VOTING SECTION OF THE CIVIL RIGHTS DIVISION 

OF THE U.S. DEPARTMENT OF JUSTICE 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS, AND CIVIL LIBERTIES 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

OCTOBER 30, 2007 

Serial No. 110–156 

Printed for the use of the Committee on the Judiciary 

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Available via the World Wide Web: http://judiciary.house.gov 

VOTING SECTION OF THE CIVIL RIGHTS DIVISION 

OF THE U.S. DEPARTMENT OF JUSTICE 

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VOTING SECTION OF THE CIVIL RIGHTS DIVISION 

OF THE U.S. DEPARTMENT OF JUSTICE 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS, AND CIVIL LIBERTIES 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

OCTOBER 30, 2007 

Serial No. 110–156 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

PERRY APELBAUM, Staff Director and Chief Counsel 

JOSEPH GIBSON, Minority Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

JERROLD NADLER, New York, Chairman 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

JOHN CONYERS, JR., Michigan 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

STEVE COHEN, Tennessee 

TRENT FRANKS, Arizona 

MIKE PENCE, Indiana 

DARRELL ISSA, California 

STEVE KING, Iowa 

JIM JORDAN, Ohio 

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 

(III) 

C O N T E N T S 

OCTOBER 30, 2007 

Page 

OPENING STATEMENTS 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Chairman, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 1 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Ranking Member, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 2 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Chairman, Committee on the Judiciary, and Member, 

Subcommittee on the Constitution, Civil Rights, and Civil Liberties ............. 3 

WITNESSES 

Mr. John K. Tanner, Chief, Voting Section, Civil Rights Division, U.S. Department of Justice 

Oral Testimony ..................................................................................................... 6 

Prepared Statement ............................................................................................. 8 

Mr. Laughlin McDonald, Director, Voting Rights Project, Southern Regional 

Office, American Civil Liberties Union (ACLU) 

Oral Testimony ..................................................................................................... 39 

Prepared Statement ............................................................................................. 41 

Mr. Toby Moore, former PoliticaL Geographer and Redistrict Expert, Votiing 

Section, Civil Rights Division, U.S. Department of Justice 

Oral Testimony ..................................................................................................... 47 

Prepared Statement ............................................................................................. 50 

Mr. Robert N. Driscoll, Partner, Alston and Bird 

Oral Testimony ..................................................................................................... 58 

Prepared Statement ............................................................................................. 59 

Ms. Julie Fernandes, Senior Policy Analyst & Special Counsel, Leadership 

Conference for Civil Rights (LCCR) 

Oral Testimony ..................................................................................................... 61 

Prepared Statement ............................................................................................. 63 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, Chairman, Committee on the 

Judiciary, and Member, Subcommittee on the Constitution, Civil Rights, 

and Civil Liberties ............................................................................................... 4 

Prepared Statement of the the Honorable Steve Cohen, a Representative 

in Congress from the State of Tennessee, and Member, Subcommittee on 

the Constitution, Civil Rights, and Civil Liberties ............................................ 5 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 115 

(1) 

VOTING SECTION OF CIVIL RIGHTS DIVISION 

OF THE U.S. DEPARTMENT OF JUSTICE 

TUESDAY, OCTOBER 30, 2007 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:10 a.m., in 

Room 2141, Rayburn House Office Building, the Honorable Jerrold 

Nadler (Chairman of the Subcommittee) presiding. 

Present: Representatives Conyers, Nadler, Scott, Davis, 

Wasserman Schultz, Ellison, Chabot, Pence, King and Franks. 

Staff Present: David Lachman, Chief of Staff; LaShawn Warren, 

Majority Counsel; Paul Taylor, Minority Counsel. 

Mr. NADLER. Good morning. This hearing of the Subcommittee 

on the Constitution, Civil Rights, and Civil Liberties will come to 

order. Today’s hearing will continue the Subcommittee’s oversight 

of the Civil Rights Division of the Department of Justice. Today the 

Subcommittee will focus on the work of the voting section. The 

Chair recognizes himself for 5 minutes for an opening statement. 

The right to vote is the bulwark of our other rights. Without an effective franchise, all other rights are vulnerable. 

For that reason, our Nation’s history has been one of fulfilling 

the promise of our Declaration of Independence and our Constitution by progressively extending the right to vote to all citizens. 

That struggle has taken generations. But the struggle to ensure 

that the legal right to vote translates into an actual right to cast 

the ballot and have it counted remains unfinished. Congress has 

responded over the years with the enactment of laws to protect the 

right to vote, most recently with the bipartisan reauthorization of 

the Voting Rights Act. 

The hearings we held on the Voting Rights Act demonstrated the 

continuing need for its protection for voters, especially minority 

voters and voters with limited English proficiency. I take the Voting Rights Act very seriously. The two counties I represent, or 

parts of which I represent, are in New York City, are both covered 

jurisdictions under the preclearance provisions of section 5. We 

came by that distinction honestly through past misconduct. And I 

think you will find that most New Yorkers support the continued 

enforcement of the act. 

Today we examine the Voting Section of the Justice Department’s Civil Rights Division. The Voting Section provides the teeth 

2 

behind the words of the statute, or at least it is supposed to. If the 

laws are to have any real meaning the Voting Section must be a 

tireless advocate for the right to vote without fear or favor or without the intrusion of partisan political meddling. 

We have received numerous reports over the years that the section is not living up to its mandate, that politics has, as is the case 

with other parts of the Justice Department, intruded into the decision-making process, sometimes at the expense of the voting rights 

of the very people the law was intended to protect. In cases involving the Georgia ID statute or the preclearance of redistricting plans 

in Texas and other jurisdictions, there have been allegations, and 

I have serious concerns, that the work of the section was swayed 

by political considerations. We need to get to the bottom of these 

allegations. The work of the Voting Section is too important to let 

these hang in the air. 

I am also concerned about some comments that Mr. Tanner has 

made recently about minority voters which demonstrate to me at 

best the lack of understanding of the mission with which the section is entrusted. These comments call into question his fitness to 

head this important section. I look forward to the testimony of our 

distinguished witnesses. I yield back the balance of my time. I 

would now recognize our distinguished Ranking minority Member, 

the gentleman from Arizona, Mr. Franks, for his opening statement. 

Mr. FRANKS. Well, thank you, Mr. Chairman, and thank you, Mr. 

Tanner, for being here. 

Mr. Chairman, the Voting Section of the Civil Rights Division 

protects Americans’ voting rights through a Federal monitoring 

program.And the proper functioning of this section is essential to 

the integrity of our election process. During the course of this hearing, we’re going to hear numerous criticisms of the section’s enforcement activities and priorities. And certainly that’s part of the 

process, Mr. Chairman, to make sure that we get the facts on the 

table regarding the section’s enforcement activities. 

Among the most important priorities that I want to emphasize 

is the difficulty that State and local officials have in confirming the 

citizenship of voters and preventing illegal noncitizen voters from 

voting and cancelling out legally cast votes. In April, I was glad to 

see that a Federal Appeals Court in Gonzalez v. Arizona rejected 

an effort to halt carrying out Arizona’s recently enacted law that 

was part of Proposition 200 which passed in 2004. The Arizona law 

requires residents to prove that they are American citizens when 

they register to vote and to present identification when they vote 

at the polls. 

The ruling by the United States Court of Appeals for the Ninth 

Circuit said the law did not appear to unduly burden the right to 

vote or violate Federal voting laws or place a disproportionate burden on naturalized citizens or require what would be an unconstitutional poll tax. 

Arizona’s sound approach to voting integrity follows a 2005 report by a group of bipartisan leaders and scholars led by former 

President Carter and Secretary of State James Baker, III. As the 

Carter-Baker report elaborated, ‘‘to make sure that a person arriving at a polling site is the same one who is named on the list, we 

3 

propose a uniformed system of voter identification based on the 

real ID card or an equivalent for people without a driver’s license. 

They emphasize there is likely to be less discrimination against minorities if there is a single uniform ID than if poll workers can 

apply multiple standards.’’ 

Mr. Chairman, a recent Wall Street Journal/NBC news poll confirms every other poll on the subject over 81 percent of those surveyed supported a requirement to show a photo ID before voting. 

This included two-thirds of majorities from African-American populations, two-thirds majorities from Democrats and two-thirds majorities of Hispanics. Requiring photo identification would increase 

voter confidence. And one of the reasons identified by some minority and low-income voters as to why they do not vote is the perception that they will not be permitted to cast a ballot, or a ballot they 

cast will not be counted. Providing photo identification will increase 

that voter’s confidence that they will be allowed to cast an effective 

vote. 

Mr. Chairman, we have many important issues to cover here 

today, and I simply look forward to hearing from all of our witnesses. 

Mr. NADLER. I thank the gentleman. I now recognize the distinguished Chairman of the full Committee, the gentleman from 

Michigan. 

Mr. CONYERS. Thank you, Chairman Nadler. 

And I want to point out that in the midst of all the work that 

we are doing in trying to rehabilitate the Department of Justice— 

and nobody knows more than the Members of this Committee what 

we’ve been through these last 10 months since I’ve been Chairman—there is no section more important to us than the voter 

rights section. And that’s why this hearing is so important to me. 

We had an oversight hearing earlier. But we want it to be made 

clear that the work we are doing has to go way beyond just a hearing, way beyond us taking 5 minutes each in a couple of rounds. 

This is far, far more critical than that. 

And so it is in that spirit that I welcome Mr. John Tanner, the 

head of the section. I notice his wife and daughter are here in the 

hearing room, which will probably make us be even more polite 

than we are going to be as this hearing proceeds. But we are in 

a crisis. We are in a crisis, and it is the duty of this Committee 

to determine what went wrong in terms of the voting responsibility, 

the encouragement of the right to vote, the protecting the right to 

vote, the continuing integrity of the ballot. 

And so what we are trying to inquire in this archaic way that 

the Congress runs is to find out what went wrong. And we want 

to also understand what the present situation is. And then of 

course the issue is, what are we going to do about it? And I am 

concerned about the time from today, October 30, until the first 

Tuesday in November. We got a lot of work, and we don’t have 

much time to do it. 

Now, there have been more irregularities and challenging of the 

vote of purges, of misinformation, of failure to act since the election 

of 2000, the election of 2002, of 2004, 2006, than in any time in 

the service that I’ve been on this Committee. It has never been 

more troubling and disturbing. And so I’m very happy that we have 

4 

the people on the Constitution Committee working with me on this. 

We’ve got to deal with this question. So what I’m saying is that 

we’ve got to work beyond and between these public hearings. 

The decline in section 2 cases is unprecedented in the history of 

the Department of Justice. And we are talking about one case 

being prosecuted in 6 years. We are talking about the Citizens’ 

Commission on Civil Rights that criticize the enforcement efforts 

made under the tenure of the chief of the Voting Section, and well 

before Mr. Tanner’s arriving at that position. And we are investigating the fact that a career attorney’s recommendations were 

disregarded with reference to the vigorous enforcement of section 

5; and that not only were they stripped out, but they were rewritten by someone else. 

We are concerned about the Inspector General’s Office of Professional Responsibility who have raised multiple complaints against 

the section leader of that section and the staff. And it is being investigated in some depth concerning the defrauding the government through the abuse of travel funds. We are concerned about 

the fact—and some of it approaches the astounding circumstance 

of people selecting litigation sites based on their vacation travel 

preferences rather than the merits of the issue. We’ve got management issues raised by the section 5 preclearance. And so all of 

this—oh, don’t let me forget, in Ohio, we got a letter from the section, probably from Tanner, Mr. Tanner himself, defending their 

decision to maldistribute voting machines disproportionately to the 

predominantly White precincts at the expense of the minority areas 

in Franklin County. It goes on and on. 

I’m going to revise and extend my statement. But we have more 

grievances, more questions of integrity, more questions about the 

efficiency of the most sensitive part of the Department of Justice, 

the voting rights section. And so we’ve got a big job in front of us. 

I thank the Chairman for allowing me to make some opening comments. 

[The prepared statement of Mr. Conyers follows:] 

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, CHAIRMAN, COMMITTEE ON THE JUDI- CIARY, AND MEMBER, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND

CIVIL LIBERTIES

Last Congress, the Judiciary Committee was united in its effort to reauthorize the 

expiring provisions of the Voting Rights Act. Too many Americans face still barriers 

to exercising their right to vote and vigorous enforcement of this right by the Department of Justice is essential. Unfortunately, the Voting Section of the Civil 

Rights Division of the Justice Department, which is the primary agency charged 

with this responsibility, still faces many challenges, three of which I will highlight 

here. 

First, we need a clearer understanding of how the Civil Rights Division interprets 

its responsibilities regarding photo identification requirements. Earlier this year, 

the Citizens’ Commission on Civil Rights issued a report criticizing the Voting Section’s enforcement efforts and cited the preclearance of the Georgia photo identification requirement as a major example. In particular, the Commission cited Voting 

Section Chief Tanner’s failure to fairly and vigorously enforce preclearence requirements of Section 5 as a result of partisan political concerns. The Commission concluded that this failure damaged the Section’s procedural integrity and undermined 

its credibility. 

I am particularly troubled by Mr. Tanner’s recent comments regarding the effects 

of photo identification requirements on minority voter participation. He said, for example, ‘‘Our society is such that minorities don’t become elderly the way white people do; they die first.’’ While Mr. Tanner has already demonstrated questionable 

5 

judgment in overruling the decision of Justice Department lawyers to object to the 

Georgia photo ID law, this statement—at least in my opinion—demonstrates a severe lack of appreciation of what the Section’s mission should be—that minority voters should not be disenfranchised. 

Second, serious management issues have also been raised with the Section’s core 

responsibility of Section 5 enforcement. Under Mr. Tanner’s tenure, the corps of Section 5 analysts has been reduced from 23 to 8 positions. In addition, the Judiciary 

Committee is aware of complaints of racial discrimination against the Deputy Chief 

for Section 5 as well as other Equal Employment Opportunity complaints. 

While I take seriously any allegation of discrimination, it is especially disturbing 

when the allegation is against the very institution that is charged with fighting 

against discrimination. In the coming year, the Voting Section will face a substantial increase in its work load due to preclearence requirements associated with the 

Federal elections. I look forward to hearing how the Mr. Tanner plans to address 

the allegations of a hostile racial environment in the Section and how he will rebuild the Section 5 analyst corps. 

Third, the Section’s record with respect to Section 2 litigation, claims alleging discrimination in voting, is also problematic. In the first six years of the Bush Administration, fewer Section 2 cases were brought by the Voting Section than in any other 

administration since 1982. The number of Section 2 cases brought on behalf of African Americans has come to a virtual standstill. While Mr. Tanner’s testimony states 

that there has been a slight upswing in the last year, critics—particularly in the 

Latino community—note that the office’s apparent overemphasis on Section 203 has 

left minority voters outside the political process, when they could have had a fair 

opportunity to elect candidates of their choice through Section 2 litigation. Bilingual 

voting materials are not the whole story for language minority voters. 

The Voting Rights Act remains the ‘‘Crown Jewel’’ of our civil rights laws. Nevertheless, as the Citizens’ Commission on Civil Rights has detailed, those responsible 

for maintaining this treasure have faltered in their mission. In the next 14 months, 

the Voting Section has a substantial amount of work to complete. I hope that this 

hearing will highlight those challenges and that the Justice Department witness 

will suggest effective solutions. We have clearly reached the point where the status 

quo is unacceptable. 

I thank the gentleman. In the interest of proceeding to our witnesses, and mindful of the fact that there’s another Subcommittee 

hearing scheduled in this room not too long from now, that we have 

a lot of witnesses, I would ask other Members to submit their 

statements for the record. Without objection, all Members will have 

5 legislative days to submit opening statements for inclusion into 

the record. Without objection, the Chair will be authorized to declare a recess of the hearing. We will now turn to our witnesses. 

[The prepared statement of Mr. Cohen follows:] 

PREPARED STATEMENT OF THE HONORABLE STEVE COHEN, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF TENNESSEE, AND MEMBER, SUBCOMMITTEE ON THE

CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

Reports about the significant drop in and possible politicization of enforcement activity by the Civil Rights Division’s Voting Section fit a deeply troubling pattern 

within the Justice Department under this Administration. The Voting Section is 

charged with protecting the most basic right in a democracy—the right to participate in choosing our leaders. Yet if the reports are accurate, it appears that, rather 

than protecting this right, the Voting Section has acted to suppress minority voters 

by approving regressive voting practices and procedures and by failing to file lawsuits when such suits would have been warranted. Moreover, the Voting Section 

may be using its enforcement discretion to assist the Republican Party politically, 

rather than to fulfill its mission of protecting minority voting rights. Finally, illustrating another persistent pattern under this Administration, it appears that the career staff of the Voting Section has largely been replaced by a cadre of conservative 

ideologues who have little experience with and little concern for civil rights law. I 

look forward to the opportunity to air publicly these concerns and to seek answers 

from the Administration concerning the enforcement activity of the Voting Section. 

Mr. NADLER. As we ask questions of our witnesses, the Chair will 

recognize Members in the order of their seniority on the SubVerDate Aug 31 2005 14:22 Jan 27, 2009 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6601 H:\WORK\CONST\103007\38637.000 HJUD1 PsN: DOUGA
6 

committee, alternating between majority and minority, providing 

that the Member is present when his or her turn arrives. Members 

who are not present when their turn begins will be recognized after 

the other Members have had the opportunity to ask their questions. The Chair reserves the right to accommodate Members unavoidably late or only able to be with us for a short time. 

Our first witness is John Tanner, the Chief of the Voting Section 

of the Justice Department’s Civil Rights Division. Mr. Tanner 

joined the Voting Section in 1976 as a research analyst, attended 

law school at night and, upon graduation, was hired under the Attorney General’s program for law graduates. In 1995, he left to 

prosecute criminal civil rights violations, including as a member of 

the National Church Arson Task Force. He also worked in the 

White House Office of Counsel to the President, the Senate Judiciary Committee and the Justice Department’s Office of Legislative 

Affairs. In July 2002, he returned to the Voting Section to coordinate enforcement of the minority language provisions of the Voting 

Rights Act and was named chief of the Voting Section in June 2, 

2005. 

Welcome. Your written statement will be made part of the record 

in its entirety. I would ask you now summarize your testimony in 

5 minutes or less. To help you stay within that time, there is a timing light at your table. When 1 minute remains, the light will 

change from green to yellow and then red when the 5 minutes are 

up. Before we begin, it is customary for the Committee to swear in 

its witnesses. If you could please stand and raise your right hand 

to take the oath. 

[Witness sworn.] 

Mr. NADLER. Thank you. Let the record reflect that the witness 

answered in the affirmative. The witness may proceed. 

TESTIMONY OF JOHN K. TANNER, CHIEF, VOTING SECTION, 

CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE 

Mr. TANNER. Mr. Chairman, Ranking Member Franks and Members of the Subcommittee. Thank you for the opportunity to appear 

before you. Let me first note that I have apologized to the National 

Latino Congreso for comments I made about the impact of voter 

identification laws on elderly and minority voters. My explanation 

of the data came across in a hurtful way which I deeply regret. The 

reports of my comments do not in any way accurately reflect my 

career of devotion to enforcing Federal laws designed to assure fair 

and equal access to the ballot. 

I began working to secure equal voting rights as a teenager in 

Birmingham, Alabama, in the 1960’s. I spent time on weekends at 

the SCLC headquarters stuffing envelopes. I took African American 

citizens to the Federal examiners to register to vote. And I embraced a vision of a just society: African Americans in elected positions in city halls, county courthouses, the State legislature and in 

Congress from Alabama. 

