The Voting Rights Act, Voter Disfranchisement and the Tail Wagging the Dog

A collaborative effort by ePluribus Staff Writers: Cho, StandingUp, Aaron Barlow & Roxy
Original Publication Date

<[>As The New York Times points out, (subscription) United States Attorneys have been forced to try to create a voting fraud scandal when none existed.

But just beneath the surface of the multiple U.S. Attorney scandals lie hints and teasers of the Bush Administration's potentially more damaging politicization of the Justice Department. Indeed, The Civil Rights Division appears to be morphing into a tool to manipulate elections. Control seems to be held by a "shadow" Civil Rights Division - populated by ideologues and their fellow travelers -- which has usurped litigation decisions, the hiring process, training and the Division's traditional civil rights agenda.

The Civil Rights Division under the Bush Administration has been turned inside out -- in the same manner as the Clean Air Act, Clear Skies Initiative and the Healthy Forest Initiative, all of which legislate the very opposite of what their titles suggest. Instead of protecting the civil and voting rights of minorities, the Division seems to be employing twin engines of an attack on our elections system:

Litigation: By focusing on cases under the Help America Vote Act (HAVA) and the National Voter Registration Act (NVRA),which are targeted to enforcement of regulations, the politicized Civil Rights Division can point to a record of fighting supposed Voter Fraud and being champions of "voting integrity."  This action serves to energize the far right Republican base and further alienate the rest of the voting public.  The litigation in and of itself seems to be designed to embarrass districts that are by and large Democratic.  Even the cases filed under the language minority provisions of Section 203 of the Voting Rights Act have focused, more often than not, on Democratic jurisdictions.  Meanwhile, traditional voting rights cases filed under Section 2 of the Voting Rights Act have plummeted, and a case was even filed to "protect" the voting rights of whites in Mississippi.

Neglect:  By refocusing department energies and priorities, the department no longer is active in upholding the protections of the Voting Rights Act , thus disenfranchising minority voters who tend to vote Democratic.

Over 50% of the Voting Section's career employees have left in the past two years, and the Bush Administration has replaced them with hand-picked loyalists who continue to force out long-time career employees, many of them minorities, who could derail the Bush administration's "agenda." As one anonymous source suggests, the work environment has become hostile to career employees and especially to those who are minorities.

The Civil Rights Division's Mandate:  The Voting Rights Act of 1965

Of particular importance to the Bush Administration's morphed Civil Rights Division is Section 5.  "Section 5 of the Voting Rights Act is a special provision of the statute (42 U.S.C. 1973c) that requires state and local governments in certain parts of the country to get federal approval (known as 'preclearance') before implementing any changes they want to make in their voting procedures, anything from moving a polling place, to changing the date of elections to redrawing of congressional districts."2

If one thinks back to the redistricting fight in Texas, the battles in Florida over polling locations in the 2004 presidential election, the arguments over Voter IDs in Georgia and elsewhere, one can quickly surmise the importance of Section 5 and why enforcement is important in ensuring fair elections.

The Tail


In the topsy-turvey world of the Bush Justice Department, enforcement of Civil Rights statutes apparently runs counter to the spirit of the law.  For example, a man whose experience has been in impeding civil rights has been put in charge of protecting them. Robert Popper, a political appointee, is Special Counsel in the Voting Section, a chief enforcement officer whose job is to protect minority rights in redistricting and the voting process. However, this same Robert Popper is listed as "having successfully represented individuals and organizations in challenging race-based voting districts" by the right-wing "Center for Equal Opportunity," which opposed the reauthorization of Section 5.3  Before joining the Voting Section, Popper handled two cases specifically aimed at limiting the voting rights of minorities, -- one in Texas, Chen v. City of Houston (S.D. Tex. 1998) and the other in New York, Diaz v. Silver, (E.D.N.Y. 1997)  -- an odd skill set for someone hired as a chief litigator in a division supposedly dedicated to protecting the rights of minorities under the Voting Rights Act.  

According to Joe Rich, a career attorney with the Civil Rights Division, who was forced to retire in 2005: "20 of the 35 attorneys in the section (over 54%) have either left the Department, transferred to other sections (in some cases involuntarily), or gone on details since April 2005."4

A 54% turnover in less than 2 years:  On March 22, 2007, Mr. Rich testified before a subcommittee of the House Judiciary Committee, providing some insight into the internal machinations of the Gonzales Justice Department's opposites game. During the course of his testimony, Rich revealed that in July of 2006 a reporter for the Boston Globe filed a Freedom of Information Act (FOIA) request for "resumes and other hiring data of successful applicants to the voting, employment, and appellate sections from 2001-2006." The results were published, but names of the applicants were withheld.

Stunningly, only 42% (or 19 out of 45) of the new lawyers hired since 2003 were experienced in civil rights law, "and of those, nine gained their experience either by defending employers against discrimination lawsuits or by fighting against race-conscious policies."  In other words, the new hires' experience was diametrically opposite to the mandate of the Civil Rights Division -- the equivalent of hiring a tobacco company corporate lawyer to be the defense lawyer for a class action suit against tobacco companies.  Whether a deliberate attempt to pad the resumes of young Bush loyalists or to further an "up is down; black is white" agenda, new hires are increasingly being pulled from conservative organizations like the Federalist Society or the Republican National Lawyers Association. Two claim membership in the elite "Lawyers for Bush-Cheney" organization.

