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Dismantling Voting Rights Enforcement

Publius Revolts, Cho, Standingup, Aaron Barlow & Roxy
Original Publication Date

As ePluribus Media recently reported, since the replacement of long-time Voting Rights Section Chief Joseph D. Rich by John K. Tanner (promoted by former Assistant Attorney General for Civil Rights R. Alexander Acosta) there has been an exodus of unprecedented proportions of experienced voting rights personnel from DoJ's Civil Rights Division. TPM Muckraker's Paul Kiel has referred to this exodus as a purge, and it has stretched from the top to the bottom of the Voting Section's ranks. Acosta has been implicated in the plummeting number of voting rights cases filed to protect the rights of African-Americans. Since then, he has received three interim appointments from Attorney General Alberto Gonzales as U.S. Attorney for the Southern District of Florida prior to being confirmed by the Senate. Tanner, however, remains Voting Section chief.

Former Section Chief Rich noted, in testimony before a House Judiciary subcommittee in March of this year, that:

[...] of the five persons in section leadership at the beginning of 2005 (the chief and four deputy chiefs), only one deputy chief remains in the section today.

The most striking feature of the exodus has been the hue of the professional staff members who have left and the hue and political affiliations of the individuals who have replaced them. Since mid-2004, when political appointees began the purge by forcing career staff to downgrade the performance appraisals of employees who did not toe the Bush line, knowledgeable sources tell ePluribus Media, nine of 13 African-American professional staff members (attorneys and analysts) have left __ eight of them on Tanner's watch __ while only one African-American professional staff member has been hired. The Section, which has already come under fire for filing only two lawsuits on behalf of African-American voters during the Bush years (one of which was prepared under the Clinton administration) and filing the first reverse discrimination suit against African-Americans ever filed by the Federal Government under the Voting Rights Act, which had been passed specifically to protect African-American voting rights, does not seem to be any more attuned to the needs of its own African-American staff members than it is to the rights of African-American voters.

Sources have reported that two Equal Employment Opportunity claims are currently pending in the Voting Section alleging racially discriminatory treatment and/or hiring practices against African-Americans by Tanner and Acting Section 5 Deputy Chief Yvette Rivera. Rivera was Tanner's choice to succeed 28-year veteran voting rights lawyer Robert Berman as deputy chief of the Voting Section's Section 5 unit after Berman was involuntarily transferred from the Voting Section to what Senator Ted Kennedy (D-MA) has called a "dead-end job" in a training section after Berman's recommendation to stop implementation of a Georgia photo ID law under Section 5 of the Voting Rights Act was overruled by Tanner. Indeed, four highly experienced African-American Section 5 analysts, including the Section 5 supervisor, representing approximately 100 years of Section 5 enforcement experience, have left since Rivera became acting deputy chief, one accusing the Section of having become a "plantation" in an email sent to the entire Voting Section upon her departure, former employees report. These same sources report that the Section 5 supervisor departed rather than comply with Rivera's directive to downgrade the performance appraisals of other African-American analysts as well as the lone analyst who opposed preclearance of the Georgia photo ID law (this analyst, as well as Berman, another attorney, and Geographer Toby Moore, who also opposed preclearance of the Georgia law, were subsequently forced from the Section). Not one of the four analysts hired since Rivera's arrival has been African-American. Black staff report receiving disparate treatment on routine issues, and a former non-black minority staffer stated that Rivera has "problems with color."

Perhaps the problem of lack of diversity is not unique to the Voting Section. As Roberta Baskin of Washington's WJLA-TV reported last week, it extends throughout the Civil Rights Division:

The Justice Department is missing a key component in its mission to protect civil rights __ diversity. [...] The criminal section within the Civil Rights Division has not hired a single black attorney to replace those who have left. Not one. [...] Out of fifty attorneys in the Criminal Section - only two are black, the same number the criminal section had in 1978, even though the size of the staff has more than doubled.

Richard Ugelow, formerly of the Division's Employment Litigation Section and now a law professor at American University, told Baskin that when he was with the Justice Department, "we would sue employers for having numbers like that." House Judiciary Committee Chairman John Conyers (D-MI) has promised an investigation into the lack of diversity in the Civil Rights Division.

The lack of diversity may be startling, but it is only one aspect of the problem. The Section 5 unit, responsible for reviewing changes in states with the worst histories of racial discrimination in voting, has been completely gutted. Former Voting Section Chief Joseph D. Rich, who was forced out of the Section in 2005, when Tanner assumed the position, noted in testimony before a subcommittee of the House Judiciary Committee in March that:

[... ] by 2001 __ the year that the new round of redistricting submissions began __ approximately 40% of Section staff was assigned to this work, including a Deputy Section Chief, Robert Berman, who oversaw the Section 5 work; 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; and over six attorneys who spent their full-time reviewing the work of the analysts. Since then, and especially since the transfer of Deputy Chief Berman from the Section in late 2005 [after Tanner's arrival], this staff dropped by almost two-thirds. There are now only ten civil rights analysts (none of whom hold supervisory jobs and only three of whom are senior) and two full-time attorney reviewers.

These analyst positions, formerly held by staffers with over 30 years of experience enforcing Section 5, are now routinely filled through a federal career internship program by twenty-somethings straight out of college who have no civil rights experience __ when they are filled at all, former employees report. As Rich noted in his testimony, "It is difficult to understand how this Administration expects to fulfill its Section 5 responsibilities __ especially the coming redistricting cycle __ with such a reduced staff." Toby Moore told ePluribus Media, "The quality of the work being done has really suffered because of the poor managers that the Bush Administration put in place and then tolerated because they tell the political appointees what they want to hear."

The attorney staff has been similarly dismantled. At least 17 attorneys, nearly half the staff, have departed just since Tanner's elevation to the section chief position in April of 2005, representing over 150 years of civil rights experience, employees who left the Section report. Many of their replacements have been members of the Republican National Lawyers Association or the ultra-conservative Federalist Society. This turnaround in the composition of the Section's staff has coincided with a shift, noted by McClatchy, from traditional voting rights enforcement to litigation aimed at suppressing the minority vote.

Recent news coverage of the Justice Department has focused on the firing of nine U.S. Attorneys, some apparently for refusing to push doubtful allegations of "voter fraud." Those who have witnessed the administration's efforts to utilize the Justice Department to favor Republican candidates firsthand feel that the bigger picture of politicization and internal management problems deserves equal attention. As Toby Moore told us when asked about the purge of career Voting Section staff:

The politicization of the civil rights division and especially the Voting Section has really damaged day-to-day management. Even if you remove the politicization of the decision making you still have internal problems that need to be addressed by [Assistant Attorney General for Civil Rights] Wan Kim and others in the Justice Department. Someone needs to take responsibility, hopefully it will be Wan Kim, and investigate the problems and make the management accountable for the mistakes they have made. The people are still suffering and a lot of analysts are working under difficult circumstances.

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

ePluribus Media Researchers, Contributors & Fact Checkers: AvaHome, GreyHawk, wanderindiana