At Pajamas Media, Hans von Spakovsky, whose work I have long admired, has written a “dissent” to my post about the dismissal of portions of the New Black Panther Party (NBPP) case. Before addressing his piece, I want to thank Hans for the respectful tenor of his dissent.
Hans has forgotten more about voting rights law than I ever knew. He also knows vastly more than I do about the “behind the music” aspect of the NBPP case. Readers should keep this in mind as they follow the debate.
There are two issues here: (1) was the decision to drop portions of the NBPP case correct or at least defensible and (2) was the decision made for correct or defensible reasons. In my post, I took a position only on the first issue. Here is what I wrote:
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.
Hans has plenty to say about both issues. He does not persuade me that DOJ’s decision on the merits is indefensible. However, he provides evidence that it was made in bad faith.
Hans says that my post ignores “voluminous case law that requires, under the applicable legal standards, that the protections of the voting rights act be interpreted as broadly as possible and not given a narrow reading.” In reality, though, it is the courts in voter-intimidation actions that have ignored this general language.
Christoper Coates and J. Christian Adams acknowledged this problem in their December 22, 2008 memo recommending that DOJ bring this case. They noted that cases brought under the relevant position “have been uniformly unsuccessful” and that “of the fewer than ten cases reported as being brought under Section 11(b), no plaintiff has ever won.” Coates and Adams cite the general language about interpreting Section 11(b) expansively with a “But see” following their statement about how these cases uniformly don’t succeed. This is an acknowledgement that the general principle Hans says I ignored has meant little or nothing in reported voter intimidation cases.
Coates and Adams argued that DOJ could overcome these problems in the NBPP case because “the deployment of armed and uniformed members of the NBPP who brandish a weapon will likely satisfy the high factual burden placed on plaintiffs to show a genuine threat, coercion, or intimidation.” But only Samir Shabazz was armed. To be sure, Jackson wore a uniform, but it seems unlikely that wearing a uniform satisfies the high burden of proof. Coates and Adams certainly did not argue in the December 22, 2008 memo that it does.
It was in this context that I added the facts that Jackson was a poll watcher and that he was permitted to remain at the polls (without having to remove his uniform) by the local police officer who removed Shabazz. Hans is correct, of course, that poll watchers are not permitted to intimidate voters. Moreover, the views of the local police (even when they act in good faith, as seems to be the case here) are far from dispositive. If the case against Jackson were strong to begin with, these additional facts wouldn’t matter. But I don’t think that case was strong, and in this context a court might take note of these ancillary facts.
It is possible, to be sure, that a court would find the high factual burden satisfied by Jackson’s conduct, given that he acted alongside Shabazz. Perhaps the case against Jackson is that rare voter intimidation case that, if contested, would succeed . But it’s clear to me that a reasonable attorney could conclude that, under the best view of the law and the facts, the case against Jackson was, on balance, not meritorious. Such a conclusion would justify dropping the case.
The question of whether the case actually was dropped based on this sort of analysis, or rather for an improper reason is, again, one that I did not address. Hans provides good evidence that the lawyers in charge of the case weren’t very interested in the merits. In particular, he says that Acting Assistant Attorney General Loretta King and Acting Deputy Assistant Attorney General Steve Rosenbaum did not review the facts before they ordered the dismissal. I assume that someone reviewed the facts on their behalf; otherwise I don’t understand how the Civil Rights Division could have decided which parts of the case to maintain and which to drop, and what kind of an injunction to seek. This could not have been a purely rote, “let the black guys off” decision, since not all of the black defendants were let off.
Even so, King and Rosenbaum should have reviewed the memo themselves before reversing DOJ’s course on a case that was heading for victory by default. Their apparent failure to do so is evidence of bad faith. And Hans points to additional indications, as did Scott Johnson in his add-on to my first post.
Finally, I certainly agree with Hans that (as I said in my first post) ongoing scrutiny is warranted regarding the willingness of the Obama/Holder Justice Department to enforce the civil rights laws against minority violators. The NBPP story may (or may not) be “small potatoes,” but the larger story is a big deal.