The "revised" hiring practices and the transfer of career attorneys from one division to another, coupled with the increase in political appointees calling the shots, created low morale in the division. According to the Rich testimony, "Political appointees made it quite clear that they did not wish to draw on the expertise and institutional knowledge of career attorneys. Instead, there appeared to be a conscious effort to remake the Division's career staff."

In fact, Rich outlines several ways the "new" management of the division led to the exceptionally high turnover in career staff:

  • Never in the past had deputy section chiefs been removed by political appointees.
  • Regular meetings of all of the career section chiefs together with the political leadership were virtually discontinued from the outset of the Administration.
  • Communication between the direct supervisors of several sections at the deputy assistant attorney general level and section staff also was greatly limited.
  • Communication between sections was also discouraged.
  • Political appointees inserted themselves into section administration to a far greater level than in the past.

Examples of the management and communication problems can be found in a March 29th editorial in the LA Times where Rich cites two incidents characteristic of the "dramatic change" that has taken place in the Civil Rights Division under the stewardship of George W. Bush and within the Ashcroft and Gonzales Justice Departments:  "1) A team of newly installed political appointees approved the DeLay Texas Redistricting plan ... against the advice of the career staff.  2) Again, a team of political appointees approved a Georgia poll law requiring photo ID. "Both proposals were struck down by federal courts."

Wagging the Dog

Influencing Election Outcomes

This pattern of disintegration in the Civil Rights Division and its Voting Section in the DOJ not only ties into the US Attorney firings fiasco, but also to Republican desire to influence elections. The Gonzales-Bush "political appointees" have been forcing career staff out and replacing them with under qualified attorneys with membership in ultraconservative organizations.  Most notably (and easily verified) is the Republican National Lawyers Association (RNLA).  A quick search of the database ("Find a Republican Lawyer") will reveal several names of members who are now on staff with the Civil Rights Division: Mr. Christian Adams, Mr. James N. Boeving , Mr. Joshua L. Rogers, Mr. Donald L. Palmer, Mr. Christian A. Ortego, Mr. Sean W. O'Donnell, Mr. Michael Eversole, Ms. Cameron Quinn ...

The Mission Statement for the RNLA lists 4 items.  In addition to Advancing Professionalism, Advancing Career Opportunity and Advancing Republican Ideals, they also advocate Advancing Open, Fair and Honest Elections.  Yet, one need only look at the litigation records of several of the aforementioned members to see that they are proponents of purging voter roles and making voting more difficult for the very segments of the population that the Voting Rights Act was designed to protect.

But the public face is all Healthy Forests and Clear Skies.  A July 26, 2006 announcement from the Department of Justice regarding its Fifth Annual Symposium on Ballot Access and Voting Integrity Initiative states:

"This Attorney General's Initiative has resulted in different offices at the Department of Justice working together and achieving record results," said Wan J. Kim, Assistant Attorney General for Civil Rights.  From US DOJ

The truth behind the rhetoric, however, is slightly less "rosy."

Prior to 2001, the Section 5 unit employed "26 civil rights analysts (including 8 supervisory or senior analysts) responsible for reviewing, gathering facts, and making recommendations on over 4,000 Section 5 submissions received every year." Six attorneys worked full time reviewing analysts' work.

That was the record before Bush Administration appointees and new hires became entrenched in the Civil Rights Division.   Since late 2005, the staffing has dropped by almost two-thirds, which means instead of approximately 32 staff processing 4,000 submissions, there are now only about 12 staff members to process the same number of submissions.  One of the oldest tricks for destroying a department is to understaff it.  With low morale, greatly reduced staff and increased caseload, does it seem that the Bush Administration truly wants to fulfill its Section 5 responsibilities?5

The American public is being wagged ... the Justice Department puts on seminars, talks about "record results" and voter fraud and voting integrity... all of the typical propaganda flourishes that keep citizens feeling that their civil rights are being protected, but in reality (as should be clear by now) the process has been politicized.  An April 11, 2007 New York Times article reports that a 5 year investigation has turned up scant evidence of Voter Fraud, a result the Bush Administration tries to obfuscate.  In an email obtained by ePluribus Media, a departing Voting Section employee accuses the section of having become a "plantation" and refers to colleagues as still being "under the 'whip'."

 From:   [Redacted]
 Sent:   Thursday, December 21, 2006 2:34 PM
 To:     [Voting Section distribution list -- names redacted]
Subject:  One Flew Over the Cuckoo's Nest

I am retiring after 33 years in the Civil Rights Division, with 28 of those years in the Voting Section.  I leave with fond memories of the Voting Section I once knew and I am gladly escaping the "Plantation" it has become.

For my colleagues still under the "whip", hold on - "The Times They are A Changing".

The changes that have been precipitated in the Civil Rights division and the Voting Section in particular need to be examined much more closely than has been possible to date. What happens to civil rights if bigots are in charge of prosecuting discrimination cases or voter disfranchisement?  What indeed constitutes Civil Rights these days? The answers to these questions will affect the future of our democracy.



About the Authors: ePluribus Media staff writers, Cho, Aaron Barlow, StandingUp and roxy contributed to this story

ePluribus Media Researchers, Contributors, Fact Checkers & Staff Writers: Avahome, GreyHawk, intranets, luaptifer