Unanswered Questions About Judge Gorsuch on Voting Rights

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After an expedited FOIA request, a large document release, and three days of hearings, there still remain unanswered and unsettling questions about Judge Neil Gorsuch’s views on our fundamental right to vote.

In his opening remarks, and throughout his responses, Gorsuch stressed that a Supreme Court justice must be impartial and independent. We agree.

That’s why, on Feb. 16, 2016,  we asked the Department of Justice (DOJ) to release all documents that might shed light on any role Gorsuch may have had in the politicization scandal at the DOJ in 2005 and 2006, while he was Principal Deputy Associate Attorney General. The scandal — which an independent investigation determined “severely damaged the credibility of the Department”— largely centered on the Department’s politically motivated search for evidence of “voter fraud” and the improper firing of officials for their unwillingness to pursue an aggressively prosecutorial agenda based on unsubstantiated allegations of widespread voter fraud for partisan benefit.

As we stated in our FOIA request, we believe “[h]ow Mr. Gorsuch navigated the issue of the DOJ’s independence under an administration bent on interference for political gain has significant bearing” on how he might behave as a Supreme Court Justice. Moreover, his view on the DOJ’s single-minded focus on finding voter fraud where it does not exist would shine an important light on how he values and weighs our fundamental right to vote against false allegations of fraud used as a shield for voter suppression measures.

While our request for expedited process was granted on February 28, we still have not received a full answer to our request. When the DOJ released  Gorsuch’s documents to the Senate Judiciary Committee on March 9, the department also informed us that they viewed that response as sufficient to answer our more pointed questions as well.

There is one key reason why the DOJ’s document dump is insufficient to clarify whether Gorsuch had a role in the 2005 scandal. The department did not release all documents and released thousands of documents only to the Senate members. They did so based on their own judgments about privilege and exemptions from the FOIA requirements.

But pursuant to FOIA law, we requested what is called a “Vaughn index,” an index of all withheld documents, or parts of documents, with a stated justification for the withholding. Without this index — which we now believe will likely not be provided until after the Gorsuch nomination process is complete — it is impossible to know whether documents exist (but were withheld) that might shine a light on how Gorsuch acted within, or even reacted to, this troubling scandal during his tenure.

But within the documents released are emails from Gorsuch that demonstrate a friendly and supportive relationship between Gorsuch and Republican former Federal Election Commission (FEC) member and voter suppression activist Hans von Spakovsky. Von Spakovsky is a leading voice in the effort to create a public perception of widespread voter fraud out of thin air in order to support voter suppression measures across the country. He was also the special counsel to Brad Schlozman, the assistant attorney general who wrote that he wanted to “gerrymander all of those crazy libs right out of the [voting] section,” called voting section attorneys “mold spores,” and was a primary focus of the inspector general report on the politicization scandal.

When an email was circulated by Von Spakovsky about a “ballot access and voting integrity conference,” Judge Gorsuch wrote back to him to say “sounds interesting. Glad to see you are doing this. I may try to attend some of it.” When he was chosen by President George Bush to fill a vacancy on the FEC, Judge Gorsuch wrote to his colleagues, “Good for Hans!”

Given how little we know about Gorsuch’s response to the 2005-2006 scandal while he was there and his thin but unsettling record on voting rights and election issues, these stray comments supporting a member of the Department of Justice once called “the point person for undermining the Civil Rights Division’s mandate to protect voting rights” should worry the American voter. Further, Gorsuch once said in a judicial opinion that the issue of partisan gerrymandering had been “put to bed,” an assertion betrayed by our ongoing litigation that has the potential to decide future standards for what would be considered an unconstitutional gerrymander. And if Gorsuch really is a judge in the mold of Justice Scalia—an opponent to robust protections of the right to vote—this casts a disconcerting light on Gorsuch’s views on ballot access issues.

During the confirmation hearings, Gorsuch was given several opportunities to reaffirm his faith in the current role of the Voting Rights Act in protecting our elections and to firmly disavow Justice Scalia’s view that it “perpetuates racial entitlement.” Instead, he brushed them aside.

If confirmed, Gorsuch must cast a more critical eye on allegations of voter fraud unsupported by the evidence—allegations that are used to undermine equal access to the ballot—in his role as a fair justice on the highest court.

Danielle is CLC's Senior Director, Voting Rights.