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By Brad Smith Posted in FEC — Comments (30) / Email this page » / Leave a comment »

On June 13, Federal Election Commissioner Hans von Spakovsky, now serving as a recess appointee, goes before the Senate Rules Committee for a hearing on his nomination to serve a full term. Portions of the left - including the Kossites - are apoplectic, and Senate Democrats are believed to be sharpening their knives. Hans von Spakovsky, they say, wants to disenfranchise America’s minorities – one of the most explosive charges one can make in modern America. And they are determined that this mild-mannered Atlanta lawyer will be the next scalp on their belts. So who is Hans von Spakovsky, what exactly has he done, and why should Republicans care if, to mix metaphors, he is hung out to dry?

Spakovsky is a quiet, unassuming 48 year old lawyer out of Huntsville, Alabama, by way of Atlanta. The son of east European immigrants who escaped from communism, Spakovsky graduated from Massachusetts Institute of Technology in 1981, and earned his law degree at Vanderbilt in 1984. After several years in private practice, in 1996 he was appointed to the Fulton County Board of Registration and Elections, and attended the Republican National Convention as an alternate delegate. At about this time he became President of the Sandy Springs Civic Roundtable, described by the Atlanta Journal Constitution as “an umbrella group of homeowner groups, civic organizations and business leaders” in Sandy Springs, then an unincorporated area between Atlanta and Roswell. In this role he was active in promoting energy deregulation in Georgia and the rather less typically Republican position of controlling urban growth and sprawl. Other positions of local leadership followed, including an appointment to the advisory board of the county parks department.

In 1999, Spakovsky was elected Chairman of the Fulton County (Atlanta) Republican Party. In light of the charges of “vote suppression” now being hurled at Spakovsky and detailed below, his campaign platform was an interesting one. As described by the Journal-Constitution, Spakovsky campaigned on the theme that, “the GOP must work harder to attract minority and immigrant voters…. We have to change some of the attitudes about Republicans that hurt us in the last election." In a letter to party members, Spakovsky wrote, "As a first-generation American whose parents came to this country seeking freedom and opportunity for their children, I have a special background that will help me to be heard in communities where we have not sought votes and support." AJC, Mar. 11, 1999.

So how did this local civic leader, smart-growth advocate, big-tent Republican become the bete noir of the left, the villain du jour?

It starts in 1997, when Spakovksy wrote a report for the Georgia Public Policy Foundation, calling, among other things, for a purge of felons from voter roles. Given that felons are ineligible to vote under Georgia law, this hardly seems like a radical proposition, but convicted felons, it seems, vote Democratic by substantial majorities, which may or may not have anything to do with the elevation of felon voting to the status of burning civil rights issue in certain academic and left-wing circles. Additionally, Spakovsky called for Voter ID laws, in order to eliminate fraud at the polls, citing examples from newspapers and elsewhere reporting alleged incidents of voting by dead persons, non-citizens, and imposters representing people who had moved away – all groups which are now, and were then, ineligible to vote under Georgia law. He called for more vigorous enforcement of voting laws, and for – hold on to your hats – bipartisan election administration. Three years before the 2000 election fiasco in Florida, Spakovsky sought to have each Georgia county conduct an audit of its vote tabulation software before each election. And finally, another idea Spakovsky endorsed was restrictions on absentee voting, which, Spakovsky wrote, “may be the biggest source of potential voter fraud.” The report, in other words, is a fountain of moderate, “good government” proposals.

Given that absentee ballots traditionally favor Republicans, and that those on the left who object to voter ID laws typically complain that absentee voting is the real place for fraud, or given the concern since 2000 over vote tabulation equipment and partisan election administrators, one might think Spakovsky’s report would earn him so kudos for an unbiased, non-partisan approach, and for his foresight. And in a fair world, it would. But don't expect that this week.

After this report was issued, Spakovsky was named to the National Advisory Board of the Voting Integrity Project, described as late as 2001 by the left-leaning Center for Public Integrity as, “a nonpartisan, nonprofit organization dedicated to voter rights and election integrity issues,” but one which most liberal Democrats now call a “wing-nut” group dedicated to voter “disenfranchisement.” The Voting Integrity Project, it would be noted, even went so far as to raise concerns about the accuracy and security of new, electronic voting machinery (DRE machines) – now a pet cause of the vote-conspiracy left. In another lawsuit, the VIP fought internet voting, noting that in addition to security problems, internet voting could have a racially discriminatory effect due to the fact that (at least at that time) minority voters were less likely to be familiar with computers and the net. Chicago Daily Herald, Feb. 16, 2000. (The Voting Integrity Project was closed in early 2002 due to lack of funds. Had it been part of the great Republican vote-suppression plot, as the left now alleges, one would think funding would have been no problem, especially in the run-up to the 2002 election). Meanwhile, in a November 24, 2000 article in the Journal-Constitution, Spakovsky argued that voting machines should provide for a paper trail, another favorite cause of the post-2004 left. And all this was years before the Bradblog even existed!

