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HJC: DOJ/CRD And John Tanner, Part I

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. 

— More on Hans von Spakovsky here, here and from Digby here.  And trust me, that’s just for starters.

— More on Tanner from emptywheel here.  And from ePluribus media and the Campaign Legal Center.

The Muck has a great summary of the hoo haw between Toby Moore, Tanner and the DOJ.  And it is not pretty.

Robert Driscoll testified before the SJC back in June regarding the fault lines at the Civil Rights Division, and how detrimental that is to long-term law enforcement.

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.


10:04 am ET:  Hearing room is filling — C-Span3’s coverage has begun.  Should be underway shortly.

REP. NADLER OPENING: Good morning. Committee hearing called to order, continuing oversight of the DOJ’s Civil Rights Division. The right to vote is is the bulwark of our other rights. Without an effective franchise, all of our other rights are vulnerable. For that reason, our nation’s history has been one of fulfilling the promise of our Declaration of Independence and our Constitution by progressively extending the right to vote to all citizens. That struggle has taken generations.

But the struggle to be sure that the legal right to vote translates into an actual right cast a ballot and ensure that it is counted accurately continues to be a struggle. Discussion of the hearings on the Voting Rights Act, and the requirements thereunder. Says that he takes the Voting Rights Act very seriously. Today we examine the Civil Rights Division at the DOJ – suggestions that politics has intruded into the voting rights process and other matters in the department, like many other aspects of the DOJ. The work of the voting rights section is too important to allow this to continue without accountability.

Calls into question a number of recent statements made by Mr. Tanner, head of the division, that cal into question not only his commitment to enforcement, but his understanding of minority and other interests. Looks forward to the testimony of witnesses today, and now opening by ranking member.

REP. FRANKS (R-AZ) OPENING: The voting section of the Civil Rights Division protects voting rights of Americans through numerous enforcement activities. Proper functioning of this department is essential to the integrity of our voting process, and oversight of this function is proper. Goes into the recent Gonzales decision on voting integrity issues with illegal immigrants in AZ, and the AZ laws on voter identification and other issues. Goes into the recent commission on identification (voter ID, driver’s license and others) with photo requirements for increasing voter confidence. Argues that requiring photo IDs increases the likelihood that voters who are afraid their votes won’t be counted will be assured that they will be.

REP. CONYERS OPENING: With all of the work we have been doing to rehabilitate the DOJ, there is no section that is more important to me than the Voting Rights Section. Goes into the importance of oversight. Welcomes Tanner to the hearing, and notes he brought his wife and daughter along, which will probably make them be more polite than usual with them in the audience. But we are in a crisis where protecting the right to vote, the continuing integrity of the ballot – what we are trying to determine is what went wrong, to understand what the present situation is, and of course the issue is what are we going to do about it? I am concerned about the time between now at the end of October and the first week of November next year.

There have been more challenges and problems with ballots over the last 7 years…than any time since I have been on this committee. So I am very happy that we have people on the Constitution Committee working with us on this. We have to work beyond and between these public hearings. The decline of Section 2 cases is unprecedented in the history of the DOJ. We are talking about ONE case being prosecuted in SIX years. We are talking about the citizens commission on civil rights criticizing decisions made by the chief of the voting section, well before Mr. Tanner arrived in that position. We are investigating career attorney recommendations being stripped out by someone else on Section 5 enforcement questions. We are talking about the IG raising multiple complaints about the section leader and the staff about the abuse of travel funds and potentially defrauding the government. There are astounding questions about people selecting litigation locations based on preference for vacations, not based on the merits of the litigation. From Ohio, we got a letter to defend the decision to maldistribute voting machines disproportionately in Franklin County, OH, to white areas rather than to predominantly black areas there. I’m going to revise and extend my remarks, but we have had a lot of complaints…a lot…and we have a big job in front of us.

NADLER goes over procedure for today, notes that there is a hearing coming up later in the same room, so they have to keep things moving this morning. Introducing witnesses. Swears in Tanner.

TANNER OPENING: Thank you for the opportunity. First notes that he has apologized to the National Latino (CHS notes: ? – can’t get this word – sounds like Progresso? Congresso?)  [UPDATE:  It’s Congreso.  H/T to HotPotatoMash who was there and got video.] on the impact voter identification laws for the elderly and minorities. Explanation of data came across in a hurtful way, and he deeply regrets that. Reports do not reflect his commitment to working on voting rights from the time when he was a teenager in Birmingham, AL, working on voting rights issues back in the 1960s, stuffing envelopes and taking African Americans to the polls to vote. In 1976, he joined the Voting Section. Has helped to obtain voting rights under Section 5, has helped with legislative plans which have brought in many African-American legislators, etc. Goes through credentials and honors from working on civil rights and voting rights cases through the years, including from local NAACP branches and others.