In 1976, I joined the Voting Section where I pursued that vision 

of a just society through voting rights enforcement actions. In the 

high point of my career, I helped obtain fair representation for African Americans in the Alabama legislature using section 5 of the 

Act, which we are now vigorously defending against a constituVerDate Aug 31 2005 14:22 Jan 27, 2009 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6601 H:\WORK\CONST\103007\38637.000 HJUD1 PsN: DOUGA
7 

tional challenge. I also helped obtain a Mississippi legislative plan 

that added 20 new African American legislators, and I brought 

cases in many other States. I’m honored that my work has been 

recognized by the Conecuh County Branch NAACP, the Concerned 

Citizens of Bessemer, the Alabama Democratic Conference Young 

Democrats, the Greenwood, Mississippi, Voters League and the 

City Council of the District of Columbia. 

I worked outside the Voting Section from 1995 to 2002, serving 

at the White House Office of Counsel to the President, the Criminal Section of the Civil Rights Division and the Department’s Office of Legislative Affairs, where I worked with Members and staff 

of this Committee. I returned to the Voting Section in 2002, assigned to lead the section’s efforts in enforcing the minority language provisions of the Voting Rights Act. 

Since 2002, the section has filed twice as many such cases as in 

the entire previous history of the Act. During that time, we have 

filed a majority of all cases ever filed under the substantive provisions of the Act on behalf of Latinos, a majority of all cases on behalf of Asian Americans and over 70 percent of all cases ever filed 

under the voter assistance provisions of section 208. 

Since I became Chief in June 2005, I have worked to protect and 

extend the voting rights of all minorities. We changed the election 

system in Euclid, Ohio, this year to open the door to African American representation. We have used section 5 to block discrimination 

in Alabama, Georgia, Texas. I reached out to African American 

groups to seize new opportunities to protect the rights of African 

Americans and to other groups protected by our statutes—Arab 

Americans, Native Americans, Latinos, Asian Americans and persons with disabilities. 

During my 31-year career, the section has averaged eight new 

cases per year. Since I became Chief, our pace has nearly doubled. 

In 2006, the section brought 18 new cases, the highest number in 

any year in history. These have been important cases. We have 

seen segregated polling places, ethnic slurs, race-based challenges, 

voters leaving the polls in tears, and ballots actually taken from 

voters and marked contrary to their wishes. We go into court to 

stop these practices. 

The section is so productive because of the energy, the enthusiasm, and the commitment of the section staff, a group of talented 

self-starters eager to find and combat discrimination. I have to 

make hard decisions. Ultimately, all of my decisions are made after 

careful scrutiny of the evidence, and they’re based solely on the 

facts and the law. I am blessed to be in this position which enables 

me to continue to work toward realizing the vision of a just society 

I embraced over 40 years ago in Birmingham and to help this Nation realize its own vision of equal voting rights for all. Thank you 

for your attention. I appreciate the opportunity to respond to any 

questions you may have. 

[The prepared statement of Mr. Tanner follows:] 

8 

PREPARED STATEMENT OF JOHN K. TANNER


JT-2.eps
9 


JT-3.eps
10 


JT-4.eps
11 


JT-5.eps
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JT-6.eps
13 

Mr. NADLER. Thank you, Mr. Tanner. 

I will begin the questions by recognizing myself for 5 minutes. 

Mr. Tanner, in April 2005, while you were serving as the Voting 

Section chief, Georgia passed a law requiring photo identification 

in order to vote. Georgia submitted its law for section 5 

preclearance. We now know that four out of five of the Justice Department’s civil service employees objected to the law and forwarded a 51-page memo to you that included a factual investigation into the legal review of the Georgia plan. Most significantly, 

the memo included a detailed analysis and a recommendation that 

the Department object to the voting change because it was likely 

to discriminate against Black voters, but they were overruled the 

next day by higher ranking officials at Justice. Only 1 day after receiving a staff analysis recommending an objection, the Department approved the Georgia plan. 

Brad Schlozman and Hans von Spakowsky, both former senior 

level Department of Justice officials who served in the CRT, testified before the Senate that you played a key role in the Department’s decision to approve the Georgia photo identification law. 

Now, you received a 51-page memo that analyzed thousands of 

pages worth of information on August 25. The Department received 

additional information from the State of Georgia on August 26. So 

is it your position that you had sufficient time between August 25 

and August 26, 1 day, to conduct a thorough review of the staff 

memorandum and the new information the Department received 

from Georgia? 

Mr. TANNER. Thank you for your question, Mr. Chairman. You’ve 

raised an important issue, and I’m happy to have an opportunity 

to address it. 

Consideration of the Georgia ID statute began, I believe, even before it was passed and certainly before it was received by the Department. I recall meeting in Georgia with Mr. McDonald, who is 

on the next panel, and discussing it before we received it. I entered 

that process. I approached the review of the decision, frankly, with 

the presumption that we would interpose an objection to it, that we 

would determine that it was racially discriminatory. 

My presumptions ran into the facts, however. It turned out that 

the statistical data, the facts before us, the best facts available, 

which is what I have to make my decisions on, demonstrated that 

it did not warrant an objection under the very narrow standards 

and the very narrow inquiry under section 5 of the Voting Rights 

Act. I would be happy to discuss the precise scope of our review 

under section 5. But the—— 

Mr. NADLER. Before you get into that, we’ll get into that in a moment, the staff recommendation said that it did—the four to five 

staff members who reviewed it said that you ought to recommend 

an interposing objection. You overruled that; is that correct? 

Mr. TANNER. I made the decision to—— 

Mr. NADLER. That they were incorrect and that you should 

change the recommendation? 

Mr. TANNER. I made the decision, Mr. Chairman. I would like to 

make that clear. I would, of course—— 

14 

Mr. NADLER. But in making that decision, you differed from the 

four attorneys or whoever, four of the five people, staff people, permanent staff, who recommended a contrary decision; correct? 

Mr. TANNER. I’m in an awkward position in that we are not allowed and it is inappropriate for Department personnel to discuss 

internal deliberations and the confidences of our clients. I’m happy 

to give you information and explain the basis for my—— 

Mr. NADLER. Mr. Tanner, I believe that that is public information; that that has been testified to before, I think, the Senate. Is 

that not correct, that this is public? That these five individuals who 

reviewed this, who did all the staff work for them, recommended 

disapproving and one differed from that? That’s all public information at this point. 

Mr. TANNER. I’m not aware of the testimony on that. I’m not 

going to deny it. I will say that I made the decision. And my decision was based on a careful analysis that had been ongoing for a 

considerable period of time. There were, as is typical in such situations, numerous discussions, detailed discussion of the data. 

Mr. NADLER. Before you did that, did you forward that to the 

front office, or did you get approval from the front office? 

Mr. TANNER. The internal memorandum was forwarded to the 

front office. The matter had been—had involved a large number of 

discussions over an extended period and very careful analysis and 

review by me—— 

Mr. NADLER. Now, but is it not true that it was a long-standing 

section practice for a section chief who disagreed with a staff recommendation to submit a separate recommendation and leave the 

final decision concerning the split recommendation between staff 

and section chief to the assistant attorney general? 

Mr. TANNER. I think that the Assistant Attorney General was 

fully aware—— 

Mr. NADLER. That wasn’t my question. Was it or was it not a 

long-standing practice that when the section chief disagreed with 

the staff recommendation to submit a separate recommendation so 

that the Assistant Attorney General could see the separate recommendations by the staff and by the section chief and he could 

make a decision, or she? 

Mr. TANNER. That has not been the uniform practice. 

Mr. NADLER. Was it the general practice? 

Mr. TANNER. I will say—— 

Mr. NADLER. I know it wasn’t uniform because you didn’t do it. 

Was it the general practice up to that point? 

Mr. TANNER. Prior to that time, it had not been uniformly done. 

As I mentioned, I was outside the section from 1995 through 2002, 

and I was not involved in section 5 review of voting changes until 

I became Chief to any significant extent. So I can’t speak authoritatively about the practices during that time. I have made changes 

in the section 5 process, and I would be happy to discuss those—— 

Mr. NADLER. In a section 5 submission, who has the burden of 

proof, the submitting jurisdiction to prove that it doesn’t violate 

the—that it doesn’t negatively impact minority voting rights or the 

objecting parties? 

Mr. TANNER. The statute is clear that the burden is on the submitting authority to establish—— 

15 

Mr. NADLER. And what were the facts that met the burden of 

proof in this case? 

Mr. TANNER. There were three key facts to me in the case. The 

first was data showing, much to my surprise, frankly, and contrary 

to my expectations, that statistically the number of people in Georgia who had the requisite identification, the requisite photo identification, from the Department of Driver Services alone actually 

slightly exceeded census estimates of the population eligible to possess that ID. That was the first fact. 

The second fact that was very significant to me was the very 

large number, over 700,000, I believe, persons in Georgia who had 

nondriver’s license IDs which met significant issues in the case. 

And finally, each of four data sets showed uniformly that the proportion of persons—that minorities were slightly more likely than 

White persons to possess the requisite Department of Driver Services identification. 

Those facts met the State’s burden of showing that it would not 

discriminate where essentially or statistically all persons had the 

ID, and minorities were not—were more, not less, likely to have 

the ID. 

Mr. NADLER. And I’m not going to go into the fact that some of 

those figures were quite erroneous and that Georgia had to correct 

them. Yet despite everything you just said, the Federal Court reversed the decision and said that this was quite incorrect. 

Mr. TANNER. You’ve made an important point, Mr. Chairman, 

that I think it is good to address. The Federal Court in Georgia rejected the claim that the Georgia ID law was racially discriminatory. There was a claim under section 2 of the Voting Rights Act, 

which is the closest parallel among the claims to the section 5 inquiry. The court did reject the plan on the other bases, on constitutional bases, which are outside the scope of our review under section—— 

Mr. NADLER. The poll tax is outside the scope of section 5 review? 

Mr. TANNER. The only thing we can look at under section 5 is 

a narrow question of whether a voting change would be retrogressive. That is, it would make things worse for minority voters relative to White voters, or at that time, if it had the purpose to retrogress. We cannot interpose an objection based on a constitutional 

violation or statutory violation that does not meet that narrow 

standard. 

Mr. NADLER. Thank you very much. My time has expired. 

I now recognize the gentleman from Arizona, the Ranking Member, Mr. Franks. 

Mr. FRANKS. Thank you, Mr. Chairman. 

Thank you, Mr. Tanner, for being here. Mr. Tanner, I’m sure it 

is a little bit redundant, and I’m going to ask you to repeat yourself 

a little bit, but would you give us your understanding of the Federal District Court ruling on the challenge to the Georgia voter ID 

law? 

Mr. TANNER. The initial Federal court ruling, which was in the 

preliminary injunction stage of the case, addressed a number of 

claims, including constitutional claims of the poll tax and the equal 

protection claim, as I recall, that were, as I said, completely outside 

16 

the scope of section 5 review, which is, as I described it, does the 

voting change make things worse for minority voters relative to 

White voters? There was a similar claim under section 2 of the Voting Rights Act which is a general claim of discrimination. And the 

court, while issuing preliminary injunctions on the constitutional 

claims, declined to issue such an injunction and rejected the Section 2 claim at the preliminary injunction stage as it did other statutory claims under the Civil Rights Act. I don’t recall the exact details of those. 

Mr. FRANKS. Mr. Tanner, as far as the 2008 elections, what steps 

have you taken to make those elections come off in a way that is 

the most just for voters in general? Give us an insight into what 

some of your priorities are there? 

Mr. TANNER. The first thing we are doing is conducting active 

litigation on Election Day type issues. Since I became Chief, we 

have brought 23 cases under the Voting Rights Act itself, the Voting Rights Act alone. We’ve also brought cases under our other 

statutes that protect overseas voters and other voters here in the 

United States. We also have been conducting very active Election 

Day monitoring. And during the 2004 election, we had 1,199, or 

during the course of 2004, we had nearly 2,000 people out monitoring the polls. 

Every year we set a new record of placing people in the polls in 

key areas to make sure that we can address such problems that 

arise on Election Day and also to get evidence to go forward and 

address problems in the future. I also have been reaching out to 

minority groups, as I said in my opening statements, of all types 

of minority groups to work with us, to first help us to identify problem areas, areas where issues within our statutes are likely to 

occur, to help us obtain information and to help us gather that information in a way that it later can be used as evidence in Federal 

court. 

Mr. FRANKS. Mr. Tanner let me ask you, what do you think are 

your greatest accomplishments during your tenure as Chief? What 

are things that you think you’ve accomplished? What do you intend 

to do in the future? 

Mr. TANNER. I think my greatest accomplishment, which actually 

began before I was chief, was to develop a system to address the 

specific minority language statutes that I was responsible for enforcing so that we have a regular flow of such cases so we are doing 

a record setting job every year of addressing those issues and 

bringing lawsuits. My challenge now is to develop similar systems 

under each of our other statutes, and I’m making significant 

progress in that. We are reaching out to African American organizations, Arab American organizations and others whom we had not 

reached out to before to make sure that we get as much information and do as much for everyone as we possibly can. 

Mr. FRANKS. Thank you. 

Mr. Tanner, the Carter-Baker report on election reform, I’m sure 

you’re probably more familiar with it than anyone on this panel. 

But they reported that a substantial amount of Americans are registered to vote in two different States. And according to those news 

reports, Florida has more than 140,000 voters who are apparently 

registered in four other States; in Georgia, Ohio, New York and 

17 

North Carolina. This includes almost 64,000 voters from New York 

City alone who are also registered to vote in Florida as well. Voting 

records of the 2000 election suggested that more than 2,000 people 

voted in more than one of those States. Duplicate registrations are 

seen elsewhere. As many as 60,000 voters are reportedly registered 

in both North Carolina and South Carolina. How do we address 

that? What has been your approach to that issue. 

Mr. TANNER. The issue of people voting in two different States 

or voting twice would fall within the jurisdiction of the Criminal 

Division of the Department of Justice. Our office enforces the civil 

laws that are designed to and do a great job of providing voter access. But we do not do criminal enforcement in our shop. 

Mr. FRANKS. Thank you, Mr. Tanner. 

My time is up. Thank you, Mr. Chairman. 

Mr. NADLER. Thank you. I now recognize the distinguished Member of the full Committee, Mr. Conyers. 

Mr. CONYERS. Thank you, Chairman Nadler. This is the kind of 

a hearing in which we get two diametrically opposed reports of 

what’s going on. We called this hearing because we are gravely disturbed about the ineffectiveness and the activities that have gone 

on within the voter section. And the voter section chief comes to 

us this morning to tell us he’s never been more proud of the voter 

rights section and its accomplishments and, further, that he’s got 

the greatest group of people, energetic, committed to voter rights, 

activity and its promotion. And as a matter of fact, it has never 

been better. 

And I think what we are seeing here with the Georgia voter ID 

case just starts off this discussion which we’ve been on. I didn’t 

know we were going to be on it for so long. But the bottom line 

of all of this is, is that there wouldn’t have been any Georgia voter 

ID law if your Department had followed the recommendations of 

your career lawyers. And it was because you overturned their work 

and decided to do something differently we now have not only 

Georgia voter ID, but we have other places which are screaming 

about voter fraud. The last time I looked, we had 82 individual 

cases of voter fraud that were prosecuted over the last period of 6 

years. And so it seems to me that this is a hearing that we are 

going to go over sentence by sentence. 

Now, having said that, and I notice that the gentleman from 

Georgia, John Lewis, was over here for a while and still is. I want 

to turn very quickly to Ohio. You see, the Chairman of this Committee and I were in Ohio in Columbus. We he had a forum. We 

had Members of Congress, Stephanie Tubbs Jones, Sherrod Brown 

and other Members, the now Governor of Ohio and others were 

there. And I want to tell you, Mr. Section Chief, I never met so 

many hundreds of people furious about the process that characterized the elections in Ohio in November 2004. Never in my life. And 

I’ve been south and north in this situation. And yet you explain 

that—and there were African Americans and White people, Democrats and Republicans, people that worked in the electoral process, 

all furious about the misstatements, the deceptive practices, the 

purges that went on. And your letter that says allowing for problems of incidents in individual precincts, it appears that the tendency in Franklin County for White voters to cast ballots in the 

18 

morning, i.e., before work, and for Black workers to cast ballots in 

the afternoon, i.e., after work, we have established this tendency 

through local contacts and through both political parties. 

Now, that was the only thing that nobody complained of, as I recall, at that hearing. That was the one thing that was not the problem. The problem is that there were people purged. There were incredible misstatements by the secretary of State at that time. The 

weight and the quality of the paper that one must apply for a ballot was all on there. And so I would refer you to the book ‘‘What 

Went Wrong in Ohio’’ that documents the incredible activities that 

took place there. And for you to have sent this letter does anything 

but demonstrate, the one you sent to Franklin County from the Department of Justice, anything, it demonstrates anything but your 

concern about voter rights, enforcement and encouraging the vote. 

Now, I just want to conclude. We have a lack of prosecution in 

the voting rights section. We need to do a lot, lot more in your section. And I’m hoping that you will take what will be directed to you 

as constructive. Because the one thing I’m concerned about is that 

we stop having happen what’s happened since the 2000 elections, 

and then you come here to stagger our imagination by telling us 

that it has never been better. It has never been worse. 

Mr. NADLER. The time of the gentleman has expired. 

I recognize the gentleman from Indiana for 5 minutes. 

Mr. TANNER. I would welcome an opportunity to comment on 

Chairman Conyers’ observations on that. 

Mr. NADLER. The gentleman’s time has expired. We’ll make it 

later. 

Mr. TANNER. Certainly. Thank you. 

Mr. PENCE. Thank you, Mr. Chairman. 

I would be pleased, Mr. Tanner, if you would like to respond to 

Chairman Conyers’ question during my time. You may proceed. 

Mr. TANNER. Thank you very much, Mr. Pence. 

I would like to thank Chairman Conyers for the work that he did 

do in Ohio where there were a lot of issues raised for all parts of 

the election process; issues that properly come before our office or 

the Criminal Division of the Criminal Section of the Civil Rights 

Division, many issues that fall within the jurisdiction of State officials, and many issues for this Congress to consider and address. 

And I appreciate your leadership in that and your report, which actually was the thing that spurred the investigation. 

From the report by Chairman Conyers, I determined that there 

was a good likelihood of a potential for a lawsuit in Franklin County. We went there. We gathered facts that fit into our statute. And 

many of the problems mentioned by the Chairman are things that 

happened outside of the county, that happened at the State level 

and that had already been addressed. I don’t apologize for those 

things or defend those things, but I do note the context. 

The statistics in Franklin County showed that in terms of the actual voters who showed up on Election Day, there were more voters 

per voting machine in the predominantly White precincts than 

there were in the predominantly African American precincts, which 

was not the same as the voter registration data. We looked into it. 

We talked, as we mentioned, to both parties and other knowledgeable individuals. And ultimately, as I always must do, I based a deVerDate Aug 31 2005 14:22 Jan 27, 2009 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6601 H:\WORK\CONST\103007\38637.000 HJUD1 PsN: DOUGA
19 

cision after careful scrutiny on the facts and on the applicable law 

and made the complex, lengthy decision whether or not we can 

prove a violation of a specific statute in Federal court. 

Mr. PENCE. Thank you for that. 

