[House Hearing, 110 Congress]
[From the U.S. Government Printing Office]
VOTING SECTION OF THE CIVIL RIGHTS DIVISION OF THE U.S. DEPARTMENT OF
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
OCTOBER 30, 2007
Serial No. 110-156
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.govFOR
VOTING SECTION OF THE CIVIL RIGHTS DIVISION
OF THE U.S. DEPARTMENT OF JUSTICE
VOTING SECTION OF THE CIVIL RIGHTS DIVISION OF THE U.S. DEPARTMENT OF
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
OCTOBER 30, 2007
Serial No. 110-156
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
U.S. GOVERNMENT PRINTING OFFICE
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Joseph Gibson, Minority Chief Counsel
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
JERROLD NADLER, New York, Chairman
ARTUR DAVIS, Alabama TRENT FRANKS, Arizona
DEBBIE WASSERMAN SCHULTZ, Florida MIKE PENCE, Indiana
KEITH ELLISON, Minnesota DARRELL ISSA, California
JOHN CONYERS, Jr., Michigan STEVE KING, Iowa
ROBERT C. ``BOBBY'' SCOTT, Virginia JIM JORDAN, Ohio
MELVIN L. WATT, North Carolina
STEVE COHEN, Tennessee
David Lachmann, Chief of Staff
Paul B. Taylor, Minority Counsel
C O N T E N T S
OCTOBER 30, 2007
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 1
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Ranking Member, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 2
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, Chairman, Committee on the
Judiciary, and Member, Subcommittee on the Constitution, Civil
Rights, and Civil Liberties.................................... 3
Mr. John K. Tanner, Chief, Voting Section, Civil Rights Division,
U.S. Department of Justice
Oral Testimony................................................. 6
Prepared Statement............................................. 8
Mr. Laughlin McDonald, Director, Voting Rights Project, Southern
Regional Office, American Civil Liberties Union (ACLU)
Oral Testimony................................................. 39
Prepared Statement............................................. 41
Mr. Toby Moore, former PoliticaL Geographer and Redistrict
Expert, Votiing Section, Civil Rights Division, U.S. Department
Oral Testimony................................................. 47
Prepared Statement............................................. 50
Mr. Robert N. Driscoll, Partner, Alston and Bird
Oral Testimony................................................. 58
Prepared Statement............................................. 59
Ms. Julie Fernandes, Senior Policy Analyst & Special Counsel,
Leadership Conference for Civil Rights (LCCR)
Oral Testimony................................................. 61
Prepared Statement............................................. 63
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan,
Chairman, Committee on the Judiciary, and Member, Subcommittee
on the Constitution, Civil Rights, and Civil Liberties......... 4
Prepared Statement of the the Honorable Steve Cohen, a
Representative in Congress from the State of Tennessee, and
Member, Subcommittee on the Constitution, Civil Rights, and
Civil Liberties................................................ 5
Material Submitted for the Hearing Record........................ 115
VOTING SECTION OF CIVIL RIGHTS DIVISION OF THE U.S. DEPARTMENT OF
TUESDAY, OCTOBER 30, 2007
House of Representatives,
Subcommittee on the Constitution,
Civil Rights, and Civil Liberties,
Committee on the Judiciary,
The Subcommittee met, pursuant to notice, at 10:10 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Jerrold
Nadler (Chairman of the Subcommittee) presiding.
Present: Representatives Conyers, Nadler, Scott, Davis,
Wasserman Schultz, Ellison, Chabot, Pence, King and Franks.
Staff Present: David Lachman, Chief of Staff; LaShawn
Warren, Majority Counsel; Paul Taylor, Minority Counsel.
Mr. Nadler. Good morning. This hearing of the Subcommittee
on the Constitution, Civil Rights, and Civil Liberties will
come to order. Today's hearing will continue the Subcommittee's
oversight of the Civil Rights Division of the Department of
Justice. Today the Subcommittee will focus on the work of the
voting section. The Chair recognizes himself for 5 minutes for
an opening statement. The right to vote is the bulwark of our
other rights. Without an effective franchise, all other rights
For that reason, our Nation's history has been one of
fulfilling the promise of our Declaration of Independence and
our Constitution by progressively extending the right to vote
to all citizens. That struggle has taken generations. But the
struggle to ensure that the legal right to vote translates into
an actual right to cast the ballot and have it counted remains
unfinished. Congress has responded over the years with the
enactment of laws to protect the right to vote, most recently
with the bipartisan reauthorization of the Voting Rights Act.
The hearings we held on the Voting Rights Act demonstrated
the continuing need for its protection for voters, especially
minority voters and voters with limited English proficiency. I
take the Voting Rights Act very seriously. The two counties I
represent, or parts of which I represent, are in New York City,
are both covered jurisdictions under the preclearance
provisions of section 5. We came by that distinction honestly
through past misconduct. And I think you will find that most
New Yorkers support the continued enforcement of the act.
Today we examine the Voting Section of the Justice
Department's Civil Rights Division. The Voting Section provides
the teeth behind the words of the statute, or at least it is
supposed to. If the laws are to have any real meaning the
Voting Section must be a tireless advocate for the right to
vote without fear or favor or without the intrusion of partisan
We have received numerous reports over the years that the
section is not living up to its mandate, that politics has, as
is the case with other parts of the Justice Department,
intruded into the decision-making process, sometimes at the
expense of the voting rights of the very people the law was
intended to protect. In cases involving the Georgia ID statute
or the preclearance of redistricting plans in Texas and other
jurisdictions, there have been allegations, and I have serious
concerns, that the work of the section was swayed by political
considerations. We need to get to the bottom of these
allegations. The work of the Voting Section is too important to
let these hang in the air.
I am also concerned about some comments that Mr. Tanner has
made recently about minority voters which demonstrate to me at
best the lack of understanding of the mission with which the
section is entrusted. These comments call into question his
fitness to head this important section. I look forward to the
testimony of our distinguished witnesses. I yield back the
balance of my time. I would now recognize our distinguished
Ranking minority Member, the gentleman from Arizona, Mr.
Franks, for his opening statement.
Mr. Franks. Well, thank you, Mr. Chairman, and thank you,
Mr. Tanner, for being here.
Mr. Chairman, the Voting Section of the Civil Rights
Division protects Americans' voting rights through a Federal
monitoring program.And the proper functioning of this section
is essential to the integrity of our election process. During
the course of this hearing, we're going to hear numerous
criticisms of the section's enforcement activities and
priorities. And certainly that's part of the process, Mr.
Chairman, to make sure that we get the facts on the table
regarding the section's enforcement activities.
Among the most important priorities that I want to
emphasize is the difficulty that State and local officials have
in confirming the citizenship of voters and preventing illegal
noncitizen voters from voting and cancelling out legally cast
votes. In April, I was glad to see that a Federal Appeals Court
in Gonzalez v. Arizona rejected an effort to halt carrying out
Arizona's recently enacted law that was part of Proposition 200
which passed in 2004. The Arizona law requires residents to
prove that they are American citizens when they register to
vote and to present identification when they vote at the polls.
The ruling by the United States Court of Appeals for the
Ninth Circuit said the law did not appear to unduly burden the
right to vote or violate Federal voting laws or place a
disproportionate burden on naturalized citizens or require what
would be an unconstitutional poll tax.
Arizona's sound approach to voting integrity follows a 2005
report by a group of bipartisan leaders and scholars led by
former President Carter and Secretary of State James Baker,
III. As the Carter-Baker report elaborated, ``to make sure that
a person arriving at a polling site is the same one who is
named on the list, we propose a uniformed system of voter
identification based on the real ID card or an equivalent for
people without a driver's license. They emphasize there is
likely to be less discrimination against minorities if there is
a single uniform ID than if poll workers can apply multiple
Mr. Chairman, a recent Wall Street Journal/NBC news poll
confirms every other poll on the subject over 81 percent of
those surveyed supported a requirement to show a photo ID
before voting. This included two-thirds of majorities from
African-American populations, two-thirds majorities from
Democrats and two-thirds majorities of Hispanics. Requiring
photo identification would increase voter confidence. And one
of the reasons identified by some minority and low-income
voters as to why they do not vote is the perception that they
will not be permitted to cast a ballot, or a ballot they cast
will not be counted. Providing photo identification will
increase that voter's confidence that they will be allowed to
cast an effective vote.
Mr. Chairman, we have many important issues to cover here
today, and I simply look forward to hearing from all of our
Mr. Nadler. I thank the gentleman. I now recognize the
distinguished Chairman of the full Committee, the gentleman
Mr. Conyers. Thank you, Chairman Nadler.
And I want to point out that in the midst of all the work
that we are doing in trying to rehabilitate the Department of
Justice--and nobody knows more than the Members of this
Committee what we've been through these last 10 months since
I've been Chairman--there is no section more important to us
than the voter rights section. And that's why this hearing is
so important to me. We had an oversight hearing earlier. But we
want it to be made clear that the work we are doing has to go
way beyond just a hearing, way beyond us taking 5 minutes each
in a couple of rounds. This is far, far more critical than
And so it is in that spirit that I welcome Mr. John Tanner,
the head of the section. I notice his wife and daughter are
here in the hearing room, which will probably make us be even
more polite than we are going to be as this hearing proceeds.
But we are in a crisis. We are in a crisis, and it is the duty
of this Committee to determine what went wrong in terms of the
voting responsibility, the encouragement of the right to vote,
the protecting the right to vote, the continuing integrity of
And so what we are trying to inquire in this archaic way
that the Congress runs is to find out what went wrong. And we
want to also understand what the present situation is. And then
of course the issue is, what are we going to do about it? And I
am concerned about the time from today, October 30, until the
first Tuesday in November. We got a lot of work, and we don't
have much time to do it.
Now, there have been more irregularities and challenging of
the vote of purges, of misinformation, of failure to act since
the election of 2000, the election of 2002, of 2004, 2006, than
in any time in the service that I've been on this Committee. It
has never been more troubling and disturbing. And so I'm very
happy that we have the people on the Constitution Committee
working with me on this. We've got to deal with this question.
So what I'm saying is that we've got to work beyond and between
these public hearings.
The decline in section 2 cases is unprecedented in the
history of the Department of Justice. And we are talking about
one case being prosecuted in 6 years. We are talking about the
Citizens' Commission on Civil Rights that criticize the
enforcement efforts made under the tenure of the chief of the
Voting Section, and well before Mr. Tanner's arriving at that
position. And we are investigating the fact that a career
attorney's recommendations were disregarded with reference to
the vigorous enforcement of section 5; and that not only were
they stripped out, but they were rewritten by someone else.
We are concerned about the Inspector General's Office of
Professional Responsibility who have raised multiple complaints
against the section leader of that section and the staff. And
it is being investigated in some depth concerning the
defrauding the government through the abuse of travel funds. We
are concerned about the fact--and some of it approaches the
astounding circumstance of people selecting litigation sites
based on their vacation travel preferences rather than the
merits of the issue. We've got management issues raised by the
section 5 preclearance. And so all of this--oh, don't let me
forget, in Ohio, we got a letter from the section, probably
from Tanner, Mr. Tanner himself, defending their decision to
maldistribute voting machines disproportionately to the
predominantly White precincts at the expense of the minority
areas in Franklin County. It goes on and on.
I'm going to revise and extend my statement. But we have
more grievances, more questions of integrity, more questions
about the efficiency of the most sensitive part of the
Department of Justice, the voting rights section. And so we've
got a big job in front of us. I thank the Chairman for allowing
me to make some opening comments.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, Chairman, Committee on the
Judiciary, and Member, Subcommittee on the Constitution, Civil Rights,
and Civil Liberties
Last Congress, the Judiciary Committee was united in its effort to
reauthorize the expiring provisions of the Voting Rights Act. Too many
Americans face still barriers to exercising their right to vote and
vigorous enforcement of this right by the Department of Justice is
essential. Unfortunately, the Voting Section of the Civil Rights
Division of the Justice Department, which is the primary agency charged
with this responsibility, still faces many challenges, three of which I
will highlight here.
First, we need a clearer understanding of how the Civil Rights
Division interprets its responsibilities regarding photo identification
requirements. Earlier this year, the Citizens' Commission on Civil
Rights issued a report criticizing the Voting Section's enforcement
efforts and cited the preclearance of the Georgia photo identification
requirement as a major example. In particular, the Commission cited
Voting Section Chief Tanner's failure to fairly and vigorously enforce
preclearence requirements of Section 5 as a result of partisan
political concerns. The Commission concluded that this failure damaged
the Section's procedural integrity and undermined its credibility.
I am particularly troubled by Mr. Tanner's recent comments
regarding the effects of photo identification requirements on minority
voter participation. He said, for example, ``Our society is such that
minorities don't become elderly the way white people do; they die
first.'' While Mr. Tanner has already demonstrated questionable
judgment in overruling the decision of Justice Department lawyers to
object to the Georgia photo ID law, this statement--at least in my
opinion--demonstrates a severe lack of appreciation of what the
Section's mission should be--that minority voters should not be
Second, serious management issues have also been raised with the
Section's core responsibility of Section 5 enforcement. Under Mr.
Tanner's tenure, the corps of Section 5 analysts has been reduced from
23 to 8 positions. In addition, the Judiciary Committee is aware of
complaints of racial discrimination against the Deputy Chief for
Section 5 as well as other Equal Employment Opportunity complaints.
While I take seriously any allegation of discrimination, it is
especially disturbing when the allegation is against the very
institution that is charged with fighting against discrimination. In
the coming year, the Voting Section will face a substantial increase in
its work load due to preclearence requirements associated with the
Federal elections. I look forward to hearing how the Mr. Tanner plans
to address the allegations of a hostile racial environment in the
Section and how he will rebuild the Section 5 analyst corps.
Third, the Section's record with respect to Section 2 litigation,
claims alleging discrimination in voting, is also problematic. In the
first six years of the Bush Administration, fewer Section 2 cases were
brought by the Voting Section than in any other administration since
1982. The number of Section 2 cases brought on behalf of African
Americans has come to a virtual standstill. While Mr. Tanner's
testimony states that there has been a slight upswing in the last year,
critics--particularly in the Latino community--note that the office's
apparent overemphasis on Section 203 has left minority voters outside
the political process, when they could have had a fair opportunity to
elect candidates of their choice through Section 2 litigation.
Bilingual voting materials are not the whole story for language
The Voting Rights Act remains the ``Crown Jewel'' of our civil
rights laws. Nevertheless, as the Citizens' Commission on Civil Rights
has detailed, those responsible for maintaining this treasure have
faltered in their mission. In the next 14 months, the Voting Section
has a substantial amount of work to complete. I hope that this hearing
will highlight those challenges and that the Justice Department witness
will suggest effective solutions. We have clearly reached the point
where the status quo is unacceptable.
I thank the gentleman. In the interest of proceeding to our
witnesses, and mindful of the fact that there's another
Subcommittee hearing scheduled in this room not too long from
now, that we have a lot of witnesses, I would ask other Members
to submit their statements for the record. Without objection,
all Members will have 5 legislative days to submit opening
statements for inclusion into the record. Without objection,
the Chair will be authorized to declare a recess of the
hearing. We will now turn to our witnesses.
[The prepared statement of Mr. Cohen follows:]
Prepared Statement of the Honorable Steve Cohen, a Representative in
Congress from the State of Tennessee, and Member, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties
Reports about the significant drop in and possible politicization
of enforcement activity by the Civil Rights Division's Voting Section
fit a deeply troubling pattern within the Justice Department under this
Administration. The Voting Section is charged with protecting the most
basic right in a democracy--the right to participate in choosing our
leaders. Yet if the reports are accurate, it appears that, rather than
protecting this right, the Voting Section has acted to suppress
minority voters by approving regressive voting practices and procedures
and by failing to file lawsuits when such suits would have been
warranted. Moreover, the Voting Section may be using its enforcement
discretion to assist the Republican Party politically, rather than to
fulfill its mission of protecting minority voting rights. Finally,
illustrating another persistent pattern under this Administration, it
appears that the career staff of the Voting Section has largely been
replaced by a cadre of conservative ideologues who have little
experience with and little concern for civil rights law. I look forward
to the opportunity to air publicly these concerns and to seek answers
from the Administration concerning the enforcement activity of the
Mr. Nadler. As we ask questions of our witnesses, the Chair
will recognize Members in the order of their seniority on the
Subcommittee, alternating between majority and minority,
providing that the Member is present when his or her turn
arrives. Members who are not present when their turn begins
will be recognized after the other Members have had the
opportunity to ask their questions. The Chair reserves the
right to accommodate Members unavoidably late or only able to
be with us for a short time.
Our first witness is John Tanner, the Chief of the Voting
Section of the Justice Department's Civil Rights Division. Mr.
Tanner joined the Voting Section in 1976 as a research analyst,
attended law school at night and, upon graduation, was hired
under the Attorney General's program for law graduates. In
1995, he left to prosecute criminal civil rights violations,
including as a member of the National Church Arson Task Force.
He also worked in the White House Office of Counsel to the
President, the Senate Judiciary Committee and the Justice
Department's Office of Legislative Affairs. In July 2002, he
returned to the Voting Section to coordinate enforcement of the
minority language provisions of the Voting Rights Act and was
named chief of the Voting Section in June 2, 2005.
Welcome. Your written statement will be made part of the
record in its entirety. I would ask you now summarize your
testimony in 5 minutes or less. To help you stay within that
time, there is a timing light at your table. When 1 minute
remains, the light will change from green to yellow and then
red when the 5 minutes are up. Before we begin, it is customary
for the Committee to swear in its witnesses. If you could
please stand and raise your right hand to take the oath.
Mr. Nadler. Thank you. Let the record reflect that the
witness answered in the affirmative. The witness may proceed.
TESTIMONY OF JOHN K. TANNER, CHIEF, VOTING SECTION, CIVIL
RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE
Mr. Tanner. Mr. Chairman, Ranking Member Franks and Members
of the Subcommittee. Thank you for the opportunity to appear
before you. Let me first note that I have apologized to the
National Latino Congreso for comments I made about the impact
of voter identification laws on elderly and minority voters. My
explanation of the data came across in a hurtful way which I
deeply regret. The reports of my comments do not in any way
accurately reflect my career of devotion to enforcing Federal
laws designed to assure fair and equal access to the ballot.
