You can now read A Review of the Operations of the Voting Section of the Civil Rights Division put out by the DOJ Office of the Inspector General. I will provide more comments when I’ve had a chance to read the report. Depending on the report’s conclusions, icould complicate Tom Perez’s potential nomination to be the new Labor Secretary.
Here is the report’s conclusion:
CHAPTER SEVEN
CONCLUSION
This review examined several issues: the types of cases brought by the
Voting Section and any changes in the types of cases over time; any changes in
Voting Section enforcement policies or procedures over time; whether the
Voting Section has enforced the civil rights laws in a non-discriminatory
manner; and whether any Voting Section employees have been harassed for
participating in the investigation or prosecution of particular matters. We
focused on the period since 2001, addressing enforcement decisions made
during the last two administrations and allegations of harassment during the
same period. Our review was subsequently expanded to address allegations
about how the Voting Section processed information requests, and about hiring
practices in the Voting Section from 2009 to 2011.
As detailed in Chapter Three, our examination of the mix and volume of
enforcement cases brought by the Voting Section revealed some changes in
enforcement priorities over time, but we found insufficient support for a
conclusion that Division leadership in either the prior or current
administration improperly refused to enforce the voting rights laws on behalf of
any particular group of voters, or that either administration used the
enforcement of the voting laws to seek improper partisan advantage. Although
we had concerns about particular decisions in a few cases, we found
insufficient evidence to conclude that the substantive enforcement decisions by
Division leadership in Voting Section cases were made in a discriminatory
manner. Our conclusion encompasses our review of some of the more
controversial enforcement decisions made in Voting Section cases from 2002
through 2011, by Division leadership in both the prior and current
administrations.
Notwithstanding this conclusion, our investigation revealed several
incidents in which deep ideological polarization fueled disputes and mistrust
that harmed the functioning of the Voting Section. As detailed in Chapter
Four, these disputes arose at various times both among career employees in
the Voting Section and between career employees and politically appointed
leadership in CRT. On some occasions the incidents involved the harassment
and marginalization of employees and managers.
We believe that the high partisan stakes associated with some of the
statutes that the Voting Section enforces have contributed to polarization and
mistrust within the Section. Among other things, the Voting Section reviews
redistricting cases that can change the composition of Congressional
delegations and voter ID laws that have actual or perceived impacts on the
composition of the eligible electorate. Moreover, the Division’s leadership
makes choices on Voting Section enforcement priorities – such as whether to
give greater emphasis to provisions intended to increase voter registration or
those intended to ensure the integrity of registration lists and prevent voter
fraud – that are widely perceived to affect the electoral prospects of the political
parties differently. We found that people on different sides of internal disputes
about particular cases in the Voting Section have been quick to suspect those
on the other side of partisan motivations, heightening the sense of polarization
in the Section. The cycles of actions and reactions that we found resulted from
this mistrust were, in many instances, incompatible with the proper
functioning of a component of the Department.
Polarization within the Voting Section has been exacerbated by another
factor. In recent years a debate has arisen about whether voting rights laws
that were enacted in response to discrimination against Blacks and other
minorities also should be used to challenge allegedly improper voting practices
that harm White voters. Views on this question among many employees within
the Voting Section were sharply divergent and strongly held. Disputes were
ignited when the Division’s leadership decided to pursue particular cases or
investigations on behalf of White victims, and more recently when Division
leadership stated that it would focus on “traditional” civil rights cases on behalf
of racial or ethnic minorities who have been the historical victims of
discrimination.
The scope of our review did not permit us to trace the source of mistrust
and polarization within the Voting Section back to a single event or decision, if
that were even possible. One significant event, and the earliest one we address
in this report, was the decision by the outgoing Division leadership during the
transition period in December 2000 and January 2001 to greatly accelerate the
hiring procedure for new attorneys in the Section and elsewhere in the
Division. We were told that this surge in hiring took place in the context of a
longer-term increase in Division resources made available by Congress.
However, as we discuss in Chapter Five, we concluded that the acceleration of
this activity during the 2000-2001 period at a minimum created the
perception, both among long-time senior career professionals who were
involved in the process and among the political appointees in the incoming
Division leadership, that it was done in order to hire attorneys perceived to
favor the enforcement philosophy of the outgoing administration and to limit
the ability of the incoming administration to make its own hiring and resource
allocation decisions. We found that these actions generated mistrust between
the incoming political leadership in the Division who discovered that the hiring
campaign had occurred and the holdover career leadership who participated in
the hiring effort.
