of the GA ID law. Goes through the cost issues that existed at the time of the law’s passage, and the fact that there were already criminal statutes on the books to cover any problems. Voters who lacked the photo ID were disproportionately elderly and minority, found by the Secretary of State in GA. 58 percent of people without a photo ID in the last election were black. Quotes a state legislator on the ID law. One of the people who played a key role was Hans von Spakovsky – career staff were not only overruled, but they instituted a new rule telling staff that they cannot make future recommendations, thereby marginalizing career staff and their long-standing experience. And also paves the way for partisan politics being asserted into the decision making. Goes through a number of long-term problems with this and its bad effects on the staff at the Voting Rights Section. This seriously undermines the effective enforcement of the Voting Rights Act.

MOORE OPENING: Thank you for the opportunity – worked there from 2000 to 2006. Having devoted his career to studying the geography, this was a high point for his career. Says that he’s uncomfortable testifying, because he enjoyed a good working relationship with Tanner while he was at the DOJ, and speaking publicly about internal DOJ deliberations is not something I do lightly. Hope that experience at the ground level will be useful for oversight duties. If Tanner’s remarks were simply a matter of a misstatement, it would be one thing. Unfortunately for minority voters and the DOJ, it exemplifies Tanner’s approach to the facts, the truth and the law – broad generalizations, deliberate misuse of statistics and casual supposition in my experience were preferred to the analytical rigor, impartiality and scrupulous attention to detail that had marked the department’s work prior to Tanner taking over in 2005.

This decline and the myriad of problems and decline that have developed in the section over the last several years are a direct result of actions of political appointees such as Hans von Spakovsky, Bradley Schlozman, and others, and have left behind a demoralized section, a growing list of lost court cases, a loss of public trust and a growing list of problems in the voting rights enforcement in the nation. While my prepared remarks focus on other matters, including Section 203 enforcement and the OH investigation in 2004, I’ll focus here on the GA ID law.

The GA ID law of 2005 was a nasty piece of legislation. No state considering passing a voter ID law now is considering the draconian measures that GA attempted in their voter ID law. [CHS notes: Whaich was written in large part by Hans von Spakovsky, Bush nominee to the FEC. Golly, wonder why people question his commitment to the rule of law and his personal ethics regarding putting political considerations ahead of everything else, don’t you?] Carter and Baker explicitly labeled this as purely partisan – and history will show that this law was a discriminatory one. Tanner wanted to please von Spakovsky, and career folks in the section were not allowed to do their jobs if it interfered with that objective.

It is NOT true that racial data from GA DMV showed that blacks were more likely to have photo IDs – the only way you get that result statistically is to use the wrong data sample and even then the numbers that Tanner uses are wholly inaccurate. It is NOT true that minority voters die before growing old – and it dismisses that elderly minority voters in GA are more likely to be impoverished and, thus, more likely not to have a photo ID. African Americans make up 40 percent of those elderly voters who are likely not to have a photo ID. Behind every lie is an actual kernel of truth. None of Tanner’s novel actuarial theories were part of the analysis, it is a post hoc justification for what he did. It is NOT true that we were not reprimanded –w e were called into his office and reprimanded. While we were not given a letter of reprimand, we were called into his office one by one and told that our performance on the GA voter ID law was not up to the standards of the section, and Mr. Tanner needs to correct that statement. It is NOT true that a group of prominent law professors made racist statements about the impact of the ID law. And it is NOT true that we didn’t consider the poll tax concept that Mr. Ellison asked about – under the 2005 law, there was a cost for IDs, it was only under the 2006 changes that this was changed.

To wrap up, John Tanner is both the cause and effect of the politicizing of the voting rights section, and should not be allowed to hide behind career status to hide his responsibility. How long will the DOJ be willing to tolerate chronic mismanagement simply to save face. Thank you for the opportunity to testify and I’ll be happy to answer questions.  [CHS notes:  Ouch, that was blistering.  And watching his face as he was speaking, it was clear that this was both difficult and necessary for him to say.]

