After trumpeting GOP activist J. Christian Adams' fabricated New Black Panthers Party story, Fox News is now reporting his false claim the Department of Justice is “ignoring” a military voting law by allegedly “encourag[ing]” states to use waivers to bypass the law. In fact, the waiver process is built into the law, and Adams offered no specific evidence to support his claim that DOJ is “encourag[ing]” states to use those waivers.
From a July 28 FoxNews.com article by Jana Winter:
The Department of Justice is ignoring a new law aimed at protecting the right of American soldiers to vote, according to two former DOJ attorneys who say states are being encouraged to use waivers to bypass the new federal Military and Overseas Voter Empowerment (MOVE) Act.
The MOVE Act, enacted last October, ensures that servicemen and women serving overseas have ample time to get in their absentee ballots. The result of the DOJ's alleged inaction in enforcing the act, say Eric Eversole and J. Christian Adams -- both former litigation attorneys for the DOJ's Voting Section -- could be that thousands of soldiers' ballots will arrive too late to be counted.
“It is an absolute shame that the section appears to be spending more time finding ways to avoid the MOVE Act, rather than finding ways to ensure that military voters will have their votes counted,” said Eversole, director of the Military Voter Protection Project, a new organization devoted to ensuring military voting rights. “The Voting Section seems to have forgotten that it has an obligation to enforce federal law, not to find and raise arguments for states to avoid these laws.”
Adams, a conservative blogger (www.electionlawcenter.com) who gained national attention when he testified against his former employer after it dropped its case against the New Black Panther Party, called the DOJ's handling of the MOVE Act akin to “keystone cops enforcement.”
“I do know that they have adopted positions or attempted to adopt positions to waivers that prove they aren't interested in aggressively enforcing the law,” Adams told FoxNews.com. “They shouldn't be going to meeting with state election officials and telling them they don't like to litigate cases and telling them that the waiver requirements are ambiguous.”
Waiver process actually built into military voting law
Claim that DOJ is “ignoring” law by “encourag[ing]” waiver use is nonsensical. The MOVE Act requires states to send absentee ballots to overseas military troops 45 days before an election, but the legislation specifically allows states can apply for a waiver if it can prove an “undue hardship” in enforcing it, as well as outline a “comprehensive plan” by which military and overseas voters will receive ballots in time for them to be counted in the election. From a National Association of Secretaries of State (NASS) summary of the MOVE Act:
A State may request a waiver from the 45 day transit time provision if the Chief State Election Official determines that the State cannot meet the requirements due to undue hardship. The undue hardship must be one of the following: (1) the date of the State primary; (2) a delay in generating ballots due to a legal contest; or (3) the State constitution prohibits the state from complying with the time frame requirements.
The waiver request must include: (1) a recognition that the purpose of the 45 day transit time is to allow UOCAVA voters enough time to vote in Federal elections; (2) an explanation of why the State cannot meet the requirement; (3) the number of days prior to Federal elections that the State requires absentee ballots be sent to UOCAVA voters; and (4) a comprehensive plan to ensure that overseas voters are able to receive and submit an absentee ballot in time for it to be counted.
If the undue hardship is based on either the State primary date or the State constitution, the waiver request must be submitted no later than 90 days before the upcoming election.
Defense Department must also approve waivers. From the NASS summary:
After consulting with the Attorney General, the Department of Defense must grant the waiver request if the comprehensive plan is deemed sufficient. The Department of Defense must approve or deny a waiver request based on the State primary date or State constitution no later than 65 days before the Election. Note: In 2010, 65 days before the November 2nd Election is Sunday, August 29th.
If a State requests a waiver based on a delay in generating ballots due to a legal contest, the request must be submitted as soon as practicable. The Department of Defense must approve or deny the request no later than 5 days after the waiver request is received.
No direct evidence offered that DOJ “encouraged” waivers
Claims by Eversole, Adams lack evidence. FoxNews.com based its article on the accusations of J. Christian Adams and Eric Eversole, former DOJ attorneys who are Republican activists. Eversole asserted that the Justice Department “appears to be spending more time finding ways to avoid the MOVE Act rather than finding ways to ensure that military voters will have their votes counted.” Adams claimed that “I do know that they have adopted positions or attempted to adopt positions to waivers that prove they aren't interested in aggressively enforcing the law.” FoxNews.com did not indicate whether Adams or Eversole offered any specific evidence to back up these assertions.
