Last week, as Scott has discussed here and here, Christopher Coates, former head of the Voting Section at the Department of Justice’s Civil Rights Division (CRD), testified before the U.S. Commission on Civil Rights. Coates’ underlying claim before the Commission was that the Department of Justice’s “public representations to [the] Commission and other entities do not accurately reflect what caused the dismissals of three defendants in the New Black Panther Party [NBPP] case. . .and they do not accurately describe the longstanding opposition in the CRD and in the Voting Section to the equal enforcement of the provisions of the Voting Rights Act.”
Coates devoted only a small portion of his testimony – about four of his 19 pages – to a discussion of the NBPP case. Most of that discussion focused on challenging “several of the publicly stated reasons” presented by the Obama Justice Department for trimming back the case.
Coates did not offer a comprehensive analysis of the NBPP case, and this was probably wise. As I argued here and here, there are defensible reasons why a prosecutor might, in good faith, have made the decisions with which Coates disagrees. And, in any event, one bad prosecutorial decision does not a scandal make. On the other hand, longstanding opposition to equal enforcement of the Voting Rights Act is scandalous, and so is giving false or misleading testimony.
Coates focused on the first potential scandal – opposition at the Justice Department to equal enforcement of the Voting Rights Act. He presented the following types of evidence of such opposition: (1) evidence of past hostility to enforcing the Act on behalf of aggrieved whites, including hostility by those selected by the Obama administration for key positions in the Civil Rights Division, (2) evidence that civil rights groups pressure the Department of Justice not to bring cases on behalf of aggrieved whites and that key CRD officials are sensitive to such pressure, and (3) statements by Julie Fernandez, Deputy Assistant Attorney General for Civil Rights in the Obama administration, that the administration is only interested in bringing Section 2 cases on behalf of racial and language minority voters, and that it has no interest in Section 8 “list maintenance” cases. Such cases help prevent voter fraud by compelling state and local officials to remove ineligible voters from their lists.
Coates demonstrated the Voting Section’s hostility to enforcing the Voting Rights Act on behalf of aggrieved whites primarily through his experiences in a case he successfully brought against Ike Brown, the African-American boss of Noxubee County, Mississippi whose discrimination against white voters is legendary. One career attorney, when asked by Coates to help with the case, made it clear that he had not come to the Voting Section to sue African-American defendants. Another attorney took the position that voting cases should not be brought against African-American defendants until the socio-economic status of blacks in the state in question is the same as that of whites. Until then, the thinking apparently goes, stolen elections are not problematic, whatever the Voting Rights Act might say.
Coates also testified that a social scientist employed by DOJ, whose job is to research the history of local jurisdictions under investigation, flatly refused to assist in this investigation. And when an African-American volunteered to work on the Ike Brown case as a paralegal, he was harassed, along with his mother who worked in another section of the Civil Rights Division, by an outraged CRD attorney.
In light of this pattern of behavior, Coates, when he became head of the Voting Section, decided to ask applicants for trial attorney positions whether they were willing to work on cases that involved claims of discrimination against white voters. But he was instructed not to ask that question by Loretta King, whom the Obama administration installed as acting head of the Civil Rights division. King had been highly critical of the Ike Brown prosecution, according to Coates.
King wasn’t the only critic of the Brown case who rose to power under the Obama administration. Mark Kapplehoff, who became the acting chief of staff for the Civil Rights Division, had complained to Coates that his successful prosecution of Ike Brown led to problems with civil rights groups.
Kristin Clarke of the NAACP Legal Defense Fund was one of those in the civil rights community who had been deeply disturbed by the Ike Brown prosecution. According to Coates, in the winter of 2009, Clarke began lobbying for the dismissal of the NBPP case. In these circumstances, it is not difficult to believe that DOJ’s ultimate decision – maintain the case against the most egregious defendant and dismiss the rest of it – was a compromise designed to appease the civil rights community to some extent.
This evidence of past hostility to bringing meritorious cases against African-American defendants and of excessive solicitude for the demands of African-American interest groups, coupled with direct evidence of present hostility in the form of statements by the Deputy Assistant Attorney General for Civil Rights, presents a strong case that the Voting Section has no interest in the race-neutral enforcement of the Voting Rights Act.
Finally, we come to the question of whether Thomas Perez, the Assistant Attorney General for Civil Rights testified honestly before the Civil Rights Commission. Here, Coates proceeds cautiously. He contends that the representations of Perez and others about the Civil Rights Division’s enforcement activities, including in the NBPP case, have not been accurate. However, he does not claim that Perez knowingly gave false testimony. In fact, he notes that Perez was not part of the Civil Rights Division when the decisions were made in the NBPP case or when much of the hostility to race neutral enforcement manifested itself.
However, it has been reported elsewhere that much of the information in Coates’ testimony was laid out in a memo for Perez before he testified that he had “no knowledge” of any unwillingness by government to enforce the Voting Rights Act in a race-neutral fashion. If this is true, then those who wish to defend the honesty of Perez’s testimony may be forced to argue that it depends on what the meaning of “knowledge” is.
If Republicans control one or more chamber of Congress, they may wish to have that epistemological debate. They almost surely will wish to have the broader debate about the Justice Department’s racially biased approach to enforcing the Voting Rights Act.
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