Dissenting with Paul Mirengoff: New Black Panther Case Should Not Have Been Dismissed
The ongoing investigation of the U.S. Commission on Civil Rights is no longer primarily about the dismissal of the voter-intimidation case against the New Black Panther Party. It’s about a much more important matter -- namely, the sworn testimony that an Obama political appointee instructed Voting Section lawyers that no cases would be brought against any black or other minority defendants no matter how egregious their violations of the law.
Moreover, that appointee, Julie Fernandes of the Civil Rights Division at the Department of Justice, is alleged to have instructed the lawyers not to enforce part of the National Voter Registration Act. So even if Paul Mirengoff’s conclusions about the merits of the case are correct, the Civil Rights Commission investigation is very important.
But I also, very reluctantly, have to challenge most of what Paul writes about the NBPP case.
I say “reluctantly” because I have the greatest respect for Paul Mirengoff. But his July 19 post about the NBPP, in which he says that the decision to dismiss the voter-intimidation case under Section 11(b) of the Voting Rights Act against all of the defendants except for the one who carried the weapon is “defensible,” is wrong for several reasons.
Paul is a good lawyer (you don’t get to be a partner at Akins Gump otherwise) but he suffers from three handicaps: (1) unlike me, he has never worked in the Civil Rights Division at Justice and is unfamiliar with the culture there and its method of doing business; (2) he doesn’t know the lawyers in the case (I know them all personally); and (3) he is not intimately familiar, as I am, with the evidence in both the NBPP case as well as the Ike Brown case. The Brown case that he discusses was filed by the Bush administration when I was still at Justice against black defendants in Mississippi for engaging in blatant racial discrimination against white voters. DOJ won that case in district court, and it was affirmed by the Fifth Circuit Court of Appeals.
Paul says 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 because 1) Jackson didn’t have a weapon; 2) he was a certified poll watcher; and 3) the local police officer who arrived at the scene and investigated the matter concluded that, unlike Shabazz, Jackson’s actions didn’t warrant removal from the polling station. With all due respect to Paul, who is an employment discrimination lawyer, none of those factors are relevant to this voting-rights case, as I explain below.
It is also wrong to say that reasonable lawyers could differ in their opinions on this case after reviewing the facts for one very big reason: the lawyers who ordered the case dismissed -- Acting Assistant Attorney General Loretta King and Acting Deputy Assistant Attorney General Steve Rosenbaum -- did not review the facts before they ordered the dismissal.
Paul says that he read the internal DOJ memorandum on the case prepared by the Voting Section lawyers, including Christopher Coates and J. Christian Adams. But that is more than King and Rosenbaum did -- there is testimony in the record of the U.S. Commission on Civil Rights (confirmed by sources inside DOJ) that Rosenbaum admitted to Coates that he had not bothered to read that memorandum before ordering Coates to dismiss the case.
Coates got so angry that he actually threw the memorandum at Rosenbaum.
King and Rosenbaum’s lack of basic knowledge of the facts of the case has been evident from the outset. When the two of them went to Capitol Hill last summer to brief some Republican House members who had demanded a meeting on the case, they claimed that Jackson was dismissed because he lived in the building where the polling place was located and therefore had a right to be there. DOJ even made that same allegation in a letter dated July 13, 2009, to Rep. Lamar Smith.
It was untrue; Rosenbaum and King would have known as much if they had simply looked at even a single pleading in the case. The certificate of service on all of the pleadings showed Jackson’s home address.
In other words, King and Rosenbaum were unaware of the most basic facts about the case before they made the supposedly “reasonable” decision to dismiss it. The day before Assistant Attorney General for Civil Rights Thomas Perez testified before the Commission on Civil Rights that the Division’s dismissal merely reflected reasonable lawyers coming to a different opinion after reviewing the facts and the law, he had been specifically told by Coates and Adams about Rosenbaum’s admission. That certainly raised a serious question about the accuracy of Perez’s testimony under oath on this issue.
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.
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.