Reclaiming my time, I’m happy to extend that courtesy to you. 

I want to appreciate very much your apology today in the clarification of the comments that you made at the recent meeting of the 

National Latino Congresso. I want to acknowledge your three decades of commitment to civil liberties and to protecting against discrimination, particularly in the ballot box. I voted in favor of the 

Voting Rights Act reauthorization last year. I disagreed with some 

Members of this panel on my side of the aisle in defending bilingual ballots. It may just come up in a minute or two. But let me 

also offer—I would like to, Mr. Chairman, if we can submit in the 

record the strong letter of recommendation directed to you from the 

American Arab Anti-Discrimination Committee, a record that describes our witness as an individual who has, quote, gone above 

and beyond the normal call of a public servant to listen, work and 

incorporate the input of a diversity of communities, and extols his 

dedication of 30 years of his life to fighting discrimination. 

[The information referred to follows:] 

20 


BB.eps
21 

Mr. NADLER. Without objection. 

Mr. PENCE. I would just ask in my remaining time, Mr. Tanner, 

there was so much controversy in the last Presidential Election 

over accusations of the rights of minority voters being infringed 

upon. Could you speak about any steps your division has taken, 

you’ve personally taken to prepare for the 2008 elections? Can you 

give us assurances that the Voting Section will respond to problems 

of the kind experienced or alleged to be experienced in 2000 and 

2004? 

Mr. TANNER. I would be happy to, and I appreciate the very important question. We have begun reaching out, and began some 

time ago to reach out to the groups that monitor elections, as I did 

before the 2004 election, to minority groups across the spectrum. 

I much appreciate the letter from the Arab American Anti-Defamation Committee because they may well be the group that in many 

ways is most vulnerable because of all the circumstances of this 

country. And I felt that we have a particular obligation to protect 

them. But also to many organizations—the NAACP, the Lawyers 

Committee, the NAACP Legal Defense Fund, the National Congress of American Indians, LULAC, MALDEF, MALEO, and groups 

across the spectrum so that we can work together so we can do the 

best possible job anticipating problems, getting information early 

enough to make the difficult decisions, not only about where there 

might be a problem on Election Day but where we should have 

someone stand, in which building they should be. It is very complex. It is very important. We’ve been doing more of it than ever. 

In 2008, and the time as Mr. Conyers mentioned, between now and 

2008, is such an important time, there’s not a lot of time, and there 

is an awful lot to do. 

Mr. NADLER. Thank you. And before proceeding to our next question, I simply want to recognize and welcome the presence of one 

of the giants of the civil rights movement in the struggle for voting 

rights, our colleague, the gentleman from Georgia, Mr. Lewis, and 

to welcome him here today. And I now recognize the gentleman 

from Alabama for 5 minutes. 

Mr. DAVIS. Thank you, Mr. Chairman. 

Mr. Tanner, good morning to you. 

Mr. TANNER. Good morning. 

Mr. DAVIS. I echo the concerns that Mr. Nadler and Mr. Conyers 

raise. I did note a number of letters that you submitted. Mr. Pence 

just alluded to some of them, people with whom you’ve worked in 

the civil rights community. I think you submitted some letters from 

some people I know in Alabama. There’s only one problem with letters. Someone somewhere once said that only people with bad credit need co-signers. 

But let me turn to a more important observation than that. You 

apologized at the beginning of your comments today for the statements that you made. I’m not 100 percent sure what you’re apologizing for. I’m not sure if you’re apologizing for how people read the 

statements or if you’re apologizing for making them. So I want to 

give you some chance to be more specific about that. I want to read 

you a quote, and first of all tell me if you said it. Quote, our society 

is such that minorities don’t become elderly the way White people 

do; they die first. Did you say that? 

22 

Mr. TANNER. That was part of my statement, Mr. Davis, and I 

welcome—— 

Mr. DAVIS. I just want to ask you if you said that, and you’ve 

said that you did. Is that an accurate statement? 

Mr. TANNER. It is a sad fact. 

Mr. DAVIS. Is it an accurate statement? 

Mr. TANNER. I believe that the census data shows that life expectancy, in Georgia anyway, which is what I was addressing, is 

lower for African Americans. 

Mr. DAVIS. Well, you don’t say that. You say that minorities don’t 

become elderly the way White people do. Is that accurate? 

Mr. TANNER. It was a very clumsy statement. 

Mr. DAVIS. Is it an accurate statement? 

Mr. TANNER. I believe that I’ve said—Mr. Davis, I may not completely understand the question. 

Mr. DAVIS. The question is, is it accurate that minorities don’t 

become elderly the way White people do? 

Mr. TANNER. The statistical data indicate that life expectancy is 

lower for minorities. 

Mr. DAVIS. Then you say, they die first. Who is the they? 

Mr. TANNER. I was addressing the sad fact that the inequities in 

this country are such, and I’m not an expert on all of those inequities—— 

Mr. DAVIS. Let me slow you down because we only have 5 minutes, and you’ll have an opportunity to respond to our comments, 

so my time is precious. Let me ask you this. In my State of Alabama, 2004 Presidential Election, what percentage of minorities do 

you think voted in that election for President, Mr. Tanner, in my 

State of Alabama? 

Mr. TANNER. I would be—I do not know the figure, and I would 

like to make sure before I give any information. 

Mr. DAVIS. Do you have a ballpark estimate? 

Mr. TANNER. I don’t have an estimate. I would have to—— 

Mr. DAVIS. The number was 73 percent. Do you happen to know 

what percentage of Whites voted in my State of the Presidential in 

2004? 

Mr. TANNER. I also do not know that. 

Mr. DAVIS. The number was 74 percent. Do you know what percentage of those minority voters were elderly in my State? 

Mr. TANNER. It is my belief, but I would have to check the data, 

that elderly voters in Alabama, many of whom I’ve worked with, 

have good turnout. 

Mr. DAVIS. Yes, elderly voters have good turnout. And in fact, 

minority elderly voters have a very good turnout; don’t they, Mr. 

Tanner? Just to frame this in terms of statistics, in my State of 

Alabama in 2004, of that 73 percent Black voter turnout, 40 percent of them were over 60. That is actually a higher percentage 

than in the White community. So if you look at the statistics rather 

than your stereotypes, elderly Blacks are more likely to vote than 

elderly Whites. And I think this is—did you also make the comment, by the way, that Blacks were more likely to go to check cashing businesses at some point in Georgia? Did you make that observation? 

Mr. TANNER. In addressing the—— 

23 

Mr. DAVIS. Don’t give me a long answer. I don’t have the time. 

Did you make the comment, or did you not? 

Mr. TANNER. I made a comment about that. 

Mr. DAVIS. Now, this is the point, Mr. Tanner, I think we want 

to drive home. Do you have any statistics about how many Blacks 

visit check cashing businesses versus the number of Whites who 

do? 

Mr. TANNER. I do not have any with me, but I believe such statistics about the number of unbanked persons here in the United 

States by race would be available through the Office of Comptroller 

of the Currency. 

Mr. DAVIS. Do you know those numbers? 

Mr. TANNER. I do not know those numbers. 

Mr. DAVIS. Well, this is the problem. Once again, you engaged in 

an analysis without knowing the numbers. And the point, Mr. Tanner, if I can just finish my observation, Mr. Chairman, you’re a policy maker, sir. You are charged with enforcing the voting rights 

laws in the country. And if you are not fully informed about things 

that you’re talking about and pontificating about, if you’re basing 

your conclusions on stereotypes and generalizations, that raises a 

question in the minds of some of us whether or not you are the person in the best position to make these choices. You said that minorities don’t become elderly the way White people do; they die 

first. Then you say, well, that was a horrible generalization on my 

part. You say you don’t know how many elderly minorities vote 

versus the number of Whites who vote who are elderly. You make 

observations about people going to check cashing places. And you 

suggest that, well, because Blacks go to check cashing places they 

surely must have photo ID. And then I ask you if there’s a statistical basis for that. You say you don’t know it. If you are basing 

your conclusions on stereotypes rather than facts, then it suggests 

to some of us that someone else can do this job better than you can. 

Mr. TANNER. I would welcome an opportunity to address that. I 

did not make my decisions based on assumptions. We looked at the 

numbers. I had been surprised by those numbers. And I was trying 

to—— 

Mr. DAVIS. Did you look at numbers regarding elderly minority 

voter participation, because those are the relevant numbers? 

Mr. TANNER. The relevant numbers, I believe, that I looked at 

were whether or not there were people who did not—first, did not 

have photo ID in Georgia. 

Mr. DAVIS. Did you look at numbers regarding elderly minority 

voter participation, and can you cite those numbers to the Committee? 

Mr. TANNER. The data showed that everyone in Georgia, that 

there were more people who had the ID of all ages, all voting age 

people who had the ID, than there were voting age people who 

were eligible to have the ID. 

Mr. DAVIS. Did you look at the percentage of elderly minority 

voters in Georgia? 

Mr. TANNER. In making the decision, I looked at the facts that 

were relevant to the—— 

Mr. DAVIS. Did you look at the percentage of elderly minority 

voters in Georgia? 

24 

Mr. TANNER. No. 

Mr. DAVIS. Thank you. 

Mr. NADLER. The gentleman’s time has expired. 

The gentleman from Iowa. 

Mr. KING. Thank you, Mr. Chairman. 

Mr. Tanner, I appreciate you coming before this Committee. 

First, I would ask you, you have testified that your statement that 

brought about this hearing was clumsy. And I want to give you an 

opportunity with clarity to state before this Committee, do you believe that your statement remains supported by empirical data and 

fact? 

Mr. TANNER. I, again, apologize for the statement. I do believe 

that the statement with respect to life expectancy, that it is a sad 

and sorrowful fact that in this country, or in Georgia at least, 

which is the place I’ve looked at the data, and each State should 

be considered separately, that life expectancy is lower among members of minority groups. I believe, as to the other observations, 

speculations, that there are data supporting those observations. 

And I very much appreciate any time when someone disagrees with 

a proposition I’ve made, to receive evidence or information that corrects my understanding; I realize that I do not know everything. 

I welcome new information. 

Mr. KING. Thank you, Mr. Tanner. 

And I’ll just boil that down to if the facts support your statement, 

then why do you think that you’re here before this Committee? 

Mr. TANNER. Well, I welcome the opportunity to explain what I 

do before the Committee. I certainly made the statement and observation in a very clumsy way. 

Mr. KING. I’ve asked you an inappropriate question, because in 

the end, you have to speculate on the motives of some of the questions that are being asked of you. And I wanted to point out that 

there’s a difference between being factually correct. 

Mr. NADLER. Would the gentleman yield for a moment? 

Mr. KING. I would yield. 

Mr. NADLER. Thank you. As Chair, I simply want to point out 

that this Committee is not having this hearing simply because of 

a statement made by Mr. Tanner. It is one in a series of hearings 

on the voter rights section and on the Civil Rights Division and 

would have occurred regardless of any statements he made. It had 

been prepared, it had been scheduled long before these recent 

statements, so the hearing would have occurred in any event. 

Mr. KING. Reclaiming my time, I thank the Chairman for that 

clarification. And as I said, I really intend to withdraw the question because it put the witness in a bad position. 

So I would continue on. And that would be—I think it’s important to know that if a statement is made publicly and is supported 

by the facts, then the subject comes down to then was it insensitive 

or wasn’t it? You’ve already spoken to that. I’m ready to accept that 

as a definition of what happened and move on. 

I think it’s important here that we often are debating things beyond the facts, and sometimes a person is criticized for a factual 

statement but there is not opposing documentation of another 

group of data that would rebut that. And that seems to be what 

I am missing here. 

25 

I wanted to ask you, you’ve testified that you brought 23 different cases under your jurisdiction. How many investigations have 

you launched? Do you know the answer to that? 

Mr. TANNER. I do not know the exact number of investigations. 

We have had a number of investigations that are ongoing, some of 

which are very near to fruition. 

Mr. KING. Would it be in multiples of the 23 cases? 

Mr. TANNER. It would be far more than 23. 

Mr. KING. Are we talking hundreds or thousands? 

Mr. TANNER. It would be in the range of hundreds. 

Mr. KING. Okay. That gives me some concept of that. And should 

the law be color-blind, Mr. Tanner? 

Mr. TANNER. I think that the Constitution protects all citizens of 

this country from discrimination on the basis of their race. 

Mr. KING. I am watching my clock tick down. And the question 

goes then to the Voting Rights Act, because the Voting Rights Act 

in fact is not color-blind, is it not? 

Mr. TANNER. The Voting Rights Act is a very important remedial 

statute directed to address a long and, frankly, appalling history of 

segregation in this country. 

Mr. KING. But is it color-blind? 

Mr. TANNER. The Act protects all citizens without regard to their 

race. 

Mr. KING. I will state this and then ask you to disagree. I will 

state it again. The Voting Rights Act is not color-blind. Do you 

agree or disagree? 

Mr. TANNER. I think that the Voting Rights Act recognizes the 

special—the discrimination that has occurred against members of 

racial—— 

Mr. KING. I understand. I recognize that. So you don’t disagree 

with my statement, but you would like to expand a little more. I 

just don’t have time for that. 

Again, I will ask you, has it been brought to your attention that 

there have been local jurisdictions that have passed what one 

would view as anti-illegal immigrant ordinances within their, say, 

county jurisdictions, voting jurisdictions, that you might be aware 

of? 

Mr. TANNER. There is a great deal of tension about the immigration issue in this country. Certainly that is something that we are 

aware of and especially as it interacts with the voting process. 

Mr. KING. Have some of these organizations that advocate in 

favor of illegal immigrants met with you? Have you had conversations with them? And I would say in particular maybe La Raza, 

MALDEF, and LULAC? 

Mr. TANNER. I have met a number of times with representatives 

of La Raza, MALDEF and LULAC. 

Mr. KING. And have they ever asked to you bring an investigation into a jurisdiction that has passed local ordinances that would 

be supportive of laws to enforce our illegal immigration? 

Mr. TANNER. Those organizations have brought issues to our attention as they affect the Voting Rights Act. 

Mr. KING. Have they asked you to intervene any of these jurisdictions; in particular, Prince William County, just across the 

river? 

26 

Mr. TANNER. Well, we have received inquiries about the voting 

situation in Prince William County, as we do from other groups all 

across the United States. 

Mr. KING. Have they asked you to investigate in those jurisdictions? 

Mr. TANNER. I don’t know that we have discussed those jurisdictions. We have discussed Prince William County. I have discussed 

Prince William County. 

Mr. KING. I thank the witness. I am watching the clock here. I 

have some other questions to submit in writing. I appreciate the 

opportunity, and I would yield back the balance of my time. 

Mr. NADLER. The witness may answer the question. 

Mr. TANNER. Answering questions about legal issues can sometimes be difficult to do in very short language, and I apologize for 

that. I was not trying to be evasive. I was trying to tell you what 

we had in fact done. Thank you for the time, Mr. Chairman. 

Mr. NADLER. Thank you. I will now recognize the gentlelady from 

Florida. 

Ms. WASSERMAN SCHULTZ. Thank you, Mr. Chairman. Mr. Chairman, first I would like to ask unanimous consent to submit this article for the record, from The New York Times of April 12, 2007. 

The headline is, ‘‘In 5-Year Effort, Scant Evidence of Voting 

Fraud.’’ 

Mr. NADLER. Without objection. 

[The information referred to follows:] 

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Ms. WASSERMAN SCHULTZ. Thank you. 

Mr. Tanner, it is a privilege to be able to spend some time talking to you about this very important issue. You mentioned in your 

opening remarks that the purpose of the voter purging effort from 

your division was the result of a pursuit of voter fraud. And my colleague, Mr. Franks, referenced the State of Florida and numbers, 

something like 2,000 people who were listed as voting in both Florida and in another State. When the former Attorney General Gonzalez was here and we had an opportunity to question him about 

voter fraud, pursuing voter fraud being a priority of the Department of Justice and what a grave concern that was, he was unable 

to produce any significant evidence of widespread voter fraud, particularly deliberate voter fraud. 

And I will reference the Federal Election Assistance Commission 

analysis that specifically said that despite the Department of Justice’s pursuit of voter fraud—and despite your testimony just now 

that it is in the hundreds as far as convictions—only about 120 

people have been charged and 86 convicted as of 2006 with voter 

fraud. And most of those, number one, were Democrats; and, number two, were found to only have mistakenly filled out voter registration forms or misunderstood eligibility rules. 

So my question is this: I would think and wholeheartedly support 

that the pursuit of voter fraud, particularly deliberate voter fraud 

designed to impact the elections, would be a worthy goal. But it 

doesn’t appear that the Department’s pursuit of voter fraud has 

turned up any evidence of that. Very little, in fact. 

And my specific question is that at any time during your tenure 

as chief, have you drawn up a list of voters that were thought to 

be ineligible to vote or ought to be removed from the rolls as part 

of your section 8 enforcement activity? And if so, in what States or 

cases? And what methodology was used to created that list or lists? 

The reason that I am asking you is that in 2000—and I am from 

the State of Florida—our former Secretary of State and former colleague here in the House, Katherine Harris, purged 100,000 voters 

from our rolls in Florida who were eligible to vote. And so a widespread effort on your part, on the part of your division to do that, 

especially in light of the fact that there has been scant evidence of 

both voter fraud and less than 100 convictions from your Department, seems that this is an overzealous activity—that rather than 

continue to focus on that, you should be pursuing the low-income 

registration that you have completely abdicated your responsibility 

to do, and that is part of your mandate under the law. 

Mr. TANNER. I welcome the opportunity to address your question. 

First, our section has nothing to do with voter fraud. The Criminal 

Division of the Department of Justice prosecutes cases of voter 

fraud. Our statutes are voter access cases. 

Ms. WASSERMAN SCHULTZ. But what is the purpose—then if your 

section has nothing to do with voter fraud, what is your Department’s purpose in pursuing purging of voters from the rolls? What 

is the reason for doing that? 

Mr. TANNER. Under the National Voter Registration Act, passed 

by the Congress and signed by the President, there are list maintenance requirements that first of all—— 

Ms. WASSERMAN SCHULTZ. Right. I understand that. 

33 

Mr. TANNER. Require notice before anyone is purged, and that 

also require that persons who have died are no longer—— 

Ms. WASSERMAN SCHULTZ. Let me just interrupt you a second, 

because I want to make sure that rather than expounding, you are 

answering my question specifically. 

For example, I understand the purpose—the general purpose of 

purging. But the priority that your division has made it is what 

deeply concerns me, especially given the track record from my 

home State. 

In 2007 a lawsuit was dismissed from the Justice Department 

that was filed against the Missouri Secretary of State, alleging that 

her office failed to make a reasonable effort to remove ineligible 

people from local voter registration rolls. It was dismissed because 

the judge ruled that the government had provided no evidence of 

fraud. 

I don’t understand why it appears to be such an important priority since voter purging really seems to mostly just be an administrative function, and, in my lifetime, has always been treated as an 

administrative function, but your division has elevated it to a massive priority. And you just testified that your division has no responsibility for pursuing voter fraud. So, why? 

Mr. TANNER. Counties in Missouri were removing voters from the 

active voter list without the notice required by the NVRA: they 

were removing voters. Other counties were not removing voters, 

and there was a county that had more voters on the rolls than they 

had people. 

Ms. WASSERMAN SCHULTZ. They purged 50,000 in 2002, and in 

spite of that, you pressured them in 2005 to remove more, even 

though they were likely being cautious about removing voters from 

the rolls so that they could avoid the problems that they had had 

3 years before. 

