We at Main Justice have filed 42 stories since May 2009 about the Obama Justice Department’s controversial decision to drop most of a voter intimidation case against the New Black Panther Party.
Why? Because we’ve been around Washington long enough to recognize the conservative political machine’s windup to a curve ball pitch. And now we have it: Allegations splashed on the front page of Saturday’s Washington Post that the Obama administration is biased against white voters!
These allegations have been aired for months and months on Fox News and in the dwindling pages of the apparently bankrupt Washington Times. But the goal of the conservatives who nurtured this story – with help from conservatives inside the DOJ — was always to get them “validated” by a non-ideological respected mainstream outlet. Now they’ve done it, thanks to a deluge of calls to the Post’s ombudsman, who criticized the paper for not getting to the bottom of the story and apparently spurred the Post to action.
Meanwhile, the administration and its liberal defenders have done nothing to “make news” on this story, which means they are only reacting to a narrative the conservatives are driving. Admittedly, it’s tough: They are saddled by the odious Panthers, a hate group that no one wants to be seen as defending.
And the news on Friday was real: The DOJ’s former Voting Section chief, Christopher Coates, testified before the U.S. Commission on Civil Rights that that he observed a “deep-seated” opposition in the department to pursuing cases that protected the voting rights of whites. But as we’ll see later, Coates is hardly the non-political career lawyer his champions make him out to be.
First, though, it’s unclear that there are massive numbers of white voters in America who are being kept from the polls – at least not in the way Southern states once used poll taxes, literacy tests and other gimmicks to disenfranchise black voters, spurring the 1957 Civil Rights Act that established the DOJ’s Civil Rights Division.
What’s true is that a 2005 voting case the Bush DOJ brought against black Democratic Party officials in Noxubee County, Miss., met strong opposition from the mostly liberal career Voting Section lawyers then in place at the DOJ. And it’s also true that Attorney General Eric Holder last year said the division was returning to its “historical mission” of protecting minority rights after Bush political appointees caused turmoil in the Civil Rights Division.
From these thin reeds, conservatives have managed to gain traction with this extraordinary narrative: The first black U.S. president, under the first black Attorney General, don’t believe in enforcing anti-discrimination laws when the victims are white.
The Obama administration is yet again caught in a familiar racial trap. But unlike the Shirley Sherrod incident, this one didn’t sneak up on them. You would think they’d have devised more effective response.
What’s masterful about the conservative narrative is that no white voters – or any voters at all – have come forward to complain they were intimidated by two members of a racist fringe group called the New Black Panther Party, who stood outside a majority black Philadelphia polling place in 2008 wearing black berets and fatigues.
One of the Panthers held a night stick, but he moved on when white Republican poll watchers called the police. The other Panther, Jerry Jackson, held a Democratic Party poll watching certificate entitling him to be on the premises.
The Panthers’ racism is contemptible. But as a legal matter, did this incident merit federal intervention? What does it mean that the only complaints came from the white Republican poll watchers who swarmed the majority black polling place on election day, none of whom were apparently registered to vote at the precinct?
It means that this was a set up, with an assist from inside.
A video of the Panthers in Philadelphia was filmed by a blogger named Stephen Robert Morse, who was hired by the local Republican Party on behalf of the John McCain campaign. A conservative activist named Mike Roman, who runs a website called electionjournal.org, uploaded the video to YouTube, where it’s received more than 1.5 million views.
After Barack Obama made history wining election as the nation’s first black president, a Civil Rights Division lawyer named J. Christian Adams began collecting evidence for a civil lawsuit against the Panthers. The suit was filed just days before Obama was inaugurated.
Adams, an activist who’d previously volunteered with the Republican National Lawyers Association, was one of at least 63 lawyers improperly hired for his conservative affiliations during the Bush administration by a political appointee named Bradley Schlozman.
Schlozman declared he wanted “right-thinking Americans” to staff the non-political career civil service positions in the division. He referred to applicants with liberal affiliations as “commies” and “pinkos,” according to a joint report of the Department of Justice Inspector General and Office of Professional Responsibility, which labeled Schlozman “unsuitable for federal service.”
Veteran lawyers were driven out through harassment and buyouts. A Government Accountability Office investigation found that 31 percent of the Voting Section staff left in 2005 and 21 percent departed in 2007.
During Schlozman’s well documented reign of terror in the Civil Rights Division, veteran DOJ lawyer Coates emerged as a key ally. “[D]on’t be dissuaded by his ACLU work on voting matters from years ago. This is a very different man, and particularly on immigration issues, he is a true member of the team,” Schlozman wrote in one email of an unidentified person, according to the IG report. The Post identified the person as Coates.
