Posted March 16, 2007 by J. Gerald Hebert

Vote Suppression and the Gonzales 8 Scandal

The ongoing and widening scandal over the firing of eight U.S. Attorneys is racking up column inches and filling the blogosphere these days, and rightfully so. But there are a couple of aspects to the story that have not been written about yet, and I thought it was time to take on a few of them.

In a flurry of emails released earlier this week and now available on the website of the Washington Post, one in particular caught my eye. It was an email from Monica Goodling at the Department of Justice to Scott Jenkins at the White House and to DOJ’s Kyle Sampson (Gonzales’ chief of staff until he resigned earlier this week). The subject of the email exchange involved Tim Griffin, a person working at the White House for Karl Rove, and how to move him into a position as U.S. Attorney in Arkansas. There are two parts to the email exchange that jumped out at me. The email says Griffin would likely face political opposition to the nomination because he played a role “in massive Republican projects in Florida and elsewhere by which Republicans challenged tens of thousands of absentee votes.” According to the 8/24/06 email, “[c]oincidentally, many of those challenged votes were in black precincts.”

It has been a contention of many Democrats that the Republican obsession with voter fraud is really just a beard for pushing a program of vote suppression, particularly the vote suppression of racial and ethnic minorities. I leave for another day a discussion of the irony in that those targeted in such a vote suppression program are those who historically have been denied the electoral franchise and have only been able to exercise it freely since the Voting Rights Act of 1965 guaranteed that right.

Florida is a logical target state for those who seek to produce an electoral outcome, particularly at the national level. The state is evenly balanced in its partisan make-up, at least insofar as presidential politics are concerned. Al Gore arguably carried the state in 2000 and President Bush eked out a victory in 2004. With its 27 electoral votes, Florida is fertile ground for political operatives. But rather than focus on getting the vote out, it appears that one of the “massive Republican projects” involved knocking off absentee voters’ ballots.

What right does anyone have to challenge tens of thousands of absentee votes? Well, in most states, you simply can’t challenge the right to vote of each and every voter. You have to have some reasonable grounds to believe the vote is not valid and only then can you challenge it. In other words, vote challengers are not able to target a particular group of voters and challenge just them. Thus, if a challenger at the polls targets only black voters’ rights, that’s illegal. Back when Jesse Helms ran against former Charlotte mayor Harvey Gantt (who is black), the Helms campaign targeted black precincts in North Carolina with a mailer that warned voters they could be prosecuted for vote fraud and contained erroneous information about casting ballots in North Carolina. That mailing resulted in a lawsuit by the Department of Justice against the Helms for Senate campaign and its officials as violative of federal law, including the Voting Rights Act. Is it really any different when a vote challenger like Tim Griffin is involved in a massive scheme to challenge absentee ballots that “coincidentally…were in black precincts”?[1]

The Bush Administration has taken the position that U.S. Attorneys serve at the pleasure of the President. While this is true, it completely misses the point. If the firings of these eight U.S. Attorneys were motivated by partisan electoral goals, and it appears at the very least that the firings of Iglesias and McKay fall into this category, then these firings are an abuse of the power to choose federal prosecutors and, more importantly, seriously undermine law enforcement. Prosecutors at any level of government should not be selected based on whether they will do either Party’s bidding by indicting people on the other side of the aisle for arguably legal activities just to drive electoral results. As election law attorney Bob Bauer noted in his blog yesterday: “The politics that is intolerable, the very antithesis of professionalism, is that which presents in its purest, unadulterated expression the use and abuse of legal process to serve a government’s partisan electoral objectives.” That is exactly what we have here.

I find it hard to understand how those watching this scandal unfold can with a straight face question if these firings were political. After all, there are more examples of the Bush-Ashcroft-Gonzales Justice Department manipulating federal law enforcement efforts than you can shake a stick at. I have written previously about the approval of a congressional plan crafted by Tom DeLay that violated the Voting Rights Act. Click here to read that post. But there are other egregious examples.