I began working to secure equal voting rights as a teenager
in Birmingham, Alabama, in the 1960's. I spent time on weekends
at the SCLC headquarters stuffing envelopes. I took African
American citizens to the Federal examiners to register to vote.
And I embraced a vision of a just society: African Americans in
elected positions in city halls, county courthouses, the State
legislature and in Congress from Alabama.
In 1976, I joined the Voting Section where I pursued that
vision of a just society through voting rights enforcement
actions. In the high point of my career, I helped obtain fair
representation for African Americans in the Alabama legislature
using section 5 of the Act, which we are now vigorously
defending against a constitutional challenge. I also helped
obtain a Mississippi legislative plan that added 20 new African
American legislators, and I brought cases in many other States.
I'm honored that my work has been recognized by the Conecuh
County Branch NAACP, the Concerned Citizens of Bessemer, the
Alabama Democratic Conference Young Democrats, the Greenwood,
Mississippi, Voters League and the City Council of the District
I worked outside the Voting Section from 1995 to 2002,
serving at the White House Office of Counsel to the President,
the Criminal Section of the Civil Rights Division and the
Department's Office of Legislative Affairs, where I worked with
Members and staff of this Committee. I returned to the Voting
Section in 2002, assigned to lead the section's efforts in
enforcing the minority language provisions of the Voting Rights
Since 2002, the section has filed twice as many such cases
as in the entire previous history of the Act. During that time,
we have filed a majority of all cases ever filed under the
substantive provisions of the Act on behalf of Latinos, a
majority of all cases on behalf of Asian Americans and over 70
percent of all cases ever filed under the voter assistance
provisions of section 208.
Since I became Chief in June 2005, I have worked to protect
and extend the voting rights of all minorities. We changed the
election system in Euclid, Ohio, this year to open the door to
African American representation. We have used section 5 to
block discrimination in Alabama, Georgia, Texas. I reached out
to African American groups to seize new opportunities to
protect the rights of African Americans and to other groups
protected by our statutes--Arab Americans, Native Americans,
Latinos, Asian Americans and persons with disabilities.
During my 31-year career, the section has averaged eight
new cases per year. Since I became Chief, our pace has nearly
doubled. In 2006, the section brought 18 new cases, the highest
number in any year in history. These have been important cases.
We have seen segregated polling places, ethnic slurs, race-
based challenges, voters leaving the polls in tears, and
ballots actually taken from voters and marked contrary to their
wishes. We go into court to stop these practices.
The section is so productive because of the energy, the
enthusiasm, and the commitment of the section staff, a group of
talented self-starters eager to find and combat discrimination.
I have to make hard decisions. Ultimately, all of my decisions
are made after careful scrutiny of the evidence, and they're
based solely on the facts and the law. I am blessed to be in
this position which enables me to continue to work toward
realizing the vision of a just society I embraced over 40 years
ago in Birmingham and to help this Nation realize its own
vision of equal voting rights for all. Thank you for your
attention. I appreciate the opportunity to respond to any
questions you may have.
[The prepared statement of Mr. Tanner follows:]
Prepared Statement of John K. Tanner
Mr. Nadler. Thank you, Mr. Tanner.
I will begin the questions by recognizing myself for 5
Mr. Tanner, in April 2005, while you were serving as the
Voting Section chief, Georgia passed a law requiring photo
identification in order to vote. Georgia submitted its law for
section 5 preclearance. We now know that four out of five of
the Justice Department's civil service employees objected to
the law and forwarded a 51-page memo to you that included a
factual investigation into the legal review of the Georgia
plan. Most significantly, the memo included a detailed analysis
and a recommendation that the Department object to the voting
change because it was likely to discriminate against Black
voters, but they were overruled the next day by higher ranking
officials at Justice. Only 1 day after receiving a staff
analysis recommending an objection, the Department approved the
Brad Schlozman and Hans von Spakowsky, both former senior
level Department of Justice officials who served in the CRT,
testified before the Senate that you played a key role in the
Department's decision to approve the Georgia photo
identification law. Now, you received a 51-page memo that
analyzed thousands of pages worth of information on August 25.
The Department received additional information from the State
of Georgia on August 26. So is it your position that you had
sufficient time between August 25 and August 26, 1 day, to
conduct a thorough review of the staff memorandum and the new
information the Department received from Georgia?
Mr. Tanner. Thank you for your question, Mr. Chairman.
You've raised an important issue, and I'm happy to have an
opportunity to address it.
Consideration of the Georgia ID statute began, I believe,
even before it was passed and certainly before it was received
by the Department. I recall meeting in Georgia with Mr.
McDonald, who is on the next panel, and discussing it before we
received it. I entered that process. I approached the review of
the decision, frankly, with the presumption that we would
interpose an objection to it, that we would determine that it
was racially discriminatory.
My presumptions ran into the facts, however. It turned out
that the statistical data, the facts before us, the best facts
available, which is what I have to make my decisions on,
demonstrated that it did not warrant an objection under the
very narrow standards and the very narrow inquiry under section
5 of the Voting Rights Act. I would be happy to discuss the
precise scope of our review under section 5. But the----
Mr. Nadler. Before you get into that, we'll get into that
in a moment, the staff recommendation said that it did--the
four to five staff members who reviewed it said that you ought
to recommend an interposing objection. You overruled that; is
Mr. Tanner. I made the decision to----
Mr. Nadler. That they were incorrect and that you should
change the recommendation?
Mr. Tanner. I made the decision, Mr. Chairman. I would like
to make that clear. I would, of course----
Mr. Nadler. But in making that decision, you differed from
the four attorneys or whoever, four of the five people, staff
people, permanent staff, who recommended a contrary decision;
Mr. Tanner. I'm in an awkward position in that we are not
allowed and it is inappropriate for Department personnel to
discuss internal deliberations and the confidences of our
clients. I'm happy to give you information and explain the
basis for my----
Mr. Nadler. Mr. Tanner, I believe that that is public
information; that that has been testified to before, I think,
the Senate. Is that not correct, that this is public? That
these five individuals who reviewed this, who did all the staff
work for them, recommended disapproving and one differed from
that? That's all public information at this point.
Mr. Tanner. I'm not aware of the testimony on that. I'm not
going to deny it. I will say that I made the decision. And my
decision was based on a careful analysis that had been ongoing
for a considerable period of time. There were, as is typical in
such situations, numerous discussions, detailed discussion of
Mr. Nadler. Before you did that, did you forward that to
the front office, or did you get approval from the front
Mr. Tanner. The internal memorandum was forwarded to the
front office. The matter had been--had involved a large number
of discussions over an extended period and very careful
analysis and review by me----
Mr. Nadler. Now, but is it not true that it was a long-
standing section practice for a section chief who disagreed
with a staff recommendation to submit a separate recommendation
and leave the final decision concerning the split
recommendation between staff and section chief to the assistant
Mr. Tanner. I think that the Assistant Attorney General was
Mr. Nadler. That wasn't my question. Was it or was it not a
long-standing practice that when the section chief disagreed
with the staff recommendation to submit a separate
recommendation so that the Assistant Attorney General could see
the separate recommendations by the staff and by the section
chief and he could make a decision, or she?
Mr. Tanner. That has not been the uniform practice.
Mr. Nadler. Was it the general practice?
Mr. Tanner. I will say----
Mr. Nadler. I know it wasn't uniform because you didn't do
it. Was it the general practice up to that point?
Mr. Tanner. Prior to that time, it had not been uniformly
done. As I mentioned, I was outside the section from 1995
through 2002, and I was not involved in section 5 review of
voting changes until I became Chief to any significant extent.
So I can't speak authoritatively about the practices during
that time. I have made changes in the section 5 process, and I
would be happy to discuss those----
Mr. Nadler. In a section 5 submission, who has the burden
of proof, the submitting jurisdiction to prove that it doesn't
violate the--that it doesn't negatively impact minority voting
rights or the objecting parties?
Mr. Tanner. The statute is clear that the burden is on the
submitting authority to establish----
Mr. Nadler. And what were the facts that met the burden of
proof in this case?
Mr. Tanner. There were three key facts to me in the case.
The first was data showing, much to my surprise, frankly, and
contrary to my expectations, that statistically the number of
people in Georgia who had the requisite identification, the
requisite photo identification, from the Department of Driver
Services alone actually slightly exceeded census estimates of
the population eligible to possess that ID. That was the first
The second fact that was very significant to me was the
very large number, over 700,000, I believe, persons in Georgia
who had nondriver's license IDs which met significant issues in
And finally, each of four data sets showed uniformly that
the proportion of persons--that minorities were slightly more
likely than White persons to possess the requisite Department
of Driver Services identification.
Those facts met the State's burden of showing that it would
not discriminate where essentially or statistically all persons
had the ID, and minorities were not--were more, not less,
likely to have the ID.
Mr. Nadler. And I'm not going to go into the fact that some
of those figures were quite erroneous and that Georgia had to
correct them. Yet despite everything you just said, the Federal
Court reversed the decision and said that this was quite
Mr. Tanner. You've made an important point, Mr. Chairman,
that I think it is good to address. The Federal Court in
Georgia rejected the claim that the Georgia ID law was racially
discriminatory. There was a claim under section 2 of the Voting
Rights Act, which is the closest parallel among the claims to
the section 5 inquiry. The court did reject the plan on the
other bases, on constitutional bases, which are outside the
scope of our review under section----
Mr. Nadler. The poll tax is outside the scope of section 5
Mr. Tanner. The only thing we can look at under section 5
is a narrow question of whether a voting change would be
retrogressive. That is, it would make things worse for minority
voters relative to White voters, or at that time, if it had the
purpose to retrogress. We cannot interpose an objection based
on a constitutional violation or statutory violation that does
not meet that narrow standard.
Mr. Nadler. Thank you very much. My time has expired.
I now recognize the gentleman from Arizona, the Ranking
Member, Mr. Franks.
Mr. Franks. Thank you, Mr. Chairman.
Thank you, Mr. Tanner, for being here. Mr. Tanner, I'm sure
it is a little bit redundant, and I'm going to ask you to
repeat yourself a little bit, but would you give us your
understanding of the Federal District Court ruling on the
challenge to the Georgia voter ID law?
Mr. Tanner. The initial Federal court ruling, which was in
the preliminary injunction stage of the case, addressed a
number of claims, including constitutional claims of the poll
tax and the equal protection claim, as I recall, that were, as
I said, completely outside the scope of section 5 review, which
is, as I described it, does the voting change make things worse
for minority voters relative to White voters? There was a
similar claim under section 2 of the Voting Rights Act which is
a general claim of discrimination. And the court, while issuing
preliminary injunctions on the constitutional claims, declined
to issue such an injunction and rejected the Section 2 claim at
the preliminary injunction stage as it did other statutory
claims under the Civil Rights Act. I don't recall the exact
details of those.
Mr. Franks. Mr. Tanner, as far as the 2008 elections, what
steps have you taken to make those elections come off in a way
that is the most just for voters in general? Give us an insight
into what some of your priorities are there?
Mr. Tanner. The first thing we are doing is conducting
active litigation on Election Day type issues. Since I became
Chief, we have brought 23 cases under the Voting Rights Act
itself, the Voting Rights Act alone. We've also brought cases
under our other statutes that protect overseas voters and other
voters here in the United States. We also have been conducting
very active Election Day monitoring. And during the 2004
election, we had 1,199, or during the course of 2004, we had
nearly 2,000 people out monitoring the polls.
Every year we set a new record of placing people in the
polls in key areas to make sure that we can address such
problems that arise on Election Day and also to get evidence to
go forward and address problems in the future. I also have been
reaching out to minority groups, as I said in my opening
statements, of all types of minority groups to work with us, to
first help us to identify problem areas, areas where issues
within our statutes are likely to occur, to help us obtain
information and to help us gather that information in a way
that it later can be used as evidence in Federal court.
Mr. Franks. Mr. Tanner let me ask you, what do you think
are your greatest accomplishments during your tenure as Chief?
What are things that you think you've accomplished? What do you
intend to do in the future?
Mr. Tanner. I think my greatest accomplishment, which
actually began before I was chief, was to develop a system to
address the specific minority language statutes that I was
responsible for enforcing so that we have a regular flow of
such cases so we are doing a record setting job every year of
addressing those issues and bringing lawsuits. My challenge now
is to develop similar systems under each of our other statutes,
and I'm making significant progress in that. We are reaching
out to African American organizations, Arab American
organizations and others whom we had not reached out to before
to make sure that we get as much information and do as much for
everyone as we possibly can.
Mr. Franks. Thank you.
Mr. Tanner, the Carter-Baker report on election reform, I'm
sure you're probably more familiar with it than anyone on this
panel. But they reported that a substantial amount of Americans
are registered to vote in two different States. And according
to those news reports, Florida has more than 140,000 voters who
are apparently registered in four other States; in Georgia,
Ohio, New York and North Carolina. This includes almost 64,000
voters from New York City alone who are also registered to vote
in Florida as well. Voting records of the 2000 election
suggested that more than 2,000 people voted in more than one of
those States. Duplicate registrations are seen elsewhere. As
many as 60,000 voters are reportedly registered in both North
Carolina and South Carolina. How do we address that? What has
been your approach to that issue.
Mr. Tanner. The issue of people voting in two different
States or voting twice would fall within the jurisdiction of
the Criminal Division of the Department of Justice. Our office
enforces the civil laws that are designed to and do a great job
of providing voter access. But we do not do criminal
enforcement in our shop.
Mr. Franks. Thank you, Mr. Tanner.
My time is up. Thank you, Mr. Chairman.
Mr. Nadler. Thank you. I now recognize the distinguished
Member of the full Committee, Mr. Conyers.
Mr. Conyers. Thank you, Chairman Nadler. This is the kind
of a hearing in which we get two diametrically opposed reports
of what's going on. We called this hearing because we are
gravely disturbed about the ineffectiveness and the activities
that have gone on within the voter section. And the voter
section chief comes to us this morning to tell us he's never
been more proud of the voter rights section and its
accomplishments and, further, that he's got the greatest group
of people, energetic, committed to voter rights, activity and
its promotion. And as a matter of fact, it has never been
And I think what we are seeing here with the Georgia voter
ID case just starts off this discussion which we've been on. I
didn't know we were going to be on it for so long. But the
bottom line of all of this is, is that there wouldn't have been
any Georgia voter ID law if your Department had followed the
recommendations of your career lawyers. And it was because you
overturned their work and decided to do something differently
we now have not only Georgia voter ID, but we have other places
which are screaming about voter fraud. The last time I looked,
we had 82 individual cases of voter fraud that were prosecuted
over the last period of 6 years. And so it seems to me that
this is a hearing that we are going to go over sentence by
Now, having said that, and I notice that the gentleman from
Georgia, John Lewis, was over here for a while and still is. I
want to turn very quickly to Ohio. You see, the Chairman of
this Committee and I were in Ohio in Columbus. We he had a
forum. We had Members of Congress, Stephanie Tubbs Jones,
Sherrod Brown and other Members, the now Governor of Ohio and
others were there. And I want to tell you, Mr. Section Chief, I
never met so many hundreds of people furious about the process
that characterized the elections in Ohio in November 2004.
Never in my life. And I've been south and north in this
situation. And yet you explain that--and there were African
Americans and White people, Democrats and Republicans, people
that worked in the electoral process, all furious about the
misstatements, the deceptive practices, the purges that went
on. And your letter that says allowing for problems of
incidents in individual precincts, it appears that the tendency
in Franklin County for White voters to cast ballots in the
morning, i.e., before work, and for Black workers to cast
ballots in the afternoon, i.e., after work, we have established
this tendency through local contacts and through both political
Now, that was the only thing that nobody complained of, as
I recall, at that hearing. That was the one thing that was not
the problem. The problem is that there were people purged.
There were incredible misstatements by the secretary of State
at that time. The weight and the quality of the paper that one
must apply for a ballot was all on there. And so I would refer
you to the book ``What Went Wrong in Ohio'' that documents the
incredible activities that took place there. And for you to
have sent this letter does anything but demonstrate, the one
you sent to Franklin County from the Department of Justice,
anything, it demonstrates anything but your concern about voter
rights, enforcement and encouraging the vote.
Now, I just want to conclude. We have a lack of prosecution
in the voting rights section. We need to do a lot, lot more in
your section. And I'm hoping that you will take what will be
directed to you as constructive. Because the one thing I'm
concerned about is that we stop having happen what's happened
since the 2000 elections, and then you come here to stagger our
imagination by telling us that it has never been better. It has
never been worse.
Mr. Nadler. The time of the gentleman has expired.
I recognize the gentleman from Indiana for 5 minutes.
Mr. Tanner. I would welcome an opportunity to comment on
Chairman Conyers' observations on that.
Mr. Nadler. The gentleman's time has expired. We'll make it
Mr. Tanner. Certainly. Thank you.
Mr. Pence. Thank you, Mr. Chairman.
I would be pleased, Mr. Tanner, if you would like to
respond to Chairman Conyers' question during my time. You may
Mr. Tanner. Thank you very much, Mr. Pence.
I would like to thank Chairman Conyers for the work that he
did do in Ohio where there were a lot of issues raised for all
parts of the election process; issues that properly come before
our office or the Criminal Division of the Criminal Section of
the Civil Rights Division, many issues that fall within the
jurisdiction of State officials, and many issues for this
Congress to consider and address. And I appreciate your
leadership in that and your report, which actually was the
thing that spurred the investigation.
From the report by Chairman Conyers, I determined that
there was a good likelihood of a potential for a lawsuit in
Franklin County. We went there. We gathered facts that fit into
our statute. And many of the problems mentioned by the Chairman
are things that happened outside of the county, that happened
at the State level and that had already been addressed. I don't
apologize for those things or defend those things, but I do
note the context.
The statistics in Franklin County showed that in terms of
the actual voters who showed up on Election Day, there were
more voters per voting machine in the predominantly White
precincts than there were in the predominantly African American
precincts, which was not the same as the voter registration
data. We looked into it. We talked, as we mentioned, to both
parties and other knowledgeable individuals. And ultimately, as
I always must do, I based a decision after careful scrutiny on
the facts and on the applicable law and made the complex,
lengthy decision whether or not we can prove a violation of a
specific statute in Federal court.
Mr. Pence. Thank you for that.
