Is the Justice Department Too Liberal to Enforce the Voting Rights Act?

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March 18 2013 1:30 PM

The Voting Wars Within

Is the Department of Justice too biased to enforce the Voting Rights Act?

Residents in Atlantic Highlands walk to the Atlantic Highlands Emergency Services Building to vote today as power outages from Superstorm Sandy forced the town to condense all the districts into one location.
Voting on Nov. 6 in Atlantic Highlands, N.J.

Photo by Joe Epstein/AP

A long-awaited report from the Department of Justice’s Office of the Inspector General issued last week sheds considerable light on the battles within the department’s voting section during the Bush and Obama administrations. The picture is not pretty. It is a tale of dysfunction and party polarization that could unfairly derail the nomination of the next secretary of labor and could even provide ammunition to Justice Antonin Scalia’s incendiary charge, made during the Supreme Court’s hearing on the constitutionality of the Voting Rights Act last month, that the civil rights law is a kind of “racial entitlement.” The sordid business raises serious questions about whether the whole model for the federal enforcement of voting rights should be reworked.

The record of political bias in the Justice Department’s voting section during President George W. Bush’s administration is well-known. (The department’s voting section is charged with enforcing the Voting Rights Act and other federal voting laws.) We know from earlier reports that election officials, including Monica Goodling, went on a hiring binge to hire conservative attorneys to work in the section and, in the words of Bush appointee Bradley Schlozman, to “gerrymander all those crazy libs right out of the section.” We know that senior Justice Department officials in the Bush era, including Hans von Spakovsky, overruled the recommendations of career civil-service attorneys in the section to approve Georgia’s controversial voter identification law. And we know that the Justice Department during the Bush era made decisions widely perceived to help Republicans, such as approving Texas’s mid-decade re-redistricting of its congressional seats to create more safe Republican seats, an effort partially overturned by the Supreme Court after finding it violated the Voting Rights Act.

But less well-known are the charges by conservatives that the voting rights section under the Obama administration has been just as biased in its hiring and decision-making—including charges that the Justice Department wrongfully dropped a case of voter intimidation against members of the New Black Panthers Party during the 2008 election because the perpetrators were African-American; that the department handled Freedom of Information Act requests from liberals more quickly and efficiently than those from conservatives; and that conservatives were disfavored in hiring and promotion by the new bosses, including the head of the civil rights division, Thomas Perez, who President Obama nominated Monday to serve as the next secretary of labor.

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The inspector general’s report rejected most of these conservative charges. It found that the decision on the New Black Panthers, as well as decisions on whether to pursue claims of voting rights violations against white voters and others, were within the policy discretion of Justice Department officials. Likewise, the inspector general concluded that many Bush-era decisions, such as those over the Georgia voter ID law, were also within the policy discretion of Justice Department officials. The inspector general rejected the claim involving the handling of FOIA requests and found that partisan hiring practices had improved since the Bush era.

But other aspects of the department’s investigation were deeply troubling. As conservatives have long charged, many of the career civil-service employees in the Justice Department’s voting section are strong liberals. Conservatives who worked at the department, especially on cases involving the protection of white voters, were ostracized, called “Klansman,” “Nazi,” or subject to ridicule in department emails or in anonymous items posted on political blogs. One voting-section employee admitted to lying under oath to investigators about posting such comments. She said she did it in response to a series of harassing comments made by three male conservative colleagues in February 2007, including “highly offensive and inappropriate sexual comments about the employee, including her sexual orientation, and remarks about how she was ‘pro-black’ in her work.”

The lack of professionalism and level of personal nastiness in the report in some cases is appalling. As Andrew Cohen remarked, “ ‘At least we are better than Bradley Schlozman’ is no standard for a Justice Department.” And while hiring practices have improved in the Obama administration, the inspector general found that department’s use of civil rights and voting rights experience as criteria for hiring tend to skew the section’s hiring toward Democrats and liberals—experience that the inspector general said was not always necessary to do the job. Further, one of the members of the voting-section hiring committee often sent emails within the Justice Department “that were highly critical of Republicans or conservatives.” This “would lead a reasonable person to question [his] ability to evaluate job applications free from political or ideological bias.”

The voting section’s troubles went beyond personnel issues into the question of whether the Voting Rights Act was fairly enforced. Some department employees, including a current manager “admitted to [IG investigators] that, while they believed that the text of the Voting Rights Act is race-neutral and applied to all races, they did not believe the Voting Section should pursue cases on behalf of White victims.” Even if the department had “infinite resources, [two career attorneys] still would not have supported the filing of [a case against black officials discriminating against white voters] because it was contrary to the purpose of the Voting Rights Act, which was to ensure that minorities who had historically been the victims of discrimination could exercise the right to vote.”

While the investigators did not find that these views affected how the department enforced the Voting Rights Act, these statements will play right into the hands of conservatives like Justice Scalia who attack the civil rights law as a “racial entitlement.”  Don’t be surprised to see the report cited in an opinion by Justice Scalia in the Shelby County case considering whether the Voting Rights Act remains constitutional.

More broadly, the report has gotten conservatives in a tizzy and will be featured prominently in the Perez nomination battle. Hostile Republicans are going after Perez, even though many of the problems predate his tenure as head of the civil rights division and he comes across pretty well in the report. (The worst the report says about him is that he gave inadvertently incorrect testimony regarding whether political appointees were involved in decisions on prosecutions in the New Black Panthers case and that he should have investigated further before testifying about the case.)

The sharp divide between liberals and conservatives working for the voting section, and the widely divergent policy choices they pursued in the Bush and Obama administrations, raises serious questions about whether this wing of the Justice Department, as currently constituted, can do its job. The inspector general’s report rejected the idea that it was inevitable for the voting wars to spill into the voting section:

“Other Department components—including components that specialize in subject areas that are also politically controversial, such as environmental protection—do not appear to suffer from the same degree of polarization and internecine conflict. We believe the difference is largely a function of leadership and culture, and that steps must be taken to address the professional culture of the Voting Section and the perception that political or ideological considerations have affected important administrative and enforcement decisions there.”

Maybe. If not, then we should consider more radical solutions. Because, if the people charged with maintaining a level playing field can’t keep the peace, what hope is there for anyone else?

Richard L. Hasen is a professor of law and political science at the UC–Irvine School of Law and is writing a book on campaign finance and political equality. Follow him on Twitter.

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