This Man Would Make an Excellent FEC Commissioner – in an Alternate Universe

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In an administration known for appointing one-time lobbyists to oversee the industries they so recently shilled for, and selecting other officials based primarily on their partisan fervor, it makes perfect sense that a fellow like Hans von Spakovsky would be tapped for a six-year term on the Federal Elections Commission. Which is to say it makes no sense whatsoever. Von Spakovsky, a recess appointee whose confirmation comes up for a vote today, previously oversaw the Voting Rights section in the DOJ’s very troubled Civil Rights division. There, former colleagues wrote in a letter to the Senate Rules Committee opposing his nomination, he was the “point person for undermining the Civil Rights Division’s mandate to protect voting rights.” Among other things, they point to his support for an overly strict voter ID law in Georgia. (Von Spakovsky, for his part, has said the letter is “inaccurate and wrong.”)

Prior to his coming to the Civil Rights Division in 2001, Mr. von Spakovsky had vigorously advocated the need to combat the specter of voter fraud through restrictive voter identification laws. In testimony before legislative bodies and in his writings, Mr. von Spakovsky premised his conclusions upon the notion – not well-supported at the time and now discredited – that there was a widespread problem with ineligible voters streaming into the polling place to influence election outcomes. In this same period, starting in 1994, the Voting Section had on several occasions reviewed other voter ID laws pursuant to its responsibility under § 5 of the Voting Rights Act, to determine if they had a negative impact on the ability of minority voters to participate in elections. Precedent from these prior reviews was clear: changes requiring voters to provide government-issued photo identification without permitting voters to attest to their identity if they did not have the required ID have a greater negative impact on minority voters than white voters because minority voters are less likely to have the government issued photo identification required by these laws.

Despite his firm position on voter ID laws and his partisan ties to his home state of Georgia, Mr. von Spakovsky refused to recuse himself from considering a Georgia law that would be the most restrictive voter identification law in the country. To the contrary, he was assigned the task of managing the process by the front office. Most disturbing was that just before the Department began consideration of the Georgia law, Mr. von Spakovsky published an article in a Texas law journal advocating for restrictive identification laws. Possibly understanding the impropriety of a government official taking a firm stand on an issue where he was likely to play a key role in the administrative decision concerning that issue, as the Department does under § 5, Mr. von Spakovsky published the article under a pseudonym, calling himself “Publius.” Such a situation—where the position he espoused in an article that had just been published is directly related to the review of the Georgia voter ID law—requires recusal from Section 5 review of this law, either by Mr. von Spakovsky or by his superiors. No such action was taken.

(For more on von Spakovsky, Dahlia Lithwick has a nice rundown of his storied career over at Slate. Tagline: “He doesn’t want Democrats to vote—unless it’s to appoint him to the Federal Election Commission.”) As it stands, Senate Dems have expressed concern over the nominee but have stopped short of signaling that they are poised to vote him down. Stay tuned.

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