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The Ike Brown Case: Is the DOJ About to Fail Another Race-Based Test?

The Department must decide this week if white victims are worth protecting, by imposing an objection to the same behavior a federal court has already ruled was motivated by an illegal racial intent. If the races were reversed in this submission, there is zero doubt the DOJ would object to the proposal.

Alas, the races aren’t reversed, and I predict there is zero chance that the DOJ will object to Brown’s submission.

Why? For the same reasons I testified about to the United States Civil Rights Commission: there is an open and pervasive hostility within the DOJ towards using the voting laws to protect all races. Instead, the laws are viewed by many in the DOJ -- particularly by the political leadership, such as Deputy Assistant Attorney General Julie Fernandes -- only as tools to protect national racial minorities and increase their voter turnout.

I also have some inside information.

I have spoken with the victims of Brown’s past illegal behavior in Mississippi, and the DOJ hadn’t even bothered to contact any of them. In a Section 5 submission involving an African-American minority, it is standard DOJ practice to make extensive contacts with the minority community. That hasn’t happened since Brown submitted his scheme for approval on May 14, 2010. No calls, no emails, no nothing out of Justice. No concern, most likely.

In fact, the same white voters who were victimized by Brown in 2003 have begged the DOJ in multiple letters to interpose an objection to Brown’s request to bar people from voting.

Even worse for the Department, Brown told one person last month that he explicitly chose a cutoff date (where if you voted for a Republican before a certain date you could still vote in a Democratic primary) because it would preserve the ability for a number of specific black individuals to continue to participate. Does the DOJ know about this nakedly racial motivation? No -- because they didn’t even do the analysis under Section 5.

So here are the choices the Department has available by July 13:

They could object to the submission, which is the right thing to do. This would demonstrate they are at last willing to enforce Section 5 with racial fairness regardless of the race of the victim. All this option requires is a letter.

They could officially ask for more information, but this only extends the clock for 60 days and the same decision will need to be made eventually.

They could make a “no determination” ruling. This means that the matter isn’t ripe for a decision because Brown is not running the elections until 2012. Of course this is a cop-out, because Brown will be running elections with this scheme as a party rule once he resumes control. A “no determination” letter would have the same effect as approval, and leave the victims without any protection.

A final option would be to ask the federal court judge under a different part of the law to stop Brown from implementing the scheme to bar voters from voting. But if it isn’t ripe to object, then it isn’t ripe to sue either. Worse -- talk about cost! This would require travel, a hearing, witnesses, and many other costs to the Department. What about those oft-cited resource concerns? Worse yet, there is a risk the DOJ will not win. Judge Tom Lee is a cautious jurist, and he may not wade into a mess with so many uncertainties. Add a contentious tangle in other Mississippi courts about challenges to party loyalty oaths, and you can see why a lawsuit or court action seems like a bad idea. It certainly is not designed to help the voters with a high certainty of a favorable outcome.

Bottom line, if this Justice Department was truly interested in enforcing the law in a race neutral fashion, they could stop Brown’s discriminatory scheme for the cost of a postage stamp. A simple objection letter would prevent him from implementing a practice Judge Lee already has found to violate the law. Any other choice by Holder this week, other than an objection letter, will broadcast DOJ’s disdain toward equal enforcement of the voting laws.