Abby Thernstrom is my friend and we usually agree on voting matters, but I have to say with due respect to her that her view of the New Black Panther Party voter intimidation case is wrong for a number of reasons, from her characterization of the evidence in the case to a misunderstanding of the applicable legal standards.

On the other hand, Commissioner Thernstrom seems to have backed off somewhat on some issues in her latest posting at National Review. Whether or not this is because of the sharp criticism by Andy McCarthy, it is hard to tell, although I have to say I agree with Andy’s analysis. What isn’t hard to tell is that she seems to be backtracking toward her position of December 2009, that the NBPP matter constituted “blatant voter intimidation.” She makes a number of concessions in here piece, among them:

  • She seems upset that the new regulations on Section 5 of the Voting Rights Act will receive “scant attention” and she implies that the Commission should be studying that instead of the NBPP dismissal in its annual enforcement report. This makes no sense; Thernstrom never proposed that the Civil Rights Commission study that in its annual report last August and September, when it had to decide what the subject of the report would be. (Her proposal was about Title VII and the Ricci firefighters case.) In fact, these proposed regulations were only issued very recently, so they could not have been the subject of the report. Most importantly, her concern over Section 5 enforcement is no reason to downplay the NBBP case. Thernstrom is certainly correct that these new regulations are extremely important, particularly because of the political mischief the Voting Section can wreak with them in the redistricting process. But the evidence from Christian Adams about the NBBP case and the animus against race-neutral enforcement is highly relevant to Section 5 enforcement. What difference does the text of the regulations make if they won’t be enforced in a race-neutral way?
  • She reminds us that “DOJ’s decision to drop the case may have been wrong” before citing the irrelevant lack of evidence of a broader “vote suppression effort.” She concedes that “reasonable observers can disagree about this complicated incident.” However, we know that none of the reasonable career voting experts at the DOJ in both the Voting Section and the Appellate Section disagreed. The only people who disagreed were the political appointees who ordered the dismissal — and we have direct testimony that one of those individuals, Acting Deputy Assistant Attorney General Steve Rosenbaum, had not even reviewed the facts and the law in the case before ordering the dismissal.
  • Thernstrom also says something that she has thus far been unwilling to state in her numerous media appearances: “In fact, I still have questions about DOJ’s conduct, and I remain interested in knowing more about why the department declined to pursue the case. I would thus join my colleagues in welcoming further testimony. I would love to hear firsthand from Christopher Coates about DOJ’s handling of this case.” Perhaps CBS will invite her back next week to publicize her call for the DOJ to stop stonewalling the testimony of Christopher Coates, something she failed to mention in her prior appearance on Face the Nation. Perhaps the Huffington Post and others who have been trumpeting her criticism will pick up on this important call, too, although I have my doubts — that doesn’t fit the scenario they are trying to paint in the public arena. She did not have this view on July 16 at the last Commission hearing when she did not support a motion to send another demand to DOJ that Coates be allowed to testify.
  • Thernstrom admits her previous characterization of the legal standard, so often cited in liberal media outlets, was wrong. “Upon reflection, I think neither of us was correct. My oversimplified formulation ignored the fact that this section of the act has been litigated so rarely that there are no clear legal standards at all, no substantial body of precedent to define precisely what is needed to prove a violation.” Thernstrom apparently is unaware of another Section 11(b) case that was successfully brought by Steve Rosenbaum, who ordered this case dismissed. In 1991, he filed a lawsuit (and obtained a consent decree) against the North Carolina Republican party and the Jesse Helms campaign. Rosenbaum claimed they had intimidated voters by 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 certainly had no doubt in 1991 about the adequacy of a postcard mailing meeting the legal standards of intimidation under Section 11(b) even though there were no physical threats of any kind as there were in the NBBP case. Was that because the defendants were Republicans? Was it because they were white? We don’t know, but the contrast between how these two cases were handled by Rosenbaum is quite stark.
  • Most importantly, Thernstrom concedes the broader investigation of the USCCR should proceed: “Perhaps because of the problems with the Commission’s initial investigation, my conservative colleagues on the panel have now shifted the focus of their investigation to the broader question of racial double-standards in the enforcement of voting rights — that is, whether the Obama DOJ has a policy of offering protections for black voters but not white ones. That issue greatly interests me, and I hope that the Justice Department will send additional representatives who will be willing to discuss the Commission’s old and new concerns.”

Still, Thernstrom makes some other mistaken assertions. She continues to characterize the evidence on intimidation as “weak.” This assertion is devoid of merit. Not only is there video evidence, but there are affidavits and sworn testimony from the roving poll watchers who were dispatched to the polling place about threats and racial epithets being hurled at the black poll watchers who were stationed in the poll. This testimony included voters turning away from the polling place when they saw the Black Panther thugs blocking the polling place. Thernstrom discounts this evidence as if it did not exist. Her complaint seems to be that there is no testimony from actual voters and no evidence of whether they returned later in the day to vote. This focus on whether voters actually returned and voted shows a fundamental misunderstanding of the law. It is obvious that the Black Panthers were trying to intimidate individuals in their black paramilitary, fascist-style uniforms with nightsticks, and that is all that is necessary to violate Section 11(b) of the Voting Rights Act.