DRISCOLL OPENING: Thank you for this opportunity. This panel in particularly can be very helpful to the committee and the public on how voting rights section are supposed to work. In the end, the Congress sets the laws that are to be enforced, and so if there are problems it may be that laws need to be changed. Career employees are the backbone of the department – and people who work there of course have political leanings, but their job is to enforce the law. Talks about the interrelationship between advocacy groups – who hold policy positions based on their interests and who interact with the department. The job of the voting rights section is to then review the advocacy, the evidence, the law, and other information including data from the states and analysis from the career staff…and craft the recommendations accordingly taking all of that into consideration, leaving the call to be made by the Asst. AG for Civil Rights and the AG. Which leads to my final point: it is very risky to call a career employee like Mr. Tanner before this committee and to question him the way he was this morning. At the end of the day, the responsibility for these problems lies with the AG and the AAGfCR – no problem with bringing any political appointee before the committee and calling them on the carpet for their actions and their priorities. But it is a dangerous precedent to bring in a career employee to take the heat for the political decisions being made above him. [CHS notes: I happen to agree with that point, although I thought Tanner had been appointed to his position when Sclotzman resigned. Perhaps he’s just an acting head? Anyone know for sure?] Thinks this can be a very useful panel discussion.

FERNANDES OPENING: Thank you for this opportunity. Every week it seems there is another news report that calls into question the integrity of the managers and political staff of the Voting Rights section of the DOJ and the priorities they choose to enforce. We hear of political hirings, unethical conduct, and partisan interests trumping law enforcement. The core function of the department has been significantly diminished.

In years passed, addressing the unfinished agenda of addressing inequalities had been the primary mission. In the past several years, only two cases have been brought, one which was authorized by the prior administration. The only case brought alleging racial discrimination in the Deep South is a case which was filed on behalf of white voters. Of course the Voting Rights Act applies to all Americans, but it strains the imagination that the sole example of discriminatory voting issues involved white voters in the Deep South. Goes into the actions by von Spakovsky and Schlotzman and some complicit career staff – and the GA voter ID laws, as well as laws in other states, as a partisan agenda issue.

The section has shifted its attention to voter purges, resulting in thousands of Americans being taken off the rolls and being unable to vote. These efforts can, if done improperly, can have a chilling effect on minority voters. Particularly in jurisdictions where there has been a history of discrimination against minority voters. What we shouldbe doing is (1) combating laws which have a disproportionate impact on minority voting, like the one passed by the GA legislature; (2) make certain that states are complying with the NVRA voting laws and making sure those registrations are processed appropriately; and (3) reinforcing the firewalls that exist between the civil rights division and the criminal divisions work to combat voter fraud.

The work the last 50 years has been to transform our nation into a place where equal opportunity can be more than a dream. Today, we must not allow those who seek to undermine civil rights to destroy the power and credibility of one of our most important institutions for the fight for equal justice. We must enforce the nation’s voting rights laws without fear or favor, and we must demand accountability.

NADLER QUESTIONS: Asks McDonald about a study regarding charges of illegal voting questions – 140,000 people enrolled to vote in more than one state, do you have information on this? McDonald says they are involved in litigation in GA and IN. There is absolutely no evidence of any kind that there has been fraudulent, in person voting – and that is what these photo ID laws are designed to combat – it’s a bill that addresses a problem that doesn’t exist. Doesn’t know about the questions on multiple registrations, but some states allow for voting in other areas if they are property owners. Asks Moore about the GA ID law. Moore says that Hans made it very clear what he wanted, and Tanner obliged in how he decided. Was there analysis done on the correction of the data from GA that was received on the 25th ever analyzed before the decision on the 26th? Moore says he doesn’t think it was ever analyzed. Are there significantly fewer than 26 analysts – Nadler says that he has been told there are only 8 remaining – trying to assess the still 4,000 pieces of information coming into the department. Says that he has been told by former colleagues that it is a hostile, very unhappy place to work. That,. Like him when he was there, that these people remaining feel that there is no point on doing their work on important Section 5 matters are being made for political reasons and not on the merits.