The polarization and suspicion became particularly acute during the
period from 2003 to 2007, including when Bradley Schlozman supervised the
Voting Section in his capacity as Principal DAAG and Acting AAG. As detailed
in a prior report by the OIG and OPR, Schlozman illegally recruited new
ttorneys into the Voting Section and other parts of the Division based on their
conservative affiliations. As was evident from the e-mails we cited in our earlier
report, Schlozman’s low opinion of incumbent career attorneys in the Voting
Section was based in significant part on their perceived liberal ideology and
was not a well-kept secret. During this review, we found that Schlozman’s
decision to transfer Deputy Section Chief Berman out of the Voting Section in
2006 was motivated at least in part by ideological considerations.
We also found that some career employees in the Voting Section
contributed significantly to the atmosphere of polarization and distrust by
harassing other career employees due at least in part to their political ideology
or for positions taken on particular cases. As detailed in Chapter Four, some
career staff assigned to the Georgia Voter ID Section 5 preclearance matter in
2005 behaved in an unprofessional manner toward one attorney who was
perceived to be ideologically close to Division leadership. The behavior
included outward hostility, snide and mocking e-mails, and accessing the
attorney’s electronic documents on the Voting Section shared drive without his
permission. In 2007, some career employees made offensive and racially
charged comments to and about a student intern who volunteered to assist the
trial team in the controversial Noxubee matter, which was the first Section 2
case brought against minority defendants on behalf of White voters. Division
leadership reprimanded one career attorney and counseled two others for this
conduct. We also found that some Voting Section employees criticized and
mocked the trial team in e-mails to each other at work, sometimes using
inappropriate and intemperate language
In 2007, three male attorneys who were widely perceived to be
conservatives were counseled for making highly offensive and inappropriate
sexual remarks about a female employee, together with remarks that she was
“pro-black” in her work. Later that year, during a period of high tension in the
Section, at least three career Voting Section employees posted comments on
widely read websites concerning Voting Section work and personnel. Some of
the postings included a wide array of inappropriate remarks and attacks, as
well as highly offensive and potentially threatening statements. The postings
included non-public information about attorneys, managers, and internal
Department matters. They reflected exceptionally poor judgment and may have
constituted a violation of Department regulations or policies. We do not believe
that Voting Section or Division managers responded adequately to some of
these incidents. We were especially troubled that a non-attorney Voting
Section supervisor, who knew of a subordinate’s improper conduct, not only
suggested that the employee disregard counseling and admonishment from
Section leadership, but also encouraged the subordinate to continue the
improper conduct.
The functioning of the Voting Section and the relationship between
political appointees in the Division’s leadership and career employees was
further undermined by unauthorized disclosures of confidential information
about internal deliberations and debates in several controversial matters,
including the Mississippi and Texas redistricting matters and the Georgia Voter
ID matter, which we also discuss in Chapter Four. Managers responded to the
threat of further disclosures by limiting career staff access to information and
imposing stricter secrecy on more sensitive projects. Despite these efforts,
unauthorized disclosures of sensitive and confidential Voting Section
information, apparently for political purposes, have continued to the present
time. We believe that these disclosures and the responses to them came at a
cost to trust, collegiality, and cooperation, and increased the appearance of
politicization of the Voting Section’s work. While it was beyond the scope of
our review to determine the specific source of these unauthorized disclosures,
the impact that they had on the relationship between Division leadership and
career staff and the operation of the Voting Section was readily apparent to us.
In January 2009, a new President was inaugurated and, soon after, new
leadership took office in the Department and the Division. A transition team
memorandum that was provided to the incoming Department leadership
advised them that, in reviewing the career leadership in the Division, “care
should be taken to insure that any changes will protect the integrity and
professionalism of the Division’s career attorneys and will not be perceived as
the politicization pendulum just swinging in a new direction.” Despite this
admonition, we found that the polarization in the Voting Section continued, as
evidenced by several events.
For example, we found that starting in April 2009, there were serious
discussions among senior leadership in the Division and the Department about
removing Christopher Coates as Chief of the Voting Section, at least in part
because of a belief that Coates had a “very conservative view of civil rights law”
and wanted to make “reverse-discrimination” cases such a high priority in the
Voting Section that it would have a negative impact on the Section’s ability to
do “traditional” cases on behalf of racial and language-minority voters.