Most states eventually agreed with Spakovsky and the VIP and shied away from internet voting. Imagine what the folks at Kos, and the Bradblog would be saying, though, had Bush won the 2000 or 2004 election and there had been internet voting.

But while Spakovsky was far ahead of the left in seeking ballots with a paper trail and worrying about the rush to adopt DRE machines, Spakovsky’s resume contains several other items which are simply insufferable to the Democrats' left wing base: He is, or at least at one time was, a member of the Federalist Society; he served as a volunteer recount observer for the Bush campaign in the 2000 Florida recount; and most of all, there is his unforgivable time at the Department of Justice.

In December 2001 Spakovsky was appointed Counsel to the Assistant Attorney General for Civil Rights in the Department of Justice. The career staff at the Civil Rights Division have long been seen by many conservatives as ideologically driven - that is, liberal - and in recent years many of those career staffers, on leaving DOJ, have in fact joined politically liberal groups, lending credence to the charge. Here Spakovsky took a number of steps that, placed in any sort of context, would likely draw shrugs from most Americans, but which, placed is headlines and scare quotes and distorted into clichés, are at the root of the Democratic attacks.

Here is what Spakovsky did, as chronicled in the Daily Kos (at least we’re reasonably sure Democratic staffers are reading it in preparation for the hearing – but are GOP staffers?), a McClatchy newspapers hit piece in late May, and a recent fussilade by a battery of Democratic lawyers:

1) In 2003, Spakovsky and other political appointees overruled the career bureaucrats at DOJ to approve Texas redistricting as a valid under Section 5 of the Voting Rights Act. The argument – which will be repeated over and over – is that somehow political appointees have some special obligation to follow the recommendations of the career staff, who are allegedly above politics. In fact the main reason for having political appointees is precisely so that they can implement the political choices favored by the president (overruling career staff when required), and because career civil servants often do have partisan or ideological leanings, like most everybody else.

Assuming Spakovsky was in part responsible for the approval of the Texas redistricting, Congress might actually want to look at the facts. The process of approving changes in voting procedures for states such as Texas which are covered under the Voting Rights Act is complex and I won’t go into them here – those interested can find a good summary in this NRO piece by Edward Blum, Roger Clegg, and Abigail Thernstrom. But the fact is that while the Supreme Court, in a 5-4 opinion, struck down one part of the Texas redistricting plan (under Section 2, not Section 5, of the Voting Rights Act, something not at issue in the staff recommendation), it did not do so on the basis on which the DOJ staff lawyers had recommended denying preclearance. In fact, the position recommended by the career staff was rejected by the District Court and not even appealed to the Supreme Court. In short, effectively the courts sided with legal judgments of Spakovsky more than with the legal judgments of the vaunted career bureaucrats on the issues raised in the leaked DOJ memo. If the career staff had recommended that DOJ deny preclearance of the Texas plan on the grounds that the plan would cause global warming, we wouldn’t expect a political appointee to give their advice the time of day, and we wouldn’t hold it against the political appointee that the Supreme Court eventually decided, on other grounds, that the plan violated some other section of the law. The fact that the career staff's recommendation was somewhat more plausible here than global warming doesn't give it any special weight - it still was wrong. And by the way, why are these non-partisan, non-ideological professionals leaking documents, anyway?

2) Spakovsky again played a part in overruling career staff to approve voter ID laws in Georgia and Arizona. Worse still, a federal district court judge held that the Georgia ID law was unconstitutional, proof that Spakovsky sought to violate constitutional rights of minorities for partisan gain - unless, once again, we look more closely at the facts. In fact, as in the Texas case, the District Court’s decision striking down the Georgia ID law was made on grounds not relevant to the recommendation by the DOJ staff. Furthermore, after the Georgia case was decided, the Supreme Court overturned a 9th Circuit opinion granting an injunction against the similar Arizona law (final disposition on the merits in that case still awaits). Moreover, in an opinion written by Richard Posner, one of the most respected United States Court of Appeals judges, a similar Indiana law was recently upheld against constitutional challenge in the case of Crawford v. Marion County. In other words, it looks as though when all is said and done it may be the decision of the Georgia district court to strike the law that is most out of step.

Voter ID laws are the current enemy #1 on the Democrats list. Democrats allege that these laws disenfranchise minority voters. The District Court in the Crawford case (whose judgment was upheld in Posner’s opinion for the Court of Appeals), however, noted that the plaintiffs could not identify one such voter who was actually disenfranchised. Speaking as one who is personally on record as not believing that there is a much fraud that can be combated by voter ID laws, it is worth noting that public opinion overwhelming favors them, the Carter-Baker Commission co-chaired by former President Carter and Secretary of State Baker endorsed them, and the judiciary seems to be moving in favor of them. It appears, then, it is the Democrats (and me!), not Spakovsky, who are out of the mainstream. But these nuances will not be brought up at the hearing – instead we will simply hear repeated, ad naseum, “voter suppression,” “voter suppression” “voter suppression and disenfranchisement,” as a mantra to smear Spakovsky.