Mr. TANNER. I think it is accurate to say that voters were being 

removed in Missouri without notice to—— 

Ms. WASSERMAN SCHULTZ. And you were encouraging them in 

2005 to remove more. 

Mr. TANNER. We sued them to stop them from removing voters 

without notice. That was a count in our lawsuit. 

Ms. WASSERMAN SCHULTZ. Well, it was—the primary purpose of 

your lawsuit was that Missouri was failing to make a reasonable 

effort to remove ineligible people from local voter registration rolls, 

and that was dismissed in April of 2007; isn’t that correct? 

Mr. TANNER. The case was dismissed because the court determined that we had to sue each of the individual counties that was 

removing voters without—— 

Ms. WASSERMAN SCHULTZ. But a component of your lawsuit was 

that the office in Missouri had failed to make a reasonable effort 

to remove ineligible people from local voter registration rolls, not 

what you are representing here today as the primary purpose. 

Mr. TANNER. There were two purposes—— 

Ms. WASSERMAN SCHULTZ. And you are conveniently choosing 

only to talk about the one that was not related to pushing them, 

pressuring them to remove ineligible voters from the rolls, even 

though 3 years before they had made a mistake in removing 50,000 

voters from the rolls. Isn’t that right? 

34 

Mr. TANNER. I believe that the complaint which addresses both 

issues speaks for itself. We would be happy to provide additional 

documents to the Committee, but we are—— 

Ms. WASSERMAN SCHULTZ. Thank you, Mr. Chairman. My time 

has expired. 

Mr. NADLER. Thank you. The gentleman from Minnesota is recognized for 5 minutes. 

Mr. ELLISON. Exactly what are you apologizing for? 

Mr. TANNER. I hurt people. 

Mr. ELLISON. How did you hurt them? 

Mr. TANNER. The reactions of people to my statements, which 

were very contrary to what I was tying to communicate. 

Mr. ELLISON. So are you apologizing because of the reaction people had to your statements? 

Mr. TANNER. I caused that reaction—certainly not intentionally. 

I made a clumsy statement. 

Mr. ELLISON. So what was clumsy about what you said? 

Mr. TANNER. I’m sorry? 

Mr. ELLISON. What was clumsy about what you said? 

Mr. TANNER. I believe—well, what I was thinking—— 

Mr. ELLISON. No. What was clumsy about what you said? 

Mr. TANNER. I was addressing a narrow issue of the statistics 

needed to show a violation of Federal law in a very clumsy tone, 

the tenor of my remarks. 

Mr. ELLISON. So you are apologizing for your tone? 

Mr. TANNER. I am apologizing that my tone caused this. I believe 

that I am responsible—— 

Mr. ELLISON. So the problem is the tone? 

Mr. TANNER. I certainly had a bad tone and clumsiness to the 

statement. 

Mr. ELLISON. Is it true that minorities died so that the voter ID 

laws just don’t affect older people of color the same way that they 

do young people? 

Mr. TANNER. I never ever meant to suggest—— 

Mr. ELLISON. I don’t know what you are apologizing for. You say 

that you were right, but your tone was wrong. I don’t know what 

you are saying you are sorry for. Could you please help me understand; if you are claiming that you are statistically correct, why are 

you apologizing? Are you trying to just carry favor? 

Mr. TANNER. I am—I am not. I feel that if I make remarks that 

people misinterpret—— 

Mr. ELLISON. So people misinterpreted what you said? 

Mr. TANNER. I apologize for that. 

Mr. ELLISON. Wait a minute. You said—I’m sorry. Did people 

misinterpret what you said? 

Mr. TANNER. I believe I said it in a way that did not communicate effectively. 

Mr. ELLISON. ‘‘minorities don’t become elderly the way White 

people do.’’ Is that true? 

Mr. TANNER. I think that is clumsily stated. 

Mr. ELLISON. Is it true? 

Mr. TANNER. People age in the same way. 

Mr. ELLISON. Right. My dad is almost 80. 

Mr. TANNER. Absolutely. 

35 

Mr. ELLISON. He is Black. 

Mr. TANNER. I don’t mean to suggest there are not elderly people. 

Mr. ELLISON. What does it matter—what difference does it make 

whether the statistics—what does that matter to the individual 

voter? 

Mr. TANNER. It matters not at all to the individual voter. 

Mr. ELLISON. So your statement was also irrelevant; is that true? 

Mr. TANNER. The statement was addressing a specific assertion 

related to law enforcement. 

Mr. ELLISON. Basically your statement that minorities don’t become elderly the way White people do has no relevance to whether 

an individual voter ID bill should apply to minorities or seniors; 

isn’t that right? It just doesn’t matter. So if it doesn’t matter, why 

are you making the point? 

Mr. TANNER. I was trying to address how I ran—the presumptions that I made. 

Mr. ELLISON. Right. Presumptions. 

Mr. TANNER. Presumptions that I made. 

Mr. ELLISON. Presumptions, which is similar to the word ‘‘assumptions,’’ which is similar to the concept of stereotype, right? 

Mr. TANNER. I had assumed—— 

Mr. ELLISON. Let me ask you this. What is a poll tax? 

Mr. TANNER. A poll tax is a requirement that someone purchase 

or pay a tax solely for the purpose of voting. 

Mr. ELLISON. Does the 24th amendment speak to poll taxes? 

Mr. TANNER. It does. 

Mr. ELLISON. What does it say about it? 

Mr. TANNER. I do not have the text of the amendment in front 

of me. 

Mr. ELLISON. I didn’t ask you for the text. What does it say about 

it? 

Mr. TANNER. It bans poll taxes. 

Mr. ELLISON. So a poll tax is a fee that is required for a voter 

to pay before they can vote, right? Yes or no. 

Mr. TANNER. Yes. That would—a poll tax would be such a fee. 

Mr. ELLISON. What is the cost of getting an ID for a person who 

doesn’t have one in, say, Georgia? 

Mr. TANNER. The IDs are available without cost in Georgia. 

Mr. ELLISON. Okay. So there is no cost to it. What about the information you need to get an ID? 

Mr. TANNER. At the present time, there is no cost as I understand it. 

Mr. ELLISON. So Georgia IDs are free to all people; is that right? 

Mr. TANNER. Georgia now has a free ID available in every county 

to voters. 

Mr. ELLISON. So you don’t have—so I can go into Georgia and 

say I want an ID, and nobody is going to ask me to pay anything? 

Mr. TANNER. I forget the precise things. But right, there is no 

fee. And the case—— 

Mr. ELLISON. And this is in regard to—this is in regard to income or anything? It is just free? 

Mr. TANNER. At the present time, yes. Previously there had been 

an indigency oath requirement. 

36 

Mr. ELLISON. So the Secretary of State makes—the State of 

Georgia just foots the bill on that? 

Mr. TANNER. I don’t know about that. 

Mr. ELLISON. What about in Indiana? Is it free there? 

Mr. TANNER. I am not familiar with Indiana. 

Mr. ELLISON. Last question. Arizona? 

Mr. TANNER. I am not familiar with Arizona. 

Mr. ELLISON. Maybe we will have a chance to come back. 

Mr. NADLER. The time of the gentleman has expired. We have 

votes coming up. I would like to recognize the gentleman from Virginia, Mr. Scott, for 5 minutes. 

Mr. SCOTT. Thank you. 

Mr. Tanner, I just have a couple of quick questions, beginning 

with, under the Voting Rights Act that we passed last year, if you 

have a majority/minority district, you cannot dismantle that to create two districts in which the minority community cannot elect a 

candidate of its choice. If they had been electing a candidate of 

their choice in a majority/minority district, you can’t dismantle that 

and create two districts where that is not the case; is that right? 

Mr. TANNER. I believe that would be objectionable. 

Mr. SCOTT. If the district is not technically, arithmetically, a majority, but the minority county has routinely elected candidates of 

its choice reliably and predictably, can you dismantle that district? 

Is that district protected under the Voting Rights Act? 

Mr. TANNER. I think that the 50 percent question currently is an 

open question under the law. 

Mr. SCOTT. Would you preclear a district, 49 percent that had 

been—where the African American community elected a candidate 

of its choice, and the submission has two districts where the community cannot elect candidates of its choice; would you preclear 

that? 

Mr. TANNER. I do not believe that I would. 

Mr. SCOTT. Okay. Now—— 

Mr. TANNER. I should stress that each of the submissions is decided on its own facts and the law at that time. 

Mr. SCOTT. Well I’m asking you if it was submitted this afternoon, would you preclear it? 

Mr. TANNER. No. 

Mr. SCOTT. If the minority community can’t elect a candidate of 

its choice on its own, but is reliably a part of a coalition that does 

elect the candidates and the coalition cannot elect candidates without overwhelming support from the minority community, and that 

submission dismantled that district, would you—it is called an influence or coalition district—would you preclear that? 

Mr. TANNER. I think as we get into different issues about the 

facts of a specific case and the reliability of coalitions is going to 

affect the decision making. But the law clearly bans a retrogression 

in minority voting districts. 

Mr. SCOTT. And you would count a coalition district going to a 

district where there is no influence as retrogression? 

Mr. TANNER. I think a plan that reduces minority voting strength 

is going to be objectionable. 

37 

Mr. SCOTT. Okay. Now, do I understand that the voting rights 

section of the Civil Rights Division is subject to an employment discrimination—a pending employment discrimination complaint? 

Mr. TANNER. I would be very happy to discuss personnel matters 

with the Committee in an appropriate forum. Obviously there are 

important privacy interests involved. 

Mr. SCOTT. Is that a ‘‘yes’’? 

Mr. TANNER. It means that I would be very happy to discuss 

such issues in an appropriate forum. 

Mr. SCOTT. Well, can you state whether or not partisan politics 

was illegally involved in employment decisions that are subject to 

those—that are the subject of those complaints—whether or not 

partisan political considerations were illegally involved in employment decisions in your division? 

Mr. TANNER. In the Voting Section, they have not been a factor 

at all in my watch. 

Mr. SCOTT. Now, you have apologized for those bizarre remarks. 

Following up from the comments from Mr. Ellison, after all is said 

and done, is it your position that the voter ID laws do or do not 

have disparate impact on African Americans? 

Mr. TANNER. I think that each State and each law must be 

looked at—and I have to keep an open mind on. In Georgia, the 

facts showed the absence of discrimination, the Federal court found 

an absence of racial discrimination, and the case has been dismissed. 

Mr. SCOTT. The case was dismissed after they changed the law 

after the first submission; is that right? 

Mr. TANNER. The case was dismissed after that. But prior to 

that, they found the absence of—— 

Mr. SCOTT. Can you fail to preclear something without signoffs 

from higher-ups? 

Mr. TANNER. Yes. I have the authority to preclear voting changes 

without signoff from anyone else. 

Mr. SCOTT. Now as I understand it, the Georgia case, four of the 

five members from the team recommended disapproval. Is that 

right? 

Mr. TANNER. I believe—I understand that there have been public 

comments to that effect. 

Mr. SCOTT. Public comments say that Mr. Berman, Ms. Zabrisky, 

Ms. Moss, Mr. Moore, all recommended ‘‘no.’’ And Mr. Rogers recommended ‘‘yes.’’ Is that right? 

Mr. TANNER. I can only speak to the public comments. 

Mr. SCOTT. The public comments also say that Mr. Berman had 

been working in the division for 28 years; Ms. Zabrisky, 5 to 6 

years; Mr. Moore, 5 years; Ms. Moss, 3 years. Is that about right? 

Mr. TANNER. I don’t know. 

Mr. SCOTT. And—well, if you don’t deny it, then it—and Mr. Rogers, how long had he been working for the division? 

Mr. TANNER. A short period. 

Mr. SCOTT. Three months? 

Mr. TANNER. I don’t know the precise time. 

Mr. SCOTT. I just have one further question, Mr. Chairman. And 

that is, did you have an awards ceremony where everybody in your 

division but two received an award? 

38 

Mr. TANNER. No. 

Mr. SCOTT. Have virtually all—did Mr. Rogers receive an award, 

an on-the-spot award? 

Mr. TANNER. I have heard that. 

Mr. SCOTT. And were the other people who disagreed with the 

Georgia decision reprimanded? 

Mr. TANNER. No. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. NADLER. Thank you. We have to go vote now. I want to 

thank Mr. Tanner for his testimony. We have three votes. We will 

come back probably in about 15 minutes. Since we have another 

Committee following this, I urge everyone on the Subcommittee to 

return. As soon as we get to the last vote on the floor, we’ll hear 

the second panel. Thank you. 

The Committee stands in recess. 

[Recess.] 

Mr. NADLER. I thank the Members for returning, those who have. 

The hearing of the Subcommittee will resume. And we will begin 

by my introducing the Members of the second panel. 

First is Laughlin McDonald. Since 1972, Laughlin McDonald has 

directed the Voting Rights Project with the American Civil Liberties Union in Atlanta, Georgia. Before that he taught at the University of North Carolina Law School and practiced law, specializing in voting rights and discrimination cases. He has argued 

cases before the U.S. Supreme Court, testified frequently before 

Congress, including this Subcommittee, and written for scholarly 

and popular publications on civil liberties issues. His most recent 

book is A Voting Rights Odyssey: Black Enfranchisement in Georgia. 

Toby Moore, Dr. Moore, served as a political geographer and redistricting expert for the Voting Section of the Civil Rights Division 

of the Department of Justice from 2000 to 2006. In that position 

Dr. Moore analyzed local and State voting systems under the Voting Rights Act and other legislation and supported the Department 

litigation efforts. He also monitored the conduct of elections and negotiated redistricting agreements, winning three Department of 

Justice merit awards for his work. Following his government service, Dr. Moore served as project manager at the Center for Democracy and Election Management, developing a reform agenda for the 

Commission on Federal Election Reform, chaired by President 

Carter and former Secretary of State James Baker. He is the author of numerous scholarly papers and presentations on voting and 

elections issues. 

Bob Driscoll is a partner of the Washington, D.C. office of Alston 

and Bird, with a diverse practice, focusing on, among other things, 

civil rights matters, including assisting with a preclearance of a 

State redistricting plan under section 5 of the Voting Rights Act. 

From 2001 to 2003, Mr. Driscoll served as Deputy Assistant Attorney General and Chief of Staff for the Civil Rights Division of the 

United States Department of Justice. In addition, Mr. Driscoll 

served as Commissioner of the Brown v. Board of Education 50th 

Anniversary Commission, a commission created by statute to commemorate that landmark decision. 

39 

Julie Fernandes is a senior policy analyst and senior counsel at 

the Leadership Conference of Civil Rights, the Nation’s oldest, largest, and most diverse civil and human rights coalition. As Members 

of this Committee will no doubt recall that in 2006, Ms. Fernandes 

was active in the civil rights community’s successful effort in support of the reauthorization of the Voting Rights Act of 1965. 

Before joining the leadership conference Ms. Fernandes served as 

a trial attorney general in the Civil Rights Division of the Department of Justice and was counsel to Assistant Attorney General For 

Civil Rights, Bill Lann Lee. 

Mr. NADLER. As a reminder, your written statements will be 

made part of the record in its entirety. I would ask that you now 

summarize your testimony in 5 minutes or less. To help you stay 

within that time, there is a timing light at your table. When the 

1-minute light remains, the light will switch from green to yellow, 

and then red when the 5 minutes are up. 

Before we begin, it’s customary for the Committee to swear in its 

witnesses. If you could please stand and raise your right hand to 

take the oath. 

[Witnesses sworn.] 

Mr. NADLER. Thank you. Let the record reflect that each of the 

witnesses answered in the affirmative. You may be seated. 

Mr. McDonald with—I don’t know why it’s in this order. It’s not 

the order you see it in. But, Mr. McDonald, you may begin. 

TESTIMONY OF LAUGHLIN McDONALD, DIRECTOR, VOTING 

RIGHTS PROJECT, SOUTHERN REGIONAL OFFICE, AMERICAN CIVIL LIBERTIES UNION (ACLU) 

Mr. MCDONALD. Mr. Chairman, Members of the Committee. 

Mr. NADLER. Can you use your mike, please? 

Mr. MCDONALD. Is it on? 

Mr. NADLER. Now it is. 

Mr. MCDONALD. As we know, the Voting Section of the Department of Justice has a major role in protecting and enforcing voting 

rights. One of its most important duties is conducting administrative review of voting changes in jurisdictions governed by section 

5 of the Voting Rights Act. But, unfortunately, recent revelations 

of partisan bias in its decision making seriously undermine the section’s enforcement of section 5. Partisan bias breeds a lack of confidence and trust in the section. Indeed, it creates a lack of confidence in section 5 itself. It’s a signal that partisanship may trump 

racial fairness and thus increase the likelihood that minorities will 

be manipulated to advance partisan goals. And it also shifts the 

burden of proof and enforcing voting rights to those who have been 

the victims of discrimination in contravention of the intent of Congress in passing the original Voting Rights Act of 1965. 

And one recent example of partisan bias affecting Voting Section 

decision making is the preclearance of Georgia’s photo ID law. In 

2005 the legislature, in a vote that was sharply divided on both racial and partisan lines, passed a bill that required a person voting 

at the polls to present one of six specified forms of governmentissued photo ID. Those who didn’t have one would have to purchase 

one at the cost of $10. That was later raised to $20. The stated purpose of the bill was to prevent, quote, voter fraud, end quote. But 

40 

not only was there no evidence whatever of fraudulent in-person 

voting, but there were already sufficient criminal statutes on the 

books that could deal with the problem, which was not in fact a 

problem. 

The photo ID requirement would also have an adverse impact 

upon minorities, the elderly, the disabled and the poor. Cathy Cox, 

the former Secretary of State, has found that nearly 700,000 Georgians who were registered to vote lacked a driver’s license, which 

is the most commonly available form of photo ID. She also has 

found that voters who lacked photo ID were disproportionately elderly and minority. 

Today in 2007, the State’s own figures show that 50 percent of 

those on the voter registration list who do not have a driver’s license or Department of Drivers Services photo identification are 

African Americans. There are 22 counties that held special elections in 2007, and 58 percent of those on the voter registration list 

who did not have a driver’s license or identification were Black. 

Aside from its impact, there’s also evidence that the photo ID law 

had been enacted with a discriminatory purpose. 

Representative Sue Burmeister from Augusta, a chief sponsor of 

the bill, told staff members in the Voting Section that if Black people in her district, quote, are not paid to vote, they don’t go to the 

polls, end quote. And if fewer Blacks voted as a result of the photo 

ID requirement, it, quote, will only be because there is less opportunity for fraud. 

The Department of Justice approved Georgia’s photo ID bill despite the near unanimous recommendation of the career staff to object. And according to newspaper accounts, one of those who played 

a central role in overriding the recommendation of the career staff 

was Hans von Spakovsky, a Bush appointee and counsel to the Assistant Attorney General for Civil Rights. The staff recommendation was not only overridden, but the leadership of the Voting Section instituted a new rule prohibiting the career staff from making 

recommendations in the future whether or not to object to proposed 

voting changes. This was a reversal of long standing section policy 

and has the effect of marginalizing the career staff with their experience and expertise in administering section 5. And also, unfortunately, it would be easier now to make partisan-driven decisions by 

not having to override the recommendations of the staff. 

