Federalist Society Hears From Conservative Voter Suppression Expert

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Patrina Boswell

Hans von Spakovsky speaks to the Federalist Society in Birmingham

by Glynn Wilson

BIRMINGHAM, Ala. — The fate of the world is often decided by powerful men meeting in secret. That is a fact, but it’s not always the case — and doesn’t have to be so.

No, this is no “conspiracy theory.” It’s just a narrative story explaining how politics, government and public opinion are often guided by the rich and powerful, but also how common citizens can make a difference when the press does its job of educating the public in a democratic society.

How the public thinks about politics and government is often guided by the metaphors and symbols embedded in our national narrative. It’s just that the rich have much more power to influence this narrative and set these symbols than the rest of us.

The press in this country also has a tremendous power to influence this debate, in spite of a lot of communications research which is designed to protect media corporations from legal liability by showing the limits of media influence on public opinion.


One of the greatest challenges we now face is that the media in this country was long ago taken over by the richest and most powerful corporate influences in this society. It is going to take a heroic effort on the part of a new Web Press to challenge that power and create an alternative narrative.

How this process works has been a fascination of mine since I first studied journalism and Political Science at the University of Alabama in the early 1980s, and in grad school at Alabama and Tennessee in the mid-to-late-’90s. But it is only in the past few years since I went independent as a journalist publishing on the Web that my thinking has evolved enough to put down in words a prescription for a solution to our dilemma. This essay is part of a continuing series of stories in how to “make democracy work.”

The Smoke-Filled Room

One of the most powerful images in American political history became part of the lexicon in 1920, when the Associated Press referred to a secret meeting in Chicago’s Blackstone Hotel, where Warren G. Hardin was chosen as the Republican nominee for president, as “a smoke-filled room.”

Since that time, according to the Encyclopedia of Chicago History, a “smoke-filled room” meant a behind the scenes place where cigar-smoking party bosses held secret discussions to decide policy and choose political candidates.

But over the past three decades, since smoking went out of fashion, there is a new but similar type of meeting place where politics, public policy and the fate of the world is often decided. I have referred to it before as the “smoke-free rooms of the modern think tank.”

I had a chance to get a glimpse at such a place just the other day in downtown Birmingham, when I found out the local chapter of the Federalist Society was meeting at The Summit Club, an opulent private bar and restaurant on the 31st Floor of the Harbert Building, one of the tallest skyscrapers in this city and state. The view to the west directly overlooks both AT&T buildings and both Alabama Power buildings.

The group invited a luncheon speaker named Hans von Spakovsky, a fellow with a conservative think tank, the Heritage Foundation. Founded in 1973, the think tank bills itself as dedicated to the formulation and promotion of “conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values and a strong national defense.”

Sounds good, eh? But as I will point out in this essay, there is a problem with this philosophy.

For his part, Spakovsky graduated from the Vanderbilt University School of Law in 1984, the year Ronald Reagan was reelected to a second term as president. Spakovsky received a bachelor’s degree in 1981 from the Massachusetts Institute of Technology. He is a native of Huntsville but currently resides in Vienna, Virgina, near the final stop on the Orange line of the D.C. Metro commuter train system near both the Pentagon and Foggy Bottom, home to much of the nation’s capital’s intelligence community.

Since taking up the cause of the political right, Spakovsky has made quite a name for himself in circles where disenfranchising groups of voters who tend to vote for Democrats is involved. In fact, he has become one of the leading advocates for “voter suppression,” a term he does not use of course, but one that is now used by the press to describe how Republicans try to limit votes for Democrats as a purposful election strategy.

Spakovsky Smacked Down by Minnisota Senator Al Franken

In perhaps Spakovsky’s most important 15 minutes of fame, he was smacked down by Minnisota Senator Al Franken in a congressional hearing on state voter ID laws.

Al Franken Smacks Down Hans von Spakovsky Over Flawed Voter ID Stats

Republican voter suppression drives have been written up by Politico, The New York Times, even Alternet and Rolling Stone magazine. There’s even a Wikipedia page on it.

The liberal non-profit Website Think Progress did a summary of Spakovsky’s voter suppression efforts in piece that ran under the headline: Hans Von Spakovsky 101: How To Suppress The Vote Like A Pro.