Reclaiming my time, I'm happy to extend that courtesy to
you. I want to appreciate very much your apology today in the
clarification of the comments that you made at the recent
meeting of the National Latino Congresso. I want to acknowledge
your three decades of commitment to civil liberties and to
protecting against discrimination, particularly in the ballot
box. I voted in favor of the Voting Rights Act reauthorization
last year. I disagreed with some Members of this panel on my
side of the aisle in defending bilingual ballots. It may just
come up in a minute or two. But let me also offer--I would like
to, Mr. Chairman, if we can submit in the record the strong
letter of recommendation directed to you from the American Arab
Anti-Discrimination Committee, a record that describes our
witness as an individual who has, quote, gone above and beyond
the normal call of a public servant to listen, work and
incorporate the input of a diversity of communities, and extols
his dedication of 30 years of his life to fighting
[The information referred to follows:]
Mr. Nadler. Without objection.
Mr. Pence. I would just ask in my remaining time, Mr.
Tanner, there was so much controversy in the last Presidential
Election over accusations of the rights of minority voters
being infringed upon. Could you speak about any steps your
division has taken, you've personally taken to prepare for the
2008 elections? Can you give us assurances that the Voting
Section will respond to problems of the kind experienced or
alleged to be experienced in 2000 and 2004?
Mr. Tanner. I would be happy to, and I appreciate the very
important question. We have begun reaching out, and began some
time ago to reach out to the groups that monitor elections, as
I did before the 2004 election, to minority groups across the
spectrum. I much appreciate the letter from the Arab American
Anti-Defamation Committee because they may well be the group
that in many ways is most vulnerable because of all the
circumstances of this country. And I felt that we have a
particular obligation to protect them. But also to many
organizations--the NAACP, the Lawyers Committee, the NAACP
Legal Defense Fund, the National Congress of American Indians,
LULAC, MALDEF, MALEO, and groups across the spectrum so that we
can work together so we can do the best possible job
anticipating problems, getting information early enough to make
the difficult decisions, not only about where there might be a
problem on Election Day but where we should have someone stand,
in which building they should be. It is very complex. It is
very important. We've been doing more of it than ever. In 2008,
and the time as Mr. Conyers mentioned, between now and 2008, is
such an important time, there's not a lot of time, and there is
an awful lot to do.
Mr. Nadler. Thank you. And before proceeding to our next
question, I simply want to recognize and welcome the presence
of one of the giants of the civil rights movement in the
struggle for voting rights, our colleague, the gentleman from
Georgia, Mr. Lewis, and to welcome him here today. And I now
recognize the gentleman from Alabama for 5 minutes.
Mr. Davis. Thank you, Mr. Chairman.
Mr. Tanner, good morning to you.
Mr. Tanner. Good morning.
Mr. Davis. I echo the concerns that Mr. Nadler and Mr.
Conyers raise. I did note a number of letters that you
submitted. Mr. Pence just alluded to some of them, people with
whom you've worked in the civil rights community. I think you
submitted some letters from some people I know in Alabama.
There's only one problem with letters. Someone somewhere once
said that only people with bad credit need co-signers.
But let me turn to a more important observation than that.
You apologized at the beginning of your comments today for the
statements that you made. I'm not 100 percent sure what you're
apologizing for. I'm not sure if you're apologizing for how
people read the statements or if you're apologizing for making
them. So I want to give you some chance to be more specific
about that. I want to read you a quote, and first of all tell
me if you said it. Quote, our society is such that minorities
don't become elderly the way White people do; they die first.
Did you say that?
Mr. Tanner. That was part of my statement, Mr. Davis, and I
Mr. Davis. I just want to ask you if you said that, and
you've said that you did. Is that an accurate statement?
Mr. Tanner. It is a sad fact.
Mr. Davis. Is it an accurate statement?
Mr. Tanner. I believe that the census data shows that life
expectancy, in Georgia anyway, which is what I was addressing,
is lower for African Americans.
Mr. Davis. Well, you don't say that. You say that
minorities don't become elderly the way White people do. Is
Mr. Tanner. It was a very clumsy statement.
Mr. Davis. Is it an accurate statement?
Mr. Tanner. I believe that I've said--Mr. Davis, I may not
completely understand the question.
Mr. Davis. The question is, is it accurate that minorities
don't become elderly the way White people do?
Mr. Tanner. The statistical data indicate that life
expectancy is lower for minorities.
Mr. Davis. Then you say, they die first. Who is the they?
Mr. Tanner. I was addressing the sad fact that the
inequities in this country are such, and I'm not an expert on
all of those inequities----
Mr. Davis. Let me slow you down because we only have 5
minutes, and you'll have an opportunity to respond to our
comments, so my time is precious. Let me ask you this. In my
State of Alabama, 2004 Presidential Election, what percentage
of minorities do you think voted in that election for
President, Mr. Tanner, in my State of Alabama?
Mr. Tanner. I would be--I do not know the figure, and I
would like to make sure before I give any information.
Mr. Davis. Do you have a ballpark estimate?
Mr. Tanner. I don't have an estimate. I would have to----
Mr. Davis. The number was 73 percent. Do you happen to know
what percentage of Whites voted in my State of the Presidential
Mr. Tanner. I also do not know that.
Mr. Davis. The number was 74 percent. Do you know what
percentage of those minority voters were elderly in my State?
Mr. Tanner. It is my belief, but I would have to check the
data, that elderly voters in Alabama, many of whom I've worked
with, have good turnout.
Mr. Davis. Yes, elderly voters have good turnout. And in
fact, minority elderly voters have a very good turnout; don't
they, Mr. Tanner? Just to frame this in terms of statistics, in
my State of Alabama in 2004, of that 73 percent Black voter
turnout, 40 percent of them were over 60. That is actually a
higher percentage than in the White community. So if you look
at the statistics rather than your stereotypes, elderly Blacks
are more likely to vote than elderly Whites. And I think this
is--did you also make the comment, by the way, that Blacks were
more likely to go to check cashing businesses at some point in
Georgia? Did you make that observation?
Mr. Tanner. In addressing the----
Mr. Davis. Don't give me a long answer. I don't have the
time. Did you make the comment, or did you not?
Mr. Tanner. I made a comment about that.
Mr. Davis. Now, this is the point, Mr. Tanner, I think we
want to drive home. Do you have any statistics about how many
Blacks visit check cashing businesses versus the number of
Whites who do?
Mr. Tanner. I do not have any with me, but I believe such
statistics about the number of unbanked persons here in the
United States by race would be available through the Office of
Comptroller of the Currency.
Mr. Davis. Do you know those numbers?
Mr. Tanner. I do not know those numbers.
Mr. Davis. Well, this is the problem. Once again, you
engaged in an analysis without knowing the numbers. And the
point, Mr. Tanner, if I can just finish my observation, Mr.
Chairman, you're a policy maker, sir. You are charged with
enforcing the voting rights laws in the country. And if you are
not fully informed about things that you're talking about and
pontificating about, if you're basing your conclusions on
stereotypes and generalizations, that raises a question in the
minds of some of us whether or not you are the person in the
best position to make these choices. You said that minorities
don't become elderly the way White people do; they die first.
Then you say, well, that was a horrible generalization on my
part. You say you don't know how many elderly minorities vote
versus the number of Whites who vote who are elderly. You make
observations about people going to check cashing places. And
you suggest that, well, because Blacks go to check cashing
places they surely must have photo ID. And then I ask you if
there's a statistical basis for that. You say you don't know
it. If you are basing your conclusions on stereotypes rather
than facts, then it suggests to some of us that someone else
can do this job better than you can.
Mr. Tanner. I would welcome an opportunity to address that.
I did not make my decisions based on assumptions. We looked at
the numbers. I had been surprised by those numbers. And I was
Mr. Davis. Did you look at numbers regarding elderly
minority voter participation, because those are the relevant
Mr. Tanner. The relevant numbers, I believe, that I looked
at were whether or not there were people who did not--first,
did not have photo ID in Georgia.
Mr. Davis. Did you look at numbers regarding elderly
minority voter participation, and can you cite those numbers to
Mr. Tanner. The data showed that everyone in Georgia, that
there were more people who had the ID of all ages, all voting
age people who had the ID, than there were voting age people
who were eligible to have the ID.
Mr. Davis. Did you look at the percentage of elderly
minority voters in Georgia?
Mr. Tanner. In making the decision, I looked at the facts
that were relevant to the----
Mr. Davis. Did you look at the percentage of elderly
minority voters in Georgia?
Mr. Tanner. No.
Mr. Davis. Thank you.
Mr. Nadler. The gentleman's time has expired.
The gentleman from Iowa.
Mr. King. Thank you, Mr. Chairman.
Mr. Tanner, I appreciate you coming before this Committee.
First, I would ask you, you have testified that your statement
that brought about this hearing was clumsy. And I want to give
you an opportunity with clarity to state before this Committee,
do you believe that your statement remains supported by
empirical data and fact?
Mr. Tanner. I, again, apologize for the statement. I do
believe that the statement with respect to life expectancy,
that it is a sad and sorrowful fact that in this country, or in
Georgia at least, which is the place I've looked at the data,
and each State should be considered separately, that life
expectancy is lower among members of minority groups. I
believe, as to the other observations, speculations, that there
are data supporting those observations. And I very much
appreciate any time when someone disagrees with a proposition
I've made, to receive evidence or information that corrects my
understanding; I realize that I do not know everything. I
welcome new information.
Mr. King. Thank you, Mr. Tanner.
And I'll just boil that down to if the facts support your
statement, then why do you think that you're here before this
Mr. Tanner. Well, I welcome the opportunity to explain what
I do before the Committee. I certainly made the statement and
observation in a very clumsy way.
Mr. King. I've asked you an inappropriate question, because
in the end, you have to speculate on the motives of some of the
questions that are being asked of you. And I wanted to point
out that there's a difference between being factually correct.
Mr. Nadler. Would the gentleman yield for a moment?
Mr. King. I would yield.
Mr. Nadler. Thank you. As Chair, I simply want to point out
that this Committee is not having this hearing simply because
of a statement made by Mr. Tanner. It is one in a series of
hearings on the voter rights section and on the Civil Rights
Division and would have occurred regardless of any statements
he made. It had been prepared, it had been scheduled long
before these recent statements, so the hearing would have
occurred in any event.
Mr. King. Reclaiming my time, I thank the Chairman for that
clarification. And as I said, I really intend to withdraw the
question because it put the witness in a bad position.
So I would continue on. And that would be--I think it's
important to know that if a statement is made publicly and is
supported by the facts, then the subject comes down to then was
it insensitive or wasn't it? You've already spoken to that. I'm
ready to accept that as a definition of what happened and move
I think it's important here that we often are debating
things beyond the facts, and sometimes a person is criticized
for a factual statement but there is not opposing documentation
of another group of data that would rebut that. And that seems
to be what I am missing here.
I wanted to ask you, you've testified that you brought 23
different cases under your jurisdiction. How many
investigations have you launched? Do you know the answer to
Mr. Tanner. I do not know the exact number of
investigations. We have had a number of investigations that are
ongoing, some of which are very near to fruition.
Mr. King. Would it be in multiples of the 23 cases?
Mr. Tanner. It would be far more than 23.
Mr. King. Are we talking hundreds or thousands?
Mr. Tanner. It would be in the range of hundreds.
Mr. King. Okay. That gives me some concept of that. And
should the law be color-blind, Mr. Tanner?
Mr. Tanner. I think that the Constitution protects all
citizens of this country from discrimination on the basis of
Mr. King. I am watching my clock tick down. And the
question goes then to the Voting Rights Act, because the Voting
Rights Act in fact is not color-blind, is it not?
Mr. Tanner. The Voting Rights Act is a very important
remedial statute directed to address a long and, frankly,
appalling history of segregation in this country.
Mr. King. But is it color-blind?
Mr. Tanner. The Act protects all citizens without regard to
Mr. King. I will state this and then ask you to disagree. I
will state it again. The Voting Rights Act is not color-blind.
Do you agree or disagree?
Mr. Tanner. I think that the Voting Rights Act recognizes
the special--the discrimination that has occurred against
members of racial----
Mr. King. I understand. I recognize that. So you don't
disagree with my statement, but you would like to expand a
little more. I just don't have time for that.
Again, I will ask you, has it been brought to your
attention that there have been local jurisdictions that have
passed what one would view as anti-illegal immigrant ordinances
within their, say, county jurisdictions, voting jurisdictions,
that you might be aware of?
Mr. Tanner. There is a great deal of tension about the
immigration issue in this country. Certainly that is something
that we are aware of and especially as it interacts with the
Mr. King. Have some of these organizations that advocate in
favor of illegal immigrants met with you? Have you had
conversations with them? And I would say in particular maybe La
Raza, MALDEF, and LULAC?
Mr. Tanner. I have met a number of times with
representatives of La Raza, MALDEF and LULAC.
Mr. King. And have they ever asked to you bring an
investigation into a jurisdiction that has passed local
ordinances that would be supportive of laws to enforce our
Mr. Tanner. Those organizations have brought issues to our
attention as they affect the Voting Rights Act.
Mr. King. Have they asked you to intervene any of these
jurisdictions; in particular, Prince William County, just
across the river?
Mr. Tanner. Well, we have received inquiries about the
voting situation in Prince William County, as we do from other
groups all across the United States.
Mr. King. Have they asked you to investigate in those
Mr. Tanner. I don't know that we have discussed those
jurisdictions. We have discussed Prince William County. I have
discussed Prince William County.
Mr. King. I thank the witness. I am watching the clock
here. I have some other questions to submit in writing. I
appreciate the opportunity, and I would yield back the balance
of my time.
Mr. Nadler. The witness may answer the question.
Mr. Tanner. Answering questions about legal issues can
sometimes be difficult to do in very short language, and I
apologize for that. I was not trying to be evasive. I was
trying to tell you what we had in fact done. Thank you for the
time, Mr. Chairman.
Mr. Nadler. Thank you. I will now recognize the gentlelady
Ms. Wasserman Schultz. Thank you, Mr. Chairman. Mr.
Chairman, first I would like to ask unanimous consent to submit
this article for the record, from The New York Times of April
12, 2007. The headline is, ``In 5-Year Effort, Scant Evidence
of Voting Fraud.''
Mr. Nadler. Without objection.
[The information referred to follows:]
Ms. Wasserman Schultz. Thank you.
Mr. Tanner, it is a privilege to be able to spend some time
talking to you about this very important issue. You mentioned
in your opening remarks that the purpose of the voter purging
effort from your division was the result of a pursuit of voter
fraud. And my colleague, Mr. Franks, referenced the State of
Florida and numbers, something like 2,000 people who were
listed as voting in both Florida and in another State. When the
former Attorney General Gonzalez was here and we had an
opportunity to question him about voter fraud, pursuing voter
fraud being a priority of the Department of Justice and what a
grave concern that was, he was unable to produce any
significant evidence of widespread voter fraud, particularly
deliberate voter fraud.
And I will reference the Federal Election Assistance
Commission analysis that specifically said that despite the
Department of Justice's pursuit of voter fraud--and despite
your testimony just now that it is in the hundreds as far as
convictions--only about 120 people have been charged and 86
convicted as of 2006 with voter fraud. And most of those,
number one, were Democrats; and, number two, were found to only
have mistakenly filled out voter registration forms or
misunderstood eligibility rules.
So my question is this: I would think and wholeheartedly
support that the pursuit of voter fraud, particularly
deliberate voter fraud designed to impact the elections, would
be a worthy goal. But it doesn't appear that the Department's
pursuit of voter fraud has turned up any evidence of that. Very
little, in fact.
And my specific question is that at any time during your
tenure as chief, have you drawn up a list of voters that were
thought to be ineligible to vote or ought to be removed from
the rolls as part of your section 8 enforcement activity? And
if so, in what States or cases? And what methodology was used
to created that list or lists?
The reason that I am asking you is that in 2000--and I am
from the State of Florida--our former Secretary of State and
former colleague here in the House, Katherine Harris, purged
100,000 voters from our rolls in Florida who were eligible to
vote. And so a widespread effort on your part, on the part of
your division to do that, especially in light of the fact that
there has been scant evidence of both voter fraud and less than
100 convictions from your Department, seems that this is an
overzealous activity--that rather than continue to focus on
that, you should be pursuing the low-income registration that
you have completely abdicated your responsibility to do, and
that is part of your mandate under the law.
Mr. Tanner. I welcome the opportunity to address your
question. First, our section has nothing to do with voter
fraud. The Criminal Division of the Department of Justice
prosecutes cases of voter fraud. Our statutes are voter access
Ms. Wasserman Schultz. But what is the purpose--then if
your section has nothing to do with voter fraud, what is your
Department's purpose in pursuing purging of voters from the
rolls? What is the reason for doing that?
Mr. Tanner. Under the National Voter Registration Act,
passed by the Congress and signed by the President, there are
list maintenance requirements that first of all----
Ms. Wasserman Schultz. Right. I understand that.
Mr. Tanner. Require notice before anyone is purged, and
that also require that persons who have died are no longer----
Ms. Wasserman Schultz. Let me just interrupt you a second,
because I want to make sure that rather than expounding, you
are answering my question specifically.
For example, I understand the purpose--the general purpose
of purging. But the priority that your division has made it is
what deeply concerns me, especially given the track record from
my home State.
In 2007 a lawsuit was dismissed from the Justice Department
that was filed against the Missouri Secretary of State,
alleging that her office failed to make a reasonable effort to
remove ineligible people from local voter registration rolls.
It was dismissed because the judge ruled that the government
had provided no evidence of fraud.
I don't understand why it appears to be such an important
priority since voter purging really seems to mostly just be an
administrative function, and, in my lifetime, has always been
treated as an administrative function, but your division has
elevated it to a massive priority. And you just testified that
your division has no responsibility for pursuing voter fraud.
Mr. Tanner. Counties in Missouri were removing voters from
the active voter list without the notice required by the NVRA:
they were removing voters. Other counties were not removing
voters, and there was a county that had more voters on the
rolls than they had people.
Ms. Wasserman Schultz. They purged 50,000 in 2002, and in
spite of that, you pressured them in 2005 to remove more, even
though they were likely being cautious about removing voters
from the rolls so that they could avoid the problems that they
had had 3 years before.
Mr. Tanner. I think it is accurate to say that voters were
being removed in Missouri without notice to----
Ms. Wasserman Schultz. And you were encouraging them in
2005 to remove more.