Not just the newspaper articles have made such reports but Joseph Rich, who served as chief of the Voting Section from 1999 to 

2005, described the failure to object to the Georgia photo ID bill as 

quote, the brazen insertion of partisan politics into the decision 

making under section 5, end quote. And Rich’s comments were 

echoed by Bob Kingle, a lawyer who spent 20 years in the Civil 

Rights Division and served as Deputy Chief of the Voting Section. 

Notably in 1994, Deval Patrick, the then-Assistant Attorney General in the Civil Rights Division, objected to a similar photo ID requirement from Louisiana. He concluded the State failed to carry 

its burden of proof, that the change would not have a retrogressive 

impact upon minority voters. 

And let me just conclude by saying that the Department of Justice’s preclearance of Georgia’s photo ID law and its continuing 

41 

1The Case for Extending and Amending the Voting Rights Act: Voting Rights Litigation, 

1982–2006 (ACLU; March 2006). 2 United States v. Charleston County and Moultrie v. Charleston County Council, 365 F.3d 

341 (4th Cir. 2004); United States v. Blaine County, Montana, 363 F.3d 897 (9th Cir. 2004). 3 I.e., a Georgia driver’s license, a Georgia ID card, a U.S. passport, a government employee 

ID card, a military ID, or a tribal ID. O.C.G.A. § 21–2–417. 

support of that decision undermine seriously the effective enforcement of the Voting Rights Act. 

Mr. NADLER. Are you finished? 

Mr. MCDONALD. I’m finished Mr. Chair. 

Mr. NADLER. I thank the gentleman. 

[The prepared statement of Mr. McDonald follows:] 

PREPARED STATEMENT OF LAUGHLIN MCDONALD

Mr. Chairman and members of the committee, thank you for inviting me to testify 

about the Voting Section of the Civil Rights Division of the Department of Justice. 

I would like to focus my remarks primarily on the role of the Voting Section in enforcing the special preclearance provisions of Section 5 of the Voting Rights Act. 

To put my remarks in context, I have been the director of the ACLU’s Voting 

Rights Project since 1972. As part of our work, we have brought litigation to enforce 

equal voting rights on behalf of racial and language minorities. During the recent 

hearings on extension and amendment of the Voting Rights Act, we submitted a report to Congress of the more than 290 voting cases we had been involved in since 

the last extension of Section 5 in 1982.1 That report, along with substantial other 

evidence before Congress, documented that discrimination in voting is not a thing 

of the past but a continuing problem. 

The Voting Rights Project has had direct contact with the Voting Section over the 

years involving Section 5 submissions. We have also participated with the Voting 

Section in vote dilution litigation brought under Section 2 of the Voting Rights Act, 

most recently in Charleston, South Carolina, on behalf of African Americans, and 

Blaine County, Montana, on behalf of American Indians.2 I have gotten to know 

many of the staff members of the Voting Section and have great respect for them 

and the work they have done. But unfortunately, recent revelations of partisan bias 

in the decision making of the Voting Section seriously undermine voting rights enforcement in this country. 

The Voting Section has a unique and major role in protecting voting rights. Aside 

from conducting administrative review of voting changes in jurisdictions covered by 

Section 5, it enforces the requirement that certain jurisdictions provide bilingual 

material and other assistance in voting to language minorities. It certifies jurisdictions for the assignment of federal observers to monitor elections. It undertakes investigations and litigation throughout the United States. It has the largest staff and 

resources of any entity in the country committed to protecting voting rights. It enforces the National Voter Registration Act, the Help American Vote Act, and the 

Uniformed and Overseas Citizens Absentee Voting Act. And, it defends against challenges to the constitutionality of the various voting rights laws enacted by Congress. 

The revelations of partisan bias in the Voting Section’s decision making, however, 

breed a lack of confidence and trust in the section. Partisan bias undermines the 

section’s effectiveness. It calls into question the section’s decisions about what to investigate and what kind of cases to bring. It calls into question the section’s decisions about where and why to assign federal observers. It creates a lack of confidence in Section 5 itself and the other special provisions of the Voting Rights Act. 

It is a clear signal that partisanship can trump racial fairness, and thus increases 

the likelihood that minorities will be manipulated to advance partisan goals. It also 

shifts the burden of enforcing voting rights upon those who have been the victims 

of discrimination and who have the least resources to remedy it. 

Congressional oversight is critical to restoring public trust and confidence in the 

Voting Section of the Department of Justice, and insuring that the nations’s voting 

laws are fairly and adequately enforced. 

One recent example of partisan bias infecting Voting Section decision making is 

the preclearance of Georgia’s photo ID law. In 2005, the Georgia legislature, in a 

vote sharply divided on racial and partisan lines, passed a new voter identification 

bill which had the dubious distinction of being one of the most restrictive in the 

United States. To vote in person—but not by absentee ballot—a voter would have 

to present one of six specified forms of government issued photo ID.3 Those without 

42 

4 Common Cause v. Billups, 406 F.Supp.2d 1326, 1361 (N.D. Ga. 2005). 

5 Id. at 1334. 

6Department of Justice, Voting Section, Section 5 Recommendation: August 25, 2005, p. 20. 

7 ‘‘Lawyers: State misinforms voters,’’ Athens Banner-Herald, October 17, 2006. 

8Section 5 Recommendation: August 25, 2005, p. 10. 

9 Id., p. 6. 

10 ‘‘Georgia voter ID memo stirs tension,’’ The Oxford Press, November 18, 2005. 11 ‘‘ID Bill Could Make Georgia Unique in Turn Away Voters,’’ The Macon Telegraph, March 

19, 2005; ‘‘Firebrand ‘Standing Up’: Legislator Makes no Apologies for her Convictions,’’ The Atlanta Journal-Constitution, March 24, 2005. 12 Common Cause, 406 F.Supp.2d at 1333–34. 13Lorraine C. Minnite, The Politics of Voter Fraud (Washington, D.C.; Project Vote, 2007), 5, 

8–9. 

such an ID would have to purchase one at a cost of $10 (later raised to $20). The 

stated purpose of the bill was to prevent ‘‘voter fraud,’’ 4 but not only were there 

laws already on the books that made voter fraud a crime, there was no evidence 

of fraudulent in-person voting to justify the stringent photo ID requirement. 

The new requirement would also have an undeniable adverse impact upon minorities, the elderly, the disabled, and the poor. 

The League of Women Voters and the American Association of Retired Persons 

estimated that 152,664 people over the age of 60 who voted in the 2004 presidential 

election did not have a Georgia driver’s license and were unlikely to have other 

photo ID.5 Governor Sonny Perdue himself estimated that approximately 300,000 

voting age Georgians did not have a driver’s license or state issued ID card.6 It was 

subsequently shown that 300,000 registered voters lacked a driver’s license or state 

issued photo ID.7 Getting a photo ID would not only burden those individuals, but 

would place a special burden on those living in retirement communities, assisted living facilities, and in rural areas. The problem was exacerbated further by the fact 

that while the state has 159 counties, there were only 56 Department of Motor Vehicle offices that issued drivers licenses or photo IDs, none of which were located in 

the City of Atlanta.8

According to the 2000 census, blacks in Georgia were nearly five times more likely 

not to have access to a motor vehicle than whites, and would thus be less likely to 

have a driver’s license or access to transportation to purchase a photo ID. The disproportionate impact of the photo ID bill on African American voters was clear, but 

that was apparently the reason some white legislators supported the measure. Representative Sue Burmeister (R-Augusta), a sponsor of the photo ID bill, advised officials in the Voting Section of the Department of Justice that ‘‘if there are fewer 

black voters because of this bill, it will only be because there is less opportunity for 

fraud. She said that when black voters in her black precincts are not paid to vote, 

they do not go to the polls.’’ 9 Burmeister was later quoted to the same effect in a 

local newspaper, that if black people in her district ‘‘are not paid to vote, they don’t 

go to the polls,’’ and if fewer blacks voted as a result of the photo ID bill it would 

only be because it ended voter fraud.10

Black members of the legislature were strongly opposed to the photo ID bill. During the legislative debate Senator Emmanuel Jones (D-Decatur) wore shackles to 

the well of the Senate, and Representative Alisha Thomas Morgan (D-Austell) 

brought shackles to the well of the House in protest over the bill’s potential to suppress the black vote.11

Secretary of State Cathy Cox wrote to Governor Perdue on April 8, 2005, and 

urged him not to sign the photo ID bill into law. ‘‘I cannot recall one documented 

case of voter fraud during my tenure as Secretary of State or Assistant Secretary 

of State that specifically related to the impersonation of a registered voter at voting 

polls,’’ she said. In her judgment the bill ‘‘creates a very significant obstacle to voting on the part of hundreds of thousands of Georgians, including the poor, the infirm and the elderly who do not have drivers licenses because they are either too 

poor to own a car, are unable to drive [a] car, or have no need to drive a car.’’ She 

described the justification for the bill as a measure to combat voter fraud as ‘‘a pretext.’’ 12 Despite his acknowledgment that hundreds of thousands of Georgians did 

not have a drivers license or ID card, Perdue signed the photo ID bill into law. 

A recent study by Prof. Lorraine C. Minnite of Department of Justice records 

shows that between 2002 and 2005, only 24 people nationwide were convicted or 

pleaded guilty to federal charges of illegal voting. This number includes 19 people 

who were ineligible to vote, five who were under supervision for felony convictions, 

14 who were not U.S. citizens, and five who voted twice in the same election. The 

report further found that the available state-level evidence of voter fraud, while not 

definitive, ‘‘is also negligible.’’ Prof. Minnite concluded that ‘‘[t]he claim that voter 

fraud threatens the integrity of American elections is itself a fraud.’’ 13

43 

14 ‘‘In 5-Year Effort, Scant Evidence of Voter Fraud,’’ The New York Times, April 12, 2007. 15 United States Elections Assistance Commission, Election Crimes: An initial Review and 

Recommendations for Future Study (Washington, D.C.; December 2006), 9, 16. 16 42 U.S.C. § 1973c. 17Section 5 Recommendation: August 25, 2005, p. 20. 18 ‘‘Official’s Article on Voting Law Spurs Outcry,’’ The Washington Post, April 13, 2005. 19 ‘‘Bush Picks Controversial Nominees for FEC,’’ The Washington Post, December 17, 2005. 20Publius, ‘‘Securing the Integrity of American Elections: The Need for Change,’’ 9 Texas Review of Law & Politics 278, 289–300 (2005). 21 A voting change has a discriminatory effect under Section 5 if it makes minorities worse 

off than under the preexisting rule or practice. Beer v. United States, 425 U.S. 130, 141 (1976). 22 ‘‘Staff Opinions Banned in Voting Rights Cases,’’ The Washington Post, December 10, 2005. 

See also Joseph D. Rich, Mark Posner and Robert Kengle, ‘‘The Voting Section,’’ in The Erosion 

of Rights: Declining Civil Rights Enforcement under the Bush Administration, ed. William L. 

Taylor, et al. (Wash., D.C.; Citizens’ Commission on Civil Rights, 2007), 38. 

The New York Times similarly reported that five years after the current administration launched a Ballot Access and Voting Integrity Initiative in 2002, it had 

turned up virtually no evidence of any organized effort to skew or corrupt federal 

elections.14 While there were a few instances of individual wrongdoing, most were 

the result of confusion about eligibility to vote. And most of those charged were 

Democrats. 

The United States Elections Assistance Commission (EAC) issued a report in December 2006, in which it also concluded that many of the allegations of voter fraud 

made in reports and books it analyzed ‘‘were not substantiated,’’ even though they 

were often cited as evidence of fraud. Overall, the report found ‘‘impersonation of 

voters is probably the least frequent type of fraud because it is the most likely type 

of fraud to be discovered, there are stiff penalties associated with this type of fraud, 

and it is an inefficient method of influencing an election.’’ 15

Georgia submitted its new photo ID bill for preclearance under Section 5 of the 

Voting Rights Act,16 and the Department of Justice approved it on August 26, 2005, 

despite the near unanimous recommendation by the career staff (4 out of 5) to object. The recommendation concluded that ‘‘the state has failed to meet its burden 

of proof to demonstrate that [the photo ID bill] does not have the effect of 

retrogressing minority voting strength.’’ 17

One of those who played a central role in overriding the recommendation of the 

career staff was Hans von Spakovsky, a Bush appointee and counsel to the Assistant Attorney General for Civil Rights.18 According to The Washington Post, ‘‘[c]areer 

Justice Department lawyers involved in a Georgia case said von Spakovsky pushed 

strongly for approval of a state program requiring voters to have photo identification,’’ and that the recommendation of staff lawyers to object to the state’s submission ‘‘was overruled by von Spakovsky and other senior officials in the Civil Rights 

Division.’’ 19

While employed in the Voting Section, Von Spakovsky had previously written an 

article for the Texas Review of Law & Politics, using the pseudonym ‘‘Publius,’’ in 

which he strongly endorsed photo ID requirements. He scoffed at the critics of photo 

IDs and dismissed the evidence of discriminatory impact against minority groups, 

such as African-Americans, as ‘‘merely anecdotal’’ and ‘‘unsubstantiated.’’ One of his 

recommendations was to ‘‘require all voters to present photo identification at their 

precinct polling locations.’’ 20 There does not appear to be a benign explanation for 

von Spakovsky’s anonymity. Instead, it seems designed to prevent the public and 

those with business before the Voting Section from knowing the views of one of the 

senior officials involved in the preclearance process. 

Not only was there evidence that the Georgia photo ID bill had been enacted with 

a discriminatory purpose, i.e., to suppress the minority vote, but its effect would 

clearly be retrogressive within the settled meaning of Section 5.21 In any event, the 

career staff’s entirely defensible conclusion that the state had failed to carry its burden of showing the absence of a discriminatory effect was overridden. 

The staff recommendation was not only overridden, but the leadership of the Voting Section instituted a new rule prohibiting the career staff from making recommendations in the future whether or not to object to proposed voting changes.22

This was a reversal of long standing section policy and marginalized the career staff 

with its experience and expertise in administering Section 5. But it would obviously 

be easier to make partisan driven decisions by not having to override the recommendations of the career staff. 

Notably, in 1994 Deval L. Patrick, the then Assistant Attorney General in the 

Civil Rights Division, objected to a photo ID requirement from Louisiana essentially 

identical to the one from Georgia. Based upon evidence that ‘‘black persons are four 

to five times less likely than white persons in the state to possess a driver’s license 

44 

23Deval L. Patrick, Assistant Attorney General, to Sheri Marcus Morris, Assistant Attorney 

General, November 21, 1994. 24O.C.G.A. § 40–5–103(a). 25Laughlin McDonald, ACLU Southern Regional Office, to John Tanner, Chief, Voting Section, September 2, 2005. 26 John Tanner, Chief, Voting Section, to Laughlin McDonald, ACLU Southern regional Office, 

October 11, 2005. 27 Harper v. Virginia State Bd. Of Elections, 383 U.S. 663, 668 (1966). 28Testimony of Joseph D. Rich, Oversight Hearing of the Civil Rights Division, House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, March 22, 2007. 29 Bob Kengle, ‘‘Why I Left the Civil Rights Division.’’ 30 Voinovich v. Quilter, 507 U.S. 146, 153–54 (1993). 31 Bone Shirt v. Hazeltine, 336 F.Supp.2d 976, 987–1017 (D. S.D. 2004). 32 ‘‘Suit slams voter ID law,’’ The Atlanta Journal-Constitution, September 20, 2005. 

or other picture identification card,’’ Patrick concluded the state failed to carry its 

burden of proof that the change would not have retrogressive impact upon minority 

voters.23

Shortly before DOJ precleared the Georgia photo ID bill, the legislature passed a new law increasing the fee for a five year photo ID card to $20, and a ten years 

card to $35.24 On September 2, 2005, the ACLU wrote a letter to John Tanner, the 

Chief of the Voting Section, noting that the fee increase imposed yet an additional 

and disparate burden upon racial and language minorities, and warranted a reconsideration of the preclerance decision. The ACLU also pointed out that the changes 

were being implemented absent compliance with Section 5 and their further use 

should be enjoined.25 Tanner declined to take any action and, despite the obvious 

impact the new law would have on minority voting rights, said in response that the 

amount a state charged for a drivers license was not ‘‘a change affecting voting 

within the meaning of [Section 5].’’ 26 Such logic was explicitly rejected by the Supreme Court in its 1966 decision invalidating Virginia’s poll tax for state elections. 

The Court acknowledged a state could charge a fee for drivers and other kinds of 

licenses, but rejected the argument that payment of any fee for voting was constitutional.27 The increase in the fee for a document required by the state to vote was 

in fact a change affecting voting. 

Joseph Rich, who served as Chief of the Voting Section from 1999–2005, in testimony before a congressional committee described the failure to object to the Georgia 

photo ID bill as ‘‘the brazen insertion of partisan politics into the decision-making 

under Section 5.’’ 28 Rich’s comments were echoed by Bob Kengle, a lawyer who 

spent twenty years in the Civil Rights Division and served as Deputy Chief of the 

Voting Section. He left the section in 2005, he said, after reaching a ‘‘personal 

breaking point’’ precipitated by ‘‘institutional sabotage . . . from political appointees,’’ ‘‘partisan favoritism,’’ and the Administration’s ‘‘notorious’’ Georgia Section 5 decision and its pursuit of ‘‘chimerical suspicions of vote fraud.’’ 29

The Voting Section has failed to object to other discriminatory voting changes, including 2001 legislative redistricting in South Dakota. The boundaries of District 27 

that included Shannon and Todd Counties, which are covered by Section 5, were 

only slightly altered, but the demographic composition of the district was substantially changed. American Indians were 87% of the population of District 27 under 

the 1991 plan, and the district was one of the most underpopulated in the state. 

Under the 2001 plan, Indians were 90% of the population, while the district was 

one of the most overpopulated in the state. The new plan was more than arguably 

retrogressive within the meaning of Section 5 because it ‘‘packed,’’ or over-concentrated, Indians compared to the pre-existing plan. Packing is one of the recognized methods of diluting minority voting strength.30 The Department of Justice, 

however, precleared the new plan under Section 5. Tribal members subsequently 

challenged the plan under Section 2 and the court, making detailed and lengthy 

findings of past and continuing discrimination against Indians, invalidated it as diluting Indian voting strength.31

A challenge to the Georgia photo ID law was filed by a coalition of groups, the 

response to which underscored how sharply polarizing the new law was. Former 

President Jimmy Carter called the law a ‘‘disgrace to democracy,’’ and said ‘‘it is 

highly discriminatory and, in my personal experience, directly designed to deprive 

older people, African-Americans and poor people of a right to vote.’’ House Speaker 

Glenn Richardson (R-Hiram), however, called the lawsuit ‘‘ludicrous’’ and an example of ‘‘liberal special interests using unconscionable scare tactics to frighten Georgia 

voters.’’ 32

On October 18, 2005, the federal court preliminarily enjoined use of the photo ID 

law on the grounds that it was in the nature of a poll tax, as well as a likely violation of the equal protection clause of the Fourteenth Amendment. The court exVerDate Aug 31 2005 14:22 Jan 27, 2009 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6621 H:\WORK\CONST\103007\38637.000 HJUD1 PsN: DOUGA
45 

33 Common Cause, 406 F.Supp.2d at 1365. 34 Common Cause, 406 F.Supp.2d at 1364. 35 Citizens without Proof: A Survey of Americans’ Possession of Documentary Proof of Citizenship and Photo Identification, Brennan Center for Justice at NYU School of Law, November 

2006. 36 News Release from Cathy Cox, June 19, 2006. 37 Common Cause/Georgia v. Billups, 504 F.Supp.2d 1333, 1361 (N.D. Ga. 2007). 38 Id. at 1377, 1381. 39TPMmuckraker.com, ‘‘DoJ Vote Chief Argues Voter ID Laws Discriminate against Whites,’’ 

October 9, 2007. 40 Common Cause, 406 F.Supp.2d at 1375. 41 ‘‘DoJ Vote Chief Argues Voter ID Laws Discriminate against Whites.’’ 

pressly found the law ‘‘is most likely to prevent Georgia’s elderly, poor, and AfricanAmerican voters from voting.’’ 33

The court also noted that the Virginia poll tax invalidated by the Supreme Court was $1.50, while the fee for a photo ID for voting in Georgia was $20. The fee could 

be waived if a voter signed an affidavit that he or she was indigent and could not 

pay the $20, but the court concluded the waiver ‘‘does not reduce the burden that 

the Photo ID requirement imposes on the right to vote.’’ 34

A recent survey sponsored by the Brennan Center for Justice at the NYU School 

of Law concluded that 25% of African-American citizens of voting age have no current government issued photo ID, compared to 8% of white citizens of voting age.35

Based on the 2000 census, this amounts to more than 5.5 million African American 

adult citizens without photo ID. The effect of photo ID laws in suppressing black— 

and thus Democratic—political participation is apparent. The survey also shows 

that the elderly and the poor are similarly adversely affected by photo ID requirements. 