Since 2002, the section has filed twice as many cases as they had prior to that under the act. During that time, they have filed a majority of all cases ever filed under the substantive provision of the Act on behalf of Latinos, a majority of all cases on behalf of Asian Americans, and over 70 percent of all cases brought on behalf of African Americans under the Act of Section 208. Since becoming chief in June 2005, have worked to protect and extend voting rights of all Americans. Discusses work in Euclid, OH; Florida; minority groups and disabled persons. Since I became chief, the pace has nearly doubled. The section has averaged 8 new cases per year. In 2006, the section brought 18 new cases – more than in any other years. These have been important cases. We have seen segregated polling places, ethnic slurs, race based challenges, voters leaving the polls in tears, and ballots actually taken from voters and marked contrary to their wishes. We go into court to stop these practices.

The section is so effective because of the enthusiasm of the hard workers and self-starters in the section. I have to make hard decisions, which are based solely on the precedent and the law. Loves working on these issues, and appreciates the opportunity to respond to questions.

REP. NADLER QUESTIONS: Starts right off with the George Voter ID Law. Georgia submitted its law for Section 5 clearance. We now know that 4 out of 5 attorneys in the section objected to the law, and filed a detailed 51-page memo to you including a factual investigation and detailed analysis on why the DOJ should object to this, and why the plan was likely to discriminate against black voters. But they were overruled by higher level DOJ officials. Von Spakovsky and Schlotzman testified that you played a substantial role in approving the law. Is it your position that you were able to give substantial consideration to this between the 25th when you got the memo and the 26th when you approved it? Tanner says that they were doing review on this for quite a while before the report – the statistical data demonstrated that it did not warrant an object under the very narrow consideration under Section 5. Nadler interjects that the staff memo says that it did demonstrate a problem in their view – and Tanner says that he’s in an awkward situation and can’t discuss the internal deliberations due to their client confidence. Nadler says it’s been testified to in the Senate and is public information. Tanner says he won’t discuss it, there were ongoing, numerous discussions and reviews. Nadler asks if the internal memo was forwarded to the front office? Yes. Tanner says that the review and decision came from him. Nadler says that it was long-standing practice that when the staff and the section chief disagreed, that a separate memo was submitted by the section chief, and then the DAG made a decision based on both arguments. Tanner says he’s not sure, he was outside Section 5 review from 1995 until recently and he’s made some changes to procedure in voting rights section.

Going over the burden of proof issues for this particular matter. Tanner says that statistically, the number of people in GA who had photo ID from the DMV alone was larger statistically than the minimum number they look for. There were also a large number of people who had photo ID that was non-driver’s. Other information showed that non-whites were more likely than whites to have voter ID. All of those factors. Nadler says he’s not going to go into the fact that a number of those figures were quite erroneous and that GA had to correct them, and that federal court in GA had problems with the act. Tanner says they didn’t reject the Act under Section 5 – but did reject it on Constitutional grounds. Tanner says the only thing they could look at was the Section 5 grounds, and not the Constitutional questions/violations or statutory violations – confined to the narrow questions under Section 5.

REP. FRANKS QUESTIONS: Asks Tanner to explain the federal case on the GA ID law. Tanner says that there were poll tax, constitutional questions, discrimination questions, and others addressed – but not Section 5 questions. There was a similar claim on Section 2, but that the court didn’t issue an injunction on that either. Statutory claims were rejected, but constitutional grounds against the GA ID law were upheld for injunction. What are you doing to ensure a fair vote in the upcoming election? Since he became chief, they have taken up more than 20 cases. Active election day monitoring – nearly 2000 people out monitoring the polls, to be certain that they can analyze problems on election day in the field. Every year set a record for people involved. Also try to get information gathered in a way that it can later be used as evidence in federal court. What are your greatest accomplishments since you’ve been chief? Greatest one is to develop a system to enforce the minority language issues – and in bringing lawsuits. Challenge now is to develop similar plans for law enforcement. Trying to do as much for everyone as we possibly can. Carter/Baker report on election reform – questions about people who are registered to vote in other states and also registered in FL. Questions about a large number of those voting in both states. How do we address that – what is your approach? Tanner says that falls within the criminal division of the DOJ. Voting Rights helps provide voter access, but doesn’t enforce fraud issues.

Am going to begin a fresh thread because the post is getting a little long…

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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