Mr. Tanner. We sued them to stop them from removing voters
without notice. That was a count in our lawsuit.
Ms. Wasserman Schultz. Well, it was--the primary purpose of
your lawsuit was that Missouri was failing to make a reasonable
effort to remove ineligible people from local voter
registration rolls, and that was dismissed in April of 2007;
isn't that correct?
Mr. Tanner. The case was dismissed because the court
determined that we had to sue each of the individual counties
that was removing voters without----
Ms. Wasserman Schultz. But a component of your lawsuit was
that the office in Missouri had failed to make a reasonable
effort to remove ineligible people from local voter
registration rolls, not what you are representing here today as
the primary purpose.
Mr. Tanner. There were two purposes----
Ms. Wasserman Schultz. And you are conveniently choosing
only to talk about the one that was not related to pushing
them, pressuring them to remove ineligible voters from the
rolls, even though 3 years before they had made a mistake in
removing 50,000 voters from the rolls. Isn't that right?
Mr. Tanner. I believe that the complaint which addresses
both issues speaks for itself. We would be happy to provide
additional documents to the Committee, but we are----
Ms. Wasserman Schultz. Thank you, Mr. Chairman. My time has
Mr. Nadler. Thank you. The gentleman from Minnesota is
recognized for 5 minutes.
Mr. Ellison. Exactly what are you apologizing for?
Mr. Tanner. I hurt people.
Mr. Ellison. How did you hurt them?
Mr. Tanner. The reactions of people to my statements, which
were very contrary to what I was tying to communicate.
Mr. Ellison. So are you apologizing because of the reaction
people had to your statements?
Mr. Tanner. I caused that reaction--certainly not
intentionally. I made a clumsy statement.
Mr. Ellison. So what was clumsy about what you said?
Mr. Tanner. I'm sorry?
Mr. Ellison. What was clumsy about what you said?
Mr. Tanner. I believe--well, what I was thinking----
Mr. Ellison. No. What was clumsy about what you said?
Mr. Tanner. I was addressing a narrow issue of the
statistics needed to show a violation of Federal law in a very
clumsy tone, the tenor of my remarks.
Mr. Ellison. So you are apologizing for your tone?
Mr. Tanner. I am apologizing that my tone caused this. I
believe that I am responsible----
Mr. Ellison. So the problem is the tone?
Mr. Tanner. I certainly had a bad tone and clumsiness to
Mr. Ellison. Is it true that minorities died so that the
voter ID laws just don't affect older people of color the same
way that they do young people?
Mr. Tanner. I never ever meant to suggest----
Mr. Ellison. I don't know what you are apologizing for. You
say that you were right, but your tone was wrong. I don't know
what you are saying you are sorry for. Could you please help me
understand; if you are claiming that you are statistically
correct, why are you apologizing? Are you trying to just carry
Mr. Tanner. I am--I am not. I feel that if I make remarks
that people misinterpret----
Mr. Ellison. So people misinterpreted what you said?
Mr. Tanner. I apologize for that.
Mr. Ellison. Wait a minute. You said--I'm sorry. Did people
misinterpret what you said?
Mr. Tanner. I believe I said it in a way that did not
Mr. Ellison. ``minorities don't become elderly the way
White people do.'' Is that true?
Mr. Tanner. I think that is clumsily stated.
Mr. Ellison. Is it true?
Mr. Tanner. People age in the same way.
Mr. Ellison. Right. My dad is almost 80.
Mr. Tanner. Absolutely.
Mr. Ellison. He is Black.
Mr. Tanner. I don't mean to suggest there are not elderly
Mr. Ellison. What does it matter--what difference does it
make whether the statistics--what does that matter to the
Mr. Tanner. It matters not at all to the individual voter.
Mr. Ellison. So your statement was also irrelevant; is that
Mr. Tanner. The statement was addressing a specific
assertion related to law enforcement.
Mr. Ellison. Basically your statement that minorities don't
become elderly the way White people do has no relevance to
whether an individual voter ID bill should apply to minorities
or seniors; isn't that right? It just doesn't matter. So if it
doesn't matter, why are you making the point?
Mr. Tanner. I was trying to address how I ran--the
presumptions that I made.
Mr. Ellison. Right. Presumptions.
Mr. Tanner. Presumptions that I made.
Mr. Ellison. Presumptions, which is similar to the word
``assumptions,'' which is similar to the concept of stereotype,
Mr. Tanner. I had assumed----
Mr. Ellison. Let me ask you this. What is a poll tax?
Mr. Tanner. A poll tax is a requirement that someone
purchase or pay a tax solely for the purpose of voting.
Mr. Ellison. Does the 24th amendment speak to poll taxes?
Mr. Tanner. It does.
Mr. Ellison. What does it say about it?
Mr. Tanner. I do not have the text of the amendment in
front of me.
Mr. Ellison. I didn't ask you for the text. What does it
say about it?
Mr. Tanner. It bans poll taxes.
Mr. Ellison. So a poll tax is a fee that is required for a
voter to pay before they can vote, right? Yes or no.
Mr. Tanner. Yes. That would--a poll tax would be such a
Mr. Ellison. What is the cost of getting an ID for a person
who doesn't have one in, say, Georgia?
Mr. Tanner. The IDs are available without cost in Georgia.
Mr. Ellison. Okay. So there is no cost to it. What about
the information you need to get an ID?
Mr. Tanner. At the present time, there is no cost as I
Mr. Ellison. So Georgia IDs are free to all people; is that
Mr. Tanner. Georgia now has a free ID available in every
county to voters.
Mr. Ellison. So you don't have--so I can go into Georgia
and say I want an ID, and nobody is going to ask me to pay
Mr. Tanner. I forget the precise things. But right, there
is no fee. And the case----
Mr. Ellison. And this is in regard to--this is in regard to
income or anything? It is just free?
Mr. Tanner. At the present time, yes. Previously there had
been an indigency oath requirement.
Mr. Ellison. So the Secretary of State makes--the State of
Georgia just foots the bill on that?
Mr. Tanner. I don't know about that.
Mr. Ellison. What about in Indiana? Is it free there?
Mr. Tanner. I am not familiar with Indiana.
Mr. Ellison. Last question. Arizona?
Mr. Tanner. I am not familiar with Arizona.
Mr. Ellison. Maybe we will have a chance to come back.
Mr. Nadler. The time of the gentleman has expired. We have
votes coming up. I would like to recognize the gentleman from
Virginia, Mr. Scott, for 5 minutes.
Mr. Scott. Thank you.
Mr. Tanner, I just have a couple of quick questions,
beginning with, under the Voting Rights Act that we passed last
year, if you have a majority/minority district, you cannot
dismantle that to create two districts in which the minority
community cannot elect a candidate of its choice. If they had
been electing a candidate of their choice in a majority/
minority district, you can't dismantle that and create two
districts where that is not the case; is that right?
Mr. Tanner. I believe that would be objectionable.
Mr. Scott. If the district is not technically,
arithmetically, a majority, but the minority county has
routinely elected candidates of its choice reliably and
predictably, can you dismantle that district? Is that district
protected under the Voting Rights Act?
Mr. Tanner. I think that the 50 percent question currently
is an open question under the law.
Mr. Scott. Would you preclear a district, 49 percent that
had been--where the African American community elected a
candidate of its choice, and the submission has two districts
where the community cannot elect candidates of its choice;
would you preclear that?
Mr. Tanner. I do not believe that I would.
Mr. Scott. Okay. Now----
Mr. Tanner. I should stress that each of the submissions is
decided on its own facts and the law at that time.
Mr. Scott. Well I'm asking you if it was submitted this
afternoon, would you preclear it?
Mr. Tanner. No.
Mr. Scott. If the minority community can't elect a
candidate of its choice on its own, but is reliably a part of a
coalition that does elect the candidates and the coalition
cannot elect candidates without overwhelming support from the
minority community, and that submission dismantled that
district, would you--it is called an influence or coalition
district--would you preclear that?
Mr. Tanner. I think as we get into different issues about
the facts of a specific case and the reliability of coalitions
is going to affect the decision making. But the law clearly
bans a retrogression in minority voting districts.
Mr. Scott. And you would count a coalition district going
to a district where there is no influence as retrogression?
Mr. Tanner. I think a plan that reduces minority voting
strength is going to be objectionable.
Mr. Scott. Okay. Now, do I understand that the voting
rights section of the Civil Rights Division is subject to an
employment discrimination--a pending employment discrimination
Mr. Tanner. I would be very happy to discuss personnel
matters with the Committee in an appropriate forum. Obviously
there are important privacy interests involved.
Mr. Scott. Is that a ``yes''?
Mr. Tanner. It means that I would be very happy to discuss
such issues in an appropriate forum.
Mr. Scott. Well, can you state whether or not partisan
politics was illegally involved in employment decisions that
are subject to those--that are the subject of those
complaints--whether or not partisan political considerations
were illegally involved in employment decisions in your
Mr. Tanner. In the Voting Section, they have not been a
factor at all in my watch.
Mr. Scott. Now, you have apologized for those bizarre
remarks. Following up from the comments from Mr. Ellison, after
all is said and done, is it your position that the voter ID
laws do or do not have disparate impact on African Americans?
Mr. Tanner. I think that each State and each law must be
looked at--and I have to keep an open mind on. In Georgia, the
facts showed the absence of discrimination, the Federal court
found an absence of racial discrimination, and the case has
Mr. Scott. The case was dismissed after they changed the
law after the first submission; is that right?
Mr. Tanner. The case was dismissed after that. But prior to
that, they found the absence of----
Mr. Scott. Can you fail to preclear something without
signoffs from higher-ups?
Mr. Tanner. Yes. I have the authority to preclear voting
changes without signoff from anyone else.
Mr. Scott. Now as I understand it, the Georgia case, four
of the five members from the team recommended disapproval. Is
Mr. Tanner. I believe--I understand that there have been
public comments to that effect.
Mr. Scott. Public comments say that Mr. Berman, Ms.
Zabrisky, Ms. Moss, Mr. Moore, all recommended ``no.'' And Mr.
Rogers recommended ``yes.'' Is that right?
Mr. Tanner. I can only speak to the public comments.
Mr. Scott. The public comments also say that Mr. Berman had
been working in the division for 28 years; Ms. Zabrisky, 5 to 6
years; Mr. Moore, 5 years; Ms. Moss, 3 years. Is that about
Mr. Tanner. I don't know.
Mr. Scott. And--well, if you don't deny it, then it--and
Mr. Rogers, how long had he been working for the division?
Mr. Tanner. A short period.
Mr. Scott. Three months?
Mr. Tanner. I don't know the precise time.
Mr. Scott. I just have one further question, Mr. Chairman.
And that is, did you have an awards ceremony where everybody in
your division but two received an award?
Mr. Tanner. No.
Mr. Scott. Have virtually all--did Mr. Rogers receive an
award, an on-the-spot award?
Mr. Tanner. I have heard that.
Mr. Scott. And were the other people who disagreed with the
Georgia decision reprimanded?
Mr. Tanner. No.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Nadler. Thank you. We have to go vote now. I want to
thank Mr. Tanner for his testimony. We have three votes. We
will come back probably in about 15 minutes. Since we have
another Committee following this, I urge everyone on the
Subcommittee to return. As soon as we get to the last vote on
the floor, we'll hear the second panel. Thank you.
The Committee stands in recess.
Mr. Nadler. I thank the Members for returning, those who
have. The hearing of the Subcommittee will resume. And we will
begin by my introducing the Members of the second panel.
First is Laughlin McDonald. Since 1972, Laughlin McDonald
has directed the Voting Rights Project with the American Civil
Liberties Union in Atlanta, Georgia. Before that he taught at
the University of North Carolina Law School and practiced law,
specializing in voting rights and discrimination cases. He has
argued cases before the U.S. Supreme Court, testified
frequently before Congress, including this Subcommittee, and
written for scholarly and popular publications on civil
liberties issues. His most recent book is A Voting Rights
Odyssey: Black Enfranchisement in Georgia.
Toby Moore, Dr. Moore, served as a political geographer and
redistricting expert for the Voting Section of the Civil Rights
Division of the Department of Justice from 2000 to 2006. In
that position Dr. Moore analyzed local and State voting systems
under the Voting Rights Act and other legislation and supported
the Department litigation efforts. He also monitored the
conduct of elections and negotiated redistricting agreements,
winning three Department of Justice merit awards for his work.
Following his government service, Dr. Moore served as project
manager at the Center for Democracy and Election Management,
developing a reform agenda for the Commission on Federal
Election Reform, chaired by President Carter and former
Secretary of State James Baker. He is the author of numerous
scholarly papers and presentations on voting and elections
Bob Driscoll is a partner of the Washington, D.C. office of
Alston and Bird, with a diverse practice, focusing on, among
other things, civil rights matters, including assisting with a
preclearance of a State redistricting plan under section 5 of
the Voting Rights Act. From 2001 to 2003, Mr. Driscoll served
as Deputy Assistant Attorney General and Chief of Staff for the
Civil Rights Division of the United States Department of
Justice. In addition, Mr. Driscoll served as Commissioner of
the Brown v. Board of Education 50th Anniversary Commission, a
commission created by statute to commemorate that landmark
Julie Fernandes is a senior policy analyst and senior
counsel at the Leadership Conference of Civil Rights, the
Nation's oldest, largest, and most diverse civil and human
rights coalition. As Members of this Committee will no doubt
recall that in 2006, Ms. Fernandes was active in the civil
rights community's successful effort in support of the
reauthorization of the Voting Rights Act of 1965.
Before joining the leadership conference Ms. Fernandes
served as a trial attorney general in the Civil Rights Division
of the Department of Justice and was counsel to Assistant
Attorney General For Civil Rights, Bill Lann Lee.
Mr. Nadler. As a reminder, your written statements will be
made part of the record in its entirety. I would ask that you
now summarize your testimony in 5 minutes or less. To help you
stay within that time, there is a timing light at your table.
When the 1-minute light remains, the light will switch from
green to yellow, and then red when the 5 minutes are up.
Before we begin, it's customary for the Committee to swear
in its witnesses. If you could please stand and raise your
right hand to take the oath.
Mr. Nadler. Thank you. Let the record reflect that each of
the witnesses answered in the affirmative. You may be seated.
Mr. McDonald with--I don't know why it's in this order.
It's not the order you see it in. But, Mr. McDonald, you may
TESTIMONY OF LAUGHLIN McDONALD, DIRECTOR, VOTING RIGHTS
PROJECT, SOUTHERN REGIONAL OFFICE, AMERICAN CIVIL LIBERTIES
Mr. McDonald. Mr. Chairman, Members of the Committee.
Mr. Nadler. Can you use your mike, please?
Mr. McDonald. Is it on?
Mr. Nadler. Now it is.
Mr. McDonald. As we know, the Voting Section of the
Department of Justice has a major role in protecting and
enforcing voting rights. One of its most important duties is
conducting administrative review of voting changes in
jurisdictions governed by section 5 of the Voting Rights Act.
But, unfortunately, recent revelations of partisan bias in its
decision making seriously undermine the section's enforcement
of section 5. Partisan bias breeds a lack of confidence and
trust in the section. Indeed, it creates a lack of confidence
in section 5 itself. It's a signal that partisanship may trump
racial fairness and thus increase the likelihood that
minorities will be manipulated to advance partisan goals. And
it also shifts the burden of proof and enforcing voting rights
to those who have been the victims of discrimination in
contravention of the intent of Congress in passing the original
Voting Rights Act of 1965.
And one recent example of partisan bias affecting Voting
Section decision making is the preclearance of Georgia's photo
ID law. In 2005 the legislature, in a vote that was sharply
divided on both racial and partisan lines, passed a bill that
required a person voting at the polls to present one of six
specified forms of government-issued photo ID. Those who didn't
have one would have to purchase one at the cost of $10. That
was later raised to $20. The stated purpose of the bill was to
prevent, quote, voter fraud, end quote. But not only was there
no evidence whatever of fraudulent in-person voting, but there
were already sufficient criminal statutes on the books that
could deal with the problem, which was not in fact a problem.
The photo ID requirement would also have an adverse impact
upon minorities, the elderly, the disabled and the poor. Cathy
Cox, the former Secretary of State, has found that nearly
700,000 Georgians who were registered to vote lacked a driver's
license, which is the most commonly available form of photo ID.
She also has found that voters who lacked photo ID were
disproportionately elderly and minority.
Today in 2007, the State's own figures show that 50 percent
of those on the voter registration list who do not have a
driver's license or Department of Drivers Services photo
identification are African Americans. There are 22 counties
that held special elections in 2007, and 58 percent of those on
the voter registration list who did not have a driver's license
or identification were Black. Aside from its impact, there's
also evidence that the photo ID law had been enacted with a
Representative Sue Burmeister from Augusta, a chief sponsor
of the bill, told staff members in the Voting Section that if
Black people in her district, quote, are not paid to vote, they
don't go to the polls, end quote. And if fewer Blacks voted as
a result of the photo ID requirement, it, quote, will only be
because there is less opportunity for fraud.
The Department of Justice approved Georgia's photo ID bill
despite the near unanimous recommendation of the career staff
to object. And according to newspaper accounts, one of those
who played a central role in overriding the recommendation of
the career staff was Hans von Spakovsky, a Bush appointee and
counsel to the Assistant Attorney General for Civil Rights. The
staff recommendation was not only overridden, but the
leadership of the Voting Section instituted a new rule
prohibiting the career staff from making recommendations in the
future whether or not to object to proposed voting changes.
This was a reversal of long standing section policy and has the
effect of marginalizing the career staff with their experience
and expertise in administering section 5. And also,
unfortunately, it would be easier now to make partisan-driven
decisions by not having to override the recommendations of the
Not just the newspaper articles have made such reports but
Joseph Rich, who served as chief of the Voting Section from
1999 to 2005, described the failure to object to the Georgia
photo ID bill as quote, the brazen insertion of partisan
politics into the decision making under section 5, end quote.
And Rich's comments were echoed by Bob Kingle, a lawyer who
spent 20 years in the Civil Rights Division and served as
Deputy Chief of the Voting Section.
Notably in 1994, Deval Patrick, the then-Assistant Attorney
General in the Civil Rights Division, objected to a similar
photo ID requirement from Louisiana. He concluded the State
failed to carry its burden of proof, that the change would not
have a retrogressive impact upon minority voters.
