Visiting Fellow Edward Blum

Over the last few months, the long knives of the media and the left-wing blogosphere have been sharpened in anticipation of this week's Senate confirmation hearing of Hans von Spakovsky. Unless you follow election-law issues, you probably have never heard of von Spakovsky, who was nominated by President Bush in December 2005 to serve as a commissioner on the Federal Election Commission. He received a recess appointment in January 2006; it expires this December, and his regular nomination for a full term is pending in the Senate. Three other recess-appointed FEC nominees seeking full terms are testifying Wednesday as well, but it is doubtful any of them--two Democrats and one Republican--will draw the intensity of fire as von Spakovsky.

Here's why. According to recent breathless accounts in the press, von Spakovsky was at the center of a Bush-administration conspiracy to, among other misdeeds, disenfranchise minorities in Georgia by allowing the state to require a voter to produce a photo I.D. before casting a ballot. In addition to this pseudo-abomination is his role in the Tom DeLay-inspired, Texas congressional redistricting plan in 2003, which also was alleged to harm minority voters. All of these actions took place from 2001 to 2006 while he was a career "front office" attorney in the civil-rights division of the Department of Justice. In this position, he worked for the political appointees President Bush selected to run the Justice Department.

With Attorney General Alberto Gonzales on the ropes now for the controversial firing of a handful of U.S. attorneys, allegedly for partisan reasons, the press and others have double-backed to von Spakovsky. Scrutinizing his role in Texas and Georgia, they are trying to unearth a pattern of ongoing partisan irregularities at the Justice Department. They assert that von Spakovsky and others vetoed the wise, nonpartisan, and legally accurate recommendations of the department's career lawyers to suppress minority voter turnout in 2004.

The great irony in both of these charges is that von Spakovsky's legal analysis and counsel to his bosses at DOJ in the Texas and Georgia matters proved legally correct, while the career lawyer's analysis proved to be wrong.

In Texas, the Justice Department career attorneys wanted the U.S. attorney general to forbid the redistricting plan from going forward because it would be harmful or, in legal terms, "retrogressive" under Section 5 of the Voting Rights Act to the interests of minority voters. Yet, after the U.S. Supreme Court reviewed the plan, they found only one of the 32 districts had been in violation, but of a totally different section of the act--one for which the attorney general lacked the statutory authority to forbid the plan from going into effect.

It's the same story with the Georgia voter-I.D. controversy. The data the attorney general analyzed indicated that among those Georgians who had driver licenses that could be used at the polls, 28 percent were black--exactly the percentage of the black voting-age population. Because no racial discrimination was found, the plan was approved. Eventually, a Georgia federal judge did enjoin the state from implementing the I.D. requirement, but not because it was racially discriminatory under the Voting Rights Act. Rather, he said it violated the equal-protection clause of the Constitution. There may have been reasons for individuals to legally challenge the Georgia I.D. law, but the attorney general was correct by allowing it to go into effect.

This is Election Law 101: Under Section 5 of the Voting Rights Act, the attorney general has the authority to prevent certain states (Texas and Georgia, along with seven others) from enacting election procedures that are harmful to minority interests. However, before he can stop any changes from going into effect, a high evidentiary requirement must first be established. As the courts found, both the Texas and Georgia election changes did not meet that threshold.

But this fact doesn't seem to matter to von Spakovsky's critics. In truth, the unspoken reason so many guns are trained on him is he refused to allow the DOJ career lawyers at the civil-rights division to continue to do what they have done for the last 15 years or more--strip-mine our nation's laws to satisfy their own personal ideals of racial justice.

Meanwhile, the courts have not been blind to the abuses of the department's civil-rights division. Between 1993 and 2000, the division was taken to the woodshed by various courts a dozen times--and forced to pay $4,107,595 in legal fees--for, among other transgressions, having a "disturbing" relationship with outside advocacy groups. For example, in an earlier Georgia case, the U.S. Supreme Court noted, "the considerable influence of ACLU advocacy on the voting rights decisions of the United States Attorney General is an embarrassment. . . . It is surprising that the Department of Justice was so blind to this impropriety, especially in a role as sensitive as that of preserving the fundamental right to vote."

Apparently, overruling a career bureaucrat's decision to misapply the Voting Rights Act is verboten in the fever swamps of Washington, D.C., these days. This is von Spakovsky's great crime.

It is in the political interest of the Republican members of the Senate Rules Committee to stand by the president's nominee, who by all accounts, is a widely recognized expert in election law. Democrats on the Rules Committee, Sen. Schumer most notably, should not be allowed to evolve the pseudo-scandal of the U.S. attorneys' firings into a new pseudo- scandal about the Bush administration's alleged suppression of minority voting rights. It's up to Republicans to put an end to this foolishness now.

Edward Blum is a visiting fellow at AEI. He is at work on an AEI Press book on the Voting Rights Act.