Take the case of the Mississippi congressional redistricting plan, which the Justice Department was required to review under the Voting Rights Act back in 2002. The state legislature failed to enact a redistricting plan and so a state court intervened and drew a new plan. The plan slightly favored Republicans but at least gave then Democratic Congressman Ronnie Shows a fighting chance against Republican incumbent Chip Pickering (yes, that Pickering; Chip Pickering was the controversial Judge’s son). But the Mississippi Republican Party, with an ace up its sleeve, was unwilling to accept anything even close to a level playing field and went to an all-Republican federal court to obtain a plan in which Republican Pickering was virtually guaranteed to win handily. The federal judges quickly obliged and then imposed a deadline on DOJ to either approve the state court plan or else the Republican plan, killing off Democrat Shows, would go into effect.

Here’s where it gets interesting. By law, DOJ is required under the Voting Rights Act to examine a very narrow legal question: whether the congressional map is free of a racially discriminatory purpose or effect. No one seriously contended that the plan suffered from such defects, because the State’s only majority black congressional district (represented by Rep. Bennie Thompson) was protected under the state court’s plan and Rep. Thompson, the state’s highest black officeholder and leader, endorsed the plan. The DOJ career attorneys reviewed the plan and concluded that it met the requirements under the Voting Rights Act. However, the political appointees, knowing that if they could stall long enough it would mean the more favorable plan for Republicans would go into effect, refused to approve the plan. So the deadline for approval of the plan by the federal court came and went, and the federal court promptly ordered the pro-Republican map into effect. Pickering slaughtered Shows in the 2002 election so the political manipulation of the Voting Rights Act’s approval process worked well.

Those following the current unraveling of the scandal involving the U.S. Attorneys should also be aware that the effort to politicize law enforcement in an unprecedented way is not confined to the federal level. In Texas, for example, the Legislature made it a crime in 2003 to mail a ballot for a neighbor. Since the law went into effect, the Republican Attorney General of Texas has used this law to indict black and Latino voter activists. Twelve people have been indicted thus far and not a single Republican has been indicted for mailing ballots of others. Eleven of the twelve people prosecuted thus far are either black or Latino. The Texas Attorney General has been charged in a federal lawsuit with racially selective prosecution, among other things. The plaintiffs believe that the effort to target minorities is part of a broader effort to suppress the vote (sound familiar? See the Florida reference above). To show how racially tinged this case is, one of the pieces of evidence introduced is a powerpoint presentation that the Texas AG has used to train local law enforcement officers which depicts a sickle cell anemia postage stamp and suggests that those engaging in vote fraud use these types of special stamps. You think this might be a reference to black voters who suffer from sickle cell anemia in vastly disproportionate numbers? If you don’t see this connection, then you likely can’t see the political motivation behind the firing of U.S. Attorneys either. Full Disclosure: I represent the plaintiffs in this Texas lawsuit.

One thing is clear; if the White House or Justice Department leaned on any of these U.S. Attorneys because they were unhappy with their failure to take actions against Democrats for alleged voter fraud, then the abuse of the legal process we have seen to date will be considered small potatoes. President Bush certainly has the right to inform his Attorney General of a complaint he has received about alleged non-performance by a U.S. Attorney or any other government official. But what the Congress needs to find out is whether, in any of the discussions between the White House and the Justice Department, any of the U.S. Attorneys targeted for dismissal were selected because they were not aggressively pursuing cases against Democrats. And that especially includes Karl Rove and Harriet Miers, each of whom should be placed under oath and asked about all of this. We know already that these firings were politically tinged, and with subpoena power on the Hill, we may soon learn the extent and depth of this entire fiasco. Stay tuned.

[1] As a former DOJ official, I found one other aspect of these emails disturbing. It was the procedure to “park” people into DOJ attorney positions at headquarters in DC temporarily until they could be transferred out to the field. Under current rules, Griffin could not be sent to Arkansas because he was not a DOJ attorney (he was at the White House). So Attorney General Alberto Gonzales’ Chief of Staff writes that DOJ can “park” Griffin at DOJ until AG Gonzales appoints him as U.S. Attorney. What a misuse of a DOJ attorney slot. As someone who served as both Deputy Chief and Acting Chief of the Justice Department’s Voting Section, I know first hand how valuable to the law enforcement mission such attorney positions can be. To see them used to “park” people is at best unseemly.