And let me just conclude by saying that the Department of
Justice's preclearance of Georgia's photo ID law and its
continuing support of that decision undermine seriously the
effective enforcement of the Voting Rights Act.
Mr. Nadler. Are you finished?
Mr. McDonald. I'm finished Mr. Chair.
Mr. Nadler. I thank the gentleman.
[The prepared statement of Mr. McDonald follows:]
Prepared Statement of Laughlin McDonald
Mr. Chairman and members of the committee, thank you for inviting
me to testify about the Voting Section of the Civil Rights Division of
the Department of Justice. I would like to focus my remarks primarily
on the role of the Voting Section in enforcing the special preclearance
provisions of Section 5 of the Voting Rights Act.
To put my remarks in context, I have been the director of the
ACLU's Voting Rights Project since 1972. As part of our work, we have
brought litigation to enforce equal voting rights on behalf of racial
and language minorities. During the recent hearings on extension and
amendment of the Voting Rights Act, we submitted a report to Congress
of the more than 290 voting cases we had been involved in since the
last extension of Section 5 in 1982.\1\ That report, along with
substantial other evidence before Congress, documented that
discrimination in voting is not a thing of the past but a continuing
\1\ The Case for Extending and Amending the Voting Rights Act:
Voting Rights Litigation, 1982-2006 (ACLU; March 2006).
The Voting Rights Project has had direct contact with the Voting
Section over the years involving Section 5 submissions. We have also
participated with the Voting Section in vote dilution litigation
brought under Section 2 of the Voting Rights Act, most recently in
Charleston, South Carolina, on behalf of African Americans, and Blaine
County, Montana, on behalf of American Indians.\2\ I have gotten to
know many of the staff members of the Voting Section and have great
respect for them and the work they have done. But unfortunately, recent
revelations of partisan bias in the decision making of the Voting
Section seriously undermine voting rights enforcement in this country.
\2\ United States v. Charleston County and Moultrie v. Charleston
County Council, 365 F.3d 341 (4th Cir. 2004); United States v. Blaine
County, Montana, 363 F.3d 897 (9th Cir. 2004).
The Voting Section has a unique and major role in protecting voting
rights. Aside from conducting administrative review of voting changes
in jurisdictions covered by Section 5, it enforces the requirement that
certain jurisdictions provide bilingual material and other assistance
in voting to language minorities. It certifies jurisdictions for the
assignment of federal observers to monitor elections. It undertakes
investigations and litigation throughout the United States. It has the
largest staff and resources of any entity in the country committed to
protecting voting rights. It enforces the National Voter Registration
Act, the Help American Vote Act, and the Uniformed and Overseas
Citizens Absentee Voting Act. And, it defends against challenges to the
constitutionality of the various voting rights laws enacted by
The revelations of partisan bias in the Voting Section's decision
making, however, breed a lack of confidence and trust in the section.
Partisan bias undermines the section's effectiveness. It calls into
question the section's decisions about what to investigate and what
kind of cases to bring. It calls into question the section's decisions
about where and why to assign federal observers. It creates a lack of
confidence in Section 5 itself and the other special provisions of the
Voting Rights Act. It is a clear signal that partisanship can trump
racial fairness, and thus increases the likelihood that minorities will
be manipulated to advance partisan goals. It also shifts the burden of
enforcing voting rights upon those who have been the victims of
discrimination and who have the least resources to remedy it.
Congressional oversight is critical to restoring public trust and
confidence in the Voting Section of the Department of Justice, and
insuring that the nations's voting laws are fairly and adequately
One recent example of partisan bias infecting Voting Section
decision making is the preclearance of Georgia's photo ID law. In 2005,
the Georgia legislature, in a vote sharply divided on racial and
partisan lines, passed a new voter identification bill which had the
dubious distinction of being one of the most restrictive in the United
States. To vote in person--but not by absentee ballot--a voter would
have to present one of six specified forms of government issued photo
ID.\3\ Those without such an ID would have to purchase one at a cost of
$10 (later raised to $20). The stated purpose of the bill was to
prevent ``voter fraud,'' \4\ but not only were there laws already on
the books that made voter fraud a crime, there was no evidence of
fraudulent in-person voting to justify the stringent photo ID
\3\ I.e., a Georgia driver's license, a Georgia ID card, a U.S.
passport, a government employee ID card, a military ID, or a tribal ID.
O.C.G.A. Sec. 21-2-417.
\4\ Common Cause v. Billups, 406 F.Supp.2d 1326, 1361 (N.D. Ga.
The new requirement would also have an undeniable adverse impact
upon minorities, the elderly, the disabled, and the poor.
The League of Women Voters and the American Association of Retired
Persons estimated that 152,664 people over the age of 60 who voted in
the 2004 presidential election did not have a Georgia driver's license
and were unlikely to have other photo ID.\5\ Governor Sonny Perdue
himself estimated that approximately 300,000 voting age Georgians did
not have a driver's license or state issued ID card.\6\ It was
subsequently shown that 300,000 registered voters lacked a driver's
license or state issued photo ID.\7\ Getting a photo ID would not only
burden those individuals, but would place a special burden on those
living in retirement communities, assisted living facilities, and in
rural areas. The problem was exacerbated further by the fact that while
the state has 159 counties, there were only 56 Department of Motor
Vehicle offices that issued drivers licenses or photo IDs, none of
which were located in the City of Atlanta.\8\
\5\ Id. at 1334.
\6\ Department of Justice, Voting Section, Section 5
Recommendation: August 25, 2005, p. 20.
\7\ ``Lawyers: State misinforms voters,'' Athens Banner-Herald,
October 17, 2006.
\8\ Section 5 Recommendation: August 25, 2005, p. 10.
According to the 2000 census, blacks in Georgia were nearly five
times more likely not to have access to a motor vehicle than whites,
and would thus be less likely to have a driver's license or access to
transportation to purchase a photo ID. The disproportionate impact of
the photo ID bill on African American voters was clear, but that was
apparently the reason some white legislators supported the measure.
Representative Sue Burmeister (R-Augusta), a sponsor of the photo ID
bill, advised officials in the Voting Section of the Department of
Justice that ``if there are fewer black voters because of this bill, it
will only be because there is less opportunity for fraud. She said that
when black voters in her black precincts are not paid to vote, they do
not go to the polls.'' \9\ Burmeister was later quoted to the same
effect in a local newspaper, that if black people in her district ``are
not paid to vote, they don't go to the polls,'' and if fewer blacks
voted as a result of the photo ID bill it would only be because it
ended voter fraud.\10\
\9\ Id., p. 6.
\10\ ``Georgia voter ID memo stirs tension,'' The Oxford Press,
November 18, 2005.
Black members of the legislature were strongly opposed to the photo
ID bill. During the legislative debate Senator Emmanuel Jones (D-
Decatur) wore shackles to the well of the Senate, and Representative
Alisha Thomas Morgan (D-Austell) brought shackles to the well of the
House in protest over the bill's potential to suppress the black
\11\ ``ID Bill Could Make Georgia Unique in Turn Away Voters,'' The
Macon Telegraph, March 19, 2005; ``Firebrand `Standing Up': Legislator
Makes no Apologies for her Convictions,'' The Atlanta Journal-
Constitution, March 24, 2005.
Secretary of State Cathy Cox wrote to Governor Perdue on April 8,
2005, and urged him not to sign the photo ID bill into law. ``I cannot
recall one documented case of voter fraud during my tenure as Secretary
of State or Assistant Secretary of State that specifically related to
the impersonation of a registered voter at voting polls,'' she said. In
her judgment the bill ``creates a very significant obstacle to voting
on the part of hundreds of thousands of Georgians, including the poor,
the infirm and the elderly who do not have drivers licenses because
they are either too poor to own a car, are unable to drive [a] car, or
have no need to drive a car.'' She described the justification for the
bill as a measure to combat voter fraud as ``a pretext.'' \12\ Despite
his acknowledgment that hundreds of thousands of Georgians did not have
a drivers license or ID card, Perdue signed the photo ID bill into law.
\12\ Common Cause, 406 F.Supp.2d at 1333-34.
A recent study by Prof. Lorraine C. Minnite of Department of
Justice records shows that between 2002 and 2005, only 24 people
nationwide were convicted or pleaded guilty to federal charges of
illegal voting. This number includes 19 people who were ineligible to
vote, five who were under supervision for felony convictions, 14 who
were not U.S. citizens, and five who voted twice in the same election.
The report further found that the available state-level evidence of
voter fraud, while not definitive, ``is also negligible.'' Prof.
Minnite concluded that ``[t]he claim that voter fraud threatens the
integrity of American elections is itself a fraud.'' \13\
\13\ Lorraine C. Minnite, The Politics of Voter Fraud (Washington,
D.C.; Project Vote, 2007), 5, 8-9.
The New York Times similarly reported that five years after the
current administration launched a Ballot Access and Voting Integrity
Initiative in 2002, it had turned up virtually no evidence of any
organized effort to skew or corrupt federal elections.\14\ While there
were a few instances of individual wrongdoing, most were the result of
confusion about eligibility to vote. And most of those charged were
\14\ ``In 5-Year Effort, Scant Evidence of Voter Fraud,'' The New
York Times, April 12, 2007.
The United States Elections Assistance Commission (EAC) issued a
report in December 2006, in which it also concluded that many of the
allegations of voter fraud made in reports and books it analyzed ``were
not substantiated,'' even though they were often cited as evidence of
fraud. Overall, the report found ``impersonation of voters is probably
the least frequent type of fraud because it is the most likely type of
fraud to be discovered, there are stiff penalties associated with this
type of fraud, and it is an inefficient method of influencing an
\15\ United States Elections Assistance Commission, Election
Crimes: An initial Review and Recommendations for Future Study
(Washington, D.C.; December 2006), 9, 16.
Georgia submitted its new photo ID bill for preclearance under
Section 5 of the Voting Rights Act,\16\ and the Department of Justice
approved it on August 26, 2005, despite the near unanimous
recommendation by the career staff (4 out of 5) to object. The
recommendation concluded that ``the state has failed to meet its burden
of proof to demonstrate that [the photo ID bill] does not have the
effect of retrogressing minority voting strength.'' \17\
\16\ 42 U.S.C. Sec. 1973c.
\17\ Section 5 Recommendation: August 25, 2005, p. 20.
One of those who played a central role in overriding the
recommendation of the career staff was Hans von Spakovsky, a Bush
appointee and counsel to the Assistant Attorney General for Civil
Rights.\18\ According to The Washington Post, ``[c]areer Justice
Department lawyers involved in a Georgia case said von Spakovsky pushed
strongly for approval of a state program requiring voters to have photo
identification,'' and that the recommendation of staff lawyers to
object to the state's submission ``was overruled by von Spakovsky and
other senior officials in the Civil Rights Division.'' \19\
\18\ ``Official's Article on Voting Law Spurs Outcry,'' The
Washington Post, April 13, 2005.
\19\ ``Bush Picks Controversial Nominees for FEC,'' The Washington
Post, December 17, 2005.
While employed in the Voting Section, Von Spakovsky had previously
written an article for the Texas Review of Law & Politics, using the
pseudonym ``Publius,'' in which he strongly endorsed photo ID
requirements. He scoffed at the critics of photo IDs and dismissed the
evidence of discriminatory impact against minority groups, such as
African-Americans, as ``merely anecdotal'' and ``unsubstantiated.'' One
of his recommendations was to ``require all voters to present photo
identification at their precinct polling locations.'' \20\ There does
not appear to be a benign explanation for von Spakovsky's anonymity.
Instead, it seems designed to prevent the public and those with
business before the Voting Section from knowing the views of one of the
senior officials involved in the preclearance process.
\20\ Publius, ``Securing the Integrity of American Elections: The
Need for Change,'' 9 Texas Review of Law & Politics 278, 289-300
Not only was there evidence that the Georgia photo ID bill had been
enacted with a discriminatory purpose, i.e., to suppress the minority
vote, but its effect would clearly be retrogressive within the settled
meaning of Section 5.\21\ In any event, the career staff's entirely
defensible conclusion that the state had failed to carry its burden of
showing the absence of a discriminatory effect was overridden.
\21\ A voting change has a discriminatory effect under Section 5 if
it makes minorities worse off than under the preexisting rule or
practice. Beer v. United States, 425 U.S. 130, 141 (1976).
The staff recommendation was not only overridden, but the
leadership of the Voting Section instituted a new rule prohibiting the
career staff from making recommendations in the future whether or not
to object to proposed voting changes.\22\ This was a reversal of long
standing section policy and marginalized the career staff with its
experience and expertise in administering Section 5. But it would
obviously be easier to make partisan driven decisions by not having to
override the recommendations of the career staff.
\22\ ``Staff Opinions Banned in Voting Rights Cases,'' The
Washington Post, December 10, 2005. See also Joseph D. Rich, Mark
Posner and Robert Kengle, ``The Voting Section,'' in The Erosion of
Rights: Declining Civil Rights Enforcement under the Bush
Administration, ed. William L. Taylor, et al. (Wash., D.C.; Citizens'
Commission on Civil Rights, 2007), 38.
Notably, in 1994 Deval L. Patrick, the then Assistant Attorney
General in the Civil Rights Division, objected to a photo ID
requirement from Louisiana essentially identical to the one from
Georgia. Based upon evidence that ``black persons are four to five
times less likely than white persons in the state to possess a driver's
license or other picture identification card,'' Patrick concluded the
state failed to carry its burden of proof that the change would not
have retrogressive impact upon minority voters.\23\
\23\ Deval L. Patrick, Assistant Attorney General, to Sheri Marcus
Morris, Assistant Attorney General, November 21, 1994.
Shortly before DOJ precleared the Georgia photo ID bill, the
legislature passed a new law increasing the fee for a five year photo
ID card to $20, and a ten years card to $35.\24\ On September 2, 2005,
the ACLU wrote a letter to John Tanner, the Chief of the Voting
Section, noting that the fee increase imposed yet an additional and
disparate burden upon racial and language minorities, and warranted a
reconsideration of the preclerance decision. The ACLU also pointed out
that the changes were being implemented absent compliance with Section
5 and their further use should be enjoined.\25\ Tanner declined to take
any action and, despite the obvious impact the new law would have on
minority voting rights, said in response that the amount a state
charged for a drivers license was not ``a change affecting voting
within the meaning of [Section 5].'' \26\ Such logic was explicitly
rejected by the Supreme Court in its 1966 decision invalidating
Virginia's poll tax for state elections. The Court acknowledged a state
could charge a fee for drivers and other kinds of licenses, but
rejected the argument that payment of any fee for voting was
constitutional.\27\ The increase in the fee for a document required by
the state to vote was in fact a change affecting voting.
\24\ O.C.G.A. Sec. 40-5-103(a).
\25\ Laughlin McDonald, ACLU Southern Regional Office, to John
Tanner, Chief, Voting Section, September 2, 2005.
\26\ John Tanner, Chief, Voting Section, to Laughlin McDonald, ACLU
Southern regional Office, October 11, 2005.
\27\ Harper v. Virginia State Bd. Of Elections, 383 U.S. 663, 668
Joseph Rich, who served as Chief of the Voting Section from 1999-
2005, in testimony before a congressional committee described the
failure to object to the Georgia photo ID bill as ``the brazen
insertion of partisan politics into the decision-making under Section
5.'' \28\ Rich's comments were echoed by Bob Kengle, a lawyer who spent
twenty years in the Civil Rights Division and served as Deputy Chief of
the Voting Section. He left the section in 2005, he said, after
reaching a ``personal breaking point'' precipitated by ``institutional
sabotage . . . from political appointees,'' ``partisan favoritism,''
and the Administration's ``notorious'' Georgia Section 5 decision and
its pursuit of ``chimerical suspicions of vote fraud.'' \29\
\28\ Testimony of Joseph D. Rich, Oversight Hearing of the Civil
Rights Division, House Judiciary Subcommittee on the Constitution,
Civil Rights and Civil Liberties, March 22, 2007.
\29\ Bob Kengle, ``Why I Left the Civil Rights Division.''
The Voting Section has failed to object to other discriminatory
voting changes, including 2001 legislative redistricting in South
Dakota. The boundaries of District 27 that included Shannon and Todd
Counties, which are covered by Section 5, were only slightly altered,
but the demographic composition of the district was substantially
changed. American Indians were 87% of the population of District 27
under the 1991 plan, and the district was one of the most
underpopulated in the state. Under the 2001 plan, Indians were 90% of
the population, while the district was one of the most overpopulated in
the state. The new plan was more than arguably retrogressive within the
meaning of Section 5 because it ``packed,'' or over-concentrated,
Indians compared to the pre-existing plan. Packing is one of the
recognized methods of diluting minority voting strength.\30\ The
Department of Justice, however, precleared the new plan under Section
5. Tribal members subsequently challenged the plan under Section 2 and
the court, making detailed and lengthy findings of past and continuing
discrimination against Indians, invalidated it as diluting Indian
\30\ Voinovich v. Quilter, 507 U.S. 146, 153-54 (1993).
\31\ Bone Shirt v. Hazeltine, 336 F.Supp.2d 976, 987-1017 (D. S.D.
A challenge to the Georgia photo ID law was filed by a coalition of
groups, the response to which underscored how sharply polarizing the
new law was. Former President Jimmy Carter called the law a ``disgrace
to democracy,'' and said ``it is highly discriminatory and, in my
personal experience, directly designed to deprive older people,
African-Americans and poor people of a right to vote.'' House Speaker
Glenn Richardson (R-Hiram), however, called the lawsuit ``ludicrous''
and an example of ``liberal special interests using unconscionable
scare tactics to frighten Georgia voters.'' \32\
\32\ ``Suit slams voter ID law,'' The Atlanta Journal-Constitution,
September 20, 2005.
On October 18, 2005, the federal court preliminarily enjoined use
of the photo ID law on the grounds that it was in the nature of a poll
tax, as well as a likely violation of the equal protection clause of
the Fourteenth Amendment. The court expressly found the law ``is most
likely to prevent Georgia's elderly, poor, and African-American voters
from voting.'' \33\
\33\ Common Cause, 406 F.Supp.2d at 1365.
The court also noted that the Virginia poll tax invalidated by the
Supreme Court was $1.50, while the fee for a photo ID for voting in
Georgia was $20. The fee could be waived if a voter signed an affidavit
that he or she was indigent and could not pay the $20, but the court
concluded the waiver ``does not reduce the burden that the Photo ID
requirement imposes on the right to vote.'' \34\
\34\ Common Cause, 406 F.Supp.2d at 1364.
