May 8, 2008 -- Senators Urged to Reject FEC Nominee

May 8, 2008

Dear Senator:

It is clearly time to resolve the stalemate over the Federal Election Commission (FEC). In this consequential election year, it is important that the entity charged with enforcing federal campaign finance laws be functional. However, the imperative to resolve this standoff should not result in the confirmation of former Department of Justice (DOJ) official Hans von Spakovsky to serve on the FEC. His record of politicization and voter suppression at DOJ alone is disqualifying. He does not deserve confirmation to the FEC, and the Senate should reject any procedure which would prevent a clean up-or-down vote on his nomination without tying it to the other proposed nominees.

Commissioner von Spakovsky's public comments on the Supreme Court decision in the Indiana voter ID case, Crawford v. Marion County Board of Elections, No. 07-25 (decided April 28, 2008), are both disingenuous and further proof as to his unsuitability for Senate confirmation. The Indiana decision, far from being a vindication of von Spakovsky's decision to approve the illegal Georgia voter ID law, simply gave von Spakovsky another opportunity to distort the truth, which is exactly what he has done. President Bush continues to press for the confirmation of Hans von Spakovsky for a seat on the Federal Election Commission. This controversial nominee served in the Civil Rights Division of the United States Department of Justice from 2003 to 2005. In that post, he compiled a shameful record of not only seeking to advance a partisan agenda through enforcement of federal civil rights laws, but even more importantly, he undermined and suppressed the voting rights of those he was duty bound to protect.

During his tenure at the Department of Justice, von Spakovsky not only abused his office with regard to his failure to enforce civil rights laws, he also engaged in questionable ethical conduct. For example, he published an anonymous law review article under the pen name Publius, and then subsequently failed to disqualify himself in deciding a controversial voting rights matter that involved the very same issue that had been the subject of his anonymous law review article. He failed to disclose the fact that he had written this anonymous piece and held preconceived views on the subject to those who were doing business with the Department on that issue.

According to the Administration and von Spakovsky, the decision of the Supreme Court in the Indiana voter ID case vindicates the actions he took while at the Department of Justice involving a voter ID law in Georgia. In fact, the decision does no such thing.

The Indiana voter ID case was a facial constitutional attack on the law requiring that those voting in person must produce a Government issued photo ID. Thus, the petitioners in the Indiana voter ID case framed the question presented to the Supreme Court in their petition for certiorari as follows: "Whether an Indiana statute mandating that those seeking to vote in-person produce a government- issued photo identification violates the First and Fourteenth Amendments to the United States Constitution." In a facial constitutional attack such as the Indiana voter ID case, the claim simply put is whether the law imposed an unconstitutional burden on the fundamental right to vote. The case before the United States Supreme Court did not involve the question of whether the Indiana voter ID was racially discriminatory under the Voting Rights Act. That issue was simply not involved in this facial challenge.

During his tenure at DOJ, von Spakovsky approved a voter ID bill in Georgia in 2005. That bill was submitted to the Department of Justice for approval by the state (known as preclearance), and the question before the Justice Department was whether the law was racially discriminatory in it purpose of effect. Career professionals in the Civil Rights Division of the Justice department recommended that the Georgia law be disapproved, concluding that the Georgia voter ID bill, if implemented, would harm African-American voters. Von Spakovsky, however, overruled their recommendation and approved the law anyway. Upon approval of the law by DOJ, the Georgia voter ID was immediately attacked in federal court on grounds, inter alia, that it was an unconstitutional poll tax and on the grounds that it would harm minority voters and thus violated the Voting Rights Act. The federal court issued an injunction, finding that the Georgia voter ID bill, which required voters to pay a fee in order to obtain a valid ID, was an unconstitutional poll tax violative of the Twenty-Fourth Amendment to the United States Constitution. With regard to the effect that the Georgia voter ID had on minority voters in Georgia, the federal court made these observations:

[T]he photo ID requirement makes the exercise of the fundamental right to vote extremely difficult for voters currently without acceptable forms of photo ID for whom obtaining a photo would be a hardship. Unfortunately, the photo ID requirement is most likely to prevent Georgia's elderly, poor, and African-American voters from voting. For those citizens, the character and magnitude of their injury—the loss of their right to vote—is undeniably demoralizing and realistic of effective means of protecting their rights.

Common Cause/Georgia v. Billups, 406 F. Supp. 2d 1326 (N.D. Ga. 2005). It is important to note that von Spakovsky gave voting rights approval to the Georgia voter ID bill that a federal court concluded just a few months later was likely to prevent "elderly, poor and African American voters from voting."

Following this decision, the Georgia Legislature changed the voter ID laws in that state and those changes were approved by the Justice Department and once again challenged in the courts. That legal challenge remains pending. On occasion, some supporters of von Spakovsky, including the Wall Street journal, have argued that the federal court approved the Georgia voter ID bill that von Spakovsky had approved while at DOJ, but that is wrong. The voter ID bill that von Spakovsky approved, as detailed above, was actually enjoined by the federal court. It was the revised version of the voter ID bill, which was approved by the Justice Department after von Spakovsky had left the Department, which was upheld in the courts.

Reporting on the Indiana voter ID case last week, the New York Times reported: "'This decision not only confirms the validity of photo ID laws, but it completely vindicates the Bush Justice Department and refutes those critics who claimed that the department somehow acted improperly when it approved Georgia's photo ID law in 2005,' said Hans A. von Spakovsky, a former member of the Federal election commission and a former Justice Department official." Given the fundamental and clear differences between the two cases, it is clear that von Spakovsky is once again attempting to mislead people and distorting the record to justify his indefensible decision to approve the Georgia voter ID law.

The background and shameful record of von Spakovsky sets his nomination apart from the other FEC nominees and justifies a separate vote on his nomination. Voting for all the nominees as a package would hardly seem fair to the other FEC nominees, who would then have their fates joined with that of von Spakovsky.

Clearly, it is time to resolve the stalemate over the FEC. Senate Majority Leader Reid has proposed a reasonable way to bring about a fully constituted FEC. Regardless of how the FEC impasse gets resolved, one thing is clear: von Spakovsky does not deserve confirmation.

A wide array of organizations, and seven former DOJ attorneys and professional staff, have rightfully opposed this nomination. The Campaign Legal Center strongly joins in this opposition, and urges you to vote "no" should the von Spakovsky nomination reaches the Senate floor.

Sincerely,

J. Gerald Hebert

Executive Director and

Director of Litigation