I spent part of this past weekend reading documents and cases related to the Justice Department’s voter intimidation case against members of the New Black Panther Party (NBPP) and the party itself. My conclusion is that the decision to drop the case against all defendants except the one who carried a weapon at the polling station is defensible. Whether the decision was made for defensible reasons or instead was motivated by bias against whites, I cannot say. However, I don’t assume bad faith.
Before summarizing my analysis, I’ll post two documents that should assist readers in making up their own minds. The first is the memorandum by the DOJ lawyers, including Christopher Coates and J. Christian Adams, recommending that the case by brought. The second is the testimony of Thomas Perez, the Obama administration’s assistant attorney general in charge of the Civil Rights Division. I’m no fan of Perez; in fact, I wrote an op-ed for the Washington Times opposing his nomination. However, his testimony deserves the attention of anyone interested in making a fair judgment about this matter.
The DOJ memo is a good one, but its recommendation to bring the case receives most of its force from the fact that one of the two NBPP “poll watchers” — Samir Shabazz — was “brandishing a deadly weapon at the entrance to a polling place.” This is apparent from the heading of the two sections of the memo’s “Legal & Factual Analysis” section:
A. Brandishing a deadly weapon at the entrance to a polling place and related actions and statements by the uniformed members of the NBPP constituted acts designed to intimidate, threaten, or coerce those voting or attempting to vote.
B. Brandishing a deadly weapon at the entrance to a polling place and related actions and statements by the uniformed members of the NBPP constituted acts designed to intimidate, threaten, or coerce those aiding voters.
Without the deadly weapon (a long club), the memo fails to establish a strong case. That’s due in part to the fact, which the DOJ lawyers acknowledge, that voter intimidation cases have been “uniformly unsuccessful,” given the standards courts apply. In one case, United States v. Brown from 2007, the court found no violation where the black defendant confronted a white voter, ordered him away from the building, and summoned law enforcement officials (one of whom appeared) when the white voter refused to leave. In addition, the defendant published a list of voters who would be challenged if they attempted to vote. A witness testified that she stayed home for fear of being arrested if she voted. Yet, the government’s case failed.
Years earlier, in United States v. Harvey, the defendants terminated sharecropping and tenant-farming relationships with blacks who had registered to vote, evicted such persons from rental homes, and discharged them from salaried jobs. The court rejected the voter intimidation claim. I doubt that Harvey would be considered very persuasive today, but Brown shows that these cases remain difficult to win.
Under all of these circumstances, it was reasonable for the Obama/Holder Justice Department to conclude that the case against the second NBPP member, Jerry Jackson, lacked sufficient evidentiary support. Jackson did not have a weapon. In addition, he was a certified poll watcher. The local police officer who arrived at the scene and investigated the matter concluded that, unlike Shabazz, his actions did not warrant removal from the polling station.
Jackson is no “innocent,” of course. He stood together, in uniform, with Shabazz, and appears to have joined Shabazz in making racial remarks to certain voters. The case against him was not frivolous. However, it strikes me as weaker than the Brown case described above, which was unsuccessful.
There are a number of other issues (such as the case against the NBPP itself), but for now I’ll discuss only one of them — the fact that, at the time DOJ dropped the case against all defendants except Samir Shabazz, the defendants had failed to respond to the complaint, thus entitling DOJ to a default judgment.
Even when the government stands to win a default judgment, it still has an obligation to ensure that its case is consistent with the law and supported by the evidence. In my view, the government should never pursue a case where it has concluded that the best view of the facts and law point in favor of the party it is litigating against. The government should not merely abstain from taking frivolous positions, it should abstain from taking any position it has come to consider incorrect.
In other words, the government isn’t in the business of winning cases; it is in the business of upholding justice, defined as the conclusion stemming from the best view of the facts and the law.
Few government lawyers with whom I’ve dealt share this view when push comes to shove, and it’s far from clear that Thomas Perez and the Civil Rights Division are among them. However, if they concluded (as I have) that the case against the defendants other than Samir Shabazz was weak, then I believe they did the right thing, and certainly nothing scandalous, by pursuing the case only against Samir Shabazz.
Having said all of this, the NBPP case was a legitimate story, and one that the MSM should have covered from the start. The decision of the Obama/Holder Justice Department to drop parts of a case that had basically been won deserved scrutiny, particularly in light of the doubts of many (including me) as to whether, as a general matter, its enforcement of voting rights and other civil rights statutes is racially even-handed.
I’m glad that this scrutiny has occurred. It leaves the public free to reach its own conclusions, and I hope leaves Thomas Perez and others in his shop with the understanding that the scrutiny is ongoing.
SCOTT adds: I don’t think any one of us who has commented on the treatment of the case assumed bad faith on the part of the Obama administration. Among other things, we have taken into account the testimony and columns of Christian Adams as well as the exile of former Civil Rights Division Voting Rights Section head Christopher Coates to South Carolina.
It should be noted that the injunction secured by the Department of Justice against Shabazz prohibits Shabazz from wielding a weapon outside of a polling place in Philadelphia…until the district court loses jurisdicition over enforcement of the injunction in 2012. While he discourses at length on the geographical limitations of the injunction, Perez doesn’t address the temporal limitation. This among other reasons makes it hard for me to take Perez’s statement at face value.
PAUL adds: I don’t know what the standard practice is for the length of injunctions in voting cases. It is my understanding that the Bush administration Justice Department, in a voting rights case against the infamous Ike Brown (of the Brown case discussed above), obtained an injunction that covered two election cycles, just as the Shabazz injunction does. The injunction was entered in 2007 and was to run through 2011. Brown, the black chairman of the Noxubee (Mississippi) County Democratic Executive Committee, was accused of engaging in systematic discrimination against white voters.
This was not an intimidation case; these cases, in the rare instances when they are brought, haven’t been successful (or at least haven’t generated published opinions demonstrating success). But the offenses that brought Brown the two-cycle injunction seem quite egregrious. In fact, Christian Adams describes Brown as “one of the most lawless purveyors of racial discrimination the nation has seen in decades.”
The Obama/Holder Justice Department’s treatment of Brown, who is still “in business,” will provide another window into whether it takes violations of the Voting Rights Act by blacks seriously. However, the treatment of Brown by this administration is beyond the scope of this post.