A recent survey sponsored by the Brennan Center for Justice at the
NYU School of Law concluded that 25% of African-American citizens of
voting age have no current government issued photo ID, compared to 8%
of white citizens of voting age.\35\ Based on the 2000 census, this
amounts to more than 5.5 million African American adult citizens
without photo ID. The effect of photo ID laws in suppressing black--and
thus Democratic--political participation is apparent. The survey also
shows that the elderly and the poor are similarly adversely affected by
photo ID requirements.
\35\ Citizens without Proof: A Survey of Americans' Possession of
Documentary Proof of Citizenship and Photo Identification, Brennan
Center for Justice at NYU School of Law, November 2006.
Cathy Cox released a report in June 2006, based on a comparison of
the state's files of registered voters and persons issued valid
driver's licenses. The study found nearly 700,000 Georgians who were
registered to vote lacked a drivers license, the most commonly
available form of photo ID for in-person voting. The study, Cox said,
``provides powerful new evidence that supports the objections I've
raised against the photo ID requirement from the outset--that huge
numbers of Georgians are in jeopardy of being shut out of the voting
process and having their voices silenced.'' \36\ Cox issued another
press release on June 23, 2006, that the voters who lacked a photo ID
were disproportionately elderly and minority.\37\
\36\ News Release from Cathy Cox, June 19, 2006.
\37\ Common Cause/Georgia v. Billups, 504 F.Supp.2d 1333, 1361
(N.D. Ga. 2007).
Despite its grant of a preliminary injunction, the district court
ultimately dismissed the complaint in the Georgia case concluding none
of the plaintiffs had standing, the state was not required to document
``in-person voter fraud exist[s] in Georgia,'' the burden the law
imposed on voters was not ``significant,'' and the photo ID requirement
was ``rationally related'' to a legitimate state interest.\38\ The
plaintiffs have filed a notice of appeal.
\38\ Id. at 1377, 1381.
John Tanner, in recent remarks before the National Latino Congreso
in Los Angeles, defended the preclearance of Georgia's photo ID law by
claiming in ``Georgia, the fact was and the court found that it was not
racially discriminatory. That was the finding of the initial court.''
\39\ The court, however, made no such finding. It did not reach the
merits of plaintiffs' claim that the law violated the racial fairness
provisions of Section 2 of the Voting Rights Act, but instead said it
``reserves a final ruling on the merits of that claim for a later
date.'' \40\ Even in its final opinion on the merits, the court did not
rule on the plaintiffs' Section 2 race discrimination claim.
\39\ TPMmuckraker.com, ``DoJ Vote Chief Argues Voter ID Laws
Discriminate against Whites,'' October 9, 2007.
\40\ Common Cause, 406 F.Supp.2d at 1375.
Tanner also claimed ``the minorities in Georgia statistically,
slightly, were more likely to have ID'' than whites.\41\ Again, he was
wrong. He was apparently relying on figures compiled by the Georgia
Department of Driver Services (DDS), which were recited in an October
7, 2005, letter from William E. Moschella, Assistant Attorney General,
to Sen. Christopher S. Bond, responding to questions about the
department's preclearance of the Georgia photo ID law. According to
Moschella, ``DDS has racial data on nearly 60 percent of its license
and identification holders. Of those individuals, 28 percent are
African-American, a percentage slightly higher than the African-
American percentage of the voting age population in the Georgia.''
Those numbers, however, say nothing about those who did not possess a
DDS license or identification, nor the 40% of those on the DDS list who
were not racially identified.
\41\ ``DoJ Vote Chief Argues Voter ID Laws Discriminate against
But more to the point, Tanner failed to note that the Georgia
Secretary of State compared the state voter registration list with the
DDS list and concluded that 49.75% of those on the voter registration
list who did not have a DDS license or identification were black. In
the 22 counties holding special elections in 2007, 57.92% of those on
the voter registration list who did not have a DDS license or
identification were black.\42\ The state's own figures thus show black
voters are disproportionately affected by the photo ID requirement.
\42\ Common Cause/Georgia, Def. Ex. 35.
Other states have also adopted photo ID requirements for in person
voting. Indiana adopted such a law in 2005, which requires persons
voting in person to present a valid photo ID issued by the United
States or the State of Indiana. The law was challenged in federal court
but was upheld by the district court. In a divided opinion, the Court
of Appeals for the Seventh Circuit affirmed.\43\ Judge Evans, however,
in a dissenting opinion, said ``the Indiana voter photo ID law is a
not-too-thinly-veiled attempt to discourage election-day turnout by
certain folks believed to skew Democratic.'' \44\ The majority opinion
also acknowledged there is ``[n]o doubt most people who do not have
photo ID are low on the economic ladder and thus, if they do vote, are
more likely to vote for Democratic than Republican candidates,'' and
that ``the new law injures the Democratic Party.'' \45\
\43\ Crawford v. Marion County Election Board, 472 F.3d 949 (7th
\44\ Id. at 954.
\45\ Id. at 951.
As Judge Evans further pointed out, the Indiana ``law will make it
significantly more difficult for some eligible voters . . . to vote--
and this group is mostly comprised of people who are poor, elderly,
minorities, disabled, or some combination thereof.'' \46\ The majority
opinion also conceded ``the Indiana law will deter some people from
voting.'' \47\ Thus, the challenged law has the effect, and according
to Judge Evans ``a not-too-thinly-veiled'' purpose, of discouraging
voting by those believed to vote Democratic, and it will make it
significantly more difficult for some voters, including racial
minorities, to vote on election day.
\46\ Id. at 955.
\47\ Id. at 951.
The stated rationale for the Indiana law, as was the case in
Georgia, was ``to reduce voting fraud.'' \48\ But it was conceded by
the state, and found by the lower court, that no one in the history of
Indiana had ever been charged, much less convicted, of the crime of
fraudulent in-person voting.\49\
\48\ Id. at 952.
\49\ Id. at 953, 955.
The plaintiffs filed a petition for a writ of certiorari in the
Indiana case, which was granted. Oral arguments will likely be heard
next year. In the meantime, the parties in the Georgia photo ID case
have requested the Eleventh Circuit to stay the appeal pending a final
decision by the Supreme Court.
Unfortunately, the history of voting in the United States is
replete with other examples, similar to the photo ID laws in Georgia
and Indiana, of efforts to disfranchise voters for partisan and racial
reasons. And many of them have also masqueraded as attempts to prevent
voter fraud, insure the integrity of the electoral process, or advance
a reasonable state interest.
Edward McCrady, a legislator and historian from Charleston, South
Carolina, was the author of a number of stringent restrictions on
voting adopted by the state legislature in 1882, including the infamous
Eight Box Law which imposed the functional equivalent of a literacy
test for voting.\50\ Eight separate ballot boxes, appropriately
labeled, were provided for local, state, and national offices. In order
to cast a valid ballot, each voter had to read the labels and put the
ballot in the proper box. Although the McCrady laws were understood to
be a legally acceptable way to dilute the black and Republican vote,
McCrady touted them as good government election reform. He published a
pamphlet the year before in which he urged a return to the limited
franchise concept of the eighteenth century. ``Raise the standard of
citizenship,'' he wrote, ``raise the qualifications of voters. But,
raise them equally. If we are the superior race we claim to be, we,
surely, need not fear the test.'' \51\ Governor John Gary Evans later
urged the members of the South Carolina Constitutional Convention of
1895 to enact a literacy test for voting, ``for only the intelligent
are capable of governing.'' \52\ Other southern politicians of the
post-Reconstruction era, including a future governor of Alabama,
similarly touted restrictions on the franchise as a way to ``make
permanent and secure honest and efficient government.'' \53\
\50\ 1882 S.C. Acts 1115-120, No. 717.
\51\ Edward McCrady, ``The Necessity for Raising the Standard of
Citizenship and the Right of the General Assembly of the State of South
Carolina to Impose Qualifications Upon Elections'' (1881), quoted in
George Tindall, South Carolina Negroes 1877-1900 (Columbia: U. S.C.
Press, 1952), 67.
\52\ Evans, S.C. Con. Con. Journal (1895), 12, quoted in J. Morgan
Kousser, Shaping of Southern Politics: Suffrage Restriction and the
Establishment of the One-Party South, 1880-1910 (New Haven: Yale U.
Press., 1975), 255.
\53\ Mr. O'Neal, in Ala. Con. Con. Proceedings (1901), vol. 3, p.
2780, quoted in Kousser (1975), 263.
Restrictions on the franchise continued to gain support after the
turn of the nineteenth century. Two historians did a survey of voting
attitudes in 1918, and concluded ``the theory that every man has a
natural right to vote no longer commands the support of students of
political science.'' They believed ``if the state gives the vote to the
ignorant, they will fall into anarchy to-day and into despotism
\54\ Charles Seymour and Donald Paige Frary, How the World Votes:
The Story of Democratic Development in Elections, 2 volumes
(Springfield, Mass.; C.A. Nichols Co., 1918), 1:12-13, 2: 320-21.
The Supreme Court initially upheld poll taxes and literacy tests as
good government measures.\55\ There is no dispute, however, that both
were adopted by the ex-Confederate states as ``expedients to obstruct
the exercise of the franchise by the negro race.'' \56\ In recognition
of that fact, the Supreme Court later reversed itself and invalidated
poll taxes, while Congress, by passage of the Voting Rights Act of
1965, banned literacy and other test for voting because they had been
adopted and administered with the discriminatory purpose of
disfranchising minority voters.\57\
\55\ See Breedlove v. Suttles, 302 U.S. 277, 283-84 (1937)
(upholding Georgia's poll tax, enacted by Democrats in the aftermath of
Reconstruction, as ``a familiar and reasonable regulation long enforced
in many states''), and Lassiter v. Northhampton County Bd. of
Elections, 360 U.S. 45, 54 (1959) (upholding North Carolina's literacy
test for voting, first enacted by a Democratic controlled legislature
in 1900, as ``designed to promote intelligent use of the ballot,'' and
advancing ``the desire of North Carolina to raise the standards for
people of all races who cast the ballot'').
\56\ Ratliff v. Beale, 74 Miss. 247, 20 So. 865, 868-69 (1896).
\57\ See Harper v. Virginia State Board of Elections, 383 U.S. 663,
666 n.3 (1966) (invalidating Virginia's poll tax for state elections
and noting ``[t]he Virginia poll tax was born of a desire to
disenfranchise the Negro'') (quoting Harman v. Forssenius, 380 U.S.
528, 543 (1965)); South Carolina v. Katzenbach, 383 U.S. 301, 333-34
(1966) (the suspension of literacy tests in jurisdictions covered by
Section 5 of the Voting Rights Act was appropriate because ``in most of
the States covered by the Act . . . various tests and devices have been
instituted with the purpose of disenfranchising Negroes, have been
framed in such a way as to facilitate this aim, and have been
administered in a discriminatory fashion for many years''). See also V.
O. Key, Jr., Southern Politics in State and Nation (Knoxville: U. of
Tenn. Press, 1984), 555 (the poll tax and literacy tests were ``legal
means of accomplishing illegal discrimination'' against black voters).
More than a century ago the Supreme Court described the right to
vote as ``preservative of all rights.'' \58\ The white South understood
that well enough, and in the years following Reconstruction
disfranchised black voters as a way of depriving them of rights and
maintaining white supremacy. Some of today's political office holders
apparently believe that to maintain their dominance they too must
suppress the minority vote. In doing so, they are repeating one of the
most disgraceful chapters in our nation's history of voting rights.
Unfortunately, the Department of Justice's preclearance of Georgia's
photo ID law, and its continuing support of that decision, lend support
to these modern disfranchising efforts.
\58\ Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).
The revelation of partisan bias in the Voting Section's decision
making has seriously undermined voting rights enforcement in the
country. It has created a lack of confidence and trust in the section,
and has undermined its effectiveness. It has called into question the
section's decisions about what to investigate, what kind of cases to
bring, and where to assign federal observers. As important, it has
created a lack of confidence in Section 5 and the other special
provisions of the Voting Rights Act, and increased the likelihood that
minorities will be manipulated to advance partisan goals. It has also
shifted the burden of enforcing voting rights to minorities in
contravention of congressional purpose in enacting the Voting Rights
Congressional oversight is critical to restoring public trust and
confidence in the Voting Section of the Department of Justice, and
insuring that the nations's voting laws are fairly and adequately
Mr. Nadler. The Chair will now recognize Mr. Moore for 5
TESTIMONY OF TOBY MOORE, FORMER POLITICAL GEOGRAPHER AND
REDISTRICT EXPERT, VOTIING SECTION, CIVIL RIGHTS DIVISION, U.S.
DEPARTMENT OF JUSTICE
Mr. Moore. Mr. Chairman and Members of the Committee, thank
you for the opportunity to speak about my experiences as the
geographer of the Voting Section of the Civil Rights Division
from 2000 to 2006. My service in the section was the highlight
of my professional career. For a White southerner, born a year
after the passage of the Voting Rights Act, and having devoted
my career to studying both the South's sad racial history and
its remarkable progress enforcing a Federal law born on the
Edmund Pettus Bridge in Selma, Alabama was a high honor indeed.
I'm also somewhat uncomfortable testifying. I had a very
friendly relationship with John Tanner for most of the time I
worked with and for him. And speaking publicly about internal
DOJ deliberations is not something I do lightly. Nonetheless, I
hope that my experience at the ground level of Voting Section
enforcement may be of some value to you in your oversight
Mr. Tanner's public comments earlier this month in Georgia
and California could be overlooked if they were merely off-the-
cuff remarks. Unfortunately, for minority voters and,
unfortunately, the Department of Justice, the comments are
actually a fair example of Tanner's approach to facts, the
truth and the law. Broad generalizations, deliberate misuse of
statistics and casual supposition, in my experience, were
preferred over the analytical rigor, impartiality and
scrupulous attention to detail that had marked the work of the
section prior to Tanner taking control in 2005.
This decline and the myriad of other problems that have
developed in the section over the past several years are a
direct result of the actions of political appointees, such as
Hans von Spakovsky and Bradley Schlozman. It has left behind a
demoralized section, a growing list of lost court cases and a
severely diminished public trust in Federal voting rights
While my written testimony discusses problems with other
matters, including enforcement of section 203 and the Ohio
investigation of 2004, in the interest of time I will focus
here on the Georgia ID investigation.
While it's not my intent to debate the merits of the voter
ID laws, I would like to point out that even by the standards
of subsequent voter ID laws, the Georgia law in 2005 was a
nasty piece of legislation. No State endeavoring to pass a
photo ID law now is considering the kind of draconian
restrictions that DOJ endorsed in Georgia in August of 2005,
the restrictions that President Carter and Secretary Baker
explicitly labeled as discriminatory when I worked for the
Carter-Baker Commission at American University.
Personally, I think that the issue is overblown on both
sides, but clearly history as well as the Federal and State
courts will record that the 2005 Georgia ID law, precleared by
the Department of Justice, was a discriminatory one.
All of us assigned to the investigation realized that the
Department was almost certain to preclear it. Given the oft-
stated views of von Spakovsky and Tanner's eagerness to please
him, none of us thought the Department would lodge an
objection. We simply wanted to do our jobs. That we were not
allowed to do so demonstrates how the mission of the section
has shifted from a search for evidence to support decision
making to a search for evidence to support decisions already
I only have time to mention a few of the statistical
errors, procedural violations, and misrepresentations that I
discuss more fully in my written testimony.
First, it is not true that racial data from the Georgia
Department of Drivers Services indicated that Blacks were more
likely than Whites to have ID. It was not true in any of the
data submissions from the State. The only way you reach that
conclusion is if you include hundreds of thousands of
noncitizens who are not Black in your comparison.
Mr. Tanner compares the number from the DDS to the VAP, and
not the citizen VAP, which is the more appropriate comparison
if you are to use that data at all. And there are reasons in my
written system why I don't think the data is trustworthy at
It is not true that minority voters die before growing old.
What this misses is the fact that Black voters in Georgia who
are elderly are more likely to be impoverished, and therefore I
think more likely not to have ID. This data that Laughlin
referred to from Georgia in July of 2007, in fact, shows that
African Americans make up 40 percent of those elderly voters
who lack ID.
Behind all great lies is a kernel of truth. It is not true
that Tanner's pioneering actuarial theory was ever part of the
2005 analysis but is instead a post hoc justification for an
unjustifiable decision. It is not true that we were not
reprimanded. We were each called into the office, one by one,
and told that our performance during the Georgia ID was not up
to the standards of the section. It did not result, in my case,
in any letter of reprimand but we were certainly reprimanded.
And Mr. Tanner needs to correct that statement.
It is not true that a group of prominent law professors
made racist statements about the impact of the ID law, which
Mr. Tanner dismissed as bizarre and offensive. And it's not
true that we did not consider the poll tax. Mr. Ellison's
questions, the IDs were not free under the 2005 law. It was
only under the subsequent 2006 law that the IDs were made free.
To wrap up, John Tanner is both the cause and effect of the
politicizing of the Civil Rights Division and should not be
allowed to hide behind a career status watch which he has
abjured by his actions. Until someone in the Department, in
this Administration or the next, admits to the mistakes of the
past several years and restores credible leadership, the Voting
Section of the Civil Rights Division will remain a wounded
institution. How long will the Department of Justice tolerate
chronic mismanagement simply to save face?
Thank you for your attention to this matter and for the
opportunity to testify. I would, of course, be happy to answer
Mr. Nadler. I thank the gentleman.
[The prepared statement of Mr. Moore follows:]
Prepared Statement of Toby Moore
Mr. Nadler. Mr. Driscoll is now recognized for 5 minutes.
TESTIMONY OF ROBERT N. DRISCOLL, PARTNER,
ALSTON AND BIRD
Mr. Driscoll. Thank you, Chairman Nadler, Members of the
Subcommittee, for the opportunity to discuss the important work
of the Civil Rights Division and particularly the Voting
Section. I just want to touch upon a few areas and I will
deviate from my written remarks a little bit to respond a
little bit to what's been said. I think this is a constructive
dialogue, and this panel in particular can be very helpful to
Members of the Committee and to the public in terms of how
voting rights enforcement works.
