Hans von Spakovsky cannot be confirmed to the FEC.

The law, lawyers, and the court.
Sept. 25 2007 6:54 PM

Do Not Vote for This Guy

He doesn't want Democrats to vote—unless it's to appoint him to the Federal Election Commission.

Hans von Spakovsky. Click image to expand.
Hans von Spakovsky 

Another one for you to file under "fox guards the henhouse": The Senate rules committee votes tomorrow (Wednesday) on whether to give Hans A. von Spakovsky a full six-year term on the Federal Elections Commission. For Senate Democrats to even consider allowing someone with von Spakovsky's background to sit on the independent agency tasked with protecting the integrity of federal elections is beyond incredible. If von Spakovsky is confirmed, it will be yet more evidence that Democrats have no more regard for the rule of law, or the integrity of the Justice Department, than Karl Rove does.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Von Spakovsky currently sits on the FEC as a result of a recess appointment made by President Bush in January of 2006. Before that he served as counsel to the assistant attorney general in the Civil Rights Division at Justice. Von Spakovsky's Senate confirmation hearing last June was noteworthy for many oddities, not the least of which was a letter sent to the rules committee by six former career professionals in the voting rights section of the Justice Department; folks who had worked under both Republican and Democratic administrations for a period that spanned 36 years. The letter urged the committee to reject von Spakovsky on the grounds that while at DoJ, he was one of the architects of a transformation in the voting rights section from its "historic mission to enforce the nation's civil rights laws without regard to politics, to pursuing an agenda which placed the highest priority on the partisan political goals of the political appointees who supervised the Section." The authors named him as the "point person for undermining the Civil Rights Division's mandate to protect voting rights."

Von Spakovsky's response to these charges at his confirmation hearings? "I was not the decision maker," he claimed. "I don't remember that complaint at all,'' he demurred. "It's privileged," he insisted. That's the kind of bobbing and weaving that likely cost Alberto Gonzales his job. That the same absurd testimony from von Spakovsky might be rewarded with a professional upgrade is unfathomable.

And what was von Spakovsky trying to hide at his hearing? Why is the nation's largest civil rights coalition urging that his confirmation be rejected? Because this man was one of the generals in a years-long campaign to use what we now know to be bogus claims of runaway "vote fraud" in America to suppress minority votes. Von Spakovsky was one of the people who helped melt down and then reshape the Justice Department into an instrument aimed at diminishing voter participation for partisan ends.

I won't belabor these claims here, as few of them are even disputed. Von Spakovsky's preferred method of defending himself—his recent forgetfulness notwithstanding—appears to involve scrubbing his fingerprints off the Web, fudging questions of authorship on an article that indicates his biases. But even a brief poke at his résumé shows a man who has dedicated his professional career to a single objective: turning a partisan myth about voters who cast multiple ballots under fake names (always for Democrats!) into a national snipe hunt for vote fraud.

Richard Hasen has sketched the outlines of the vote-fraud crusaders efforts here for Slate. Adam Lambert has done yeoman's work reporting on von Spakovsky here. The curious among you can check out this 2004 article by Jeffrey Toobin that highlighted a change of direction in DoJ's Voting Section and flagged von Spakovsky's early involvement with the Voting Integrity Project, where, among other things, he spoke out in defense of an effort to keep the Green Party off the Georgia ballot in 2000.

Among his numerous accomplishments at the Voting Section at DoJ, von Spakovsky can take credit for approving the Tom DeLay-sponsored midcensus redistricting in Texas—part of which was later deemed by the Supreme Court to have violated the Voting Rights Act. (To do so, von Spakovsky overrode a 73-page memo written by seven voting-rights experts finding that the DeLay scheme violated the Voting Rights Act by reducing minority voting strength in Texas.) Von Spakovsky similarly pushed for approval of Georgia's restrictive voter-ID law, again over the four-to-one objection of staff lawyers who (in a 51-page memo this time) felt the new law would disenfranchise black voters. State and federal courts later found that statute unconstitutional.

But let's say we chalk all that activism up to bad guesses. Say we concede that von Spakovsky wasn't actively trying to use laws intended to protect minority voters in order to disenfranchise them, but merely trying to stomp out an epidemic of vote fraud. The problem is that von Spakovsky was himself a party to creating the illusion of that epidemic. Such efforts included his anonymous 2005 law review article zealously endorsing voter ID laws like Georgia's, at the same time he was lobbying for the legality of the Georgia law. They also included his lamentable efforts to remove Tova Andrea Wang from the Election Assistance Commission—the entity charged with uncovering voter fraud that was unable to find much of it. Any way you look at it, the man wasn't merely itching to purge minorities from the voter rolls. He was also working behind the scenes—even as a commissioner of the FEC—to prop up the myth that vote fraud is a devastating problem, long after it had become increasingly clear that it was not.

But even that may not be the worst of it. Von Spakovsky's lasting—and perhaps most symbolic—contribution to the state of the Justice Department today is highlighted by one other extracurricular: his efforts to undermine Minnesota U.S. Attorney Tom Heffelfinger, who recently departed Justice on his own steam. As Tom Hamburger reported in the Los Angeles Times this summer, Heffelfinger became concerned when Minnesota's secretary of state directed that tribal ID cards could not be used for voter identification by Native Americans living off reservations. Heffelfinger wanted the Justice Department to investigate whether that directive might prove discriminatory. According to Joseph Rich, former head of the Voting Section of the Justice Department's Civil Rights Division (who had served as a career lawyer there for 37 years before stepping down in 2005), it was Hans von Spakovsky who effectively shut down the DoJ investigation before it began.

Three months after expressing his concern over Native American vote suppression, Heffelfinger's name showed up on a 2004 list of U.S. attorneys to be fired and replaced. In her testimony before the Senate judiciary committee about the U.S. attorney firings, White House liaison Monica Goodling mumbled something about hearing Heffelfinger criticized for "spending an excessive amount of time" on Native American issues. Somehow, protecting the voting rights of minority voters had become antithetical to the mission of DoJ.

Senate Democrats are still claiming they want to get to the bottom of the scandal involving the politicization of the Justice Department. If that is the case, they cannot confirm someone responsible for that same politicization, when he was supposed to be protecting the right to vote. It's not an answer to claim—as we are now hearing—that some "deal" may have been struck that would allow a Democratic insider to be confirmed alongside him. To what end? The FEC is not the USA Today editorial page, matching partisan for partisan. Nor is it an answer to claim that the FEC is so toothless and impotent, that it doesn't matter who sits on it. If that is the case, congressional Democrats should hardly be invested in which left-leaning commissioner they can confirm alongside von Spakovsky.

More than almost anyone else—perhaps even including Alberto Gonzales—Hans von Spakovsky represents a Justice Department turned on its head for partisan purposes. Even if a seat on the FEC is merely symbolic, the last thing Democrats should be doing is confirming to that seat someone who symbolizes contempt for what it means to cast a vote.

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