Cathy Cox released a report in June 2006, based on a comparison of the state’s 

files of registered voters and persons issued valid driver’s licenses. The study found 

nearly 700,000 Georgians who were registered to vote lacked a drivers license, the 

most commonly available form of photo ID for in-person voting. The study, Cox said, 

‘‘provides powerful new evidence that supports the objections I’ve raised against the 

photo ID requirement from the outset—that huge numbers of Georgians are in jeopardy of being shut out of the voting process and having their voices silenced.’’ 36 Cox 

issued another press release on June 23, 2006, that the voters who lacked a photo 

ID were disproportionately elderly and minority.37

Despite its grant of a preliminary injunction, the district court ultimately dismissed the complaint in the Georgia case concluding none of the plaintiffs had 

standing, the state was not required to document ‘‘in-person voter fraud exist[s] in 

Georgia,’’ the burden the law imposed on voters was not ‘‘significant,’’ and the photo 

ID requirement was ‘‘rationally related’’ to a legitimate state interest.38 The plaintiffs have filed a notice of appeal. 

John Tanner, in recent remarks before the National Latino Congreso in Los Angeles, defended the preclearance of Georgia’s photo ID law by claiming in ‘‘Georgia, 

the fact was and the court found that it was not racially discriminatory. That was 

the finding of the initial court.’’ 39 The court, however, made no such finding. It did 

not reach the merits of plaintiffs’ claim that the law violated the racial fairness provisions of Section 2 of the Voting Rights Act, but instead said it ‘‘reserves a final 

ruling on the merits of that claim for a later date.’’ 40 Even in its final opinion on 

the merits, the court did not rule on the plaintiffs’ Section 2 race discrimination 

claim. 

Tanner also claimed ‘‘the minorities in Georgia statistically, slightly, were more 

likely to have ID’’ than whites.41 Again, he was wrong. He was apparently relying 

on figures compiled by the Georgia Department of Driver Services (DDS), which 

were recited in an October 7, 2005, letter from William E. Moschella, Assistant Attorney General, to Sen. Christopher S. Bond, responding to questions about the department’s preclearance of the Georgia photo ID law. According to Moschella, ‘‘DDS 

has racial data on nearly 60 percent of its license and identification holders. Of 

those individuals, 28 percent are African-American, a percentage slightly higher 

than the African-American percentage of the voting age population in the Georgia.’’ 

Those numbers, however, say nothing about those who did not possess a DDS license or identification, nor the 40% of those on the DDS list who were not racially 

identified. 

But more to the point, Tanner failed to note that the Georgia Secretary of State 

compared the state voter registration list with the DDS list and concluded that 

49.75% of those on the voter registration list who did not have a DDS license or 

identification were black. In the 22 counties holding special elections in 2007, 

57.92% of those on the voter registration list who did not have a DDS license or 

46 

42 Common Cause/Georgia, Def. Ex. 35. 43 Crawford v. Marion County Election Board, 472 F.3d 949 (7th Cir. 2007). 44 Id. at 954. 45 Id. at 951. 46 Id. at 955. 47 Id. at 951. 48 Id. at 952. 49 Id. at 953, 955. 50 1882 S.C. Acts 1115–120, No. 717. 51 Edward McCrady, ‘‘The Necessity for Raising the Standard of Citizenship and the Right of 

the General Assembly of the State of South Carolina to Impose Qualifications Upon Elections’’ 

(1881), quoted in George Tindall, South Carolina Negroes 1877–1900 (Columbia: U. S.C. Press, 

1952), 67. 52 Evans, S.C. Con. Con. Journal (1895), 12, quoted in J. Morgan Kousser, Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880–1910 

(New Haven: Yale U. Press., 1975), 255. 53Mr. O’Neal, in Ala. Con. Con. Proceedings (1901), vol. 3, p. 2780, quoted in Kousser (1975), 

263. 

identification were black.42 The state’s own figures thus show black voters are disproportionately affected by the photo ID requirement. 

Other states have also adopted photo ID requirements for in person voting. Indiana adopted such a law in 2005, which requires persons voting in person to present 

a valid photo ID issued by the United States or the State of Indiana. The law was 

challenged in federal court but was upheld by the district court. In a divided opinion, the Court of Appeals for the Seventh Circuit affirmed.43 Judge Evans, however, 

in a dissenting opinion, said ‘‘the Indiana voter photo ID law is a not-too-thinlyveiled attempt to discourage election-day turnout by certain folks believed to skew 

Democratic.’’ 44 The majority opinion also acknowledged there is ‘‘[n]o doubt most 

people who do not have photo ID are low on the economic ladder and thus, if they 

do vote, are more likely to vote for Democratic than Republican candidates,’’ and 

that ‘‘the new law injures the Democratic Party.’’ 45

As Judge Evans further pointed out, the Indiana ‘‘law will make it significantly 

more difficult for some eligible voters . . . to vote—and this group is mostly comprised of people who are poor, elderly, minorities, disabled, or some combination 

thereof.’’ 46 The majority opinion also conceded ‘‘the Indiana law will deter some people from voting.’’ 47 Thus, the challenged law has the effect, and according to Judge 

Evans ‘‘a not-too-thinly-veiled’’ purpose, of discouraging voting by those believed to 

vote Democratic, and it will make it significantly more difficult for some voters, including racial minorities, to vote on election day. 

The stated rationale for the Indiana law, as was the case in Georgia, was ‘‘to reduce voting fraud.’’ 48 But it was conceded by the state, and found by the lower 

court, that no one in the history of Indiana had ever been charged, much less convicted, of the crime of fraudulent in-person voting.49

The plaintiffs filed a petition for a writ of certiorari in the Indiana case, which 

was granted. Oral arguments will likely be heard next year. In the meantime, the 

parties in the Georgia photo ID case have requested the Eleventh Circuit to stay 

the appeal pending a final decision by the Supreme Court. 

Unfortunately, the history of voting in the United States is replete with other examples, similar to the photo ID laws in Georgia and Indiana, of efforts to 

disfranchise voters for partisan and racial reasons. And many of them have also 

masqueraded as attempts to prevent voter fraud, insure the integrity of the electoral 

process, or advance a reasonable state interest. 

Edward McCrady, a legislator and historian from Charleston, South Carolina, was 

the author of a number of stringent restrictions on voting adopted by the state legislature in 1882, including the infamous Eight Box Law which imposed the functional 

equivalent of a literacy test for voting.50 Eight separate ballot boxes, appropriately 

labeled, were provided for local, state, and national offices. In order to cast a valid 

ballot, each voter had to read the labels and put the ballot in the proper box. Although the McCrady laws were understood to be a legally acceptable way to dilute 

the black and Republican vote, McCrady touted them as good government election 

reform. He published a pamphlet the year before in which he urged a return to the 

limited franchise concept of the eighteenth century. ‘‘Raise the standard of citizenship,’’ he wrote, ‘‘raise the qualifications of voters. But, raise them equally. If we 

are the superior race we claim to be, we, surely, need not fear the test.’’ 51 Governor 

John Gary Evans later urged the members of the South Carolina Constitutional 

Convention of 1895 to enact a literacy test for voting, ‘‘for only the intelligent are 

capable of governing.’’ 52 Other southern politicians of the post-Reconstruction era, 

including a future governor of Alabama, similarly touted restrictions on the franchise as a way to ‘‘make permanent and secure honest and efficient government.’’ 53

47 

54 Charles Seymour and Donald Paige Frary, How the World Votes: The Story of Democratic 

Development in Elections, 2 volumes (Springfield, Mass.; C.A. Nichols Co., 1918), 1:12–13, 2: 

320–21. 55See Breedlove v. Suttles, 302 U.S. 277, 283–84 (1937) (upholding Georgia’s poll tax, enacted 

by Democrats in the aftermath of Reconstruction, as ‘‘a familiar and reasonable regulation long 

enforced in many states’’), and Lassiter v. Northhampton County Bd. of Elections, 360 U.S. 45, 

54 (1959) (upholding North Carolina’s literacy test for voting, first enacted by a Democratic controlled legislature in 1900, as ‘‘designed to promote intelligent use of the ballot,’’ and advancing 

‘‘the desire of North Carolina to raise the standards for people of all races who cast the ballot’’). 56 Ratliff v. Beale, 74 Miss. 247, 20 So. 865, 868–69 (1896). 57See Harper v. Virginia State Board of Elections, 383 U.S. 663, 666 n.3 (1966) (invalidating 

Virginia’s poll tax for state elections and noting ‘‘[t]he Virginia poll tax was born of a desire 

to disenfranchise the Negro’’) (quoting Harman v. Forssenius, 380 U.S. 528, 543 (1965)); South 

Carolina v. Katzenbach, 383 U.S. 301, 333–34 (1966) (the suspension of literacy tests in jurisdictions covered by Section 5 of the Voting Rights Act was appropriate because ‘‘in most of the 

States covered by the Act . . . various tests and devices have been instituted with the purpose 

of disenfranchising Negroes, have been framed in such a way as to facilitate this aim, and have 

been administered in a discriminatory fashion for many years’’). See also V. O. Key, Jr., Southern Politics in State and Nation (Knoxville: U. of Tenn. Press, 1984), 555 (the poll tax and literacy tests were ‘‘legal means of accomplishing illegal discrimination’’ against black voters). 58 Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). 

Restrictions on the franchise continued to gain support after the turn of the nineteenth century. Two historians did a survey of voting attitudes in 1918, and concluded ‘‘the theory that every man has a natural right to vote no longer commands 

the support of students of political science.’’ They believed ‘‘if the state gives the 

vote to the ignorant, they will fall into anarchy to-day and into despotism tomorrow.’’ 54

The Supreme Court initially upheld poll taxes and literacy tests as good government measures.55 There is no dispute, however, that both were adopted by the exConfederate states as ‘‘expedients to obstruct the exercise of the franchise by the 

negro race.’’ 56 In recognition of that fact, the Supreme Court later reversed itself 

and invalidated poll taxes, while Congress, by passage of the Voting Rights Act of 

1965, banned literacy and other test for voting because they had been adopted and 

administered with the discriminatory purpose of disfranchising minority voters.57

More than a century ago the Supreme Court described the right to vote as ‘‘preservative of all rights.’’ 58 The white South understood that well enough, and in the 

years following Reconstruction disfranchised black voters as a way of depriving 

them of rights and maintaining white supremacy. Some of today’s political office 

holders apparently believe that to maintain their dominance they too must suppress 

the minority vote. In doing so, they are repeating one of the most disgraceful chapters in our nation’s history of voting rights. Unfortunately, the Department of Justice’s preclearance of Georgia’s photo ID law, and its continuing support of that decision, lend support to these modern disfranchising efforts. 

CONCLUSION

The revelation of partisan bias in the Voting Section’s decision making has seriously undermined voting rights enforcement in the country. It has created a lack 

of confidence and trust in the section, and has undermined its effectiveness. It has 

called into question the section’s decisions about what to investigate, what kind of 

cases to bring, and where to assign federal observers. As important, it has created 

a lack of confidence in Section 5 and the other special provisions of the Voting 

Rights Act, and increased the likelihood that minorities will be manipulated to advance partisan goals. It has also shifted the burden of enforcing voting rights to minorities in contravention of congressional purpose in enacting the Voting Rights Act. 

Congressional oversight is critical to restoring public trust and confidence in the 

Voting Section of the Department of Justice, and insuring that the nations’s voting 

laws are fairly and adequately enforced. 

Mr. NADLER. The Chair will now recognize Mr. Moore for 5 minutes. 

TESTIMONY OF TOBY MOORE, FORMER POLITICAL GEOGRAPHER AND REDISTRICT EXPERT, VOTIING SECTION, CIVIL 

RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE 

Mr. MOORE. Mr. Chairman and Members of the Committee, 

thank you for the opportunity to speak about my experiences as the 

geographer of the Voting Section of the Civil Rights Division from 

48 

2000 to 2006. My service in the section was the highlight of my 

professional career. For a White southerner, born a year after the 

passage of the Voting Rights Act, and having devoted my career to 

studying both the South’s sad racial history and its remarkable 

progress enforcing a Federal law born on the Edmund Pettus 

Bridge in Selma, Alabama was a high honor indeed. 

I’m also somewhat uncomfortable testifying. I had a very friendly 

relationship with John Tanner for most of the time I worked with 

and for him. And speaking publicly about internal DOJ deliberations is not something I do lightly. Nonetheless, I hope that my experience at the ground level of Voting Section enforcement may be 

of some value to you in your oversight duties. 

Mr. Tanner’s public comments earlier this month in Georgia and 

California could be overlooked if they were merely off-the-cuff remarks. Unfortunately, for minority voters and, unfortunately, the 

Department of Justice, the comments are actually a fair example 

of Tanner’s approach to facts, the truth and the law. Broad generalizations, deliberate misuse of statistics and casual supposition, 

in my experience, were preferred over the analytical rigor, impartiality and scrupulous attention to detail that had marked the work 

of the section prior to Tanner taking control in 2005. 

This decline and the myriad of other problems that have developed in the section over the past several years are a direct result 

of the actions of political appointees, such as Hans von Spakovsky 

and Bradley Schlozman. It has left behind a demoralized section, 

a growing list of lost court cases and a severely diminished public 

trust in Federal voting rights enforcement. 

While my written testimony discusses problems with other matters, including enforcement of section 203 and the Ohio investigation of 2004, in the interest of time I will focus here on the Georgia 

ID investigation. 

While it’s not my intent to debate the merits of the voter ID 

laws, I would like to point out that even by the standards of subsequent voter ID laws, the Georgia law in 2005 was a nasty piece of 

legislation. No State endeavoring to pass a photo ID law now is 

considering the kind of draconian restrictions that DOJ endorsed in 

Georgia in August of 2005, the restrictions that President Carter 

and Secretary Baker explicitly labeled as discriminatory when I 

worked for the Carter-Baker Commission at American University. 

Personally, I think that the issue is overblown on both sides, but 

clearly history as well as the Federal and State courts will record 

that the 2005 Georgia ID law, precleared by the Department of 

Justice, was a discriminatory one. 

All of us assigned to the investigation realized that the Department was almost certain to preclear it. Given the oft-stated views 

of von Spakovsky and Tanner’s eagerness to please him, none of us 

thought the Department would lodge an objection. We simply wanted to do our jobs. That we were not allowed to do so demonstrates 

how the mission of the section has shifted from a search for evidence to support decision making to a search for evidence to support decisions already made. 

I only have time to mention a few of the statistical errors, procedural violations, and misrepresentations that I discuss more fully 

in my written testimony. 

49 

First, it is not true that racial data from the Georgia Department 

of Drivers Services indicated that Blacks were more likely than 

Whites to have ID. It was not true in any of the data submissions 

from the State. The only way you reach that conclusion is if you 

include hundreds of thousands of noncitizens who are not Black in 

your comparison. 

Mr. Tanner compares the number from the DDS to the VAP, and 

not the citizen VAP, which is the more appropriate comparison if 

you are to use that data at all. And there are reasons in my written system why I don’t think the data is trustworthy at all. 

It is not true that minority voters die before growing old. What 

this misses is the fact that Black voters in Georgia who are elderly 

are more likely to be impoverished, and therefore I think more likely not to have ID. This data that Laughlin referred to from Georgia 

in July of 2007, in fact, shows that African Americans make up 40 

percent of those elderly voters who lack ID. 

Behind all great lies is a kernel of truth. It is not true that Tanner’s pioneering actuarial theory was ever part of the 2005 analysis 

but is instead a post hoc justification for an unjustifiable decision. 

It is not true that we were not reprimanded. We were each called 

into the office, one by one, and told that our performance during 

the Georgia ID was not up to the standards of the section. It did 

not result, in my case, in any letter of reprimand but we were certainly reprimanded. And Mr. Tanner needs to correct that statement. 

It is not true that a group of prominent law professors made racist statements about the impact of the ID law, which Mr. Tanner 

dismissed as bizarre and offensive. And it’s not true that we did 

not consider the poll tax. Mr. Ellison’s questions, the IDs were not 

free under the 2005 law. It was only under the subsequent 2006 

law that the IDs were made free. 

To wrap up, John Tanner is both the cause and effect of the politicizing of the Civil Rights Division and should not be allowed to 

hide behind a career status watch which he has abjured by his actions. Until someone in the Department, in this Administration or 

the next, admits to the mistakes of the past several years and restores credible leadership, the Voting Section of the Civil Rights Division will remain a wounded institution. How long will the Department of Justice tolerate chronic mismanagement simply to 

save face? 

Thank you for your attention to this matter and for the opportunity to testify. I would, of course, be happy to answer any questions. 

Mr. NADLER. I thank the gentleman. 

[The prepared statement of Mr. Moore follows:] 

50 

PREPARED STATEMENT OF TOBY MOORE


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Mr. NADLER. Mr. Driscoll is now recognized for 5 minutes. 

TESTIMONY OF ROBERT N. DRISCOLL, PARTNER, 

ALSTON AND BIRD 

Mr. DRISCOLL. Thank you, Chairman Nadler, Members of the 

Subcommittee, for the opportunity to discuss the important work of 

the Civil Rights Division and particularly the Voting Section. I just 

want to touch upon a few areas and I will deviate from my written 

remarks a little bit to respond a little bit to what’s been said. I 

think this is a constructive dialogue, and this panel in particular 

can be very helpful to Members of the Committee and to the public 

in terms of how voting rights enforcement works. 

We’ve got a Subcommittee here, Members are also of the full 

Committee, that has great influence on the laws of this country 

and what they are. And at the end of the day it’s the Members of 

Congress that set what those laws are. And I think that’s something that we all have to keep in mind when we’re complaining 

about voter purges or things like that, that might be required 

under, for example, the NVRA. If there are provisions like that 

that are a problem, everyone needs to know that. 

We’ve got former career employees, such as Dr. Moore, testifying 

today. And career employees are the backbone of the division. They 

work for a long time. People like Mr. Tanner worked for 30 years 

in the division enforcement laws passed by Congress. And everyone 

needs to understand the valuable work they do. I think Dr. Moore 

here as well, I think, provides a service to some of us, at least by 

making clear that the notion of career and nonpartisan are not 

equivalent and that career employees can have just as many partisan leanings as any political appointee to ever come down the 

pike. 

