Setting the Record Straight

Frustrated supporters of voter suppression measures have decided that the way to advance their cause is by personally attacking those who have fought against voter suppression – including me.

Past posts by Hans von Spakovsky and Christian Adams called me a “heavily sanctioned election lawyer” with a “checkered history with the truth.” In 2017, when I submitted testimony opposing the nomination of Jeff Sessions to be Attorney General, Adams was at it again. He claimed that I have “a history of making things up about racial issues.”

He and others, including Senator Ted Cruz, claimed I had recanted my 1986 testimony against Jeff Sessions when he was nominated for a federal judgeship. I did no such thing, and I was pleased to see then-Senator Al Franken obliterate Cruz’s and Adams’s claims, point by point, during the Sessions nomination hearing.

Last month, another article, this time regarding Thomas Farr, a judicial nominee who failed to be confirmed as a federal judge late last year because he was connected to a vote suppression scheme, referenced me again and repeated Adams’s false claim. I decided then that I would no longer let people like von Spakovsky, Adams, and others of their ilk obscure the real issues, and that their unfounded, inaccurate claims merit a short response.

This will be my first and only response to their false claims against me, even though I feel certain that they will be repeated again by the same people. Some people just can’t take the truth for an answer.

I am proud of my 45-year career in the Department of Justice and private practice, and I have never been “sanctioned” by any court, grievance committee, or anyone else.

What von Spakovsky and Adams constantly refer to is a case in which the Department of Justice – not me personally – was ordered to pay the opponents’ attorney fees because the court found that the Department’s claims were not “substantially justified.” I was one of the lead trial lawyers in the case, so it is worth a short description.

The case involved an election in which white county election officials improperly allowed dozens of white voters who lived outside a county commission district to vote, and the white candidate defeated the black candidate by only 10 votes. There was no question these votes were illegal, so the question boiled down to whether the officials’ actions were racially discriminatory, as the Department alleged, or simply a mistake, as the officials claimed.

The case, United States v. Jones, took place in Dallas County, Alabama (the county seat is Selma), and was one case in a decades-long series of voting discrimination cases brought there. Voting discrimination in Dallas County, accompanied by brutality, led to the Selma march in 1965 and prompted passage of the Voting Rights Act.

Even though black voters became a majority in Dallas County, the County Commission remained all-white because of the election system used there, so the Department of Justice sued in 1978 to achieve a non-discriminatory election system. That lawsuit resulted in new elections in 1988, which produced a 3-to-2 black majority on the Commission, with the third black commissioner being elected from a “swing” district that was closely divided between white and black voters. (Then, in 1990, DOJ had to go back to court because the County was trying to cut the normally 4-year terms to 2 years in order to force new elections again. The Department was successful again.)

Against this background, the 1992 elections took place, and somehow several dozen white voters who lived outside the closely-divided “swing” district that had elected a black commissioner in 1988 were allowed by white election officials to vote in that district. The official who permitted these white voters to vote illegally in the swing district was the white probate judge who had defended the racially discriminatory at-large county election scheme. The result of the 1992 election, as mentioned earlier, was a narrow victory by the white candidate by a margin of 10 votes.

These votes were plainly illegal, and while the black candidate sought relief in the state court, the Alabama courts took no action based on state law. Black voters complained to the Department of Justice (DOJ), and an investigation by the Department and the FBI took place. I was involved in that investigation, which was also approved by several levels of supervisors, which is standard DOJ procedure. Based on the investigation, the Department found that white voters had voted illegally in the election and concluded that allowing these illegal voters to cast ballots in the swing district had produced a racially discriminatory effect, and that county election officials intended this racially discriminatory result. DOJ filed a lawsuit making those allegations. I was part of the process of recommending the lawsuit, which again was approved by several levels of my DOJ supervisors.

The suit was tried before a single district judge without a jury. He ruled against the Department on grounds of both discriminatory purpose and effect. The judge found that the voters had indeed voted in the wrong district, as we had alleged, but he agreed with county officials that their actions were just mistakes and did not violate federal law. DOJ appealed (I had left DOJ by the time it appealed) and the court of appeals affirmed the decision. The defendants argued that the DOJ should have to pay legal fees incurred in defending the district court’s judgment, but the appeals court rejected the claim for fees.

After that, the case went back to the district court for further proceedings. By that time, as noted above, I had left the Department, and had no further involvement in the case. The county officials argued again that their fees should be paid by the Department, and even though the district court found that the Voting Rights Act claim was substantially justified, this time the district court agreed to award fees to defendants.

The decision to award fees was appealed by the Justice Department (both the Voting and Appellate Sections of DOJ’s Civil Rights Division urged an appeal, and the Solicitor General’s office approved, again standard DOJ procedure). This time, a court of appeals panel (consisting of different judges than the first time) agreed that the Department should pay fees for bringing a constitutional claim of intentional discrimination that had no substantial justification. The court of appeals opinion had harsh words for the Department’s case and expressed sympathy for the county officials and concern for what this “unjustified” case had done to harmonious race relations in Dallas County.

I still disagree with the courts’ decisions, especially the court of appeals’ non-credible statement that Dallas County and Selma had harmonious race relations that were undermined by the Department’s suit. Anyone who litigated civil rights cases in Alabama, as I did for more than 25 years between 1973 and 1998, knows that race relations in Selma and Dallas County were toxic. But my disagreement doesn’t matter, of course, because the courts’ decisions are the decisions.

What does matter is that this case, including the decisions, provides no basis for the accusations that I am a “heavily sanctioned” lawyer and other similar claims that von Spakovsky and Adams like to throw around.

One final point about this case: After I left the DOJ in 1994, the district judge who had ruled against the United States in that case and who had later imposed fees against DOJ sent me a gracious note complimenting my skill and professional approach to the litigation in his court. After that, when I had left the Department, the two of us had a cordial lunch when I visited him in Mobile.

I stand by my conduct in that case and the hundreds of civil rights and voting rights cases I have been involved in over the last 45 years. And I stand by my reputation. If we have issues to debate about judicial nominees like Jeff Sessions, Thomas Farr, or others, or if we have different views about vote suppression, and we certainly do, let’s debate them on the substance and not by name-calling and misrepresentations.


Gerry supervises the voting rights and redistricting program at CLC.