Saturday, December 10, 2005

Memo? What Section 5 Memo?

Readers of these pages will recall some of the coverage about the revelations about the DOJ decisions to "preclear" changes to voting procedures in Texas and Georgia, that went directly against the recommendations of career lawyers and analysts (in the Georgia case, the recommendations to block the changes, a bill requiring state-supplied photo-id before being exercise the franchise, was a 4-to-1 count of the analysts, in Texas, it was the Tom DeLay sponsored-and-engineered redistricting plan, that was recommended against unanimously by all 8 lawyers and advisors, including the section chief).

The "Section 5" in the article title refers to that portion of the Voting Rights Act that requires changes in voting procedures, in several states, to be referred to the Department of Justice for examination and being "pre-cleared" before they can be enacted.

In both of these cases, the DOJ decision to allow the changes came very close to the submission of the analysis (in the Georgia case, the decision to allow the change came one day after the dissenting opinion was delivered), indicating that the decisions were not dependent upon the analysis at all.

In both cases the analysis memos were not made public along with the decisions, but later, by the Washington Post newspaper, which broke the stories. Without these memos being made public, the DOJ approvals left the presumption that the internal staff analysis was for clearance, not objection. Indeed, the Texas legislators that are challenging the redistricting plan say that if this memo were available to them when the redistricting plan was challenged in court, the courts may have had a different verdict (the DOJ refused to make the memo available to the challenging lawyers in the case).

The Georgia law was overturned by the U.S. Supreme Court and the Texas redistricting plan is being challenged in the courts.

It appears that those were not isolated cases, but were part of a new strategy to prevent the analysis of the experienced career lawyers and advisors from being passed on to either the public, the courts or the members of congress charged with oversight.

Prudence and good governance might indicate that decisions be made by listening to the staff, and if a contrary decision is made, give rigorous justification.

The Washington Post has a story in the 12/10/05 edition (Staff Opinions Banned In Voting Rights Cases).

From the WaPo article:

The Justice Department has barred staff attorneys from offering recommendations in major Voting Rights Act cases, marking a significant change in the procedures meant to insulate such decisions from politics, congressional aides and current and former employees familiar with the issue said.

Disclosure of the change comes amid growing public criticism of Justice Department decisions to approve Republican-engineered plans in Texas and Georgia that were found to hurt minority voters by career staff attorneys who analyzed the plans. Political appointees overruled staff findings in both cases.

From looking at the effects of these changes in vote tabulation (with the redistricting) and challenging the ability for voters to exercise the franchise (with the photo-id requirement), we see explicit (by gerrymandering to create safe GOP districts) and indirect (by making it harder to exercise the franchise of those who traditionally have voted Democratic in the past) effects to maintain the GOP majority in the Congress, and leaves some with the impression that the Congressional majority is more important than the voting rights of the citizens of the states affected.

In light of the legal trouble the House and Senate leadership has found itself in, (DeLay indicted in money-laundering and campaign fraud and Frist under investigation for insider trading) the decisions to allow these changes in voting conditions, and the deliberate decision to ignore, without providing offsetting reasoning, the recommendations of the staff tasked with investigations, is certainly going to give many voters who might be undecided reason to reconsider whether the GOP is really in favor of good governance for the country's sake, or simply governance for the GOP's sake.

Also from the WaPo article:

In response to a request to comment yesterday, Justice Department spokesman Eric Holland wrote in an e-mail: "The opinions and expertise of the career lawyers are valued and respected and continue to be an integral part of the internal deliberation process upon which the department heavily relies when making litigation decisions." He declined to elaborate.

Tensions within the voting section have been rising dramatically, culminating in an emotionally charged meeting last week in which Tanner criticized the quality of work done by staff members analyzing voting rights cases, numerous sources inside and outside the section said. Many employees were so angered that they boycotted the staff holiday party later in the week, the sources said.

Under Section 5 of the Voting Rights Act of 1965, Georgia, Texas and other states with a history of discriminatory election practices are required to receive approval from the Justice Department or a federal court for any changes to their voting systems. Section 5 prohibits changes that would be "retrogressive," or bring harm to, minority voters.

For decades, staff attorneys have made recommendations in Section 5 cases that have carried great weight within the department and that have been passed along to senior officials who make a final determination, former and current employees say.

Preventing staff members from making such recommendations is a significant departure and runs the risk of making the process appear more political, experts said.

"It's an attempt by the political hierarchy to insulate themselves from any accountability by essentially leaving it up to a chief, who's there at their whim," said Jon Greenbaum, who worked in the voting section from 1997 to 2003, and who is now director of the Voting Rights Project at the Lawyers' Committee for Civil Rights Under Law. "To me, it shows a fear of dealing with the legal issues in these cases"

And if the deliberations and investigations of the experienced staff are not to be used as input to these decisions, just what *is* the basis?

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