We have adversary groups, such as Mr. McDonald and Ms. 

Fernandes represent, the ACLU leadership conference, and they 

have a valuable role to play. They come to the Department, come 

to Congress, encourage the Department to enforce the laws and 

point out where the Department’s not doing a good job. 

However, I think people need to keep in mind not doing what an 

adversary group wants is not tantamount to failing to enforce the 

civil rights laws. I think Mr. McDonald and Ms. Fernandes would 

admit, if Members would question them, they’re opposed to voter 

ID laws, period. As a matter of policy. It’s a perfectly valid policy 

position to take. But their groups do not need one piece of data or 

evidence to reach the conclusion that the Georgia ID law was objectionable. So what then needs to happen under Georgia section 5 

preclearance is that in light of that entire constellation of statutes 

passed by Congress, regulations enforced by the Department, data 

submitted by the State, data submitted by adversary groups, and 

analyses prepared by career staff, it comes down to the Assistant 

Attorney General, who is confirmed by the Senate, congressionally—presidentially appointed, congressionally approved member of 

the Department who has to eventually make the call. 

And that leads to the final point I would like to make, which I 

think just to—from an institutional perspective.. I say this not as 

a former Republican appointee, but I say it as someone with a 

great affection for the Department. I think it is extremely risky inVerDate Aug 31 2005 14:22 Jan 27, 2009 Jkt 000000 PO 00000 Frm 00064 Fmt 6633 Sfmt 6601 H:\WORK\CONST\103007\38637.000 HJUD1 PsN: DOUGA
59 

stitutionally to call people like Mr. Tanner before this Committee 

and to question them as he was questioned in the first panel this 

morning. He’s a career employee. He’s dedicated his life to trying 

to enforce the laws as best he can. And at the end of the day, the 

responsibility for what the Department does lies with the Attorney 

General, lies with the Assistant Attorney General for Civil Rights. 

And I have no problem at all if this Committee or any Committee 

wants to call a political appointee before them and read them the 

riot act. But I think when the parties are reversed or there’s a different Administration in power, people could regret the precedent 

that was set today of taking someone who’s a career employee, who 

is not ultimately the one who has to make the final call on something like Georgia ID before a Committee like this. 

So again, I thank—these are the main points I would like to 

make. I look forward to engaging in dialogue with Members of the 

Subcommittee. And I think this can be an incredibly productive 

hearing. Thank you very much. 

Mr. NADLER. I thank the gentleman. 

[The prepared statement of Mr. Driscoll follows:] 

PREPARED STATEMENT OF ROBERT N. DRISOCLL

Thank you, Chairman Nadler and members of the Subcommittee for the opportunity to discuss the important work of the Department of Justice’s Civil Rights Division. 

My name is Bob Driscoll and I am currently a partner at Alston & Bird LLP, here 

in Washington. From 2001 to 2003, I had the honor of serving as Deputy Assistant 

Attorney General in the Civil Rights Division of the Department of Justice. During 

that time I worked on a variety of issues, including racial profiling guidance to federal law enforcement, desegregation, and police misconduct. 

My testimony today will touch on a few areas. First, I’ll discuss the work that 

the Civil Rights Division does in the voting area, and the need to balance voters’ 

access to the polls with ensuring ballot integrity. Second, I would also like to discuss 

the issue of advocacy before the Civil Rights Division. And lastly, I’ll talk about the 

role of career employees in the Civil Rights Division. 

THE NEED TO BALANCE VOTER ACCESS TO THE POLLS WITH

ENSURING BALLOT INTEGRITY. 

In my view, it is critical that the Civil Rights Division strike a balance between 

ensuring that voters have access to the polls and protecting the integrity of ballots 

cast. The failure to adequately address either of these area results in effectively 

disenfranchising rightful voters. 

Honest voter registration lists are a requirement to ensure that honest votes are 

being cast. If an outdated or inaccurate voter registration list is used, this could result in allowing someone to vote who should be not voting. This effectively results 

in the disenfranchisement of honest votes. 

One of the most important rights in this country is to have one’s vote counted. 

If an improper or unlawful vote is cast, a legitimate voter’s choice is cancelled by 

someone who ought not to be voting. In addition, it is likely to increase voter turnout if voters know their vote will count and will not be diluted by improper or unlawful votes. 

As an example of this principle, Congress has required that states ensure that applicants are citizens of the United States before registering to vote. This is not an 

issue of whether one favors or disfavors more or less immigration. As a descendant 

of Irish immigrants who has married into a family of Cuban immigrants, I am certainly not anti-immigration in any way. It is the simple matter of making sure that 

only people entitled to vote do so. To do otherwise does not honor and respect those 

immigrants who have entered the country legally and properly earned the precious 

right to vote that so many have fought to achieve and maintain. 

Although to the uninitiated, these principles might sound non-controversial, in 

fact there has been substantial disagreement about whether the Department of Justice has gone too far in enforcing these provisions. I find it remarkable that the Department has come under criticism for enforcing the law that Congress has passed 

60 

and the President has signed. While I think the law represents good public policy, 

it seems to me that those who disagree on that point should seek to amend the statutes in question, rather than criticize the Department of Justice for enforcing existing law. 

The NVRA specifically requires that the following two ‘‘yes/no’’ questions be answered on a voter registration form: ‘‘Are you a citizen of the United States of America?’’ and ‘‘Will you be 18 years of age on or before election day?’’ Under the NVRA, 

if the citizenship question is not answered, the voter registrar ‘‘shall notify the applicant of the failure and provide the applicant with an opportunity to complete the 

form in a timely manner to allow for the completion of the registration form prior 

to the next election for Federal office (subject to State law).’’ 

Despite the clear language in this provision that requires individuals to answer 

the citizenship question before their voter registration can be accepted by election 

officials, many states have ignored the law, and have continued to register applicants who do not answer the citizenship question. 

I believe that the Subcommittee must recognize that illegally cast ballots dilute 

the vote of legally cast ballots, just as much as if those voters had been denied access to the polls. I could not disagree more strongly with those critics who seem to 

suggest that non-enforcement of any laws having to do with voter integrity is consistent with the advancement of civil rights. To the contrary, permitting or ignoring 

unauthorized or illegal voting is just as egregious as permitting a jurisdiction to 

deny a legal voter the right to vote. 

ADVOCACY BEFORE THE CIVIL RIGHTS DIVISION. 

I’d like to discuss now the issue of advocacy before the Civil Rights Division. 

There are interest groups that advocate for particular results from the Civil Rights 

Division, and then publicly complain when they don’t get their desired results. I 

think much of this criticism is unfounded. 

The simple fact that the Civil Rights Division doesn’t agree with everything advocated for by these groups does not mean that the Division isn’t doing its job. While 

the Division may listen to the views of different interest groups, it is the Division’s 

job to apply the laws passed by Congress to the facts and circumstances of each 

case. 

The Division would not be doing its job if it simply parroted the views of different 

advocacy groups. Indeed, in Miller v. Johnson, 515 U.S. 900 (1995), the Supreme 

Court held that when the Justice Department tried to impose an ACLU redistricting 

plan on Georgia rather than applying the laws to the redistricting plans proposed 

by Georgia, that the Department had ‘‘expanded its authority under the statute beyond what Congress intended.’’ The Supreme Court also recognized the District 

Court’s ‘‘sharp criticism’’ of the Justice Department for its close cooperation with the 

ACLU on the redistricting at issue in the litigation. The District Court’s decision 

detailed the ACLU’s intense advocacy of the Civil Rights Division on the Georgia 

redistricting at issue, observing that ‘‘Succinctly put, the considerable influence of 

ACLU advocacy on the voting rights decisions of the United States Attorney General 

is an embarrassment.’’ Johnson v. Miller, 864 F.Supp. 1354, 1368 (S.D.Ga.1994). 

The fact that the Division does not take every action requested by advocacy 

groups indicates that the Division is taking its role seriously, and that it reviews 

issues independently. 

THE ROLE OF CAREER EMPLOYEES. 

I have noted some criticism of career employees of the Division. I find this criticism unfortunate. It is my experience that the Division’s career employees do their 

best to enforce the laws that Congress has passed to the best of their abilities. Career staff historically have not been subject to Congressional oversight hearings. 

As in every Division of the Department, in the Civil Rights Division, the career 

staff carries out the day-to-day operations of the Division, litigates existing cases, 

and makes recommendations to open new cases. There is no question that the career staff is where the institutional knowledge of the Division generally resides and 

is a resource that any appointee should draw upon frequently. However, it is the 

Assistant Attorney General for Civil Rights and the leadership of the Department 

who are ultimately responsible for the actions of the Division. This is a tremendous 

responsibility for the AAG and his or her immediate staff—as it is the AAG who 

will sit before this Committee and explain the Division’s position on controversial 

issues. 

Because of this responsibility, the AAG and his or her staff must independently 

review, and therefore will sometimes disagree with, the recommendations of career 

staff. There is nothing inherently wrong with this—indeed, I think the Committee 

61 

would not react well to an Assistant Attorney General who testified that he reached 

no conclusions that differed in any way from the recommendations presented to him. 

Such a ‘‘rubber-stamp’’ approach would be, and should be, justly criticized. 

Similarly, when the Division makes a mistake—as it did in Torrance, California 

when it was sanctioned nearly 1.8 million dollars for overreaching in an employment case—it would be no excuse for the AAG to say: ‘‘I was merely following the 

recommendations of the career staff.’’ Therefore, it is the responsibility to ‘‘get it 

right’’ that obligates the AAG and his or her staff to closely scrutinize the recommendations that come before them. 

The important question for the Committee is whether a particular decision to proceed (or not) with a case was correct. The Committee should focus on the quality 

of the Division’s decisions and hold the political appointees accountable when issues 

arise. It seems to me that it is harmful to the Department from an institutional perspective to bring career employees such as Mr. Tanner up to be questioned by the 

Subcommittee about their reasoning in matters that may be controversial. Although 

some may sense a political opportunity to criticize him today, the questioning of a 

dedicated civil servant rather than political appointees does not serve the long-term 

interests of the Department. 

Thank you for the opportunity to appear before the Subcommittee and I look forward to answering whatever questions the Subcommittee may have. 

Mr. NADLER. Ms. Fernandes is recognized for 5 minutes. 

TESTIMONY OF JULIE FERNANDES, SENIOR POLICY ANALYST 

& SPECIAL COUNSEL, LEADERSHIP CONFERENCE FOR CIVIL 

RIGHTS (LCCR) 

Ms. FERNANDES. Good afternoon, Chairman Nadler, Ranking 

Member Franks and Members of the Subcommittee. Thank you for 

the opportunity to appear before you today to discuss the Voting 

Section of the Civil Rights Division. Every week it seems there’s 

another article in the news that calls into question the integrity of 

the managers and political staff who run the Voting Section at the 

Civil Rights Division and the priorities they choose to enforcement. 

We read of political hiring, unethical conduct, partisan interests 

trumping law enforcement. We also learn that while there has been 

an increase in some areas of enforcement, much of the core work 

of the section has been significantly diminished. In many ways, the 

Voting Section has become the truest example of civil rights gone 

wrong at the Department of Justice. 

The voting rights movement was born of a need to repair decades 

of State-sanctioned denial of political equality to millions of American citizens. In years past, addressing this unfinished agenda 

guided the Voting Section’s work. However, in recent years, the 

Voting Section has turned away from its historic mandate. Since 

2001, the Civil Rights Division has brought two cases alleging voting discrimination against African Americans. One in Crockett 

County, Tennessee, was authorized under the previous Administration, with the complaint finally filed in April 2001. The other was 

in 2006 in Euclid, Ohio. No cases involving voting discrimination 

against African Americans have been brought in the deep south 

throughout the entire Administration. None. The only case brought 

alleging racial discrimination in the deep south was a case to protect White voters in Mississippi. Of course, White voters are protected by the Voting Rights Act. But it strains the imagination to 

believe that the only example of racial discrimination in voting in 

the deep south for the past 6 years was a case involving White voters. 

62 

While all of us understand that different Administrations have 

different enforcement priorities, it simply can’t be a priority for the 

Civil Rights Division not to bring cases on behalf of African Americans. In recent years, instead of promoting access to the polls, the 

Voting Section has used its enforcement authority to deny access 

and promote barriers to block legitimate voters from participating 

in the political process. This effort was driven in large part by partisan political operatives like Hans von Spakovsky and Bradley 

Schlozman, though in some instances, with the complicit acts of career staff. 

For example, the division’s failure to block the implementation of 

Georgia’s draconian voter ID law in 2005, an outcome driven by 

von Spakovsky, and later held unconstitutional and characterized 

as a modern-day poll tax by a Federal judge, opened the door for 

States across the country to pass similar onerous laws. 

In recent years, the Voting Section has sent a strong message to 

States that the Federal Government will not challenge voter ID 

laws no matter how restrictive and no matter what the impact on 

minority voters. The section’s abdication of their role to challenge 

discriminatory voter ID laws gives the impression that the section 

is being used as a tool to press a partisan interest in promoting 

voter ID. 

Furthermore, the division has rejected numerous requests from 

voting rights advocacy groups to enforce that part of the NVRA 

that requires social service agencies to provide voter registration 

opportunities despite substantial evidence that registration at 

those agencies has plummeted. 

At the same time, the section has shifted its priorities to enforcement of voter purge provisions of the law, which in many cases, as 

Congressman Wasserman Schultz pointed out as in Florida 2000, 

resulted in thousands of legitimate voters being taken off the rolls 

and denied their right to vote. 

And the Department of Justice’s Voter Integrity Initiative established in 2001 by former Attorney General John Ashcroft has created unnecessary comingling between criminal prosecutors in the 

U.S. Attorney’s offices and civil rights division attorneys. 

These efforts can, if done improperly, result in a chilling effect 

on the participation of minority voters, particularly in jurisdictions 

where there is a history of disfranchisement efforts targeting racial 

and ethnic minorities. 

Rather than promoting schemes to deny equal opportunity for 

citizens to vote, the Civil Rights Division should be focused on: one, 

combatting voter ID laws that have a disproportionate negative impact on racial, ethnic or language minorities, like those passed by 

the Georgia legislature; two, ensuring that States are complying 

with the NVRA’s access requirements and ensuring that those registrations are processed appropriately; and, three, reinforcing the 

firewall that exists between the Civil Rights Division and the 

Criminal Division’s work to combat voter fraud. 

Members of the Committee, the work of the Civil Rights Division 

over the past 50 years has helped to transform our Nation into a 

place where equal opportunity can be more than a dream. Today 

we must not allow those who seek to undermine civil rights destroy 

the power and credibility of one of our most important institutions 

63 

in the fight for equal justice. We must expect the Civil Rights Division to enforce the Nation’s voting rights laws without fear or 

favor, and we must demand accountability when they don’t. Thank 

you very much. 

[The prepared statement of Ms. Fernandes follows:] 

PREPARED STATEMENT OF JULIE FERNANDES


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Mr. NADLER. Thank you very much. 

The Chair will now recognize himself to begin the questioning 

with 5 minutes of questioning. 

Mr. McDonald, you said a recent study by Professor Minnite 

shows that, between 2002 and 2005, only 24 people nationwide 

were convicted or pleaded guilty to Federal charges of illegal voting. 

We heard a previous witness—or, actually, I don’t think it was 

a previous witness; I think it was the Ranking Member—talk about 

how 400,000—or maybe it was both—anyway, 400,000 people allegedly were enrolled in Florida and some other States—140,000—lots 

of people—and 2,000 people actually voted in two States. 

Can you comment on this? I recall seeing reports that this was 

not true, but do you have information on this, especially given the 

studies you cite? 

Mr. MCDONALD. We are involved in litigation, both in Georgia, 

against the constitutionality of the photo ID law, and also in Indiana. And there is absolutely no evidence of any kind that there has 

ever been any fraudulent in-person voting. And that’s the only kind 

of election fraud that the photo ID bills are allegedly designed—— 

Mr. NADLER. So there’s no evidence that 2,000 people voted in 

New York and Florida at the same election, the same 2,000 people? 

Mr. MCDONALD. Well, I’m not familiar with those facts. But what 

I do know is that the justification for the photo ID law as a way 

of combatting in-person voter fraud—and, in fact, there is no evidence whatsoever that there has ever been any in-person voter 

fraud. So it is a bill that addresses a problem that does not exist. 

And about the double voting, I would just remind Members of the 

Committee that the courts have held that it is not unlawful to vote 

in two different jurisdictions. There are some States that will allow 

you, if you’re a nonresident, to vote in that jurisdiction’s elections 

if you’re a property owner. 

Mr. NADLER. But you can’t vote in a presidential election in two 

different States in the same day? 

Mr. MCDONALD. No, that would not be appropriate. That would 

not be appropriate. But the mere fact that you’re voting in two different jurisdiction doesn’t necessarily mean that that’s unlawful 

under the State law. 

Mr. NADLER. Okay. 

Now, Mr. Moore, you heard Mr. Tanner testify that he made the 

decision on the Georgia case. Did I hear you say that Mr. 

Spakovsky made the decision? 

Mr. MOORE. No. I think that the two of them handled it pretty 

well. I mean, I think John knew what Hans wanted it to be; Hans 

had made it pretty clear. So technically who made the decision is 

almost immaterial. 

Mr. NADLER. Now, I understand that Georgia sent information 

on the 26th of August. On the 25th, the section people said don’t 

preclear. On the 26th, Georgia sent information about 600,000—incorrect data about 600,000 people. And on the 26th, it was 

precleared. 

Did they have time to analyze the correction of the data about 

the 600,000 people? Did they bother? Was it analyzed? 

Mr. MOORE. No, sir, I don’t think they ever analyzed it at all. 

107 

Mr. NADLER. So even though they knew it was mistaken, because 

Georgia told them, ‘‘We are correcting our data that we gave you’’? 

Mr. MOORE. I don’t think that it was ever analyzed. 

Mr. NADLER. And, now, it is your testimony that—Mr. Tanner refused to answer the question whether he overruled four of the five 

analysts, but he did overrule four of the five analysts? 

Mr. MOORE. Absolutely. 

Mr. NADLER. And the only analyst who thought that the law 

should be upheld, should be precleared, was a fellow who had been 

hired politically in the what we now know as politicized hiring of 

the Justice Department only a few months previously? 

Mr. MOORE. That’s what—yes. 

Mr. NADLER. Okay. Let me ask you. It is my understanding that 

of the 26 analysts that were present—prior to 2001, there were 26 

civil rights analysts and six attorneys who reviewed submissions, 

gathered facts and made recommendations on over 4,000 section 5 

submissions each year. It has been reported there are significantly 

fewer staff members prosecuting the same section 5 submissions, 

many of whom are recently hired employees with no prior experience with section 5. 

So my understanding is that, of the 26 analysts, only eight are 

left. Is that correct? 

Mr. MOORE. I have not worked in the section since 2006, so I 

don’t know how many analysts work there. 

Mr. NADLER. How would you characterize the—does anybody 

know about those figures on the panel? 

Okay. 

Mr. Moore, do you know about the capability of the voting rights 

section, of the section 5 section, to do its work today, in terms of 

its staffing? 

Mr. MOORE. From conversations with my former colleagues, I 

have some picture of what it is like to work in the section 5 enforcement. My opinion is that there are a small number of analysts 

who are very overworked and who work for an acting deputy chief 

who has created somewhat of a hostile work environment. It is a 

very bad situation. 

