Voting-rights advocates say that under former Attorney General Alberto Gonzales, the Justice Department pursued a partisan effort to limit the number of voters, while ignoring measures designed to get more voters on the rolls. Agency officials deny this is the case and point to recent efforts in their defense.
Joe Rich, a former head of the Civil Rights Division's voting section, recalls a 2004 meeting that he and other Justice Department officials had with two voter-advocacy groups, ProjectVote and Demos. The advocates had evidence that one section of the National Voter Registration Act (NVRA) — or motor-voter law — wasn't being enforced. That section requires states to make voter registration available at social-service agencies to encourage voter registration among low-income and disadvantaged Americans.
"Demos brought us a very detailed report that they had done, which showed a significant problem," says Rich, a longtime Justice Department employee who has since gone to work for the Lawyer's Committee for Civil Rights under Law, a voting-rights group.
After the meeting, Rich thought the groups' concerns should be investigated, but higher-ups at the Justice Department felt otherwise.
"I was told by Mr. Hans Von Spakovsky, who was then the primary supervisor of the voting section — he was a political appointee — that he really didn't think there was any merit to this, and he brushed it off without any action at all," Rich says.
Rich says that a few months later, Von Spakovsky directed the office to push another part of the motor-voter law — an effort that focused more on taking names off the lists, rather than putting them on.
Aggressive Cleanup Campaign
In 2005, the Justice Department began an aggressive campaign to enforce a requirement that states clean up their voter registration rolls by deleting any duplications and the names of those who have left the state or died. The department filed suit against four states and questioned several others.
Von Spakovsky, now a nominee for the Federal Election Commission, defended the effort at his Senate confirmation hearing in June.
"NVRA — this is, again, Congress telling the states — says that you have to engage in regular list maintenance in order to take off people who are ineligible, such as voters who die," Von Spakovsky said. He denied that the department's effort was political, saying that it targeted both Democratic- and Republican-run states, and that it also targeted the improper removal of legitimate voters.
But the effort was controversial. Todd Graves, the U.S. attorney for the Western district of Missouri who was later fired, refused to sign on to the department's lawsuit against the state of Missouri. Other states were taken aback by letters from the Justice Department questioning the accuracy of their rolls.
North Carolina Election Director Gary Bartlett received two letters, one in 2005 and another earlier this year.
"The first one, I would have said it was threatening. The second one was more of a nuisance," Bartlett says, adding that the department's numbers were off-base.
As with other states, Justice Department officials had compared North Carolina's registration lists with Census figures and found more people registered in some areas than there were voting-age residents. On the surface, it was a legitimate concern. But Bartlett says the figures were old, and didn't take into account areas — such as college towns — where students can vote, but might not be counted in the Census. There were also inactive voters who, by law, must be kept on the rolls for several years before they can be removed.
"We want a clean list, but we do not want to be so overzealous that we administratively make some type of error that might impact an eligible registered voter to be disenfranchised," Bartlett says.
Maintaining Voter Confidence
That's the concern for voter advocacy groups. In Kentucky last year, several hundred voters were mistakenly removed from the rolls as part of a larger purge.
"The people who tend to get removed from rolls on these kinds of purges tend to be the lower-income, more-mobile people, the minorities," says Brian Mellor, senior counsel for ProjectVote. He says these people are often Democratic voters.
Mellor finds it curious that the Justice Department was so eager to enforce the purging requirements, while doing little to make sure states provided registration opportunities at social service agencies. ProjectVote has taken it upon itself to push states to comply, threatening at least two with lawsuits.
"We've got to go out and do the job of the Justice Department," Mellor says.
Justice Department officials, however, deny this is the case. They say they are concerned that new numbers show some states aren't doing enough to get new voters on the rolls. The department recently sent letters to 18 states asking them to explain what appear to be problems with their registration programs.
Asheesh Agarwal, deputy assistant attorney general in the Civil Rights Division, says the agency's enforcement is balanced.
He says, "Ultimately, what we want is for all the states to comply with both the registration provisions of motor voter — so that it's easy for eligible voters to register to vote — and we want them to comply with the list-maintenance provisions, so that voters can have confidence that only eligible voters are voting."