We've got a Subcommittee here, Members are also of the full
Committee, that has great influence on the laws of this country
and what they are. And at the end of the day it's the Members
of Congress that set what those laws are. And I think that's
something that we all have to keep in mind when we're
complaining about voter purges or things like that, that might
be required under, for example, the NVRA. If there are
provisions like that that are a problem, everyone needs to know
We've got former career employees, such as Dr. Moore,
testifying today. And career employees are the backbone of the
division. They work for a long time. People like Mr. Tanner
worked for 30 years in the division enforcement laws passed by
Congress. And everyone needs to understand the valuable work
they do. I think Dr. Moore here as well, I think, provides a
service to some of us, at least by making clear that the notion
of career and nonpartisan are not equivalent and that career
employees can have just as many partisan leanings as any
political appointee to ever come down the pike.
We have adversary groups, such as Mr. McDonald and Ms.
Fernandes represent, the ACLU leadership conference, and they
have a valuable role to play. They come to the Department, come
to Congress, encourage the Department to enforce the laws and
point out where the Department's not doing a good job.
However, I think people need to keep in mind not doing what
an adversary group wants is not tantamount to failing to
enforce the civil rights laws. I think Mr. McDonald and Ms.
Fernandes would admit, if Members would question them, they're
opposed to voter ID laws, period. As a matter of policy. It's a
perfectly valid policy position to take. But their groups do
not need one piece of data or evidence to reach the conclusion
that the Georgia ID law was objectionable. So what then needs
to happen under Georgia section 5 preclearance is that in light
of that entire constellation of statutes passed by Congress,
regulations enforced by the Department, data submitted by the
State, data submitted by adversary groups, and analyses
prepared by career staff, it comes down to the Assistant
Attorney General, who is confirmed by the Senate,
congressionally--presidentially appointed, congressionally
approved member of the Department who has to eventually make
And that leads to the final point I would like to make,
which I think just to--from an institutional perspective.. I
say this not as a former Republican appointee, but I say it as
someone with a great affection for the Department. I think it
is extremely risky institutionally to call people like Mr.
Tanner before this Committee and to question them as he was
questioned in the first panel this morning. He's a career
employee. He's dedicated his life to trying to enforce the laws
as best he can. And at the end of the day, the responsibility
for what the Department does lies with the Attorney General,
lies with the Assistant Attorney General for Civil Rights.
And I have no problem at all if this Committee or any
Committee wants to call a political appointee before them and
read them the riot act. But I think when the parties are
reversed or there's a different Administration in power, people
could regret the precedent that was set today of taking someone
who's a career employee, who is not ultimately the one who has
to make the final call on something like Georgia ID before a
Committee like this.
So again, I thank--these are the main points I would like
to make. I look forward to engaging in dialogue with Members of
the Subcommittee. And I think this can be an incredibly
productive hearing. Thank you very much.
Mr. Nadler. I thank the gentleman.
[The prepared statement of Mr. Driscoll follows:]
Prepared Statement of Robert N. Drisocll
Thank you, Chairman Nadler and members of the Subcommittee for the
opportunity to discuss the important work of the Department of
Justice's Civil Rights Division.
My name is Bob Driscoll and I am currently a partner at Alston &
Bird LLP, here in Washington. From 2001 to 2003, I had the honor of
serving as Deputy Assistant Attorney General in the Civil Rights
Division of the Department of Justice. During that time I worked on a
variety of issues, including racial profiling guidance to federal law
enforcement, desegregation, and police misconduct.
My testimony today will touch on a few areas. First, I'll discuss
the work that the Civil Rights Division does in the voting area, and
the need to balance voters' access to the polls with ensuring ballot
integrity. Second, I would also like to discuss the issue of advocacy
before the Civil Rights Division. And lastly, I'll talk about the role
of career employees in the Civil Rights Division.
THE NEED TO BALANCE VOTER ACCESS TO THE POLLS WITH
ENSURING BALLOT INTEGRITY.
In my view, it is critical that the Civil Rights Division strike a
balance between ensuring that voters have access to the polls and
protecting the integrity of ballots cast. The failure to adequately
address either of these area results in effectively disenfranchising
Honest voter registration lists are a requirement to ensure that
honest votes are being cast. If an outdated or inaccurate voter
registration list is used, this could result in allowing someone to
vote who should be not voting. This effectively results in the
disenfranchisement of honest votes.
One of the most important rights in this country is to have one's
vote counted. If an improper or unlawful vote is cast, a legitimate
voter's choice is cancelled by someone who ought not to be voting. In
addition, it is likely to increase voter turnout if voters know their
vote will count and will not be diluted by improper or unlawful votes.
As an example of this principle, Congress has required that states
ensure that applicants are citizens of the United States before
registering to vote. This is not an issue of whether one favors or
disfavors more or less immigration. As a descendant of Irish immigrants
who has married into a family of Cuban immigrants, I am certainly not
anti-immigration in any way. It is the simple matter of making sure
that only people entitled to vote do so. To do otherwise does not honor
and respect those immigrants who have entered the country legally and
properly earned the precious right to vote that so many have fought to
achieve and maintain.
Although to the uninitiated, these principles might sound non-
controversial, in fact there has been substantial disagreement about
whether the Department of Justice has gone too far in enforcing these
provisions. I find it remarkable that the Department has come under
criticism for enforcing the law that Congress has passed and the
President has signed. While I think the law represents good public
policy, it seems to me that those who disagree on that point should
seek to amend the statutes in question, rather than criticize the
Department of Justice for enforcing existing law.
The NVRA specifically requires that the following two ``yes/no''
questions be answered on a voter registration form: ``Are you a citizen
of the United States of America?'' and ``Will you be 18 years of age on
or before election day?'' Under the NVRA, if the citizenship question
is not answered, the voter registrar ``shall notify the applicant of
the failure and provide the applicant with an opportunity to complete
the form in a timely manner to allow for the completion of the
registration form prior to the next election for Federal office
(subject to State law).''
Despite the clear language in this provision that requires
individuals to answer the citizenship question before their voter
registration can be accepted by election officials, many states have
ignored the law, and have continued to register applicants who do not
answer the citizenship question.
I believe that the Subcommittee must recognize that illegally cast
ballots dilute the vote of legally cast ballots, just as much as if
those voters had been denied access to the polls. I could not disagree
more strongly with those critics who seem to suggest that non-
enforcement of any laws having to do with voter integrity is consistent
with the advancement of civil rights. To the contrary, permitting or
ignoring unauthorized or illegal voting is just as egregious as
permitting a jurisdiction to deny a legal voter the right to vote.
ADVOCACY BEFORE THE CIVIL RIGHTS DIVISION.
I'd like to discuss now the issue of advocacy before the Civil
Rights Division. There are interest groups that advocate for particular
results from the Civil Rights Division, and then publicly complain when
they don't get their desired results. I think much of this criticism is
The simple fact that the Civil Rights Division doesn't agree with
everything advocated for by these groups does not mean that the
Division isn't doing its job. While the Division may listen to the
views of different interest groups, it is the Division's job to apply
the laws passed by Congress to the facts and circumstances of each
The Division would not be doing its job if it simply parroted the
views of different advocacy groups. Indeed, in Miller v. Johnson, 515
U.S. 900 (1995), the Supreme Court held that when the Justice
Department tried to impose an ACLU redistricting plan on Georgia rather
than applying the laws to the redistricting plans proposed by Georgia,
that the Department had ``expanded its authority under the statute
beyond what Congress intended.'' The Supreme Court also recognized the
District Court's ``sharp criticism'' of the Justice Department for its
close cooperation with the ACLU on the redistricting at issue in the
litigation. The District Court's decision detailed the ACLU's intense
advocacy of the Civil Rights Division on the Georgia redistricting at
issue, observing that ``Succinctly put, the considerable influence of
ACLU advocacy on the voting rights decisions of the United States
Attorney General is an embarrassment.'' Johnson v. Miller, 864 F.Supp.
1354, 1368 (S.D.Ga.1994).
The fact that the Division does not take every action requested by
advocacy groups indicates that the Division is taking its role
seriously, and that it reviews issues independently.
THE ROLE OF CAREER EMPLOYEES.
I have noted some criticism of career employees of the Division. I
find this criticism unfortunate. It is my experience that the
Division's career employees do their best to enforce the laws that
Congress has passed to the best of their abilities. Career staff
historically have not been subject to Congressional oversight hearings.
As in every Division of the Department, in the Civil Rights
Division, the career staff carries out the day-to-day operations of the
Division, litigates existing cases, and makes recommendations to open
new cases. There is no question that the career staff is where the
institutional knowledge of the Division generally resides and is a
resource that any appointee should draw upon frequently. However, it is
the Assistant Attorney General for Civil Rights and the leadership of
the Department who are ultimately responsible for the actions of the
Division. This is a tremendous responsibility for the AAG and his or
her immediate staff--as it is the AAG who will sit before this
Committee and explain the Division's position on controversial issues.
Because of this responsibility, the AAG and his or her staff must
independently review, and therefore will sometimes disagree with, the
recommendations of career staff. There is nothing inherently wrong with
this--indeed, I think the Committee would not react well to an
Assistant Attorney General who testified that he reached no conclusions
that differed in any way from the recommendations presented to him.
Such a ``rubber-stamp'' approach would be, and should be, justly
Similarly, when the Division makes a mistake--as it did in
Torrance, California when it was sanctioned nearly 1.8 million dollars
for overreaching in an employment case--it would be no excuse for the
AAG to say: ``I was merely following the recommendations of the career
staff.'' Therefore, it is the responsibility to ``get it right'' that
obligates the AAG and his or her staff to closely scrutinize the
recommendations that come before them.
The important question for the Committee is whether a particular
decision to proceed (or not) with a case was correct. The Committee
should focus on the quality of the Division's decisions and hold the
political appointees accountable when issues arise. It seems to me that
it is harmful to the Department from an institutional perspective to
bring career employees such as Mr. Tanner up to be questioned by the
Subcommittee about their reasoning in matters that may be
controversial. Although some may sense a political opportunity to
criticize him today, the questioning of a dedicated civil servant
rather than political appointees does not serve the long-term interests
of the Department.
Thank you for the opportunity to appear before the Subcommittee and
I look forward to answering whatever questions the Subcommittee may
Mr. Nadler. Ms. Fernandes is recognized for 5 minutes.
TESTIMONY OF JULIE FERNANDES, SENIOR POLICY ANALYST & SPECIAL
COUNSEL, LEADERSHIP CONFERENCE FOR CIVIL RIGHTS (LCCR)
Ms. Fernandes. Good afternoon, Chairman Nadler, Ranking
Member Franks and Members of the Subcommittee. Thank you for
the opportunity to appear before you today to discuss the
Voting Section of the Civil Rights Division. Every week it
seems there's another article in the news that calls into
question the integrity of the managers and political staff who
run the Voting Section at the Civil Rights Division and the
priorities they choose to enforcement.
We read of political hiring, unethical conduct, partisan
interests trumping law enforcement. We also learn that while
there has been an increase in some areas of enforcement, much
of the core work of the section has been significantly
diminished. In many ways, the Voting Section has become the
truest example of civil rights gone wrong at the Department of
The voting rights movement was born of a need to repair
decades of State-sanctioned denial of political equality to
millions of American citizens. In years past, addressing this
unfinished agenda guided the Voting Section's work. However, in
recent years, the Voting Section has turned away from its
historic mandate. Since 2001, the Civil Rights Division has
brought two cases alleging voting discrimination against
African Americans. One in Crockett County, Tennessee, was
authorized under the previous Administration, with the
complaint finally filed in April 2001. The other was in 2006 in
Euclid, Ohio. No cases involving voting discrimination against
African Americans have been brought in the deep south
throughout the entire Administration. None. The only case
brought alleging racial discrimination in the deep south was a
case to protect White voters in Mississippi. Of course, White
voters are protected by the Voting Rights Act. But it strains
the imagination to believe that the only example of racial
discrimination in voting in the deep south for the past 6 years
was a case involving White voters.
While all of us understand that different Administrations
have different enforcement priorities, it simply can't be a
priority for the Civil Rights Division not to bring cases on
behalf of African Americans. In recent years, instead of
promoting access to the polls, the Voting Section has used its
enforcement authority to deny access and promote barriers to
block legitimate voters from participating in the political
process. This effort was driven in large part by partisan
political operatives like Hans von Spakovsky and Bradley
Schlozman, though in some instances, with the complicit acts of
For example, the division's failure to block the
implementation of Georgia's draconian voter ID law in 2005, an
outcome driven by von Spakovsky, and later held
unconstitutional and characterized as a modern-day poll tax by
a Federal judge, opened the door for States across the country
to pass similar onerous laws.
In recent years, the Voting Section has sent a strong
message to States that the Federal Government will not
challenge voter ID laws no matter how restrictive and no matter
what the impact on minority voters. The section's abdication of
their role to challenge discriminatory voter ID laws gives the
impression that the section is being used as a tool to press a
partisan interest in promoting voter ID.
Furthermore, the division has rejected numerous requests
from voting rights advocacy groups to enforce that part of the
NVRA that requires social service agencies to provide voter
registration opportunities despite substantial evidence that
registration at those agencies has plummeted.
At the same time, the section has shifted its priorities to
enforcement of voter purge provisions of the law, which in many
cases, as Congressman Wasserman Schultz pointed out as in
Florida 2000, resulted in thousands of legitimate voters being
taken off the rolls and denied their right to vote.
And the Department of Justice's Voter Integrity Initiative
established in 2001 by former Attorney General John Ashcroft
has created unnecessary comingling between criminal prosecutors
in the U.S. Attorney's offices and civil rights division
These efforts can, if done improperly, result in a chilling
effect on the participation of minority voters, particularly in
jurisdictions where there is a history of disfranchisement
efforts targeting racial and ethnic minorities.
Rather than promoting schemes to deny equal opportunity for
citizens to vote, the Civil Rights Division should be focused
on: one, combatting voter ID laws that have a disproportionate
negative impact on racial, ethnic or language minorities, like
those passed by the Georgia legislature; two, ensuring that
States are complying with the NVRA's access requirements and
ensuring that those registrations are processed appropriately;
and, three, reinforcing the firewall that exists between the
Civil Rights Division and the Criminal Division's work to
combat voter fraud.
Members of the Committee, the work of the Civil Rights
Division over the past 50 years has helped to transform our
Nation into a place where equal opportunity can be more than a
dream. Today we must not allow those who seek to undermine
civil rights destroy the power and credibility of one of our
most important institutions in the fight for equal justice. We
must expect the Civil Rights Division to enforce the Nation's
voting rights laws without fear or favor, and we must demand
accountability when they don't. Thank you very much.
[The prepared statement of Ms. Fernandes follows:]
Prepared Statement of Julie Fernandes
Mr. Nadler. Thank you very much.
The Chair will now recognize himself to begin the
questioning with 5 minutes of questioning.
Mr. McDonald, you said a recent study by Professor Minnite
shows that, between 2002 and 2005, only 24 people nationwide
were convicted or pleaded guilty to Federal charges of illegal
We heard a previous witness--or, actually, I don't think it
was a previous witness; I think it was the Ranking Member--talk
about how 400,000--or maybe it was both--anyway, 400,000 people
allegedly were enrolled in Florida and some other States--
140,000--lots of people--and 2,000 people actually voted in two
Can you comment on this? I recall seeing reports that this
was not true, but do you have information on this, especially
given the studies you cite?
Mr. McDonald. We are involved in litigation, both in
Georgia, against the constitutionality of the photo ID law, and
also in Indiana. And there is absolutely no evidence of any
kind that there has ever been any fraudulent in-person voting.
And that's the only kind of election fraud that the photo ID
bills are allegedly designed----
Mr. Nadler. So there's no evidence that 2,000 people voted
in New York and Florida at the same election, the same 2,000
Mr. McDonald. Well, I'm not familiar with those facts. But
what I do know is that the justification for the photo ID law
as a way of combatting in-person voter fraud--and, in fact,
there is no evidence whatsoever that there has ever been any
in-person voter fraud. So it is a bill that addresses a problem
that does not exist.
And about the double voting, I would just remind Members of
the Committee that the courts have held that it is not unlawful
to vote in two different jurisdictions. There are some States
that will allow you, if you're a nonresident, to vote in that
jurisdiction's elections if you're a property owner.
Mr. Nadler. But you can't vote in a presidential election
in two different States in the same day?
Mr. McDonald. No, that would not be appropriate. That would
not be appropriate. But the mere fact that you're voting in two
different jurisdiction doesn't necessarily mean that that's
unlawful under the State law.
Mr. Nadler. Okay.
Now, Mr. Moore, you heard Mr. Tanner testify that he made
the decision on the Georgia case. Did I hear you say that Mr.
Spakovsky made the decision?
Mr. Moore. No. I think that the two of them handled it
pretty well. I mean, I think John knew what Hans wanted it to
be; Hans had made it pretty clear. So technically who made the
decision is almost immaterial.
Mr. Nadler. Now, I understand that Georgia sent information
on the 26th of August. On the 25th, the section people said
don't preclear. On the 26th, Georgia sent information about
600,000--incorrect data about 600,000 people. And on the 26th,
it was precleared.
Did they have time to analyze the correction of the data
about the 600,000 people? Did they bother? Was it analyzed?
Mr. Moore. No, sir, I don't think they ever analyzed it at
Mr. Nadler. So even though they knew it was mistaken,
because Georgia told them, ``We are correcting our data that we
Mr. Moore. I don't think that it was ever analyzed.
Mr. Nadler. And, now, it is your testimony that--Mr. Tanner
refused to answer the question whether he overruled four of the
five analysts, but he did overrule four of the five analysts?
Mr. Moore. Absolutely.
Mr. Nadler. And the only analyst who thought that the law
should be upheld, should be precleared, was a fellow who had
been hired politically in the what we now know as politicized
hiring of the Justice Department only a few months previously?
Mr. Moore. That's what--yes.
Mr. Nadler. Okay. Let me ask you. It is my understanding
that of the 26 analysts that were present--prior to 2001, there
were 26 civil rights analysts and six attorneys who reviewed
submissions, gathered facts and made recommendations on over
4,000 section 5 submissions each year. It has been reported
there are significantly fewer staff members prosecuting the
same section 5 submissions, many of whom are recently hired
employees with no prior experience with section 5.
So my understanding is that, of the 26 analysts, only eight
are left. Is that correct?