Mr. NADLER. What do you mean by ‘‘hostile work environment’’? 

Mr. MOORE. I’m sorry. This is kind of secondhand. But my conversations have been that it is a very unhappy place to work. 

Mr. NADLER. And why do you think so many staff have left the 

voting division, the Voting Section? 

Mr. MOORE. I think, like me, they didn’t really feel that there 

was any sense in doing their work if it didn’t make any difference 

on the decisions that were being made. 

Mr. NADLER. And you think that the work of the analyst does not 

make a difference to the decisions? 

Mr. MOORE. Well, there are a number of section 5 submissions 

that are not controversial, and their work is enormously valuable. 

But on anything of significance and of controversy, no. The decisions are being made for political expedience, in my experience. 

Mr. NADLER. Political decisions on important section 5 matters 

are being made for political expediency and not on the merits? 

Mr. MOORE. That was my experience in Georgia. 

Mr. NADLER. Thank you. 

108 

I thank the gentleman. 

I now recognize for 5 minutes the Ranking minority Member. 

Mr. CONYERS. Thank you, Chairman Nadler. 

Oh, excuse me. 

Mr. FRANKS. Thank you, Mr. Chairman. 

And thank you, Mr. Chairman. 

Mr. Chairman—and I hate to start off my questions here with a 

little bit of a downer, but I was disappointed in some of Mr. 

Moore’s characterizations of the former witness, Mr. Tanner, in 

that—— 

Mr. NADLER. I think they were very generous. 

Mr. FRANKS. Well, they were pretty generous. But, unfortunately, 

to suggest that Mr. Moore was saying that Black people and White 

people age differently—I think, you know, if you read the context, 

the man made a very clumsy and awkward statement, for which 

he apologized for the awkwardness of it and the misunderstanding 

of it, and simply tried to explain that his purpose in making the 

statement was to point out that, due to some of the circumstances 

in society, that sometimes minorities in our country, tragically and 

sadly, live to a lesser average age than some of the majority members of society. And that is a tragedy, but, unfortunately, Mr. Tanner’s remarks seem to be pretty twisted here. 

And I didn’t come to defend the guy. But Mr. Moore also says 

he thinks someone did that or he didn’t think someone did that or 

that—I don’t know if he’s relying on his experience or he’s just, 

kind of, trying to add, kind of, a partisan element to the situation. 

And I just had to point that out. 

The Carter-Baker report concluded that voters in nearly 100 democracies use a photo identification card without fear of infringement on their rights. These include many countries that are much 

less wealthy than the United States, including India and Pakistan. 

They don’t agree on too many things, but they do agree on the need 

for photo IDs for voters. 

Mr. Driscoll, would you comment on that? 

In other words, you know, let me put it like this. Oftentimes the 

reason people don’t vote is because they don’t have confidence in 

the system. They don’t know that their vote is going to be counted. 

They don’t know that somehow that other distortions in the system 

are going to diminish their vote. 

And one of the things that I believe increases that confidence is 

having a consistent voter ID to where people know that the people 

voting are the ones of that district and that they are citizens and 

that they have the right under the Constitution to vote. 

And so, Mr. Driscoll, would you just comment on the confidence 

factor and what do you think that means in the bigger picture? 

Mr. DRISCOLL. Thank you for the question. I would like to answer that in two parts. 

The first is that I think both the Carter-Baker Commission and, 

more recently, I think, the Supreme Court in Purcell have recognized the point you’re making, that voter integrity provisions can 

increase confidence, that the system works, and therefore can drive 

turnout up, which is something everyone wants. And I think that 

it is a policy matter that I happen to personally agree with. 

109 

The 1 second only caveat that I want to put on that—and this 

is a very legitimate caveat—is we can’t forget that we are in a 

country with a huge history of discrimination and that the Voting 

Rights Act was passed for a reason and section 5 exists for a reason. And so, in that context, the Civil Rights Division needs to analyze any particular ID requirement to determine whether or not it, 

in fact, has a retrogressive effect. Because if it did have a retrogressive effect, it should not be precleared and it should not go into 

effect if it is in a covered jurisdiction. 

And so, I think that there is a legitimate policy debate. I happen 

to think voter ID on the whole is a good thing and the benefits outweigh the costs by far. But I think that is a separate question from 

whether or not any particular law in a covered jurisdiction should 

be precleared, and I think that question will come out differently 

on a case-by-case basis. I think that Georgia was precleared; I 

think there are other laws that might not be. And, unfortunately, 

you need to be a professional statistician, I think, to make those 

calls on a case-by-case basis. 

But I think that’s how I would answer the question, that I think 

you’re absolutely right that people have pointed out the need for 

confidence in the system, and ID helps to enhance that in some respects. But, certainly, the section 5 analysis needs to be done independent of that policy judgment. 

Mr. FRANKS. Thank you, Mr. Driscoll. 

Mr. Chairman, I guess I just want to point out here, without asking additional questions, that I truly believe that it is one of the 

critical things in our country to make sure that people of all races, 

all factions have every opportunity to exercise their constitutional 

and God-given right to vote in this country. And I want to see that 

happen in every case. 

But I’ll just quote a little something that came from the discussion between Mark Hearne and one of the Democratic members of 

the Carter-Baker Commission. And it echoes the feelings of the 

former mayor of Atlanta, Andrew Young. He said, ‘‘For our base, 

who may not believe their vote will count, a photo ID will give 

them greater confidence that they will be allowed to cast a ballot 

when they go to the poll. And a greater confidence will increase 

participation.’’ We can say, Go to the polls, show the election officials your card with your picture on it, and they will guarantee you 

can vote, and your vote will count. And I truly believe that if we 

make sure people have confidence in the system, we will help minorities more than we will any other way. 

Thank you, Mr. Chairman. 

Mr. NADLER. I thank the gentleman. 

We have another Committee waiting to use the room, so we are 

going to be a little more strict in enforcing the 5-minute rule. 

Who is next? The gentleman from—the distinguished Chairman 

of the Committee, Mr. Conyers. 

Mr. CONYERS. Thank you very much, Chairman Nadler. 

First of all, I want to thank Trent Franks for being here during 

and throughout and contributing to this Subcommittee hearing, because, to me, this is extremely important. 

And I want to commend Bob Driscoll, as the minority witness, 

who brings a committed attitude to this subject. When you say that 

110 

we all want to increase voter registration and turnout, that’s the 

key to what we are all doing, and then have the votes count. That 

sums it all up. 

And I thank you both very much. 

We are in such a time constraint, Chairman Nadler, that I want 

to recommend that we consider holding an additional hearing, because there is so much to go through here. 

I’m going to be going through this testimony very carefully, because, look, there’s two views of this. One is that this voter rights 

section is red-hot, it is going great, things have never been so good, 

we are getting more votes, we are getting more cases prosecuted, 

everything is hunkydory. And then we have the other view, in 

which a number of people are calling for the section chief’s resignation as we speak. The Inspector General’s Office has multiple investigations going on, not only about the activities publicly and privately of the section chief but of career members as well. 

So, look—and this isn’t the first time I’ve ever heard this kind 

of a disparity in a Committee hearing. 

But there’s only one thing that I’m here for right now: Where do 

we go from here, lady and gentlemen? What is it that we need, as 

the Committee of jurisdiction, both the Subcommittee and full 

Committee—what are we to do? 

And the three ideas that have been presented here is to review 

the effectiveness of senior management of the Voting Section and 

determine whether we need to make replacements or additions; 

then, number two, a plan to rebuild the core in section 5 analysts. 

The attrition of 28 to eight is far too drastic when we are racing 

against the clock to the first Tuesday in next November. 

The third, we must examine whether voter protection laws are 

being used to restrict voter rights. My bill, the second bill President 

Clinton signed in 1993, was the Motor Voter Act. And now it is 

being used to purge voters, and it is being underutilized to register 

voters. 

I heard Ms. Fernandes make a couple of recommendations, and 

I would like her to tell me about hers now. And then we want to 

look at them together for any additional comments that you may 

have. 

Ms. FERNANDES. Thank you, Chairman Conyers. 

I think you’ve touched on a few of them already. I think that because we have the inspector general’s investigation ongoing within 

the Department, my understanding is that we should be anticipating a report coming out of that office fairly soon. And I think 

the Committee may want to inquire with that office how quickly 

you can get access to that report, and then review the recommendations and see if there are things that have gone on that 

could be changed, whether it’s in management or the politicization 

question. 

Mr. CONYERS. You’re asking me to trust a report, and that’s a 

good way to start. 

Ms. FERNANDES. I’m asking you to start with the report, not necessarily to trust it, but to at least start there, because I do think 

that there is likely to be a fairly thorough discussion around the 

politicization issue, though I have no inside knowledge of that at 

all. 

111 

And I also think that the Committee’s work is so helpful in focusing attention on the NVRA and the way the NVRA has been used 

to do these broad purges that wipe out so many eligible voters for 

no gain. 

And even this question about people voting in—just to tie this together with the voter ID issue—people voting in Florida and New 

York, well, if they’re registered in both Florida and New York, no 

voter ID is going to stop them from voting twice. So voter ID is not 

a cure for whatever kind of problem—which I don’t know that 

much about it—is presented. 

But I think that this Committee putting pressure to build up 

that firewall between Criminal and Civil Rights—— 

Mr. CONYERS. Is my time up already? 

Well, could I ask the gentlemen here to please submit to me your 

recommendations. I would be deeply grateful for them. 

Thank you, Mr. Chairman. 

Mr. NADLER. The gentleman from Minnesota is recognized for 5 

minutes. 

Mr. ELLISON. Thank you, Mr. Chair. 

Ms. Fernandes, let’s say that there have been, over the last 3, 

4 years, perhaps as many as 24 people who have been convicted for 

voting in a name that was not their own. 

How many people are we going to lose with these voter ID bills? 

Ms. FERNANDES. Tens of thousands, perhaps hundreds of thousands, depending on which bill it is. Some bills are much more onerous than others. 

Mr. ELLISON. Yeah. 

I mean, now, you do this kind of work; and, Mr. McDonald, you 

do this kind of work; and, Mr. Moore, you do this kind of work, too; 

I’m sure Mr. Driscoll, as well. 

Is the main complaint of Black voters, Latino voters, is their 

main problem, their barrier to voting the fact that some States 

don’t have a voter ID requirement? 

Ms. FERNANDES. No. And, in fact, what this really is, I think, Mr. 

Ellison, I think this is people who are interested in having fewer 

people vote have kind of whipped up this whole notion of voter 

fraud in person. We are talking about polling place impersonation, 

right? So intentionally impersonating someone else in the polls to 

vote, which is a high-risk proposition, carries criminal penalties. 

You would have to create 500 to 1,000 coconspirators to do it. It 

is an inefficient way to steal an election if you even want to do 

that, right? So we are talking about whipping up a fear of that 

practice, which is apparently nonexistent, to justify voter ID law. 

Mr. ELLISON. Now, Ms. Fernandes, if you’re an immigrant person 

and you don’t have a legal right to vote and you vote, isn’t that like 

a felony? 

Ms. FERNANDES. You could be deported. 

Mr. ELLISON. And so, you’re going to risk your life in America, 

that you’re trying to have, to cast a vote? 

Ms. FERNANDES. Yeah, for what. 

Mr. ELLISON. You know, in my experience, I have trouble getting 

people to vote once in their own name, as opposed to trying to 

round up a bunch of people to steal an election. 

112 

Mr. McDonald, I want to ask you this question: Do you think 

that voters of color who want confidence in an election and want 

to believe that their vote really matters, is their biggest advocacy 

to have a voter ID bill passed in the various States? Is that what 

they think the answer is? 

Mr. MCDONALD. Well, I think that a photo ID bill that was 

passed, at least in part, to discriminate, that plainly has a discriminatory impact, does nothing at all to create confidence in the fairness of the electoral system. 

Mr. ELLISON. Mr. McDonald, let me ask this question: Would 

having people in Black police-uniform-looking outfits standing 

around polls, questioning people and telling them that they better 

have their child support paid or they’re going to be arrested if they 

vote, do you think that might intimidate voters from voting? 

Mr. MCDONALD. Well, of course it would. And we know that 

those sort of voter intimidation tactics have been used in the past, 

and they ought to be addressed. 

Mr. ELLISON. What about recent elections where they have these 

fake little memos and letters around saying that if you don’t have 

your child support paid or your parking tickets paid that you can’t 

vote? There are letters like this; I’m sure you’re aware of them. 

And this isn’t 10, 20 years ago. This is the last election. 

Mr. MCDONALD. Well, we have done monitoring of elections since 

the 2000 election. And we found many examples of things that are 

unconscionable, efforts to target minority precincts, to deprive people of the opportunity to have access to assistance in voting and 

also strong-arm tactics. 

Mr. ELLISON. Forgive my interruption, but these are the things 

that people are concerned about; isn’t that right? 

And I’m just going to state for the record my own opinion—and 

forgive me for my interruption. I believe that voter ID bills are intentional voter suppression of minority voters and have the effect 

and intent of suppressing people’s rights. 

Mr. MCDONALD. There’s one thing that I would definitely like to 

respond to, which has not been responded to, and that’s Mr. Tanner’s statement that the District Court in Georgia found that the 

photo ID law did not violate the racial fairness provisions of section 

2. That is incorrect. The court granted a preliminary injunction, 

found that the photo ID law would have a negative impact on racial minorities, but it did not reach the section 2 issue. It reserved 

a ruling on that. Then, when it issued its opinion on the merits, 

in which it reversed itself, it expressly did not reach the section 2 

vote that we should claim. 

And, more importantly, last week we got a letter from the Court 

of Appeals questioning whether or not it had jurisdiction over the 

appeal we had taken of the case, because the court had not reached 

some of the claims that were raised, including section 2. 

So the court did not resolve the section 2 claim. 

Mr. ELLISON. Mr. Chair, may I just say for the record that I 

think Mr. Moore is highly commendable, and he has done what I 

would expect a person born in the mid-1960’s to do: carry on the 

legacy of the civil rights movement, make sure America is free and 

fair for everybody. 

113 

I think you’re a hero, Mr. Moore, and I’m so grateful for your advocacy and your honesty. 

Mr. MOORE. Thank you. 

Mr. NADLER. Thank you. 

The gentleman’s time is expired. The gentleman from Virginia is 

recognized for 5 minutes. 

Mr. SCOTT. Thank you. Thank you, Mr. Chairman. 

Mr. McDonald, I asked in the earlier panel some questions that 

need to be resolved before we go into another round of redistricting, 

specifically whether or not coalition districts are protected under 

the Voting Rights Act. 

Are there any questions like that that we need to make sure are 

resolved before we get into the next round of redistricting? 

Mr. MCDONALD. Well, I think that if there is a coalition composed of racial minorities and others that has the ability to elect 

candidates of its choice, that that’s protected against retrogression 

by section 5. 

Mr. SCOTT. Are there other questions that we need to look at to 

make sure that they are resolved ahead of time, so that, as States 

start doing their redistricting and localities start doing their redistricting, are there questions that we need to look at? 

Mr. MCDONALD. Well, there’s a question about whether majorityminority districts can be reduced on the assumption that there is 

sufficient White crossover voting to maintain the ability to elect 

candidates of choice. And I’ve discussed this issue with people in 

the State legislature whose opinions I deeply respect—African 

American members Tyrone Brooks, Robert Holmes. They have assured me that not a single member of the Black legislative caucus 

would support reducing majority-Black districts below 50 percent. 

And the reason is that, once a district becomes majority-White, 

it behaves in a different way. You no longer have the level of White 

crossover voting that you might have had when it was a majorityminority district. You no longer have the confidence that minority 

voters have in it. And you no long have as many minority candidates who are willing to run. So those districts will perform differently. And I take my cue from Tyrone and Bob Holmes. 

Mr. SCOTT. Well, if you have districts that have, in fact, performed—you have Members of the Congressional Black Caucus 

who are in districts less than 50 percent Black. Are those protected 

as minority districts where there minority community can elect a 

candidate of its choice? 

Mr. MCDONALD. I think so. That’s me speaking now, not Mr. 

Tanner or the Department of Justice. 

Mr. SCOTT. Okay. 

Are there other issues we need to make sure we look at, Ms. 

Fernandes? 

Ms. FERNANDES. No, I think that’s the central issue, and I agree 

with Laughlin. 

Mr. SCOTT. Mr. Moore, is there any question that the voter ID 

bill had a disparate impact on the minority community? 

Mr. MOORE. We believe the State had not met its burden to 

prove that it did not. It was a complicated statistical record with 

no smoking guns. 

Mr. SCOTT. Were there memos to that effect that were written? 

114 

Mr. MOORE. I believe The Washington Post published the memo 

that we wrote, yes. 

Mr. SCOTT. Did The Washington Post suggest that memos had 

been changed? 

Mr. MOORE. The memo that The Washington Post published, 

which was the final staff memo, was, in my view, doctored to remove the recommendation and to reverse many of our key findings. 

Mr. SCOTT. In the previous panel, I asked whether or not anyone 

had been reprimanded who did not agree with the final decision on 

the Georgia case. And he said no one had been reprimanded. Was 

that accurate? 

Mr. MOORE. No, not if ‘‘reprimand’’ is an oral reprimand. If it 

was a written reprimand, perhaps. 

Mr. SCOTT. The four that disagreed were orally reprimanded? 

Mr. MOORE. I don’t know about Mr. Berman. The other three of 

us were reprimanded. 

Mr. SCOTT. Was partisan politics involved in any employment decisions in the voting rights section? 

Mr. MOORE. I was not involved with hiring. From the series of 

attorneys who joined the section, in the last couple of years while 

I was there, either it was politicized or they got very lucky. 

Mr. SCOTT. In investigating the Ohio irregularities, Mr. Tanner, 

a political appointee did the investigation himself, is that right? 

Mr. MOORE. Mr. Tanner is a career employee, yes. 

Mr. SCOTT. He’s a career or political? 

Mr. MOORE. That’s a good question. He’s technically a career— 

he’s a career employee. 

Mr. DRISCOLL. That’s a good question for you, too. 

Mr. SCOTT. I’m sorry? 

Was there a reduction in staff while you were there. 

Mr. MOORE. Yes, there was. But how much of that was a result 

of people leaving out of unhappiness and how much of it was the 

natural cycle as the census of 2000 became further ago. 

Mr. SCOTT. I have no further questions, Mr. Chairman. I’ll yield 

to the gentleman from Wisconsin. 

Mr. NADLER. I thank the gentleman. 

On behalf of the Subcommittee, I want to thank our witnesses 

for appearing here today and for your testimony on this very important question. 

As you heard the Chair suggest, we may have an additional 

hearing at some point. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses, 

which we will forward and ask the witnesses to respond as promptly as you can, so that their answers may be made part of the 

record. 

Without objection, all Members will have 5 legislative days to 

provide and extend their remarks and to submit any additional materials for inclusion in the record. 

And, with that and the thanks of the Chair, this hearing is adjourned. 

[Whereupon, at 1:08 p.m., the Subcommittee was adjourned.] 

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POST-HEARING QUESTIONS SUBMITTED TO JOHN K. TANNER, CHIEF, VOTING SECTION, 

CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE

———— 

Note: At the time this hearing was submitted for printing, January 27, 2009, the 

Subcommittee had not received responses to the questions submitted to Mr. Tanner. 


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