DOJ Attorney Admits Going Too Far

Random Lengths News | June 1, 2007
On Wed., May 23, Monica Goodling, former Senior Counsel to Attorney General Alberto Gonzales, testified before the House Judiciary Committee under a grant of immunity, after previously refusing to testify and pleading the Fifth Amendment against self-incrimination. Not only did Goodling talk about the politicized process of firing US Attorneys and the surrounding cover-up and false testimony to Congress; she also blurted out her role in using partisan criteria for the appointment of dozens of immigration judges and other career officials -- crimes that no one had asked her about. But since Congress was granting immunity, Goodling apparently took advantage.

"I may have gone too far in asking political questions of applicants for career positions, and I may have taken inappropriate political considerations into account on some occasions," Goodling admitted.

But these federal crimes -- which also violated Department of Justice (DOJ) regulations -- were hardly occasional, haphazard acts on Goodling’s part. They were part of a larger pattern of politicization, which has particularly affected the DOJ's Civil Rights Division, according to press investigations. Not only were US Attorneys fired or assigned to swing states like Missouri and New Mexico in a search for sensational voter fraud prosecutions, the entire civil rights focus was being transformed by hiring new career attorneys whose experience was fighting against civil rights.

Closer to Home

Far from the Washington spotlight, the same week Goodling testified, Garden Grove City Council candidate Benny Diaz was still in shock when he talked to Random Lengths News. It was Diaz who first received and called national attention to a voter-intimidation letter sent to 35,000 Latino households last fall by Tan Nguyen, the GOP's challenger to Congresswoman Loretta Sanchez.

The letter, sent surreptitiously using an anti-immigration group's letterhead, said, "You are advised that if your residence in this country is illegal or you are an immigrant, voting in a federal election is a crime that could result in jail time, and you will be deported for voting without having a right to do so."

At the time, everyone seemed to care.

"For two weeks media were camped outside my house," Diaz recalled. "The FBI, the DOJ they all came to Orange County to make sure that no one would be intimidated."

But after the election, everything changed. Weeks stretched into months with no word about the investigation. Then, in mid-May, without ever contacting Diaz, the California Attorney General's office announced that it was closing its voter-intimidation investigations, without bringing any charges. Diaz saw the decision as an insult to the community.

"It says it's okay to continue intimidating the Latino community every year," he said.

He's got a point. Back in 1988, Orange County Republicans stationed armed security guards outside voting booths in heavily-Hispanic precincts. Bad publicity chased them away before polls closed, but prosecutions were dropped then as well, for the same "reasons" given this time: lack of proof of intent.

Mis-perceiving or belittling voter suppression is a common phenomena, according to Harvard historian Alexander Keyssar, author of The Right to Vote: The Contested History of Democracy in the United States.

"If you look at any single incident that we know about voting suppression -- each one by itself can look like an aberration or ambiguous. But the issue is there are lots of them," Keyssar stressed. "I don't think there's been a reaction to it as strong as is warranted."

"It's hard not to think there are lots of them because it is widely understood or communicated among people that this is one strategy that might help you win elections."

Indeed, it was only in 1982 that the Republican Party signed a nation-wide consent decree in a New Jersey federal court, agreeing to stop a broad range of voter-intimidation practices. In 1986 it was hauled back to court violating the consent degree in Louisiana.

"The Assistant Attorney General in San Diego told me they had closed the investigation," Diaz recalled, bitterly. "He said we already gave all the information to the DOJ Civil Rights Division."

Upending Civil Rights

Veterans of the Civil Rights Division might tell Diaz not to hold his breath. Goodling's counterpart there for several years was Bradley Schlozman, a man who not only appeared to politicized career appointments, but who was also committed to pushing the Republican agenda of voter fraud as a national epidemic, requiring tough laws that make it even harder for minorities, youth and low-income citizens to vote. Schlozman left the division, when he was appointed interim US Attorney for Western Missouri, where he brought four felony indictments just one week before the November election -- a direct violation of DOJ rules against investigations before an election, lest they unfairly influence the vote. Democrat Claire McCaskill narrowly won the Missouri Senate seat despite Schlozman's last-minute stunt.

At the Civil Rights Division, Schlozman was accused of "driving veteran attorneys, including section chief Joseph Rich, to resign from their posts," according to a recent McClatchy Newspapers report. In their place he appointed a much more conservative, more Republican cohort.

In 2003, Attorney General Ashcroft changed the hiring rules, replacing hiring committees composed of veteran career lawyers with political appointees like Goodling and Sholzman. Last year, Pulitzer Prize-winner Charlie Savage of the Boston Globe reported that after the rule change, just 42 percent of new hires in three key departments had a civil rights background -- compared to 77 percent the two previous years. What's more, of 45 new attorneys hired by DoJ, 19 had civil rights experience and of those, nine had experience fighting against civil rights enforcement.

In early May, Savage added more detail: Half the 14 career hires under Schlozman were members of the conservative Federalist Society or the Republican National Lawyers Association (RNLA), up from none of eight the two previous years. The RNLA was founded just a few years after the GOP signed the consent decree swearing off voter suppression, and touts "integrity of the ballot box" as its only continuing concern.

