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

Paul freely admits that Jackson is no "innocent" since he stood together, in uniform, with Shabazz, and joined Shabazz in hurling racial epithets at voters. The case against him was not frivolous but Paul believes it was weaker than the intimidation claims made in the Brown case described above, which was unsuccessful.

That analysis of the Brown case is incorrect. Two bundles of evidence were presented at trial on the Section 11(b) violations in Brown. The first involved Eddie Coleman, an elected official. While it is true that the defendant, Ike Brown, ordered Coleman out of the polling place when Coleman tried to vote, the federal district court made a factual finding that Brown may have assumed Coleman was electioneering and thus the order would have been valid under the laws of Mississippi. (Brown ran the election and enforced the anti-electioneering laws.) The court concluded a misunderstanding may have occurred and Brown may have mistakenly thought Coleman was in the polls illegally, having already voted. (He hadn’t.)

The second bundle of evidence was the “list of 174 names” of white voters that Ike Brown put in the local newspaper prior to an election that he said would be subject to challenge under party loyalty obligations in Mississippi. (Brown said they had no right to vote in Democratic primaries.) The validity of such party loyalty laws is an issue that has been litigated without clear resolution for years. Brown claimed these potential voters were Republicans. The United States said the list was a racially motivated effort to scare whites from voting. The Court took all of the evidence and converted it into a finding of racial intent under Section 2 of the Voting Rights Act, instead of Section 11(b), concluding that while Brown was partially acting under a motivation to enforce party loyalty (instead of to intimidate), he was motivated by an illegal racial intent. In other words, the court used the same evidence to find for the United States on the Section 2 claim instead of the Section 11(b) intimidation claim. It is thus inaccurate to say that the 11(b) evidence in the Brown case was stronger than it was in the NBPP case.

Paul is certainly correct that even when there is a default judgment, the government still has an obligation to ensure that its case is consistent with the law and supported by the evidence. But the witness testimony before the Commission on Civil Rights, along with the sworn affidavits, easily supports a default judgment. Former Acting Associate Attorney General Greg Katsas, who testified before the Civil Rights Commission, thought the actual evidence in the record made the case even stronger than the very strong claims contained in the original complaint. And Andy McCarthy over at National Review has a good article about the problems with some of the criticisms of the case made by Commissioner Abby Thernstrom.

The fact that the DOJ officials ordering the dismissal did not know the facts or the law when they ordered the case thrown out, the testimony about policy directives being given that no cases would be filed against minority defendants, and the complete stonewalling by DOJ of providing information or testimony to the Civil Rights Commission, show that this case was not dismissed based on a reasonable assessment of the merits. It was dismissed because of a political and ideological view that opposes the race-neutral enforcement of the Voting Rights Act.