The right-wing U.S. Commission on Civil Rights (USCCR) has released an interim report on the commission's year-long investigation of the Department of Justice's handling of a voter intimidation case against the New Black Panther Party.
The report suggests that the Department's actions indicate it does not pursue "race neutral enforcement of the law," but is peppered with omissions, accusations, and testimony from discredited partisan sources. It downplays or ignores similar cases involving voter intimidation in which the Bush Justice Department failed to bring charges and it ignores actions the Obama administration DOJ took to protect white voters in other cases. Moreover, the commission's Democratic commissioners have harshly criticized the way the commission's Republican majority conducted the investigation.
Report: Trial Team "Instructed" By DOJ Superiors To Dismiss Lawsuit Against Three Defendants And Limit Injunctive Relief Sought Against The Fourth.
Despite the Appellate Section's recommendation, and the fact that six career attorneys were now on record that the case should proceed, the trial team was instructed that the lawsuit should be dismissed as to defendants Jerry Jackson, the New Black Panther Party, and its Chairman, Malik Zulu Shabazz. As to the relief sought against the remaining defendant, King Samir Shabazz, the Department substantially limited the injunctive relief sought. Whereas the complaint had sought a permanent injunction with a potentially national scope, the final request sought only an injunction through November 15, 2012 precluding King Samir Shabazz from displaying a weapon within 100 feet of any polling location in Philadelphia. [U.S. Commission on Civil Rights, Race Neutral Enforcement Of The Law? The U.S. Department of Justice and the New Black Panther Party Litigation, 1/28/11]
Report: Without "Plausible Explanation" For "Overruling Numerous Career Lawyers, It Raises Questions" About "Legitima[cy]" Of DOJ's Actions.
The Commission does not question the responsibility of political appointees to review, and in many instances, to overrule the decisions of career lawyers in the Department. But it is the Commission's responsibility in a case like this to investigate, evaluate, and report on whether the Commission believes the ultimate decision was based on impermissible factors. If no plausible explanation is offered for overruling numerous career lawyers, it raises questions as to whether the purported explanation is accurate and/or legitimate.
In the present case, the Department has taken the position that the decisions regarding the ultimate fate of the NBPP litigation were made by career attorneys Loretta King and Steven Rosenbaum. Ms. King and Mr. Rosenbaum are indeed career attorneys at the Department. At the time the decisions were made with regard to the litigation, however, both Ms. King and Mr. Rosenbaum were temporarily serving in political positions. Specifically, Ms. King was serving as the Acting Assistant Attorney General for Civil Rights, and Mr. Rosenbaum was serving as the Acting Deputy Assistant Attorney General for Civil Rights. It has been argued that, under the Vacancies Reform Act, Ms. King and Mr. Rosenbaum were, in fact, political appointees. [U.S. Commission on Civil Rights, Race Neutral Enforcement Of The Law? The U.S. Department of Justice and the New Black Panther Party Litigation, 1/28/11]
The report does not directly address the fact that DOJ was unable to produce a voter who alleged they were intimidated by the New Black Panthers.
Report Cites Claims From GOP Poll Watchers That Voters "Turned Away" From The Polls Due to Intimidation.
Witnesses testified before the Commission that they observed voters turned away from the polling place due to the presence of the NBPP members. For example, Christopher Hill, a Republican poll watcher, testified before the Commission to the following:
People were put off when - there were a couple of people that walked up, couple of people that drove up, and they would come to a screeching halt because it's not something you expect to see in front of a polling place. As I was standing on the corner, I had two older ladies and an older gentleman stop right next to me, ask what was going on. I said,
Similar testimony was provided by Bartle Bull, who was serving on that date as part of a roving legal team on behalf of Senator John McCain's presidential campaign. [U.S. Commission on Civil Rights, Race Neutral Enforcement Of The Law? The U.S. Department of Justice and the New Black Panther Party Litigation, 1/28/11]
Report Repeatedly States No Evidence Of Intimidated Voters Is Necessary Under Statute. From the report:
While factually relevant, proof of whether voters, or those aiding voters, were actually intimidated is legally unnecessary for purposes of establishing liability under § 11(b) of the Voting Rights Act.
Under the terms of the statute, one does not have to successfully intimidate voters in order to be in violation of § 11(b). An attempt to intimidate is sufficient to establish liability. [U.S. Commission on Civil Rights, Race Neutral Enforcement Of The Law? The U.S. Department of Justice and the New Black Panther Party Litigation, 1/28/11]
DOJ Attorney Coates Acknowledged That DOJ Has Produced No Voters Who Say They Were Intimidated. From a hearing before the commission:
COMMISSIONER MICHAEL YAKI: Now, in approving this case going forward, did it bother you in any way the absence of any complaints filed by any voters about this particular precinct?
COMMISSIONER YAKI: Okay. Had you ever filed any previous 11(b) actions where there are not allegations by actual voters that they were being intimidated?