However, we found no evidence that Coates had declined to implement the
decisions or policies of the new administration at the time of this effort, despite
his admittedly conservative views and his acknowledged willingness to pursue
“reverse-discrimination” cases. Division leaders also believed, based in part on
complaints from career employees, that Coates was a flawed manager and a
divisive figure whose removal would improve the functioning and morale of the
Voting Section. After career officials in JMD told Division leadership that the
then-existing record would not support a performance-based removal, an effort
was then undertaken by Division leadership to document Coates’s performance
deficiencies. Ultimately, however, Coates requested and was granted a transfer
out of the Division. We found the manner in which the Coates matter was
handled further increased the appearance of politicization of the Voting
Section.
We also found that in 2009, then-Section Chief Coates placed a career
Section manager on the Honors Program Hiring Committee in order to
“balance” the political views of a different committee member who Coates
considered to be liberal. Almost immediately thereafter, DAAG Fernandes
explored removing the manager from the committee due at least in part to his
perceived conservative ideology, although she abandoned this effort. We found
that considering the political or ideological leanings of employees in
determining the composition of a hiring committee was inappropriate.
The continued polarization within the Voting Section also came into
focus during “brown bag” meetings between Section personnel and DAAG
Fernandes in 2009. During one meeting about Section 2 enforcement, in
September 2009, Fernandes made comments about Division leadership’s
intention to prioritize “traditional civil rights enforcement” on behalf of racial or
ethnic minorities. Some career staff interpreted her comments to signal that
Division leadership had a blanket policy of not pursing Section 2 cases against
Black defendants or on behalf of White voters. At another meeting later in
2009, Fernandes made comments about Division leadership’s intention to
focus on enforcing the “voter access” provisions of the NVRA that some career
staff interpreted to mean that the administration would take no steps to
enforce the “list-maintenance” provisions of the statute, the former of which are
perceived to be supported by liberals while the latter are perceived to be favored
by conservatives. Fernandes told the OIG that her comments at both meetings
were not intended to convey the absolutist positions that some witnesses
attributed to them, but rather reflected her understanding of Division
leadership’s legitimate enforcement priorities. At a minimum, these incidents
reveal that the politically charged atmosphere and polarization within the
Voting Section continued even after the 2009 change in the Division’s
leadership.
During the course of our investigation, we received additional allegations
about the unfair treatment of perceived liberals by Section or Division
management from 2003 to 2008, and additional allegations about the unfair
treatment of perceived conservatives by Section or Division management from
2009 to the present. These included allegations that career attorneys received
undesirable assignments or unfavorable performance reviews and that Division
leadership refused to approve cases that the attorneys proposed because of
political or ideological bias. We could not investigate many of these allegations,
but we were struck by the perception within the Voting Section that this sort of
conduct has continued across administrations. Again, we believe that the
perception that some career employees are disfavored by management due to
their political views is unusual in the Department, and that it hampers Section
operations and undermines the perception of impartial law enforcement.
We did not find sufficient evidence to substantiate allegations about
partisanship in hiring. As detailed in Chapter Five, our review did not
substantiate allegations that the Voting Section considered applicants’ political
or ideological affiliations when hiring experienced trial attorneys in 2010.
Nevertheless, we found that the primary criterion used in assessing the
qualification of the 482 applicants, namely prior voting litigation experience,
resulted in a pool of 24 candidates selected to be interviewed (9 of which were
ultimately hired) that had overwhelmingly liberal or Democratic affiliations.
Although we found that the composition of the selected candidates was the
result of the application of objectively neutral hiring criteria, this result
contributed to the perception of continued politicization in the Section. We
recommend steps that the Section should take to avoid creating perceptions of
ideologically biased hiring.
Our investigation also found no support for allegations that partisan
allies of the current administration received preferential treatment in the
Voting Section’s responses to requests for records, including FOIA requests. As
detailed in Chapter Six, we found that differences in the time it took for the
Voting Section to respond to records requests were attributable to variance in
the time-sensitivity of the requests, the complexity and size of the requests,
and the difficulty of locating responsive documents. We found that the Voting
Section regularized and strengthened its procedures for responding to records
requests in 2003 and since 2006, and that these procedures have helped
protect against favoritism in responding to records requests. Nevertheless, we
are concerned about the increasing backlog of requests in the Voting Section,
which may be contributing to the appearance of politicization in responding to
such requests, and we made a recommendation to address the issue.
