POLITICS
03/28/2008 02:45 am ET | Updated May 25, 2011

The Ghost Of Gonzales: Justice Dept Still Backs Controversial Voter ID Law

Though Alberto Gonzales is gone, the Justice Department is still backing controversial voter identification laws that many believe are specifically designed to drive down minority turnout.

Crawford v. Marion County Board, called "the most important voting rights case since Bush v. Gore", will appear before the U.S. Supreme Court in January. The suit challenges Indiana legislation requiring voters to provide photo ID, charging that it creates an unconstitutional burden on voters.

The Justice Department's position is a disappointment to those who hoped that new Attorney General Michael Mukasey would reverse the administration's support for voter ID laws, which negatively impact minority voter turnout.

The evidence for actual voter fraud is scant; a review from the New York Times confirmed that the Justice Department had found "virtually no evidence" of widespread voter fraud in the past five years. A comprehensive article review by Professor Lorraine Minnite found eleven cases of actual voter fraud in a review of over 4,000 allegations.

Under Gonzales, the head of the Department's Civil Rights Division supported voter ID legislation in Georgia against the recommendations of all but one career employee (the court that later struck down the law compared it to a Jim Crow-era poll tax). David Iglesias, a Republican US Attorney who was purged from the Department, had refused to prosecute baseless allegations of voter fraud.

Yesterday's filing continues the Bush Justice Department's suspect involvement in voting rights issues. At the heart of Crawford v. Marion is two men -- Todd Rokita and Thor Hearne -- and a controversial government report on voter fraud that connects them.

Todd Rokita was elected Indiana Secretary of State back in 2002. During his campaign, he ran on a platform that included pushing voter identification laws for his state, a red-meat issue for conservatives. Since his nomination, Rokita's continued interest in voter rights has landed him on the federal government's Executive Board of the Election Assistance Commission (EAC). In 2006, he served on the EAC's working group for voter fraud and intimidation.

Indiana's voter ID legislation was adopted with Rokita's cheerleading; indeed, the Supreme Court is simultaneously considering Indiana Democratic Party v. Todd Rokita. The legislation is considered to be one of the strictest of its kind in the country, but the premise is simple: voter fraud, or its threat, is rampant in the United States. To prevent this, voters should present a photo ID at the ballot box.

Rokita has dismissed claims that minorities will be adversely affected. But his recent comments don't demonstrate much empathy towards minorities; when informed that 90% of blacks vote Democratic, he replied, "How can that be? Ninety to ten. Who's the master and who's the slave in that relationship? " (Rokita's comments were apparently meant to encourage diversity in the Republican Party).

Supporting Rokita in the defense of voter ID laws is Mark "Thor" Hearne. Hearne is the former president and founder of the right-wing think tank the American Center for Voting Rights (ACVR). The group was founded in March, 2005 with the mission of "increasing voter confidence in the fairness of elections." Only a week after ACVR's incorporation, Hearne was invited as a non-partisan expert witness to Rep. Bob Ney's (R-OH) hearing on the 2004 Presidential election in Ohio (Hearne failed to disclose to Congress that he served as general counsel for President Bush's 2004 reelection campaign). True to form, Hearne explained that the election was rife with voter fraud perpetuated by Democrats.

TPMmuckraker, the Brad Blog and Slate's Richard Hasen have done yeomen's work enumerating the indiscretions and conflicts of interests surrounding the ACVR. But generally, the organization's modus operandi was to publish trumped-up findings of rampant voter fraud in battleground states with voter ID laws pending. This "non-partisan" support for voter ID legislation continued until suddenly, in May of this year, the organization vanished. Literally. ACVR's website mysteriously went missing. Hearne returned to his law firm, surfacing only occasionally to edit (via someone in his office) his Wikipedia biography. But before the death of ACVR, Hearne used the clout of his title to land on the same EAC voter fraud committee as Todd Rokita, for whom Hearne would later write an amicus curiae brief (pdf) as a non-partisan voter fraud expert.

With members like Rokita and Hearne, it might seem difficult to take the committee's findings seriously. After all, the report cited an expert from ACVR described as "the only interviewee who believes that polling place fraud is widespread and among the most significant problems in the system." The report also deferred to John Tanner -- DOJ's Voting Rights Section Chief -- regarding minorities. Tanner infamously stated this ear that voter ID laws don't unfairly disadvantage against elderly blacks because "Minorities don't become elderly the way white people do. They die." (You can see clarification to a skeptical House Judiciary Committee here.) Nevertheless, a report was framed around work by expert authors Job Serebrov and Tova Wang; the conclusion suggested voter fraud was not a major threat to the electorate.

These findings did not sit well with an administration that had made prosecuting voter fraud a priority of the Justice Department. And so the government decided not to release the findings. For four months, the findings remained unpublished. When a version was eventually released, the New York Times found that the language had been substantially modified from its original version in order to play up the threat of voter fraud. Tova Wang, in a Washington Post editorial wrote,

After sitting on the draft for six months, the EAC publicly released a report -- citing it as based on work by me and my co-author -- that completely stood our own work on its head.

Yesterday's DOJ filing concurs with the policy positions of Rokita, Hearne and Tanner. It will stand alongside a new brief from Hearne, who now represents the views of 41 Republican members of Congress (though without reference to the ACVR). The ghost of Alberto Gonzales continues to haunt the Department.