MR. COATES: The only other 11(b) case that I had been involved in, there -
COMMISSIONER YAKI: Noxubee had 11(b) charges.
MR. COATES: That's right. And whether or not we had the complaint of a voter at that time or the description of the wrongdoing -- no, no. As a matter of fact, we did. [Hearing of U.S. Commission on Civil Rights, 9/24/10]
Coates Led Trial Team That Handled Case. From the report:
Christopher Coates And J. Christian Adams Were On DOJ Trial Team Pushing For Litigation. From the report:
In their appearances before the Commission, which the Department attempted to prevent, trial team members [Christopher] Coates and [J. Christian] Adams presented testimony that both raises concerns about the current enforcement policies of the Department and provides a possible explanation for the reversal in the course of the NBPP litigation...these serious accusations deserve to either be proven or exposed as false. [U.S. Commission on Civil Rights, Race Neutral Enforcement Of The Law? The U.S. Department of Justice and the New Black Panther Party Litigation, 1/28/11]
Adams' and Coates' extensive connections to the conservative movement and to President Bush's politicized DOJ are detailed here.
Dissent Points Out Trial Team's Contact With Republican Political Consultant Mike Roman. In their dissent to the commission's report, Democratic commissioners Arlan Melendez and Michael Yaki write:
On December 11, 2008 - eleven days before the J Memo was issued - Mr. [Mike] Roman offered to provide Mr. Adams with a "definitive chronology" and informed Mr. Adams that he planned to "make contact with each [Republican voter in the precinct] to determine if they felt any intimidation at the polling location." Mr. Adams described Mr. Roman's offer to interview witnesses for him as "fantastic." [U.S. Commission on Civil Rights, Race Neutral Enforcement Of The Law? The U.S. Department of Justice and the New Black Panther Party Litigation, 1/28/11]
Mike Roman Is A Right-Wing Consultant And Blogger For Andrew Breitbart. Mike Roman is a contributor to Andrew Breitbart's website, BigGovernment.com, where he is described as a "veteran political consultant and a professional investigator." [BigGovernment.com, accessed 1/28/11]
Coates, Adams, And Other Attorneys Submitted "J-Memo" Urging Filing Of Complaint In Case. In a December 2008 Justification Memo (J-Memo), Coates, Adams, and two other members of the trial team wrote to then-Acting Assistant Attorney General Grace Chung Becker:
We recommend that you authorize us to file the attached complaint against the New Black Panther Party for Self-Defense, an unincorporated association, Chairman Malik Zulu Shabazz, Minister King Samir Shabazz, and Jerry Jackson. On Election Day, Tuesday, November 4, 2008, two members of the New Black Panther Party for Self-Defense ("NBPP") deployed at the entrance to a polling place in Philadelphia, Pennsylvania wearing military-style uniforms. They possessed and brandished a weapon. They directed racially-based threats at poll watchers. The national leader of the NBPP subsequently endorsed the Election Day behavior of the party members and said their deployment was part of a larger NBPP effort. We believe the deployment of uniformed members of a well-known group with an extremely hostile racial agenda, combined with the brandishing of a weapon at the entrance to a polling place, constitutes a violation of Section 11(b) of the Voting Rights Act which prohibitstypes of intimidation, threats, and coercion. We propose seeking a remedy that prohibits the members of the NBPP from deploying athwart the entry of polling places in future elections. [DOJ "J-Memo" via U.S. Commission on Civil Rights, 12/22/08]
At Least 10 Of The 13 Witnesses Referenced In The "J-Memo" Were Employed By The GOP. The following is a list of the witnesses mentioned in the report who were interviewed:
Chris Hill ("A Republican poll watcher and Army infantry veteran")
Steve Morse ("Republican Party videographer")
Richard Alexander ("Police officer")
"Officer Hazel" (Alexander's partner)
Mike Mauro ("Republican poll watcher")
Joe DeFelice ("Attorney," "Employee of the Pennsylvania Republican Party")
John Giordano ("Attorney," "Election Day operations director for southeastern Pennsylvania- trained the poll watchers;" described in the USCCR report as a "Republican Party official")
Wayne Byman ("An African-American," "Republican Party poll watchers")
Joe Fischetti ("An attorney poll watcher for the Republican Party")
Larry & Angela Counts ("Two African-American poll watchers for the Repulican Party")
Justin Myers/Meyers ("deployed to the polling location by headquarters" with Mauro and Hill)
Harry Lewis ("Attorney poll watcher")
[DOJ "J-Memo" via U.S. Commission on Civil Rights, 12/22/08]
Coates Did Not Respond To Question About Partisan Breakdown Of His Team's Interview Subjects. From Coates' testimony before the Commission:
COMMISSIONER YAKI: I understand. Now, was there any -- I mean, let's talk about bias here. I know that you have made some allegations regarding the special interest groups that you claim, such as the NAACP Legal Defense Fund, MALDEF, what have you. Did it give you any pause that the only witnesses identified coming forward making allegations against these two individuals were all either members of the Republican Party or representatives of the McCain campaign?
