Cho, Roxy, StandingUp, wanderindiana, and Aaron Barlow
xposted at ePluribus Media
When John K. Tanner replaced Joe Rich as section chief of the Justice Department's Voting Rights 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 staff
-- 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.
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 former 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 [2003]), [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 former Department of Justice staff, 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 Rights 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 Rights Section just two months. He was given a cash awardbased on his work on the Georgia Voter ID law.
Although the Georgia law was subsequently struck down as unconstitutional. and unable towithstand 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.
Government 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, told ePluribus Media researchers: "The primary thing that 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 Rights 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 Rights Section cases are always staffed by more than one attorney. The assignment is also odd because Section Chiefs rarely, if ever, handle investigations.
Read rest of the full article to find out how they gutted the section and how even former staff fear reprisals:
Resurrecting Jim Crow: The Erratic Resume of the Voting Section Chief, which details the confusing ideology of the new section chief and the gutting of the Voting Section
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, Avahome, GreyHawk, intranets, luaptifer
Read ePluribus Media's earlier background article here The Voting Rights Act, Voter Disfranchisement and the Tail Wagging the Dog
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