Meeting excerpts offer no evidence of “encourag[ing]” waivers. FoxNews.com also highlighted a letter by Sen. John Cornyn expressing “serious concern” about “recent reports” regarding enforcement of the act, and went on to quote Cornyn saying that “according to recent information, the Department of Justice has expressed reluctance to protect the civil rights of military voters under the new law.” The only evidence offered to support the claim is the “minutes from the 2010 winter meeting of the National Association of Secretaries of State (NASS), during which Rebecca Wertz, deputy chief of the DOJ's voting section, told state election officials that the legislative language regarding waivers is not completely clear.” According to the minutes, FoxNews.com reported, Wertz said that “the DOJ is working to find effective ways to disseminate any information guidance that can help states with different questions about MOVE interpretation. She invited questions and dialogue from states, and said that litigation is always the last resort.” The excerpts provided by FoxNews.com offered no evidence that DOJ is “ignoring” the law or “encourag[ing]” waivers.
Accuser Adams is GOP activist who pushed phony New Black Panthers story
Adams is a longtime right-wing activist. Adams is known for filing an ethics complaint against Hugh Rodham that was subsequently dismissed. Adams served as a poll watcher for George W. Bush in Florida in 2004, and he reportedly volunteered for a Republican group that trains lawyers to fight “racially tinged battles over voting rights.”
Adams is deeply tied to Bush-era politicization of DOJ. Adams was reportedly hired at the Justice Department in 2005 by Bradley Schlozman, who was found by the Justice Department's inspector general and Office of Professional Responsibility to have improperly considered political affiliation when hiring career attorneys. The former head of the DOJ voting rights section reportedly said that Adams was “exhibit A of the type of people hired by Schlozman.”
Adams' previous accusations against DOJ based on hearsay. In accusations heavily promoted by Fox News, Adams claimed that the DOJ improperly dismissed voter-intimidation charges against members of the New Black Panther Party for political reasons. But Adams relied on hearsay and charges made by others, rather than firsthand knowledge, in making his allegations.
Accuser Eversole is also a GOP activist
Eversole was hired during the period Schlozman was politicizing DOJ hiring. According to a witness biography posted when Eversole testified in front of the House Subcommittee on Elections in March 2009, Eversole worked in the DOJ's Civil Rights Division from September 2005 until December 2007. He was hired during the period the Justice Department's inspector general and Office of Professional Responsibility said that Schlozman was improperly considering political affiliation when hiring career attorneys.
Eversole served as an adviser to the McCain campaign. Eversole's bio states that he “served as an advisor to the McCain-Palin campaign” during the 2008 presidential election.
Eversole was a member of the Republican National Lawyers Association. Eversole wrote a February 2009 white paper for the RNLA criticizing Minnesota Secretary of State Mark Ritchie's handling of military ballots in the 2008 election. The paper notes that Eversole “is a member of the Republican National Lawyers Association,” but there is no current reference to him on the RNLA website.
Eversole has written articles for conservative websites. Among the articles he has recently written:
- In a June 2009 Pajamas Media article, Eversole accused the Obama administration of ignoring “the anti-Semitic and racial intolerance espoused by the New Black Panther Party” and of giving it a “free pass.”
- Eversole suggested in an April 2009 Weekly Standard article that there was “evidence of wholesale disenfranchisement” in the 2008 Minnesota Senate election because of alleged irregularities in military ballots
- Eversole co-wrote a Heritage Foundation article with fellow former Bush DOJ employee Hans von Spakovsky -- who has promoted the phony New Black Panthers story and defended Adams -- on “re-enfranchising” military voters.
Fox News heavily promoted phony New Black Panthers scandal
Fox has hyped “scandal” with hours of coverage. On July 16, Media Matters for America reported that Six Fox News shows have discussed the phony New Black Panthers scandal during a total of 95 segments since Megyn Kelly's June 30 interview hyping Adams's unsubstantiated accusations. In all, these Fox shows devoted more than eight hours of airtime to discussing the New Black Panthers.
Thernstrom: “This doesn't have to do with the Black Panthers; this has to do with their fantasies about how they could use this issue to topple the [Obama] administration.” In a July 16 Politico article, Abigail Thernstrom, a Republican who serves as vice chair of the Civil Rights Commission and is an adjunct scholar at the American Enterprise Institute, criticized the Republican-dominated Civil Rights Commission's investigation of the Justice Department's actions in the New Black Panthers case. Politico quoted Thernstrom as saying: “This doesn't have to do with the Black Panthers; this has to do with their fantasies about how they could use this issue to topple the [Obama] administration. ... My fellow conservatives on the commission had this wild notion they could bring [attorney general] Eric Holder down and really damage the president.
Bipartisan agreement: New Black Panthers case is a fabrication. Numerous media and political figures, including Fox News contributors and Republicans, have dismissed the Fox-hyped phony scandal surrounding the New Black Panthers Party.