Resurrecting Jim Crow: The Erratic Resume of the Voting Section Chief
When John K. Tanner replaced Joe Rich as section chief of the Justice Department's Voting Section in 2005, a breathtaking politicization -- already under way after Alex Acosta was put in charge of the Civil Rights Division -- accelerated sharply. The exodus of talent, expertise, and knowledge of civil rights law in the two years under Tanner's stewardship is numbing. Roughly 50% of the staff1 -- attorneys, including many of the top litigators, researchers and analysts -- have left, and Tanner has waged an aggressive effort to remake the section in his own image -- not an image that most people who promote the core mission of the Voting Rights Act, which the Section is primarily responsible for enforcing, would support.
Why it matters
Forty years ago, black and white Americans were murdered for trying to stop Jim Crow. Thugs, drunken good old boys and miscreants pulled the trigger, lit the torch, yanked the rope.
Courageous men and women like Medgar Evers, James Chaney, Andrew Goodman, Michael Schwerner, and Viola Liuzzo fought and lost their lives to get rid of the Jim Crow laws that deprived African-Americans of the right to vote.
Eventually, with the passage of the 1965 Voting Rights Act, the voting rights of every American citizen were secured.
But Jim Crow, like the Dark Lord in the popular Harry Potter children's books, never completely died. And the resurrection, assisted by the seeding of political appointees and agreeable new hires within the very government institutions designed to protect the civil rights of Americans, is now dangerously close at hand.
Tanner, the new Section Chief, who received his law degree by attending American University night school, cites his early civil rights bona fides in a recent FLA-Law piece "'I would go into the projects and knock on doors and take people to the federal registrars,' explained Tanner, who met [Martin Luther] King during this time."
Yet according to many insiders, Tanner -- who was born and spent his early years in Alabama, graduating in 1967 from Indian Springs School near Birmingham -- has in just a little over 2 years essentially gutted the ability of the Voting Section to protect the voting rights of these most vulnerable members of our society.
Partisan Politics in the DoJ Civil Rights Division
Bob Kengle, in an May 1st interview, "Former DoJ Official: I left Due to Institutional Sabotage," reports that:
[...] by late 2004, I did not believe that I could ensure that following the law and facts would remain a higher priority than partisan favoritism. This was based partly upon my expectation that the Administration, if returned to office, would feel less constraint against heavy-handed management and biased enforcement than had been the case in the aftermath of the controversial 2000 election. To put it bluntly, before 2004 the desire to politicize the Voting Section's work was evident, but it was tempered by a recognition that there were limits to doing so. That such constraints diminished over time is evidenced by the well-known and ham-fisted handling of decisions involving Texas' congressional redistricting plan in late 2003 and Georgia's voter ID law in 2005.
Critics point to both of these widely-known instances (the 2003 Texas congressional redistricting plan and the Georgia voter ID law in 2005) as evidence that the political appointees or "front office" and their all too obliging protégés were using redistricting and voter suppression to manipulate elections.
According to Department of Justice sources, during the 2003 Texas redistricting, while Joe Rich was still Section Chief, the career staff unanimously decided the proposed plan was discriminatory. However, when the "front office" overruled, Rich refused to sign the recommendation for preclearance, taking a principled stand for civil rights law. As Steve Bickerstaff, professor of law at the University of Texas noted in his book Lines in the Sand: Congressional Redistricting in Texas and the Downfall of Tom DeLay: "Within a week of receiving the recommendation (i.e., on Friday, December 19 ), [Principal Deputy Assistant Attorney General] Sheldon Bradshaw sent the Texas secretary of state a letter containing the simple standard wording for a preclearance letter: 'The Attorney General does not interpose any objection,'" allowing the redistricting to go ahead. According to sources, it is extremely rare that the front office, not the Section Chief or career attorneys, would sign such a letter. Other sources suggest that at the time Tanner was actively, if not openly, seeking to be Section Chief.
By 2005 and the Georgia voter ID law, Tanner had succeeded in his quest for promotion. In striking contrast to Rich's behavior with Texas, Tanner went against the near unanimous recommendations of the career staff, instead falling in line with the desires of the political appointees.
Tanner's memo, supposedly representing the analysis of the Voting Section, went against the recommendations of four of the five attorneys and analysts to provide "preclearance" or approval for the State of Georgia to institute the new voter ID law. Toby Moore, former Voting Section political geographer, told McClatchy last month that Tanner "doctored the memo ... reversing many of our findings."