Yet, for all their efforts, voting fraud remains exceedingly rare, Keyssar pointed out. "They drum up the story. They find one case, and then there's no 'there' there."

Schlozman’s example in Missouri was typical. Announcing the four indictments, he warned the investigation was "ongoing," but no further charges were ever brought. The cases that were prosecuted were brought to the authorities by ACORN, the group that employed the individuals -- the group that Republicans repeatedly try to smear. Rather than being the perpetrator, ACORN was being defrauded by their actions, and tricked into paying for unlawful registrations.

In a recent report, "The Politics of Voter Fraud," Lorraine C. Minnite, a Professor of Political Science at Barnard College, Columbia University, points out, "Voter fraud is extremely rare. At the federal level, records show that only 24 people were convicted of or pleaded guilty to illegal voting between 2002 and 2005, an average of eight people a year."

On The Ground in Ohio

On the other hand, routine voter suppression -- disproportionately leaving minority and low-income voters' ballots uncounted -- is exceedingly common, amounting to tens of thousands of ballots in Ohio alone, according to Norman Robbins, an emeritus professor at Case Western Reserve University, and the research director for the Greater Cleveland Voter Coalition.

There were just four fraudulent attempts to vote in two Ohio general elections (2002 and 2004), Robbins pointed out.

In contrast, the study he authored, "Analyses Of Voter Disqualification, Cuyahoga County, Ohio, November 2004" found that "simply changing residence exposes voters to a 6 percent chance of being disenfranchised. Youth, the poor, and minorities are disproportionately affected. In fact, with respect to just provisional ballots, we found a two-fold increase in rejection rate in predominantly African-American precincts compared to predominantly Caucasian precincts." His study found substantial numbers of voters and ballots disqualified for a variety of different reasons that should not occur in a well-run system. "Avoidable errors and problems" amounted to more than half the margin of Bush's apparent victory in 2004.

In addition, Robbins said, Ohio fails to ensure that agencies serving low-income clients offer voter registration and change of address forms. "Ohio has among the lower levels of compliance around the country," he said, which probably counts another 100,000 to 200,000 voters not registered.

There doesn't need to be a conspiracy, he explained. "By letting an unfair system work, all you have to do is keep it the same and it works to disenfranchise minority [and low-income] voters."

Up to now, Cuyahoga County's system has been one of the most troubled you could find. On March 13, Cuyahoga County Common Pleas Court Judge Peter Corrigan sentenced two former election board workers to 18 months in prison for rigging the 2004 presidential election recount -- ostensibly to make their job easier. One of them, Jacqueline Maiden, was the former elections board coordinator, the board's highest-ranking staff-member.

"I can't help but feel there's more to this story," Judge Corrigan said, during the proceedings.

The prosecutor, Kevin Baxter, said, "The defendants have never come clean."

Following the trial, Ohio's new Secretary of State, Democrat Jennifer Brunner, asked for, and after some wrangling, received the resignations of the entire board of elections.

Sarah Taylor was a citizen-observer involved in the recount who testified at the trial. In the training session, she asked Maiden about the ballots. "Would they be in random order or had they been sorted?" She was told, "They would be on our table as they had come out of the machines, and they would be in random order." But when the counting began, there was a long run of Kerry votes. Although the election workers tried to silence her, she alerted other observers, and received confirmation that others had observed the same thing.

At her table, Vanessa Pesec, another observer, said, "We were given a paper that showed the amounts from election night. The last line had a total and a red line though it and a different total ... even one vote would trigger a recount." First the paper, and then the ballots were whisked away. One of her table partners walked around, and found the table where their ballots were being counted—with the same long runs of ballots that Taylor saw. "It was pretty clear to us at that point that we had stumbled onto something that we shouldn't have seen," she said.

Guerilla War for the Vote

None of this adds up to proof that the 2004 election was stolen the way the 2000 election was, as documented in Jews for Buchanan, by Nation magazine columnist John Nichols. But it does show that significant uncertainties and problems remain -- enough to sow deep doubts about the system. Robbins is hopeful that Brunner will make significant improvements in how Ohio's elections are run. But Keyssar sees the national picture as more uncertain.

His book divides our history into four different eras -- the second of which, from the mid-19th Century to the 1920s saw various different efforts to restrict the franchise, "[j]ustified as measures to eliminate corruption or produce a more competent electorate." Residency requirements, literacy requirements and complex or unequal registration processes were among the tools employed, particularly targeting urban centers.

At the time, Keyssar wrote, "Respectable middle-class and upper-class citizens found it easy to believe that fraud was rampant among the Irish or among new immigrant workers precisely because they viewed such men as untrustworthy, ignorant, incapable of appropriate democratic behavior, and not a little threatening. Stories about corruption and illegal voting seemed credible -- and could be magnified into apprehensive visions of systematic dishonesty."

The parallel to current GOP attacks on "voter fraud" is easily drawn. But as an historian, Keyssar is naturally cautious. He thinks it's still too early to say if we're seeing a fifth era, dominated by such attitudes. "But we're in a period that looks not unlike what the North in the late 19th Century looked like," he said. "It's really a kind of ongoing guerrilla war."

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