The Ike Brown Case: Is the DOJ About to Fail Another Race-Based Test?
Coming soon: an unavoidable decision about race-neutral enforcement of voting laws.
Last week, I testified under oath that pervasive and open hostility exists within the Justice Department towards race-neutral enforcement of voting rights laws. This week, we will all learn a great deal more about the Justice Department’s unwillingness to enforce voting laws equally and in a racially fair way.
To the many who know firsthand of the existence of this hostility, the Department’s current denials seem absurd, if not deceitful. I have urged the advocates of these positions -- of which there are many inside and outside the DOJ -- to come forward and openly engage in this debate so millions of Americans can hear their arguments for why all Americans should not be protected under the Voting Rights Act by the Justice Department. So far, silence. Even the NAACP registered a “no comment” to a Philadelphia Inquirer columnist last week. We know what that usually means.
But this week we should get some clarity. And I’ll wager that Americans aren’t going to like what they hear.
This story hails from rural east Mississippi: majority black Noxubee County is home to Ike Brown, one of the most lawless purveyors of racial discrimination the nation has seen in decades. (I have written in greater detail about the racially motivated lawlessness Brown used to victimize minority white voters in the county.) Brown canceled ballots cast by white voters. He stuffed the ballot box with illegal ballots supporting his preferred black candidates. He deployed teams of notaries to roam the countryside and mark absentee ballots instead of voters. He allowed forced assistance in the voting booth, to the detriment of white voters. He threatened 174 white voters by declaring that if they tried to participate in an election, he might challenge them and not let them vote. He publicized the 174 names.
Brown ran the primary elections because he is the Democratic Party chairman. At the trial, a woman on Brown’s list testified that she was too afraid to vote because she thought she might be arrested.
The federal court found that the publication of the list of 174 names was an illegal form of intentional racial discrimination. The United States district court held:
The question is whether Brown's action with respect to this list of 174 voters was actuated by these party loyalty concerns or whether this was pretext for a true purpose to discourage white voters from coming to the polls, or some combination of the two. The court has carefully weighed the evidence and finds that while party concerns were a factor in Brown's actions, race played a role as well. ... In sum, the court is of the opinion that Brown had the names of these white voters published in part because of party loyalty concerns, but also as an attempt to discourage white voters from voting in the 2003 Democratic primary.
Brown’s overall behavior was so outrageous that the court stripped him of all authority to run elections until 2012, and gave the power to a former justice of the Mississippi Supreme Court as a special administrator. The remedy was unprecedented, but upheld on appeal because of the brazen lawlessness of Ike Brown.
Fast forward to 2010, to the Eric Holder Justice Department.
Every change in voting in Mississippi must be submitted for approval to the DOJ voting section -- where I worked for five years -- under Section 5 of the Voting Rights Act. Section 5 gives the DOJ power to object to any change motivated by a discriminatory racial intent or with a discriminatory racial effect in nine states and portions of seven. Changes to the law in 2006 made it clear that any discrimination would suffice to trigger an objection under the act.
Right now, the Holder Justice Department has a submission from Ike Brown to allow him to do precisely the same thing he tried in 2003 -- prevent people from voting based on their party loyalties.
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.
Not only has the Department never lodged an objection under Section 5 to a plan which discriminates against a white minority, they don’t even conduct the analysis. The DOJ will not be able to produce a single document over the 45-year history of the Voting Rights Act where the bureaucrats even considered this possibility.
In the now famous going-away speech of former voting section chief Christopher Coates, he demonstrated the danger of this policy:
Since many minority officials are now involved in the administration of elections in many jurisdictions, it is imperative that they believe that the anti-discrimination and anti-intimidation provisions of the Voting Rights Act will be enforced against them by the Justice Department, just as it is imperative that white election officials believe that Justice will enforce the provisions of the Voting Rights Act against them. I fear that actions that indicate that the Justice Department is not in the business of suing minority election officials, or not in the business of filing suits to protect white voters from discrimination or intimidation, will only encourage election officials, who are so inclined, to violate the Voting Rights Act.
The third reason for race-neutral enforcement of the Voting Rights Act so that all persons are protected from discrimination or intimidation regardless of their race is that fair enforcement of the VRA is important for its very survival. America is increasingly a multiracial, multiethnic, and multicultural society. For such a diverse group of people to be able to live and function together in a democratic society, there have to be certain common standards that we are bound by and that protect us all. In fact, as we become more diverse, it is even more important that our national standards of non-discrimination are enforced by the federal government.
Coates mentions something important that opponents of race-neutral enforcement of the Voting Rights Act should hear loud and clear.
If the DOJ does not start to use Section 5 to protect a victimized white minority, as they can this week in Noxubee County, then the constitutionality of the law is jeopardized. If no objection to Brown’s scheme is interposed, the three separate plaintiffs currently suing Holder to have Section 5 declared unconstitutional in other cases should do extensive discovery against the voting section and their unwillingness to enforce Section 5 to protect all racial minorities, regardless of their race. The plaintiffs should introduce this hostility into the case record as part of their constitutional challenges to Section 5, so that Justices Alito, Scalia, Thomas, Roberts, and most importantly, Kennedy, can learn firsthand how the voting section does not equally enforce the law to protect all types of racial minorities.
Or, even better, the DOJ voting section can issue an objection this week to Brown’s racially discriminatory scheme. The DOJ lawyers defending the constitutionality of Section 5 from three separate attacks would probably thank you.
Patriots of all races gave their lives to enshrine racial equality in this country, via the 14th and 15th Amendments and then during the Civil Rights movement. The beneficiaries of these sacrifices should not be limited, either. The Department should undergo a searching examination as to why they are unwilling to enforce voting laws in a racially fair fashion and change course.
Let’s get one thing straight: enforcing voting laws in a racially unfair way is not necessarily racist. Just because some are hostile to equal enforcement of the law does not mean that racism lurks in their hearts. Judge Alex Kozinski wrote of this distinction in a voting rights case, Garza v. Los Angeles. Simply, one can take actions which intentionally harm someone because of their race even if the actor does not hold racial animus in their heart towards that race. The intentional action, such as not equally enforcing the law, is racially discriminatory, even if it is not motivated by racism. Thus, I have never claimed that the unequal enforcement of these voting laws means anyone at the Justice Department is racist, as some have lazily characterized my columns. This is obviously a rhetorical snare laid by the defenders of the Department’s unequal enforcement policies -- a snare Judge Kozinski’s thoughtful opinion allows reasonable people to entirely avoid.
Inside and outside the DOJ, some will snicker at the notion that the provisions of Section 5 should be used to protect whites and Asians when they are in the minority in a covered jurisdiction. Please snicker so the rest of America can hear you. It’s time you engage the debate, or else you are about to lose it badly without ever having spoken up.