The sole approving attorney was a recent hire from a third-tier law school, the University of Mississippi, Joshua Rogers who had been in the Voting Section just two months. He wasgiven a cash award based on his work on the Georgia Voter ID law.
Although the Georgia law was subsequently struck down as unconstitutional. and unable to withstand judicial scrutiny, a side effect of Tanner's process was to establish a new policy that hamstrung the Voting Section career staff who were dedicated to upholding voter rights.
Out with the old and in with the new -- The Section 5 Preclearance Process
As Dan Eggen reported in 2005 Staff Opinions Banned In Voting Rights Case.
Under Section 5 of the Voting Rights Act of 1965, Georgia, Texas and other states with a history of discriminatory election practices are required to receive approval from the Justice Department or a federal court for any changes to their voting systems. Section 5 prohibits changes that would be "retrogressive," or bring harm to, minority voters.
For decades, staff attorneys have made recommendations in Section 5 cases that have carried great weight within the department and that have been passed along to senior officials who make a final determination, former and current employees say.
Preventing staff members from making such recommendations is a significant departure and runs the risk of making the process appear more political, experts said.
Sources have compared the "old" process to the new for ePluribus Media:
By taking away this ability to make written recommendations for objections, Tanner essentially eliminated the audit trail and made it impossible for Voting Section analysts and attorneys to say "we recommended an objection, but we were overruled." The only person who gets to make a recommendation now is Tanner. The funny thing is Voting Section analysts still make recommendations NOT to object. In fact, they make a hundred or so every week. But they can't recommend an objection. Instead of writing a "Section 5 Recommendation Memorandum," recommending an objection, they are now forced to write a "Memorandum of Section 5 Analysis," which gives arguments both for and against objection. If the front office decides not to object, or if Tanner himself decides not to object, they can say "well, we found the arguments against objection more compelling."
In sum, after John Tanner changed the memorandum policy, Voting Section analysts and attorneys could no longer make written recommendations that the Department object to a change in a state's voter laws that would infringe on minorities' voting rights. They could only 1) recommend that no objection be made or 2) provide arguments for and against objection. The ability to recommend an objection in writing has been completely stripped.
As former Voting Section Trial Attorney David Becker, now the Director of the Democracy Campaign at People For the American Way, explained it to ePluribus Media researchers: "The primary thing for which the career staff have been hired is to use their experience and judgment to make recommendations regarding their investigations and litigation. The only possible justification for forbidding such recommendations is to eliminate a paper trail, and thus avoid accountability. "
A third troubling precedent occurred in the aftermath of the 2004 election and accusations of widespread voter suppression in Ohio. Again, Tanner seemed willing to serve the political agenda of his bosses. A source who left the Voting Section in 2004 notes that Tanner's June 29th 2005 letter closing the investigation into the distribution of voting machines in Franklin Country, Ohio reads instead like a legal brief supporting the use of disparate numbers of machines in predominantly white and predominantly black precincts, arguing that such disparity did not violate the Voting Rights Act.
Described by sources as repugnant, Tanner's 4-page letter doesn't merely note that the investigation is closed, but also develops convoluted excuses for why black voters didn't have enough machines and white voters did. Ironically, and apparently undercutting its own excuse-making rationale, the letter whirls around again to praise the election Board's decision to increase the number of voting machines for Franklin county by two fifths, acquiring approximately 2,100 new machines, thus increasing totals from 2,904 to 5,000.
The letter is notable for two reasons. First, according to the source, historically the DoJ never writes such a letter when it finishes an investigation and determines that there is no reason to proceed. Traditionally, it merely writes that it is closing the investigation. Second, Tanner's signature is the only one that appears on the letter closing the investigation and no other DoJ attorneys were on the distribution list. So, apparently, Tanner was the sole attorney assigned to that investigation, itself unusual since Voting Section cases are always staffed by more than one attorney. The assignment is also odd because Section Chiefs rarely, if ever, handle investigations.
The confusing ideology of the new section chief
Tanner's recent activities are far different ideologically than his earlier work when he entered the Voting Section in 1976 as a Civil Rights Analyst while attending [night] law school at American University. At that time, he qualified for the Civil Rights Division's Honors Program and was hired upon graduating to work in the Voting Section. Details of the next 18 years of his life, between 1976 and 1994, are sparse as there seem to be few decisions or activities that distinguish him. The two items that ePluribus researchers could find seem to indicate confused ideology and shallow knowledge of civil rights law. Tanner was the Acting Chief of the Voting Section during part of the Clinton administration. In 1994, when the Division struck down a Louisiana Voter ID Law, Tanner concurred in the recommendation to object. The Louisiana law was remarkably similar to the controversial 2005 Georgia Voter ID law that, under the Bush adminstration, Tanner now precleared over the recommendation of attorneys and analysts to object. Some critics point to this flip-flop as evidence of political opportunism at worst, confused ideology at best.