Although we did not conclude that substantive enforcement decisions in
the Voting Section during the period of our review were infected by partisan or
racial bias, we believe that the perception remains that enforcement of the
voting laws has changed with the election results. Much of this perception is a
byproduct of legitimate shifts in enforcement priorities between different
administrations. However, some of it has been fed by the incidents of
polarization, discord, and harassment within the Voting Section described in
this report. It is precisely because of the political sensitivity of the Voting
Section’s cases that it is essential that Division leaders and Voting Section
managers be particularly vigilant to ensure that enforcement decisions – and
the processes used to arrive at them – are, and appear to be, based solely on
the merits and free from improper partisan or racial considerations.
In the highly controversial NBPP matter, we found that the decisions that
were reached by both administrations were ultimately supportable on non-
racial and non-partisan grounds. However, we also found that the manner in
which the outgoing administration filed the case without following usual
practice and the new administration’s dismissal of Jackson as a defendant at
the eleventh hour, particularly viewing the latter in the context of the
contemporaneous discussions about removing Coates as Section Chief, both
risked undermining confidence in the non-ideological enforcement of the voting
rights laws.
We do not believe that ideological polarization and bitter controversy
within the Section are an inevitable consequence of the high political stakes in
some Voting Section cases. Other Department components – including
components that specialize in subject areas that are also politically
controversial, such as environmental protection – do not appear to suffer from
the same degree of polarization and internecine conflict. We believe the
difference is largely a function of leadership and culture, and that steps must
be taken to address the professional culture of the Voting Section and the
perception that political or ideological considerations have affected important
administrative and enforcement decisions there.
Given the troubling history of polarization in the Voting Section, Division
leadership needs to promote impartiality, continuity, and professionalism as
critical values in the Voting Section, and leadership and career staff alike must
embrace a culture where ideological diversity is viewed as beneficial and
dissenting viewpoints in internal deliberations are welcomed and respected.
We also believe that leadership and career staff must be continually mindful of
the need to ensure the public’s confidence in the Voting Section’s impartiality.
We were surprised and dismayed at the amount of blatantly partisan political
commentary that we found in e-mails sent by some Voting Section employees
on Department computers. We recognize that Voting Section employees, no
less than other Department employees, are entitled to their individual political
views. However, the importance of separating such views from Section work is
paramount. Government e-mails are readily forwarded and reproduced, and
political commentary that is intended to be private may quickly become public,
which could further exacerbate the appearance of politicization in the Section
and undermine the public’s confidence in the Department.
The Department’s leadership also should avoid the use of direct
communications with staff attorneys with the explicit or implicit understanding
that intermediate supervisors who are not trusted by management will not be
included in or informed about the communications. We saw this practice
during the prior administration in the Georgia Voter ID case in 2005 and
during the current administration in the exclusion of Section Chief Coates from
some voting-related projects in 2009. We believe that communications of this
type between Division or Department leadership and career personnel that
intentionally exclude the career employees’ supervisors are indicative of a
dysfunctional management chain and can only feed mistrust and polarization.
Employees in the Voting Section have a critical role to play in improving
the Section’s culture. Employees must appreciate the importance of public
confidence in the impartial enforcement of the voting rights laws. They must
also be prepared to implement legitimate enforcement priorities set by Division
management even if the employees disagree with them. The pattern of
undermining Division management and other career employees through
personal attacks in blog posts and the unauthorized disclosure of confidential
and privileged information must stop. Department employees have several
options for addressing instances of actual or perceived misconduct or
mismanagement, including reporting them to the OIG and OPR,
Many of the career and political employees who were involved in the most
troubling incidents described in this report have left the Department and are
no longer subject to administrative discipline. However, several of the
incidents involved conduct by current Department employees and we are
referring those matters to the Department for a determination of whether
discipline or other administration action with respect to each of them is
appropriate.
The conduct that we discovered and document in this report reflects a
disappointing lack of professionalism by some Department employees over an
extended period of time, during two administrations, and across various facets
of the Voting Section’s operations. In the Department, professionalism means
more than technical expertise – it means operating in a manner that
consciously ensures both the appearance and the reality of even-handed, fair
and mature decision-making, carried out without regard to partisan or other
improper considerations. Moving forward, the Department’s leadership should
take steps consistent with the findings and recommendations contained in this
report to ensure that the actions and decisions of the Section and its employees
meet the standards of professionalism and impartiality that are rightly
expected and demanded by the public of the Department of Justice.