WASHINGTON — A former senior Justice Department official has backed off sworn Senate testimony that he consulted with senior agency voting-rights lawyers before inaccurately advising Arizona officials they could deny thousands of voters their rights to provisional ballots.
Hans von Spakovsky, who hopes to win confirmation to a full six-year term on the Federal Election Commission, revised his statement in a recent letter to the Senate Judiciary Committee after former senior department voting-rights lawyers challenged his veracity.
Von Spakovsky has served as a presidential recess appointee to the FEC since early last year. His nomination is in jeopardy because of questions about his conduct as voting counsel to the Justice Department's Civil Rights Division from 2003 to December 2005.
In a recent letter to the Judiciary Committee, a half-dozen former senior division voting-rights lawyers charged that von Spakovsky was ``the point person for undermining the (division's) mandate to protect voting rights." They also have accused him of leading a partisan effort to suppress voting by Democratic-leaning minorities.
During his Senate confirmation hearing last month, von Spakovsky testified that he wouldn't have acted on his own in drafting a letter in April 2005 offering legal guidance to Arizona Secretary of State Janice Brewer on how to apply the state's new, toughest-in-the-nation voter identification law. Von Spakovsky assured senators that he would have acted only after consulting with the Voting Rights Section, characterizing himself as a middleman who didn't make policy.
The letter to Arizona, signed by deputy civil rights chief Sheldon Bradshaw on his last day on the job, said federal law didn't prohibit the state from denying provisional ballots to voters who failed to produce the identification documents that the new law required.
The guidance contradicted the federal Help America Vote Act, a 2002 law that requires states to offer provisional ballots to any voters who declare themselves to be legally registered in that jurisdiction. State laws dictate which provisional ballots are counted, but many states offer challenged voters a few days to produce whatever documentation they lacked at the polls.
Joseph Rich, who was the Justice Department's voting rights chief when the letter was drafted, said von Spakovsky never consulted with him about it and that Bradshaw had had virtually no involvement in voting rights matters before signing it. Rich said he'd asked Alex Acosta, who was then the civil rights chief, about the letter and Acosta had replied, ``What are you talking about? Send me the letter.''
In a letter to the committee June 29, von Spakovsky revised his account. ``As I recall, I may not have consulted with the Section prior to drafting the first letter,'' he said.
Rich said the incident undercut von Spakovsky's assertion that he was merely a legal adviser. ``He was calling the shots'' in running the Voting Rights Section, Rich said.
Von Spakovsky also didn't consult with the Election Assistance Commission, a small agency that's tasked with implementing the Help America Vote law, before sending the letter. Two days after it was sent, Ray Martinez, an EAC commissioner, sent others on the panel an e-mail describing the letter as ``a major (and unwelcome) surprise'' and complaining about the Justice Department's lack of coordination.
McClatchy Newspapers recently reported that in the summer of 2005, von Spakovsky pressed the Republican chairman of the commission, Paul DeGregorio, to support his Arizona position. DeGregorio refused to do so.
On Sept. 1, 2005, acting civil rights chief Bradley Schlozman sent Arizona a follow-up letter reversing the earlier guidance. Von Spakovsky advised the committee that he did consult with the Voting Rights Section before drafting that letter.
Sen. Dianne Feinstein, D-Calif., the committee's chairwoman, has yet to schedule a vote on the nominations of von Spakovsky and three others to the bipartisan FEC. The committee is under pressure to act on the nominations, because vacancies have left the main election-regulatory agency limping along as it heads into a presidential election year.
Von Spakovsky couldn't be reached for comment.