I welcome the opportunity to respond to John Tanner’s testimony yesterday in front of the House Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Civil Liberties.

We in the Voting Section were amazed to watch John Tanner’s evasion and prevarication. He lost no time in twisting the truth. In his opening statement, he gives his usual litany about all the suits the [DoJ Civil Rights Division Voting] Section has filed. A huge percentage of them have been meaningless, the kinds of suits that never would have been filed under previous leadership. In the past, the Section Chief would pick up the phone, call the jurisdiction, and the jurisdiction would change its procedures. Only truly intransigent jurisdictions got sued. Now, the protocol is that even if we negotiate with the jurisdiction, we sue them, and many times, a previously negotiated consent decree is filed with the court the very same day the complaint is filed. The only possible justification for doing this is to pad the numbers of lawsuits we’re filing.

Tanner says “The Section is so productive because of the energy, the enthusiasm, and the commitment of the Section staff.” At this point, the only thing that the Section staff could conceivably be said to be energetic and enthusiastic about and committed to is the departure of John Tanner and his handpicked acting deputies, Susana Lorenzo-Giguere and Yvette Rivera. Tanner’s ineptitude has done something most of the committed supporters of civil rights in the Section never thought possible: it’s given us common cause with people across the aisle. We disagree with their ideology, but as one of them told me only today, Tanner has few supporters even over there. We are united in our belief in their inability to manage the Section. Aside from this, morale is at an ebb that even falls below that which existed when Hans von Spakovsky and Brad Schlozman ran roughshod over the Section.

Tanner says that “the facts available” to him on Georgia[‘s 2005 Photo ID law] forced him to the conclusion that it should be precleared [by the Section’s Voting Rights Act Section 5 review team]. As Toby Moore pointed out, those facts were wrong, and Georgia submitted new data telling us that the data was wrong the very day Georgia was precleared. Tanner did not examine that data and precleared Georgia without even looking at it. This is Tanner’s “careful analysis that had been ongoing for a period of time.” Tanner says the “internal memorandum was forwarded to the front office.” As Toby points out later, the “internal memorandum” that was forwarded to the front office was doctored. Its recommendation was taken out.

Tanner said that the constitutional poll tax question was outside the scope of Section 5 review. This is plain wrong. A poll tax would still violate Section 5 if it could be shown that the poll tax disproportionately impacted minority voters. Since minority voters often have lower incomes (as Tanner might say, “the math is just as such”), this wouldn’t have been difficult. In fact, the memorandum produced by Berman, Moore, Zubrensky, and Moss noted the cost element and the poll tax element as reasons for objection (see page 30 of the memorandum [PDF]).

Congresswoman Wasserman Schultz pressed Tanner on the Missouri NVRA list maintenance case. Tanner denied that the primary purpose of the suit was to purge Missouri’s voter rolls. That’s hogwash. Missouri was about purging, and later, Tanner sent letters to over 10 states trying to make them purge as well.

But his worst prevarication came in several questions from Congressman Scott. Tanner said that in Georgia, the court found an absence of racial discrimination, and the case was dismissed. As Moore pointed out, the court found nothing of the sort. However, by the time the court even issued its final ruling, the statute that was in front of it was not the one that Tanner precleared in 2005. The one Tanner precleared in 2005 was found unconstitutional as a poll tax, plain and simple. Georgia then rewrote the statute to provide free IDs to anyone who requested one, and the case was then dismissed, primarily because of lack of standing — Common Cause, the ACLU, and the Lawyers Committee were unable to find anybody who couldn’t get a photo ID to serve as a plaintiff in the case.

This is a recurring problem with the photo ID laws. There are lots of people who can’t get IDs, but if you can get somebody to the courthouse to be a plaintiff, you can probably get them to the ID office. The folks who can’t get IDs are so marginalized — a lot of them are in nursing homes — that you wouldn’t be able to get them to the courthouse to serve as plaintiffs. But in any case, Tanner misrepresented which case was dismissed. Tanner said that in the first case, the court “rejected” the racial discrimination claim. That is not correct. The court didn’t reach the racial discrimination claim, because it found that the law was an unconstitutional poll tax.

Tanner said he didn’t know how long Bob Berman, Amy Zubrensky, Toby Moore, and Heather Moss had been working in the Voting Section. Tanner and Berman worked together for many years, so he had to have known. Heather came when Tanner was already back in the Section, so he had to know when she arrived as well. And surely he knew how long his political geographer and one of his lawyers had been in the Section. It’s simply not credible that Tanner did not know these basic facts about his own personnel.

Joshua Rogers [the only one of five section staffers to recommend preclearance of the 2005 George Photo ID law] arrived while Tanner was there. Tanner put Rogers on the Georgia team. Tanner said he didn’t know how long Rogers had been there. This is not believable.

Tanner was asked if his “division” had had an awards ceremony where everybody but two received an award. He said no. The truth is that of the analysts in the Section 5 unit of the Voting Section, all but two did receive awards. The only two who did not receive them happened to be the only two African-American analysts left after Yvette Rivera, Tanner’s handpicked acting deputy, drove the rest of them, constituting over 100 years of Section 5 experience, out of the Section.

Tanner said that the other staff members (Berman, Zubrensky, Moore, and Moss) were not reprimanded after they disagreed with Georgia. In fact, as Moore said later, they were indeed reprimanded. What’s worse, they were driven out of the Voting Section, and Moore was frivolously investigated by the Office of Professional Responsibility, an investigation that turned up no evidence of wrongdoing.

This is Tanner’s vindictive modus operandi. Not a one of the four of them is still with the Section. Berman was transferred to what Senator Kennedy has called a “dead-end training job.” Moore left because he was afraid his performance appraisal would be doctored. Moss was, incredibly, refused a schedule modification so she could work part-time while going to law school–at a time when the Section was already short of analyst staff (the shortage is now past the critical point, while Yvette Rivera continues to burden analysts with meaningless make-work requirements).