3) During his time at Justice, Spakovsky anonymously published a law review article arguing in favor of voter ID laws. This was probably not the smartest thing he has ever done – my guess is the Commissioner would agree – but it does not appear to be illegal or much of a scandal. Democrats want to suggest that this is somehow demonstrative of a lack of impartiality – as if federal officials don’t have opinions, published or not. Spakovsky’s article did not endorse any particular law. Would Spakovsky’s decision had been different had he not published the article? Of course not.

4) While at DOJ, and serving on an advisory panel to the Election Assistance Commission, Spakovsky “objected strenuously to a contract award for the ID study to researchers at Ohio State University's Moritz College of Law, who were teaming with a group at Rutgers University.” The reason: “Von Spakovsky wrote that Daniel Tokaji, the associate director of Moritz' election program, was ‘an outspoken opponent of voter identification requirements’ and that those ‘pre-existing notions’ should disqualify him from federal funding for impartial research.” Was Spakovsky wrong: well, Dan Tokaji (whom I like and admire) is an outspoken opponent of voter ID laws. Further, per the McClatchy hit piece, the Commission, a bipartisan agency with two Republicans and two Democrats, essentially agreed with Spakovsky and, “rejected as flawed the second study's finding that voter ID laws tend to suppress turnout, especially among Latinos, and ordered more research.” Now, since the OSU/Rutgers folks hired me to serve on one of the peer review groups for these ID studies, I certainly have no axe to grind in Spakovsky’s favor on the issue. So let me ask: does his concern sound unreasonable to any impartial observer? I think not.

5) Finally, it is alleged that Spakovsky played a role in seeing that Republican Paul DeGregorio was not reappointed to the Election Assistance Commission because he (DeGregorio) was not “partisan enough.” I know former Commissioner DeGregorio, and I think he is a fine man and did a super job at the EAC. What we see here, though, is total speculation. I have no idea if Spakovsky suggested that DeGregorio be replaced, or if so why. This was a White House appointment, and I doubt they delegated it to Commissioner Spakovsky! I would hope that if the White House asked for Spakovsky’s candid opinion, he gave it to them (and since I have never talked to Spakovsky – or DeGregorio – about each other or their relationship, I have no idea what it might be).

In sum, then, here is the case against Spakovsky:

1. As political appointees are appointed to do, he made decisions overruling career staff at DOJ based on his understanding of the law and government policy. Though federal courts have ruled against the plans approved by Spakovsky, they also ruled (in agreement with Spakovsky) against most or all of the objections raised by the DOJ career staff; overall, it is true that Spakovsky's side won more than it lost in the courts;

2. He favors voter ID laws, like most of the public and the Carter-Baker Commission;

3. He expressed doubts to EAC Commissioners about a study, and the EAC Commissioners – 2 Democrats and 2 Republicans - in fact later rejected the study as flawed;

4. He may have given his honest opinion to the White House about another appointment, and if he did the White House may have given that opinion some weight in deciding what to do; and

5. Years before the HAVA was passed, he was encouraging states to purge their registration roles of ineligible voters – something Congress later mandated through HAVA.

That’s it.

Most interesting, perhaps, is that none of these alleged crimes and misdemeanors have anything to do with the job he has done at the FEC, which can be evaluated on its own merit after nearly 18 months of service, and where, in my view, Spakovsky has done a very effective job. And if we are to penalize Spakovsky’s decisions and judgements before joining the FEC, then Spakovsky ought to be given substantial credit for raising, years in advance, many of the issues that later became issues of particular concern to Democrats - such as concerns about security of DRE machines and internet voting; lack of safeguards against voter fraud in absentee ballots; and the benefits of ballot paper trails to assist in audits – and others were largely adopted by Congress (such as better maintenance of voter registration lists) or several state legislatures (such as stricter ID requirements).

Why should Republicans care what happens to Spakovsky? Well, here is why I care:

1. I am tired of Pat Leahy, a few other left wing Democrats, and the MSM fostering this view that membership in the Federalist Society or working for a Republican campaign (as in Florida 2000) somehow makes one suspect for appointive office in a Republican administration;

2. I am tired of certain left wing Democrats and the MSM fostering the idea that simply holding views (on say, voter fraud or voter ID) that most Republicans hold is somehow scandalous or disqualifies one from appointive office – in a Republican administration, no less;

3. I am tired of certain left wing Democrats and the MSM portraying any concern about voter fraud – which is a real problem that really does exist, even if the extent and precise nature of the problem may be disputed – is somehow an effort to “suppress votes” or “disenfranchise” minorities;

4. I am tired of these appointments being decided on personal smears and half-truths rather than serious discussion of the merits;

5. I am tired of these hatchet jobs of innuendo, of politicians playing to the extremes and semi-kooks; and most of all

6. Hans von Spakovsky has been a very good member of the Federal Election Commission.

The Daily Kos diarist has graciously listed the names and phone numbers of the Senators on the Committee. You can use that list, too, you know.