Dissenting with Paul Mirengoff: New Black Panther Case Should Not Have Been Dismissed

By the way, another fact that Paul does not know about is a prior successful Section 11(b) lawsuit. Steve Rosenbaum, who supposedly wanted this case dismissed because the facts and the law did not support a claim of voter intimidation or even attempted voter intimidation, was the chief of the Voting Section who recommended a lawsuit in 1991 for voter intimidation against the North Carolina Republican Party and the Jesse Helms campaign. Their crime? Sending a postcard to prospective voters that misinterpreted North Carolina law on whether an individual who moved into a district within 30 days of the election is eligible to vote. Rosenbaum filed the lawsuit and obtained a consent decree from the defendants.

There are no doubts of any kind expressed by Rosenbaum in the internal June 19, 1991, legal memorandum (sent to me by an anonymous source) about the adequacy of a postcard mailing meeting the legal standards of intimidation under Section 11(b). This was a clear violation of the law according to Rosenbaum’s memorandum, even though there were no physical threats of any kind (as there were in the NBBP case) because voters who received the postcards “were confused and frightened by the message.” But then, the targets of the 1991 lawsuit were Republicans, not a NBBP member who is also a member of a local Democratic executive committee in Philadelphia. Moreover, the NAACP Legal Defense Fund was not lobbying against the 1991 lawsuit like it did against the NBBP case. Key differences, indeed.

In regard to the specific problems raised by the Mirengoff analysis:

* Jackson might not have had a weapon, but the Mirengoff posting ignores the important evidence that Jackson operated in concert with Shabazz as a team and sought to block the poll entrance by standing in formation at the approach of a protected individual. This deployment was established both by sworn declarations as well as oral testimony. And apparently both of the New Black Panthers were involved in threatening the two black poll watchers who were inside the polling place. You don’t have to have a weapon to violate Section 11(b) of the Voting Rights Act -- you simply have to be intimidating or trying to intimidate voters. I don’t think any reasonable lawyer could review the evidence in this case and come to any conclusion other than that each of the NBBP thugs were trying to intimidate both the voters and the poll watchers at that precinct.

* The argument that a poll watcher’s certificate somehow allows you to team up to block the entrance to a poll, stand in a fascist-style uniform with an identically dressed thug with a weapon, and partner with an armed person has it exactly backwards. A poll watcher’s certificate is not a license to intimidate voters or poll watchers and a state poll watcher’s certificate provides no immunity from federal law, particularly federal voting rights law. In fact, such a poll watcher ought to have an even higher level of knowledge of what is or is not lawful behavior in a polling place. If the opposite were true, members of the KKK and skinheads could obtain poll watcher's certificates to shield their intimidating behavior.

* The actions of the local police officer have even less relevance. In the 45 years that the federal government has been enforcing the Voting Rights Act, it has never allowed the opinions of local law enforcement officials to have any relevance in assessing whether a violation of federal law occurred. Bull Connor was a local police officer. He didn’t think civil rights in Birmingham were being violated, either. But that didn’t stop the federal government from acting. Removal (or lack of removal) from the polling station by a local police officer who does not have the power to enforce federal voting rights law is irrelevant. Moreover, the police officer told Justice lawyers in interviews that he told both men they could not be out there “intimidating voters.”

* The Mirengoff posting ignores the 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. Mirengoff's posting ignored this case law, even though it was cited repeatedly in the memoranda prepared for this case. Paul said he read one DOJ memo, but there were two others prepared by both the Voting Section and the Appellate Section within the Civil Rights Division. In fact, voting rights attorneys and the DOJ routinely use this jurisprudence to obtain the most favorable reading of the facts and law in voting rights cases. To fail to cite this jurisprudence in this instance does not provide Mirengoff's readers with an accurate legal picture.