Mr. Moore. I have not worked in the section since 2006, so
I don't know how many analysts work there.
Mr. Nadler. How would you characterize the--does anybody
know about those figures on the panel?
Mr. Moore, do you know about the capability of the voting
rights section, of the section 5 section, to do its work today,
in terms of its staffing?
Mr. Moore. From conversations with my former colleagues, I
have some picture of what it is like to work in the section 5
enforcement. My opinion is that there are a small number of
analysts who are very overworked and who work for an acting
deputy chief who has created somewhat of a hostile work
environment. It is a very bad situation.
Mr. Nadler. What do you mean by ``hostile work
Mr. Moore. I'm sorry. This is kind of secondhand. But my
conversations have been that it is a very unhappy place to
Mr. Nadler. And why do you think so many staff have left
the voting division, the Voting Section?
Mr. Moore. I think, like me, they didn't really feel that
there was any sense in doing their work if it didn't make any
difference on the decisions that were being made.
Mr. Nadler. And you think that the work of the analyst does
not make a difference to the decisions?
Mr. Moore. Well, there are a number of section 5
submissions that are not controversial, and their work is
enormously valuable. But on anything of significance and of
controversy, no. The decisions are being made for political
expedience, in my experience.
Mr. Nadler. Political decisions on important section 5
matters are being made for political expediency and not on the
Mr. Moore. That was my experience in Georgia.
Mr. Nadler. Thank you.
I thank the gentleman.
I now recognize for 5 minutes the Ranking minority Member.
Mr. Conyers. Thank you, Chairman Nadler.
Oh, excuse me.
Mr. Franks. Thank you, Mr. Chairman.
And thank you, Mr. Chairman.
Mr. Chairman--and I hate to start off my questions here
with a little bit of a downer, but I was disappointed in some
of Mr. Moore's characterizations of the former witness, Mr.
Tanner, in that----
Mr. Nadler. I think they were very generous.
Mr. Franks. Well, they were pretty generous. But,
unfortunately, to suggest that Mr. Moore was saying that Black
people and White people age differently--I think, you know, if
you read the context, the man made a very clumsy and awkward
statement, for which he apologized for the awkwardness of it
and the misunderstanding of it, and simply tried to explain
that his purpose in making the statement was to point out that,
due to some of the circumstances in society, that sometimes
minorities in our country, tragically and sadly, live to a
lesser average age than some of the majority members of
society. And that is a tragedy, but, unfortunately, Mr.
Tanner's remarks seem to be pretty twisted here.
And I didn't come to defend the guy. But Mr. Moore also
says he thinks someone did that or he didn't think someone did
that or that--I don't know if he's relying on his experience or
he's just, kind of, trying to add, kind of, a partisan element
to the situation. And I just had to point that out.
The Carter-Baker report concluded that voters in nearly 100
democracies use a photo identification card without fear of
infringement on their rights. These include many countries that
are much less wealthy than the United States, including India
and Pakistan. They don't agree on too many things, but they do
agree on the need for photo IDs for voters.
Mr. Driscoll, would you comment on that?
In other words, you know, let me put it like this.
Oftentimes the reason people don't vote is because they don't
have confidence in the system. They don't know that their vote
is going to be counted. They don't know that somehow that other
distortions in the system are going to diminish their vote.
And one of the things that I believe increases that
confidence is having a consistent voter ID to where people know
that the people voting are the ones of that district and that
they are citizens and that they have the right under the
Constitution to vote.
And so, Mr. Driscoll, would you just comment on the
confidence factor and what do you think that means in the
Mr. Driscoll. Thank you for the question. I would like to
answer that in two parts.
The first is that I think both the Carter-Baker Commission
and, more recently, I think, the Supreme Court in Purcell have
recognized the point you're making, that voter integrity
provisions can increase confidence, that the system works, and
therefore can drive turnout up, which is something everyone
wants. And I think that it is a policy matter that I happen to
personally agree with.
The 1 second only caveat that I want to put on that--and
this is a very legitimate caveat--is we can't forget that we
are in a country with a huge history of discrimination and that
the Voting Rights Act was passed for a reason and section 5
exists for a reason. And so, in that context, the Civil Rights
Division needs to analyze any particular ID requirement to
determine whether or not it, in fact, has a retrogressive
effect. Because if it did have a retrogressive effect, it
should not be precleared and it should not go into effect if it
is in a covered jurisdiction.
And so, I think that there is a legitimate policy debate. I
happen to think voter ID on the whole is a good thing and the
benefits outweigh the costs by far. But I think that is a
separate question from whether or not any particular law in a
covered jurisdiction should be precleared, and I think that
question will come out differently on a case-by-case basis. I
think that Georgia was precleared; I think there are other laws
that might not be. And, unfortunately, you need to be a
professional statistician, I think, to make those calls on a
But I think that's how I would answer the question, that I
think you're absolutely right that people have pointed out the
need for confidence in the system, and ID helps to enhance that
in some respects. But, certainly, the section 5 analysis needs
to be done independent of that policy judgment.
Mr. Franks. Thank you, Mr. Driscoll.
Mr. Chairman, I guess I just want to point out here,
without asking additional questions, that I truly believe that
it is one of the critical things in our country to make sure
that people of all races, all factions have every opportunity
to exercise their constitutional and God-given right to vote in
this country. And I want to see that happen in every case.
But I'll just quote a little something that came from the
discussion between Mark Hearne and one of the Democratic
members of the Carter-Baker Commission. And it echoes the
feelings of the former mayor of Atlanta, Andrew Young. He said,
``For our base, who may not believe their vote will count, a
photo ID will give them greater confidence that they will be
allowed to cast a ballot when they go to the poll. And a
greater confidence will increase participation.'' We can say,
Go to the polls, show the election officials your card with
your picture on it, and they will guarantee you can vote, and
your vote will count. And I truly believe that if we make sure
people have confidence in the system, we will help minorities
more than we will any other way.
Thank you, Mr. Chairman.
Mr. Nadler. I thank the gentleman.
We have another Committee waiting to use the room, so we
are going to be a little more strict in enforcing the 5-minute
Who is next? The gentleman from--the distinguished Chairman
of the Committee, Mr. Conyers.
Mr. Conyers. Thank you very much, Chairman Nadler.
First of all, I want to thank Trent Franks for being here
during and throughout and contributing to this Subcommittee
hearing, because, to me, this is extremely important.
And I want to commend Bob Driscoll, as the minority
witness, who brings a committed attitude to this subject. When
you say that we all want to increase voter registration and
turnout, that's the key to what we are all doing, and then have
the votes count. That sums it all up.
And I thank you both very much.
We are in such a time constraint, Chairman Nadler, that I
want to recommend that we consider holding an additional
hearing, because there is so much to go through here.
I'm going to be going through this testimony very
carefully, because, look, there's two views of this. One is
that this voter rights section is red-hot, it is going great,
things have never been so good, we are getting more votes, we
are getting more cases prosecuted, everything is hunkydory. And
then we have the other view, in which a number of people are
calling for the section chief's resignation as we speak. The
Inspector General's Office has multiple investigations going
on, not only about the activities publicly and privately of the
section chief but of career members as well.
So, look--and this isn't the first time I've ever heard
this kind of a disparity in a Committee hearing.
But there's only one thing that I'm here for right now:
Where do we go from here, lady and gentlemen? What is it that
we need, as the Committee of jurisdiction, both the
Subcommittee and full Committee--what are we to do?
And the three ideas that have been presented here is to
review the effectiveness of senior management of the Voting
Section and determine whether we need to make replacements or
additions; then, number two, a plan to rebuild the core in
section 5 analysts. The attrition of 28 to eight is far too
drastic when we are racing against the clock to the first
Tuesday in next November.
The third, we must examine whether voter protection laws
are being used to restrict voter rights. My bill, the second
bill President Clinton signed in 1993, was the Motor Voter Act.
And now it is being used to purge voters, and it is being
underutilized to register voters.
I heard Ms. Fernandes make a couple of recommendations, and
I would like her to tell me about hers now. And then we want to
look at them together for any additional comments that you may
Ms. Fernandes. Thank you, Chairman Conyers.
I think you've touched on a few of them already. I think
that because we have the inspector general's investigation
ongoing within the Department, my understanding is that we
should be anticipating a report coming out of that office
fairly soon. And I think the Committee may want to inquire with
that office how quickly you can get access to that report, and
then review the recommendations and see if there are things
that have gone on that could be changed, whether it's in
management or the politicization question.
Mr. Conyers. You're asking me to trust a report, and that's
a good way to start.
Ms. Fernandes. I'm asking you to start with the report, not
necessarily to trust it, but to at least start there, because I
do think that there is likely to be a fairly thorough
discussion around the politicization issue, though I have no
inside knowledge of that at all.
And I also think that the Committee's work is so helpful in
focusing attention on the NVRA and the way the NVRA has been
used to do these broad purges that wipe out so many eligible
voters for no gain.
And even this question about people voting in--just to tie
this together with the voter ID issue--people voting in Florida
and New York, well, if they're registered in both Florida and
New York, no voter ID is going to stop them from voting twice.
So voter ID is not a cure for whatever kind of problem--which I
don't know that much about it--is presented.
But I think that this Committee putting pressure to build
up that firewall between Criminal and Civil Rights----
Mr. Conyers. Is my time up already?
Well, could I ask the gentlemen here to please submit to me
your recommendations. I would be deeply grateful for them.
Thank you, Mr. Chairman.
Mr. Nadler. The gentleman from Minnesota is recognized for
Mr. Ellison. Thank you, Mr. Chair.
Ms. Fernandes, let's say that there have been, over the
last 3, 4 years, perhaps as many as 24 people who have been
convicted for voting in a name that was not their own.
How many people are we going to lose with these voter ID
Ms. Fernandes. Tens of thousands, perhaps hundreds of
thousands, depending on which bill it is. Some bills are much
more onerous than others.
Mr. Ellison. Yeah.
I mean, now, you do this kind of work; and, Mr. McDonald,
you do this kind of work; and, Mr. Moore, you do this kind of
work, too; I'm sure Mr. Driscoll, as well.
Is the main complaint of Black voters, Latino voters, is
their main problem, their barrier to voting the fact that some
States don't have a voter ID requirement?
Ms. Fernandes. No. And, in fact, what this really is, I
think, Mr. Ellison, I think this is people who are interested
in having fewer people vote have kind of whipped up this whole
notion of voter fraud in person. We are talking about polling
place impersonation, right? So intentionally impersonating
someone else in the polls to vote, which is a high-risk
proposition, carries criminal penalties. You would have to
create 500 to 1,000 coconspirators to do it. It is an
inefficient way to steal an election if you even want to do
that, right? So we are talking about whipping up a fear of that
practice, which is apparently nonexistent, to justify voter ID
Mr. Ellison. Now, Ms. Fernandes, if you're an immigrant
person and you don't have a legal right to vote and you vote,
isn't that like a felony?
Ms. Fernandes. You could be deported.
Mr. Ellison. And so, you're going to risk your life in
America, that you're trying to have, to cast a vote?
Ms. Fernandes. Yeah, for what.
Mr. Ellison. You know, in my experience, I have trouble
getting people to vote once in their own name, as opposed to
trying to round up a bunch of people to steal an election.
Mr. McDonald, I want to ask you this question: Do you think
that voters of color who want confidence in an election and
want to believe that their vote really matters, is their
biggest advocacy to have a voter ID bill passed in the various
States? Is that what they think the answer is?
Mr. McDonald. Well, I think that a photo ID bill that was
passed, at least in part, to discriminate, that plainly has a
discriminatory impact, does nothing at all to create confidence
in the fairness of the electoral system.
Mr. Ellison. Mr. McDonald, let me ask this question: Would
having people in Black police-uniform-looking outfits standing
around polls, questioning people and telling them that they
better have their child support paid or they're going to be
arrested if they vote, do you think that might intimidate
voters from voting?
Mr. McDonald. Well, of course it would. And we know that
those sort of voter intimidation tactics have been used in the
past, and they ought to be addressed.
Mr. Ellison. What about recent elections where they have
these fake little memos and letters around saying that if you
don't have your child support paid or your parking tickets paid
that you can't vote? There are letters like this; I'm sure
you're aware of them. And this isn't 10, 20 years ago. This is
the last election.
Mr. McDonald. Well, we have done monitoring of elections
since the 2000 election. And we found many examples of things
that are unconscionable, efforts to target minority precincts,
to deprive people of the opportunity to have access to
assistance in voting and also strong-arm tactics.
Mr. Ellison. Forgive my interruption, but these are the
things that people are concerned about; isn't that right?
And I'm just going to state for the record my own opinion--
and forgive me for my interruption. I believe that voter ID
bills are intentional voter suppression of minority voters and
have the effect and intent of suppressing people's rights.
Mr. McDonald. There's one thing that I would definitely
like to respond to, which has not been responded to, and that's
Mr. Tanner's statement that the District Court in Georgia found
that the photo ID law did not violate the racial fairness
provisions of section 2. That is incorrect. The court granted a
preliminary injunction, found that the photo ID law would have
a negative impact on racial minorities, but it did not reach
the section 2 issue. It reserved a ruling on that. Then, when
it issued its opinion on the merits, in which it reversed
itself, it expressly did not reach the section 2 vote that we
And, more importantly, last week we got a letter from the
Court of Appeals questioning whether or not it had jurisdiction
over the appeal we had taken of the case, because the court had
not reached some of the claims that were raised, including
So the court did not resolve the section 2 claim.
Mr. Ellison. Mr. Chair, may I just say for the record that
I think Mr. Moore is highly commendable, and he has done what I
would expect a person born in the mid-1960's to do: carry on
the legacy of the civil rights movement, make sure America is
free and fair for everybody.
I think you're a hero, Mr. Moore, and I'm so grateful for
your advocacy and your honesty.
Mr. Moore. Thank you.
Mr. Nadler. Thank you.
The gentleman's time is expired. The gentleman from
Virginia is recognized for 5 minutes.
Mr. Scott. Thank you. Thank you, Mr. Chairman.
Mr. McDonald, I asked in the earlier panel some questions
that need to be resolved before we go into another round of
redistricting, specifically whether or not coalition districts
are protected under the Voting Rights Act.
Are there any questions like that that we need to make sure
are resolved before we get into the next round of
Mr. McDonald. Well, I think that if there is a coalition
composed of racial minorities and others that has the ability
to elect candidates of its choice, that that's protected
against retrogression by section 5.
Mr. Scott. Are there other questions that we need to look
at to make sure that they are resolved ahead of time, so that,
as States start doing their redistricting and localities start
doing their redistricting, are there questions that we need to
Mr. McDonald. Well, there's a question about whether
majority-minority districts can be reduced on the assumption
that there is sufficient White crossover voting to maintain the
ability to elect candidates of choice. And I've discussed this
issue with people in the State legislature whose opinions I
deeply respect--African American members Tyrone Brooks, Robert
Holmes. They have assured me that not a single member of the
Black legislative caucus would support reducing majority-Black
districts below 50 percent.
And the reason is that, once a district becomes majority-
White, it behaves in a different way. You no longer have the
level of White crossover voting that you might have had when it
was a majority-minority district. You no longer have the
confidence that minority voters have in it. And you no long
have as many minority candidates who are willing to run. So
those districts will perform differently. And I take my cue
from Tyrone and Bob Holmes.
Mr. Scott. Well, if you have districts that have, in fact,
performed--you have Members of the Congressional Black Caucus
who are in districts less than 50 percent Black. Are those
protected as minority districts where there minority community
can elect a candidate of its choice?
Mr. McDonald. I think so. That's me speaking now, not Mr.
Tanner or the Department of Justice.
Mr. Scott. Okay.
Are there other issues we need to make sure we look at, Ms.
Ms. Fernandes. No, I think that's the central issue, and I
agree with Laughlin.
Mr. Scott. Mr. Moore, is there any question that the voter
ID bill had a disparate impact on the minority community?
Mr. Moore. We believe the State had not met its burden to
prove that it did not. It was a complicated statistical record
with no smoking guns.
Mr. Scott. Were there memos to that effect that were
Mr. Moore. I believe The Washington Post published the memo
that we wrote, yes.
Mr. Scott. Did The Washington Post suggest that memos had
Mr. Moore. The memo that The Washington Post published,
which was the final staff memo, was, in my view, doctored to
remove the recommendation and to reverse many of our key
Mr. Scott. In the previous panel, I asked whether or not
anyone had been reprimanded who did not agree with the final
decision on the Georgia case. And he said no one had been
reprimanded. Was that accurate?
Mr. Moore. No, not if ``reprimand'' is an oral reprimand.
If it was a written reprimand, perhaps.
Mr. Scott. The four that disagreed were orally reprimanded?
Mr. Moore. I don't know about Mr. Berman. The other three
of us were reprimanded.
Mr. Scott. Was partisan politics involved in any employment
decisions in the voting rights section?
Mr. Moore. I was not involved with hiring. From the series
of attorneys who joined the section, in the last couple of
years while I was there, either it was politicized or they got
Mr. Scott. In investigating the Ohio irregularities, Mr.
Tanner, a political appointee did the investigation himself, is
Mr. Moore. Mr. Tanner is a career employee, yes.
Mr. Scott. He's a career or political?
Mr. Moore. That's a good question. He's technically a
career--he's a career employee.
Mr. Driscoll. That's a good question for you, too.
Mr. Scott. I'm sorry?
Was there a reduction in staff while you were there.
Mr. Moore. Yes, there was. But how much of that was a
result of people leaving out of unhappiness and how much of it
was the natural cycle as the census of 2000 became further ago.
Mr. Scott. I have no further questions, Mr. Chairman. I'll
yield to the gentleman from Wisconsin.
Mr. Nadler. I thank the gentleman.
On behalf of the Subcommittee, I want to thank our
witnesses for appearing here today and for your testimony on
this very important question.
As you heard the Chair suggest, we may have an additional
hearing at some point.
Without objection, all Members will have 5 legislative days
to submit to the Chair additional written questions for the
witnesses, which we will forward and ask the witnesses to
respond as promptly as you can, so that their answers may be
made part of the record.
Without objection, all Members will have 5 legislative days
to provide and extend their remarks and to submit any
additional materials for inclusion in the record.
And, with that and the thanks of the Chair, this hearing is
[Whereupon, at 1:08 p.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record