Spakovsky, a former political appointee in the Justice Department’s Civil Rights Division whom President Bush temporarily placed on the FEC using a recess appointment, is said to have “used every opportunity he had over four years in the Justice Department to make it difficult for voters — poor, minority and Democratic — to go to the polls.”

Here’s an overview of his record of disenfranchising voters:

Spakovsky stalled ruling on Mississippi redistricting, effecting electoral outcomes: In 2002, under Spakovsky’s leadership, the DoJ stalled making a determination under the Voting Rights Act on a conservative-drawn redistricting plan, approving it by default. The plan influenced the outcome of a key House race.

Spakovsky pushed through Texas re-districting that violated the Voting Rights Act: In 2003, “led the battle within [the] Civil Rights Division to approve the Texas redistricting.” In 2006, the Supreme Court held that parts of the plan violated provisions of Voting Rights Act by diluting minority voting strength.

Spakovsky urged Maryland officials to reject voter registration forms of lawful voters: In 2003, Spakovsky told a Maryland election official to deny voter registration applications if any of the information on the application failed to match what is in the DMV and Social Security databases. The move exceeded federal law and was found to needlessly reject thousands of applications to vote that were lawful.

Spakovsky blocked an investigation into voter discrimination against Native Americans: In 2004, then-Minnesota U.S. Attrorney Thomas Heffelfinger believed a state voter ID ruling would disenfranchise Indian voters, but when the DoJ’s voting rights section sought to open an investigation, Spakovsky directed attorneys not to contact county officials, which “effectively ended any department inquiry.”

Spakovsky approved “modern day poll tax” over objections of career staff: In 2005, a team of Justice Department lawyers and analysts who reviewed a Georgia voter-identification law recommended rejecting it because it was likely to discriminate against black voters. But the law was approved the next day by political appointees, including Spakovsky. When the law was eventually overturned, a federal judge compared it to a Jim Crow-era poll tax.

In his defense, Spakovsky published a piece in the conservative National Review under the headline: Yes, Virginia, There Really Is Voter Fraud.

The Washington Post has also written quite a bit about Spakovsky. Here are a few samples.

Hearing on FEC Pick Could Add Fuel to Debate Over Justice Dept.

Georgia Law Requiring Voters to Show Photo ID Is Thrown Out

“He has devoted much of his legal career to suppressing minority voting rights, and he should not be rewarded with a six-year appointment to the Federal Election Commission,” J. Gerald Hebert, a longtime critic of von Spakovsky who once led the Justice Department’s voting section and served as executive director of the Campaign Legal Center, told the Post at the time. “I think that Hans von Spakovsky’s record demonstrates that he will use his office to elevate partisan concerns among legitimate law enforcement concerns.”

Facing a growing chorus of criticism, Spakovsky withdrew his name from consideration.

The Federalist Society in the Bush Years

Back during the Bush years, I wrote about how the Bush administration drew from the ranks of the Federalist Society to fill posts in the Department of Justice. In fact, it became common knowledge that to get a job in the Bush Justice Department you just about had to have a membership card for the Federalist Society, along with a letter from a conservative preacher and a copy of your campaign finance reports showing you contributed to Republican candidates for office, especially those with the name of Bush.

The New York Times also wrote about the group this way.

In a new Washington ritual, President Bush has repeatedly drawn from the Federalist Society for cabinet members, senior aides and judges. And perhaps to deflect what many conservatives call unfair attacks by liberals, the nominees have repeatedly claimed to know little about the group’s beliefs.

White House aides have worked hard to put distance between the society and John G. Roberts, the federal appeals judge Mr. Bush has nominated for the Supreme Court.

Many of the members receive news media training by Creative Response Concepts, the very same public relations firm that represented Swift Boat Veterans for Truth, the group whose advertisements in the 2004 presidential campaign attacked the war record of Senator and Democratic nominee for president, John Kerry. They also worked behind the scenes to disclose President Bill Clinton’s affair with a White House intern Monica Lewinsky.