Moreover, Thernstrom overlooks the fact — as did the entire panel on Face the Nation last Sunday, none of whom seemed to know anything about the actual case — that the trial lawyers who brought the lawsuit had their legs cut out from underneath them before they even had a chance to conduct additional discovery in the case. Every litigator knows (and Thernstrom, by the way, is not a lawyer) that much of the evidence in a civil lawsuit is developed through the course of discovery. A plaintiff must have a good-faith basis for bringing a case at the outset, but the development of evidence comes through discovery. Here, though, the politically (and racially) motivated dismissal of the case prevented that discovery from ever going forward. Let me add as well that if the evidence was so weak, why didn’t the defendants mount a defense? Perhaps because they were caught red-handed — on video, no less. How could they possibly defend themselves? They couldn’t.

Why does Thernstrom think that there are no voters to testify about turning away from the polls, even though the poll watchers who were there saw voters turning away when they encountered the Black Panthers? Perhaps because there were no DOJ lawyers at the poll taking down the names of the voters who left rather than run the NBPP gauntlet. And does she really think that voters who live in that poor, inner-city black neighborhood are going to voluntarily come forward to cross this racist, violence-preaching hate group that lives in their neighborhood? And would anyone really expect such intimidated voters to voluntarily come forward now?

Thernstrom claims that the two black poll watchers who were inside the polling place said they were not intimidated in the deposition taken by the Civil Rights Commission. She is correct, but she ignores what they told the roving poll watchers who showed up at the polling place after their frantic call for help on Election Day, or what they told the DOJ lawyers investigating the case (a summary is on pages 5–6 of the DOJ internal memorandum on the case). The black poll watchers told the DOJ lawyers (and the other witnesses) that they were petrified and afraid to leave while the Black Panthers were there after they had been threatened. They thought a bomb was going to go off or something else would happen to them and they wouldn’t leave until the Black Panthers were gone.

But what happened after they talked to the DOJ investigators? These black poll watchers who live in this neighborhood saw the Justice Department abandon the case against those who had threatened them; they saw the New Black Panthers crowing and strutting about the case being dismissed without having to do anything to fight it; and then they are brought in for a deposition months later before the Commission on Civil Rights, well aware that after they give testimony about the NBPP, they have to go back to that same neighborhood where every day they could be confronted by these same Panthers who have gotten away with deeply disturbing bullying tactics at the polling place. The Commission had great difficulty in getting them to appear for their brief deposition testimony, which is also consistent with their continuing fear of exposure.

Perhaps Thernstrom has forgotten that at the first hearing the Commission held on this case, where the other roving poll watchers who came to the precinct testified, including Bartle Bull, almost a dozen members of the NBBP in their paramilitary uniforms showed up. I was at that hearing and I personally saw — as did everyone else there — one of the Panthers get up and move to the front of the room with a camera, where he proceeded to take pictures of the three witnesses who were testifying against them. What purpose does she possibly believe there was for taking those photographs other than to intimidate witnesses? What does she think would be the reaction of the witnesses from that neighborhood in a deposition after experiencing such intimidation? Any change in testimony by these individuals showed just how intimidated they were and how scared they are of retribution. That in itself makes this an important case, not “small potatoes,” and I am frankly shocked at the commissioner’s seeming lack of concern for those poll watchers and what happened to them.

Although the dismissal of the NBPP suit was never small potatoes, the potential scandal is really much bigger than that now. There is sworn testimony by a DOJ attorney (partially corroborated by other sworn statements) that Julie Fernandes, the politically appointed deputy assistant attorney general, actually instructed the career staff that there would be no voting rights cases filed against blacks or other minorities no matter how serious their violations of the law and that Justice would not enforce Section 8 of the National Voter Registration Act, which requires states to maintain the accuracy of their voter-registration lists.

The lawless stonewalling of the Justice Department is itself a major scandal, with the most prominent example being the orders and threats to Chris Coates, the former chief of the Voting Section, not to comply with the Commission’s lawful subpoena. Witnesses have established that Coates likely would be able to testify about two very important matters: (i) whether the NBBP dismissal really was based on the facts or on racial motives, and (ii) whether Section 8 of the NVRA will not be enforced. The DOJ says his testimony on these matters is privileged, but the president has not invoked executive privilege and no other privilege applies.

The DOJ’s claims that it doesn’t allow career lawyers to testify also falls flat in the face of past history. The Civil Rights Division allowed former Voting Section chief John Tanner to testify before Congress in 2007 when questions arose about the approval of Georgia’s voter-ID law, and there are numerous other examples outlined in a report issued by the Congressional Research Service in 2007. That report concluded that “in the last 85 years Congress has consistently sought and obtained deliberative prosecutorial memoranda, and the testimony of line attorneys, FBI field agents, and other subordinate agency employees regarding the conduct of open and closed cases in the course of innumerable investigations of Department of Justice activities.”

This is not a tempest in a teapot. The Civil Rights Commission’s investigation is extremely serious, because it is intended to answer a question that is important to the interests of impartial justice and the civil rights of every American — whether race and political ideology is driving law enforcement decisions at the Justice Department. No more, no less.

Cross-posted at The Corner.