Coates was elevated to Voting Section chief in 2008 after his predecessor, John Tanner, resigned after saying voter identification requirements are less burdensome to elderly black voters than whites because “they die first.”
Against this history, the then-acting head of the Civil Rights Division, Loretta King, recommended in early 2009 that the case be dropped after the Panthers failed to contest it. (The DOJ did secure an injunction against the Panther who held the nightstick.). Scare resources should be used to pursue the kind of systematic voter intimidation that the Voting Rights Act was enacted to remedy, the DOJ lawyers argued, not isolated incidents better handled by local police, as this one was.
Conservatives, however, knew they had a ball they could run with. In July 2009, Rep. Frank Wolf (R-Va.) stood on the House floor and railed, “Martin Luther King Jr. did not die to have people in jack boots block polling places.” He added: “I question Eric Holder’s commitment to voting rights.”
On Fox News, a poll watcher named Bartle Bull claimed one of the Panthers said in parting, “You’re going to be ruled by the black man, cracker.” (Here’s a video.)
But using this isolated incident in Philly involving two yahoos to paint the entire Obama administration as reverse racists resembles a modern-day version of the GOP’s well known “Southern strategy” playbook, in which Republicans fanned racial fears in the South to win white votes.
Meanwhile, a careful look at the legal basis for the Bush DOJ’s lawsuit reveals something interesting: It was brought under the rarely used Section 11 (b) of the Voting Rights Act. Section 11 (b) prohibits real or attempted intimidation, threats or coercion against people trying to vote or helping others to vote. The section isn’t often invoked because the Voting Rights Act is a civil statute and such conduct is more often referred for criminal prosecution.
Our reporting revealed the government brought a Section 11 (b) case against North Carolina Republicans and then-Sen. Jesse Helms in 1992 for sending out misleading mailings to 100,000 mostly black voters. A reader later told us he thought it also had been used once in 1966.
But the George W. Bush DOJ used it twice – both times to bring cases against blacks. The first was a successful 2005 case against a black Democratic election officials in Noxubee County, Miss. The second was the Black Panther case. Adams and Coates worked both cases.
The selective use of the 11 (b) statute suggests the Bush DOJ lawsuits were filed to make an ideological point about reverse racism. Fair enough - when you win an election, you get to make policy decisions about which cases to pursue.
Unlike the Panther case, the Mississippi lawsuit was strong. Under the more frequently used Section 2 of the Voting Rights Act, it documented a pattern of discrimination, including manipulation of voter rolls and rules to disenfranchise whites. The alleged Section 11 (b) intimidation involved a black election official who the government said refused to put a white voter’s ballot in a secure jacket and then berated her for complaining. A federal court entered a judgment in the government’s favor.
The Panthers case, by contrast, is based solely on Section 11 (b) intimidation allegations. No pattern of voter intimidation emerges. While it’s certainly possible the Panthers were attempting to coerce the 34 whites who, according to census data, lived in Philadelphia’s Precinct 4 at the time, you would think at least one intimidated voter would have been found before the government filed a lawsuit.
In May, Adams quit the DOJ after his superiors prohibited him from testifying before the conservative dominated U.S. Commission on Civil Rights, which is investigating the incident. Adams claimed the Obama DOJ has a policy of not pursuing civil rights cases against black defendants. He wasn’t allowed to testify while still at the DOJ, because non-partisan career lawyers are supposed to leave the public pronouncements to their policy-making political bosses.
Civil Rights Division chief Tom Perez said the department properly handled the case in an appearance before the commission in May.
Then on Friday, Coates also defied his superiors’ orders and testified before the commission, saying he has whistle blower protection. He alleged that the Obama DOJ showed “bias” against pursuing cases in which whites’ voting rights were denied. Late last year, Coates transferred from Washington to a DOJ outpost in South Carolina amid internal tensions about his role in the Black Panthers case.
Yes, civil rights laws are color blind. But let’s not forget that the Civil Rights Division exists because of discrimination against blacks. The 1957 Civil Rights Act was enacted amid the backdrop of Rosa Parks refusing to give up her seat to a white passenger on a public bus in Alabama, and President Dwight D. Eisenhower calling out the National Guard to protect black students from angry white mobs as they integrated Central High School in my hometown of Little Rock, Ark.
The 1965 Voting Rights Act was enacted after fire hoses and sheriff’s dogs were turned on civil rights protesters in the South and black civil rights activist Medgar Evers was killed by a sniper’s bullet, among other notorious incidents.
At the urging of congressional Republicans, DOJ Inspector General Glenn Fine has said he will examine the Voting Section’s record. In a letter, he said his probe would look “more broadly on the overall enforcement of civil rights laws” rather than simply at the Black Panthers case. His report will take some time.
Meanwhile, the mid-term elections are looming.