The Federalist Society and the Alabama Supreme Court

A lesser known story is the role they played in helping Karl Rove, Bill Canary, the Business Council of Alabama and the University of Alabama Law School transform the Alabama Supreme Court into a one-party Republican stronghold. That is the reason I attended the luncheon the other day, and a separate story is in the works on that issue. As for the talk Spakovsky gave to the group, very little of it is worth repeating, except to say the chuckling tone of the entire presentation was dismissive of civil rights laws in an “aw shucks” kind of way only those who live in ivory towers can pull off when they are trying to claim rich white voters are the ones who are being discriminated against instead of the descendants of former slaves.

So let’s focus on the issues of voter suppression and disenfranchisement.

Alabama’s History of Voter Disenfranchisement

Alabama has a long history of voter suppression and disenfranchisement for minorities dating back to the very beginning of its history when the state was admitted to the United States in 1819. Its original constitution provided universal suffrage for white men only back when the economy was largely based on agriculture, mainly cotton grown on plantations and worked by slave labor.

On January 11, 1861, Alabama declared its secession from the Union and joined the Confederate States of America, contributing about 120,000 soldiers to the Confederate cause. While the state’s slaves were freed by the 13th Amendment in 1865, after the Civil War the state was still tied to the agricultural economy, mostly cotton, so plantation owners resisted working with free labor during the Reconstruction period and sought to re-establish controls over “freedmen.”

Regaining power from the federal government by the late 1870s, and in spite of the passage of the Fifteenth Amendment to the U.S. Constitution in 1870, which prohibited any government in the country from denying a citizen the right to vote based on that citizen’s “race, color, or previous condition of servitude,” white Democrats passed election laws that disfranchised most blacks and many poor whites. These came to be known as “Jim Crow laws,” which segregated public facilities by race and were designed to restore “white supremacy.”

A new constitution was passed in 1901 effectively disfranchising African Americans and many poor whites through voting restrictions, including literacy tests required for voting and poll taxes.

Segregation was the legal and social system of separating citizens on the basis of race and maintained the repression of black citizens until it was dismantled during the civil rights movement in the 1950s and 1960s and by civil rights legislation. According to the Encyclopedia of Alabama published by Auburn University, segregation is usually understood as a legal system of control consisting of the denial of voting rights, the maintenance of separate schools and other forms of separation between the races, “but formal legal rules were only one part of the regime.” Historians list three other elements: “physical force and terror, economic intimidation, and psychological control exerted through messages of low worth and negativity transmitted socially to African American citizens.”

Southern Strategy and Anti-Immigration

Frustrated with their inability to control the electoral system after the civil rights laws were passed in the 1960s, conservative whites began to look for other ways to influence votes. Richard Nixon had is Southern Strategy, something he learned from George Wallace which became the Republican Party strategy of winning elections in Southern states by exploiting anti-African American racism and fears of lawlessness among Southern white voters and appealing to fears of growing federal power in social and economic matters (generally lumped under the concept of states’ rights).

This is how the so-called “Reagan Revolution” transformed the Old South from a one-party stronghold for the Democratic Party into nearly a one-party lock for the GOP.

But this was not enough for some conservative lawyers, who wanted to build an infrastructure to preserve some semblance of Old South thinking into national politics, so they formed the Federalist Society, according to Wikipedia “an organization of conservatives and libertarians seeking reform of the current American legal system in accordance with a textualist and/or originalist interpretation of the U.S. Constitution.”

According to that official history, the group first formed at Yale Law School and spread to Harvard and the University of Chicago Law School in 1982 “as a student organization that challenged what its members perceived as the orthodox American liberal ideology found in most law schools.” The Society asserts that it “is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”

If you want to see some masterful propaganda at work, check out the mission statement and video in the About Us section of the group’s Website.

In recent years, faced with a growing Hispanic population about to overwhelm the white population according to the U.S. Census, where is the Republican Party going to turn to for votes?

Do you think that might have something to do with the passage of Alabama’s controversial anti-immigrantion law? Just ask the tea party and Gardendale’s own Republican Senator Scott Beason.

Senator Scott Beason Addresses the Tea Party in Montgomery on Anti-Immigration Law

In case you missed it, still relevant to this discussion is the story we did with Wayne Flynt on Why Working Class People Vote Against Their Economic Interests.

© 2012, Glynn Wilson. All rights reserved.

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