09 29 2016
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WASHINGTON—Political appointees in the Justice Department have overruled career workers at least three times on high-profile matters, including a Georgia law requiring voters to show photo identification at the polls.

Attorney General Alberto Gonzales says that is what appointees are paid for: to consider the advice of professional staff and then exercise their best judgment.

Bush administration critics say the cases fit a pattern of allowing political considerations to trump sound policy.

In two of the three cases, the department gave its blessing to Republican-backed changes to state election laws despite strongly worded and lengthy opinions from the government's civil rights lawyers that the changes unfairly would affect minorities.

Several former employees of the voting rights unit said that lawyers and analysts now are required to forward memos about proposed election changes with no recommendation. They spoke on condition of anonymity because they still work for the government or fear disapproval from their new employers.

Justice Department spokesperson Eric Holland would not comment on what he said was internal communication policy.

States with a history of discouraging Blacks and other minorities from voting must get the department's approval for any voting changes under the Voting Rights Act of 1965. The landmark civil rights law is designed to prevent discrimination against minorities.

The third instance involves the government's long-running lawsuit against the tobacco industry. Senior department officials ordered the career lawyers who were trying the case to cut from $130 billion to $10 billion the cost of a smoking-cessation program the government wanted cigarette makers to pay.

Gonzales said the reduction stemmed from a federal appeals court ruling this year that sharply limited the damages the government could seek from tobacco companies.

"We're not going to politicize decisions within the department," Gonzales said. "We're going to make decisions based on what the law requires."

Several anti-smoking advocates who have closely followed the 6-year-old suit said Gonzales' explanation did not square with the chronology of developments in the case.

In February, an appeals court barred the department from seeking $280 billion in allegedly ill-gotten tobacco profits, saying the law required "forward-looking" remedies. The $130 billion smoking cessation program, advocated by the government's expert witness, was the next most expensive penalty mentioned during the trial.

"Before closing arguments in June, they gave every indication that the remedies they were seeking were consistent with the appeals court decision. Why, at the last minute and over the trial team's objections, did that argument change?" asked William Corr, executive director of the Campaign for Tobacco-Free Kids.

In addition, Sharon Eubanks, the lead lawyer on the department's tobacco litigation team recently announced her retirement. In several interviews, she cited political interference as a reason.

In the voting rights cases, it's virtually impossible to tease politics out of the mix.

The Texas redistricting case was an effort, acknowledged by both sides, to elect more Republicans and fewer Democrats to Congress.

The issue was whether the plan backed by then-House Majority Leader Tom DeLay illegally reduced the power of minorities, who vote overwhelmingly for Democrats, to elect candidates of their choice.

Eight career employees at the Justice Department thought it did and laid out their reasoning in great detail. They said that under the old plan, there were 11 districts in which Blacks and Hispanics either constituted an electoral majority or effectively determined who would be elected. Under the new plan, there are nine.

Sheldon Bradshaw, the deputy assistant attorney general for civil rights, disagreed. A week after receiving the opinion, Bradshaw wrote that the department found no reason to object to the new Texas congressional districts.

A panel of three federal judges also ruled that the new districts were legal. That decision has been appealed to the Supreme Court.

In the meantime, the plan had the desired effect. Republican representation went from 15 to 21 in the state's 32-member House delegation.

The number of minorities in the delegation increased from eight to nine with the election of a Black Democrat who defeated an incumbent Democrat in the primary.

The election results and the court ruling show that minorities were not hurt by the new congressional map, said Gonzales, a Texas Republican who is the first Hispanic to serve as attorney general.

Democrats are upset because they lost seats, not because minority voting strength has been harmed, Abigail Thernstrom, a critic of the department's career voting rights lawyers, wrote in the National Review's online edition.

Gerald Hebert, a lawyer for those who challenged the Texas map in court, said the judges are precluded from ruling on the department's action and can only consider the plan under a different provision of the Voting Rights Act.

"When you go to the Justice Department for preclearance, the state bears the burden of proof," Hebert said. "When you go to court, the plaintiffs bear burden. It's a huge difference."

The third case was Georgia's effort to require voters to show photo identification at the polls. Four of the five career employees who reviewed the law and its effect on minorities concluded it ran afoul of the voting rights law.

A day after they wrote their Aug. 25 memo recommending it not be approved, John Tanner, chief of the voting rights section, told Georgia officials they could enforce the new law.

U.S. District Judge Harold Murphy in Rome, Ga., has since blocked it. He said the law amounts to an unconstitutional poll tax because the state is not doing enough to make ID cards available to those who cannot afford them.

Justice Department officials said the ruling did not undermine the department's decision to allow Georgia to proceed because Murphy did not find any violations of the Voting Rights Act.


— The Associated Press

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