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Operations of the Voting Section of the Civil Rights Division

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U.S. Department of Justice Office of the Inspector General A Review of the Operations of the Voting Section of the Civil Rights Division Office of the Inspector General Oversight and Review Division March 2013 Table of Contents CHAPTER: ONE INTRODUCTION ...................................................................... 1 I. Background .............................................................................................. 1 II. Prior Related OIG Reviews ........................................................................ 5 III. Methodology of the Investigation ............................................................... 6 IV. Organization of this Report ....................................................................... 6 CHAPTER TWO: BACKGROUND........................................................................ 9 I. Organization of the Civil Rights Division and the Voting Section................ 9 II. Voting Rights Laws ................................................................................. 11 A. Voting Rights Act of 1965 .............................................................. 11 1. VRA Section 2 ...................................................................... 11 2. VRA Section 5 ...................................................................... 12 3. VRA Sections 3 and 8........................................................... 15 4. VRA Section 11(b) ................................................................ 15 5. VRA Sections 203 and 4(f)(4) ................................................ 16 B. National Voter Registration Act ...................................................... 16 C. Uniformed and Overseas Citizens Absentee Voting Act ................... 17 D. Help America Vote Act of 2002 ...................................................... 17 CHAPTER THREE: ENFORCEMENT OF SELECTED VOTING RIGHTS LAWS OVER TIME .................................................................................. 19 I. Introduction ........................................................................................... 19 II. Overall Review of Enforcement Actions.................................................... 20 III. Enforcement of Sections 2 and 11(b) of the VRA ...................................... 23 A. Data Regarding Enforcement Trends in Sections 2 and 11(b) Cases ............................................................................................ 24 B. Examination of Selected Cases Involving the Enforcement of Sections 2 and 11(b) ...................................................................... 32 1. Selected Cases during the Period from 2004 to 2006 ............ 33 2. The New Black Panther Party Case ....................................... 45 3. Selected Cases Since 2009 ................................................... 73 i C. Conclusions Regarding Enforcement of Sections 2 and 11(b) Over Time ..................................................................................... 80 IV. Preclearance of Voting Changes under Section 5 ..................................... 81 A. Data Regarding Submissions to the Voting Section Pursuant to VRA Section 5 ........................................................................... 81 B. Examination of Selected Cases and Events Related to the Enforcement of Section 5 ............................................................... 82 1. 2001 – 2008 ......................................................................... 82 2. 2009 – 2012 ......................................................................... 87 C. OIG Analysis of Section 5 Preclearance Review Activities over Time .............................................................................................. 91 V. Enforcement of the National Voter Registration Act (NVRA) ..................... 93 A. Data Regarding Enforcement Trends in NVRA Cases ..................... 94 B. Enforcement of the NVRA during 2001 – 2008 ............................... 95 C. Enforcement of the NVRA during 2009 – 2012 ............................... 99 1. Division Leadership Declines To Act on Voting Section Proposal for Section 8 Investigation ...................................... 99 2. Drafting of NVRA Guidance .................................................. 99 3. Comments by DAAG Julie Fernandes Regarding NVRA Enforcement at a November 2009 Section Meeting ............. 100 4. Approval of List-Maintenance Investigations ....................... 102 D. OIG Analysis of Enforcement of NVRA over Time ......................... 106 VI. Language-Minority Provisions (Sections 4(e), 4(f)4, and 203) ................. 108 VII. The Uniformed and Overseas Citizens Absentee Voting Act ................... 112 VIII. Conclusions .......................................................................................... 113 CHAPTER FOUR: HARASSMENT OR MISTREATMENT OF VOTING SECTION EMPLOYEES FOR THEIR POLITICAL IDEOLOGY OR POSITIONS THEY TOOK ON PARTICULAR MATTERS............................ 117 I. Introduction ......................................................................................... 117 II. Allegations of Peer-to-Peer Harassment between Career Staff ................ 118 A. Staff Conduct during Georgia Voter ID (2005) .............................. 118 B. Treatment of Members of the Noxubee Case Team (2006-07) ....... 121 C. Conflict during Election Monitoring in County D (2006) ............... 124 ii D. Harassment of a Non-Attorney Employee by Section Attorneys (2007) .......................................................................... 126 E. Internet Postings by Voting Section Employees (2007) ................. 126 F. Ostracism of Career Employees ................................................... 132 G. Actions To Address and Prevent Harassment ............................... 133 H. Conclusions about Harassment ................................................... 134 III. Disclosures by Voting Section Employees of Non-Public Voting Section Information .............................................................................. 135 IV. Allegations of Retaliation by Managers against Career Employees ......... 138 A. Assignment of OIL Briefs (2005-06) ............................................. 140 B. Alleged Retaliation against Certain Members of the Georgia Voter ID Team (2005) .................................................................. 142 C. Consideration of Ideology in the Composition of the Honors Program Hiring Committee (2009)................................................ 144 V. Allegations of Removal or Marginalization of Career Section Managers by Political Staff .................................................................... 149 A. Marginalization of Voting Section Chief Joseph Rich (2004-05) .... 149 1. Facts ................................................................................. 149 2. Analysis ............................................................................. 153 B. Involuntary Reassignment of Voting Section Deputy Chief Robert Berman (2006) ................................................................. 154 1. Facts ................................................................................. 154 2. Analysis ............................................................................. 156 C. Treatment of Voting Section Chief Christopher Coates (2009) ...... 156 1. Facts ................................................................................. 157 2. Analysis ............................................................................. 175 CHAPTER FIVE: THE VOTING SECTION’S RECENT HIRING OF TRIAL ATTORNEYS ......................................................................................... 181 I. Introduction ......................................................................................... 181 II. Background .......................................................................................... 182 A. Legal Standards for Hiring Career Attorneys ................................ 182 B. Expedited Hiring of Career Employees Throughout the Division during the 2000-2001 Transition ................................... 184 C. Prior OIG Investigations of Politicized Hiring in theDepartment .... 188 iii III. CRT Hiring Procedures from 2002 to 2011 ............................................ 190 IV. Hiring of Career Trial Attorneys in 2010 in the Voting Section ............... 194 A. Hiring Procedure ......................................................................... 194 1. Recruiting Preparations and Formation of the Voting Section’s Hiring Committee ................................................ 194 2. Evaluation of Applications.................................................. 200 3. Qualifications of the Newly Hired Attorneys ........................ 204 B. Statistical Evaluation .................................................................. 204 1. Characteristics of the Applicant Pool .................................. 205 2. Hiring Outcomes ................................................................ 208 V. Analysis ................................................................................................ 213 VI. Conclusion ........................................................................................... 222 CHAPTER SIX: INVESTIGATION OF ALLEGED POLITICITIZATION OR BIAS IN RESPONSE TO REQUESTS FOR RECORDS ....................... 223 I. Introduction ......................................................................................... 223
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