FRANKS QUESTIONS: Goes into a criticism of criticizing Tanner’s comments. Talks about the Carter/Baker report talking about photo IDs – being used in over 100 countries for voting integrity questions. Oftentimes people don’t vote because they do not have confidence in the system – thinks that having a consistent voter ID is important and that this gives people confidence. Driscoll says the commission and the Purcell decision says that IDs can increase confidence and can push participation upward. But with a caveat, and an important one: we live in a country which has a long history of discrimination, and it needs to be analyzed to see if it has a retrogressive effect and, if it does, it should not be pre-cleared. Thinks that GA was pre-cleared, others have not been – and you need a professional statistician to make those determinations carefully. Franks says that he believes that people of all races, factions, have every opportunity to exercise their constitutional, god-given right to vote in every instance in this country. Pulls out a quote echoing Andrew Young supporting the need for a photo ID. Ensuring confidence in the system will help minorities more than anything in his opinion.

CONYERS QUESTIONS: Thanks Franks and Driscoll for their participation and interest in this important subject matter. Encourages Nadler to have an additional hearing on this subject, because there is so much conflicting testimony between Bush Administration appointees and management saying things are fine, and former employees, current employees and others saying things have broken down entirely. Now discussing how important it is to ensure voter rights and participation – Conyers says Motor Voter laws are now being used to purge voters from the rolls. Fernandes says there are IG investigations ongoing in the department – and that she feels that a report should be coming from that office very soon, that it will be a good starting point for the committee. Talking about the MVRA being used to purge voters, and other problems that voter ID’s do not solve. Conyers asks the other panelists to submit recommendations in writing for changes.

ELLISON QUESTIONS: Ellison says that less than 200-ish people may have been caught up in any question of illegality in voting over years of enforcement that voter ID would cover. But the voter purges would impact tens of thousands of voters potentially. Fernandes agrees, says that a lot of the ID issue has been “whipped up” – because voter fraud carries a criminal penalty already for a practice that is almost nonexistent. Ellison says in his experience it is hard enough to just get people to vote, let alone round up a whole conspiracy of people to steal an election. What he wants is for people to just go and vote. Asks McDonald about ID bills – McDonald says that a voter ID bill that was passed as a disincentive for a certain group not to vote, would not exactly inspire voter confidence. Ellison asks about intimidation tactics in some neighborhoods by having people in uniforms standing near the polling place, and McDonald says that again it can be problematic in some situations. Ellison asks about memos and fliers saying if you haven’t paid your parking tickets then you can’t vote. McDonald says that there have been many examples since the 2000 election targeting minority precincts to prevent lawful voting. Ellison says that he thinks of voter ID bills as intentional suppression of minority voters attempts. McDonald says that Tanner’s statement that the GA court did not reach an opinion on racial disparity under Section 2 – the court expressly did not resolve that issue, but reserved it. Ellison commends Mr. Moore for standing up for civil rights and says that he is grateful for Moore’s honesty.

SCOTT QUESTIONS: Gets into questions about coalitions and retrogression – McDonald says that a lot of these issues are already protected under Section 5. Question on majority/minority districts and reduction of the district to below 50 percent minority district – McDonald says reductions creates changes in voter patterns that are clearly observable. Fernandes agrees with McDonald. Is there any question that the GA voter ID law created a disparate problem for minority voters? Moore says that he believes there were substantial problems with the law. Moore says that the memo the WaPo published was the final staff memo, but that the published version had been doctored to remove the recommendation and to reverse many of our key findings. Scott asks about the reprimand issue – Moore says that he doesn’t know about Berman, but he knows that three of them were reprimanded orally. Moore says that he did see evidence of politicization in hires – either that or they got really lucky in their hires. Asked if Tanner is political or career hire? Moore says he thinks he was career – although status is more uncertain now, but still classified as career.

Hearing is adjourned. Five days to revise and extend, submit questions and answers. Adjourned.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com