WHEN YOU'RE TEN points behind in the polls, less than two months away from the first presidential primaries, and African American Democrats are divided between you and the front-runner, what is the easiest way to narrow that gap?
Apparently, if you're Sen. Barack Obama (D-Ill), you play the race card.
And that's exactly what he's done with his latest salvo against Hans von Spakovsky, the Bush administration's nominee to the Federal Election Commission. Recently, Sen. Obama published an inflammatory essay in the Chicago Defender, a weekly newspaper serving Chicago's black community, blasting von Spakovsky for undermining voting rights and creating roadblocks for minority voters.
Unless you follow election law issues, you probably have not heard of von Spakovsky until recently. He has served without any controversy on the FEC since January 2006 as a recess appointee. As former Commissioner Bradley Smith and other observers have noted, his FEC career has "been tremendously successful." But it's not his work on the FEC that has Sen. Obama and others on the left so lathered up, but rather, his prior tenure as a career lawyer in the Civil Rights Division at the Department of Justice, where he worked on voting rights issues. Of course, the FEC has nothing to do with enforcing the Voting Rights Act, but you might not know this if you listen only to Sen. Obama and other von Spakovsky detractors.
So, to understand the real von Spakovsky controversy, you can't begin with Obama's op-ed. For that, a much neglected story needs to be told.
THROUGHOUT THE 1990s, the Justice Department's voting rights section was mostly staffed with movement liberals who often failed to enforce the law and instead did the bidding of liberal-leaning interest groups. Things were so out of hand that a three-judge federal court called them on the carpet in a 1994 redistricting lawsuit writing, "Succinctly put, the considerable influence of ACLU advocacy on the voting rights decisions of the United States Attorney General is an embarrassment." In fact, during the 1990s, American taxpayers paid over $4,000,000 in attorney's fees awarded against the civil rights division after courts found that it had filed nearly a dozen frivolous discrimination cases, something that has not occurred during the current administration.
Following the 2000 election, these liberal staffers found that they were no longer permitted to run the voting rights section as an arm of the ALCU. One of the new employees blocking their way was von Spakovsky. Frustrated after losing power, many of the career employees eventually quit and joined the interest groups they once conspired with from within the Justice Department, such as the Lawyers' Committee for Civil Rights, People for the American Way, and the ACLU. This past year, they have held a prolonged class reunion to oppose von Spakovsky's nomination to the FEC. Sen. Obama, apparently eager to find a "civil rights" issue to champion, has become their star spokesman.
None of Obama's criticisms are new--all are simply reiterations of the same old issues battled by the left: voter identification cards, purging voter rolls of felons, and redistricting efforts that might benefit Republicans. When the Senator's charges are closely examined however, it's clear that von Spakovsky's only crime was his failure to embrace the agenda of the liberal voting rights community. Let's examine each one.
In 2003, the Georgia legislature passed a law requiring voters to produce an official government-issued I.D. before being allowed to vote. Because Georgia is covered by Section 5 of the Voting Rights Act, it was required to seek permission from the Justice Department before this new I.D. law could go into effect.
Much to the consternation of the career lawyers there, the Justice Department approved the new law, correctly noting that, under the legal standards of Section 5 of the Voting Rights Act, it was not racially discriminatory and would not unduly harm minority voters. Obama claims von Spakovsky improperly overruled the career lawyers and ramrodded this discriminatory law into effect.
Yes, shortly after the Justice Department approved the law, a Georgia federal judge enjoined the state from implementing the new I.D. requirement, but on constitutional grounds for which the Justice Department had no standing to object. At no time did the judge ever find racial discrimination in the I.D. requirement. As it finally turned out, the Georgia legislature modified the new law by making I.D.s free to anyone who applied for one. The law is now in effect in Georgia. To date, no one has demonstrated how any of Georgia's minority voters have been harmed by the I.D. requirement during the elections that were held last September.
The Georgia case demonstrates that von Spakovsky made the correct decision to approve the law, and to do otherwise would have set the Justice Department up for another embarrassing rebuke from the courts. This all-important legal distinction is apparently lost on Sen. Obama, who is clearly not fluent in the legal intricacies of the Voting Rights Act.
Next, Obama's op-ed criticizes von Spakovsky for endorsing the need to purge election rolls of felons in 2000 when he was a member of the Fulton County Registration and Election Board in Georgia. This charge seems to be based on a paper that von Spakovsky authored in 1997 for the Georgia Public Policy Foundation on ways to improve the integrity of state and local elections. He recommended that the Secretary of State "run a monthly computer comparison of the voter registration lists with the records of the Georgia Department of Corrections" in order to discover the names of felons who were ineligible to vote.
How can this be a violation of minority voting rights? Well, it's not. In the 1993 National Voter Registration Act (also known as "Motor Voter"), Congress required all United States Attorneys to notify state election officials when registered voters are convicted of felonies in federal courts. A decade later, Congress enacted a housekeeping measure virtually identical to von Spakovsky's recommended procedure when it passed the Help America Vote Act, which required states to set up computerized voter registration lists and to "coordinate the computerized list with State agency records on felony status."
So, according to Sen. Obama, von Spakovsky is disqualified from serving on the FEC because he endorsed a procedure that would not only helps states (including Illinois) enforce their existing laws, but one that Congress eventually implemented as a federal requirement.
Finally, Obama's last major objection to von Spakovsky is his involvement in the now infamous, Tom DeLay-inspired, Texas congressional redistricting plan in 2003. Like the controversy over the Georgia voter I.D. statute, in 2003, the Texas legislature redrew the state's congressional districts resulting in a pick up five new GOP representatives in the next election. Obama claims that von Spakovsky overruled the career staffers' recommendations that the plan be rejected as harmful--or, in the language of the Voting Rights Act, "retrogressive"--to the current position of minority voters. The case eventually made its way to the U.S. Supreme Court where one district out of 32 was struck down as a violation of a completely different part of the Voting Rights Act--a part that von Spakovsky and the voting section have no jurisdiction to enforce. Once again, just like the Georgia I.D. case, the courts proved von Spakovsky made the right legal call.
So what is really at issue here? Politics. The career staffers at Justice wanted to deny approval of the Texas redistricting plan and they were overruled--correctly as it turned out--by their bosses who ran the Civil Rights Division. The career staffers were so infuriated with the decision that someone leaked their internal legal memoranda to the Washington Post, violating every professional rule of ethics and professional conduct imaginable.
In holding this issue out as evidence that von Spakovsky is unfit for the FEC, Sen. Obama displays either a complete ignorance of Voting Rights Act and the Supreme Court's holding in the Texas case, or a willingness to mislead the public in order to promote his civil rights bona fides.
There is no valid reason that von Spakovsky should not be confirmed to the FEC. And there is no reason why the savage, personal attacks made on von Spakovsky's legal judgment should continue. That those unfair and untrue attacks have been embraced by someone who seeks to be America's next president is an unflattering reflection on the wisdom of Barack Obama, not Hans von Spakovsky.
Edward Blum is a visiting fellow at the American Enterprise Institute and the author of The Unintended Consequences of Section Five of the Voting Rights Act, forthcoming from AEI Press.