The second item ePluribus Media researchers discovered was a case where Tanner's knowledge (or mastery) of the law was questioned. It was also during Tanner's reign as Acting Section Chief that the Department of Justice opened an investigation into potential Voting Rights Act infringement by the New York State legislature. Tanner zealously pursued Section 5 litigation. Tanner's pursuit of this case, was noted by some as an 'abuse of power' by the Department of Justice, as the DOJ did not "confine its Section 5 inquiry to the question of whether the proposed voting change has a "retrogressive" effect on minority voting strength." According to Heather McDonald in the City Journal:
It was in court that the full absurdity of the situation became clear. Justice's attack on New York was based on a complete misreading of the law.
Justice had denied pre-clearance because New York's judicial nominating process, in its view, discriminated against minorities.
In New York's case, Justice admitted that the addition of judges had no retrogressive effect on minority voting rights. In fact, the new posts clearly increased minority power by opening up new opportunities for minority judges.
Even though he failed to win his case, Tanner was not dissuaded and continued appeals to the US Supreme Court:
Solicitor General Drew Days III instructed the department to withdraw its appeal. "There was no disagreement as to whether our legal position was correct," says Richard Jerome of the voting rights section. "But the solicitor general decided that this was not the best case [factually] to present the issues."
It was shortly after the New York debacle -- sometime during 1995 -- that Tanner transferred out of the Voting Section where he had worked for nearly 20 years. There is some talk of his leaving because he wasn't offered the permanent position of Section Chief. No matter the reason for his departure, it seems that in the seven years from 1995 to 2002, John Tanner floated from one detail to another -- the White House, Congress -- and finally landed in the Civil Rights Division - Criminal Section. The most interesting report about Tanner during this period is that there are no reports. The sole press release about him was one from the DC Council (the legislative branch of the Washington DC local government) that, in recognizing him for 28 years of distinguished service, notes that while he was with the Criminal Division, Tanner:
[...] prosecuted cases involving police brutality, racially motivated residential arson, telephone threats and church arson. He also served on the Department's Hate Crimes working group and on the National Church Arson Task Force.
At the end of that oddly quiet period, in 2002, he returned to the Voting Section. He later took a position created by Alex Acosta, as Special Litigation Counsel in Charge of Minority Language Enforcement. Apparently, the position was superfluous as minority language enforcement was already considered a successful initiative.
Gutting the Section
These same sources suggest that after Tanner returned to the Voting section, he set out to undermine then-Section Chief Joe Rich, clearing the position for himself, a career move he is rumored to have planned since 1995. Apparently, once he achieved these goals, Tanner contributed to an environment that has forced out multitudes of career staff, people that had dedicated their professional life to Civil Rights and thus taking with them hundreds of years of civil rights law experience.
On the same day in April, for example, Joe Rich and Bob Kengle resigned and just like that, over 60 years of voting rights law enforcement knowledge left Justice. That lost knowledge of civil rights law and the experience have not been replaced. Many of these positions remain vacant; others have been filled by Federalist Society and Republican National Lawyers Association members.
Fear of Reprisal
ePluribus Media has interviewed former DOJ employees and most of them have asked to be kept anonymous "for fear of retribution from the Department of Justice." The investigations of the firings of the U.S. Attorneys have revealed that some of these political appointees feared retaliation. Our sources tell us this was also the case with career staff. They are reported to have gone after individual attorneys' bar licenses and one source emphasized that these people will not only end one's career with the Justice Department, "they will take your livelihood ... anything else if you are so bold to speak the truth."
1 From Joe Rich's congressional testimony:
Based on a review of the personnel rosters in the voting section, 20 of the 35 attorneys in the section (54%) have either left the section, transferred to other sections (in some cases involuntarily) or gone on details since April 2005.
And in regards to staff, Rich's testimony continues:
... especially since the transfer of Deputy Chief Berman from the Section in late 2005, this staff has dropped by almost two-thirds.
About the Authors: ePluribus Media staff writers, Cho, Aaron Barlow, Standingup, wanderindiana and roxy contributed to this story
ePluribus Media Researchers, Contributors, Fact Checkers & Staff Writers: Publius Revolts, rba, Avahome, GreyHawk, intranets, luaptifer
Image Credit: Library of Congress