MR. COATES: If that's -- I don't remember that to be the case, but if that were the case, then certainly you always look to try to determine whether or not the person is credible and has a basis for testifying or whether or not they are associated with organizations that might be contrary to what the Black Panthers were doing. And so certainly you would take that into account in making some kind of credibility determination.
But in the investigation, we interviewed the people that you're talking about. And my lawyers came to the conclusion that they were credible, that what they were saying occurred at the polling place -- was, in fact, true.
And nobody has ever claimed, for example, the man -- and I can't recall his name now, but the man who was the chairman of the Robert Kennedy campaign in New York in 1968, who had been in Mississippi in 1964, who we interviewed. Nobody has ever claimed that he -- to my knowledge, he was not telling the truth about what he observed. [Hearing of U.S. Commission on Civil Rights, 9/24/10, emphasis added]
New Black Panthers Case Was Only Third Litigation Of Statute 11(b) In Its 40+ year History. From American Prospect: "At the heart of the New Black Panther case was Section 11(b) of the Voting Rights Act, which offers legal protections against voter intimidation. It had only been used once prior to the Bush administration -- in 1992 to prevent a statewide voter-suppression effort initiated in South Carolina by then-Sen. Jesse Helms... The Bush administration filed two Section 11(b) cases, both on behalf of white voters, both supervised by Coates: the Black Panther case and a separate case in Noxubee, Mississippi.' [American Prospect, 1/8/10]
GOP Vice-Chair Thernstrom:
Different lawyers read this barely litigated statutory provision differently. It happens all the time, especially when administrations change in the middle of litigation. Democrats and Republicans seldom agree on how best to enforce civil-rights statutes; this is not the first instance of a war between Left and Right within the Civil Rights Division. [National Review Online, 7/6/10]
Report: "Despite The Entry Of A Default In DOJ's Favor," DOJ "Abruptly Reversed Course." From the report: "Despite the entry of a default in DOJ's favor against each of the defendants, in May 2009 the Department abruptly reversed course and dismissed charges against all but one of the defendants and reduced the original sanctions it requested against the remaining defendant, who was only enjoined from carrying a weapon at a polling place in Philadelphia until 2012." [U.S. Commission on Civil Rights, Race Neutral Enforcement Of The Law? The U.S. Department of Justice and the New Black Panther Party Litigation, 1/28/11]
Perez: Despite Entry Of Default Judgment, DOJ Remained Under "Legal And Ethical Obligations." Perez testified to the commission:
Although none of the defendants responded to the complaint, that did not absolve the Department of its legal and ethical obligations to ensure that any relief sought was consistent with the law and supported by the evidence. The entry of a default judgment is not automatic, and the Pennsylvania Bar Rules impart a clear duty of candor and honesty in any legal proceeding; those duties are only heightened in the type of ex parte hearing that occurred in this matter. See Pa. RPC 3.3(d). At the remedial stage, as with the liability stage, the Department remains obliged to ensure that the request for relief is supported by the evidence and the law. In discharging its obligations in that regard, the Department considered not only the allegations in the complaint, but also the evidence collected by the Department both before and after the filing of the complaint. [Perez statement to the commission, 5/14/10]
Report Criticized DOJ For Reducing Sanctions Against Shabazz So That They End In 2012. From the report:
Injunctions In Prior 11(b) Cases Also Lasted Two Election Cycles. Melendez and Yaki wrote:
Instead of tailoring the relief to the individual defendants, the injunction aimed at an organization that has chapters in multiple cities was the same one for a single individual residing in a single city. The fact that the relief was shrunk down from nation-wide to city-wide is the product of the decision that the NBPP could not be held liable for what Mr. Shabazz did in Philadelphia.
As for the reduction in duration: a permanent injunction with no enforcement limits is at odds with the relief received in voting rights cases such as the Ike Brown case and the US v. North Carolina case. In both cases, the injunctions were set to last for roughly two election cycles. The same is true of the NBPP relief. [U.S. Commission on Civil Rights, Race Neutral Enforcement Of The Law? The U.S. Department of Justice and the New Black Panther Party Litigation, 1/28/11]
Report Is Largely Based On The Testimony Of Coates And Adams. The report repeatedly cites the testimony of Coates and Adams. For example:
The Department has argued that the change was based on a review of the totality of the circumstances and was simply a matter of career people disagreeing with other career people about the adequacy of the evidence under the pertinent law. Evidence obtained by the Commission, however, has called this version of events into serious doubt. First, two members of the NBPP trial team, Christopher Coates and J. Christian Adams, have testified before the Commission that the lawsuit was strong and that there was no legally sound reason to reverse course.
In their appearances before the Commission, which the Department attempted to prevent, trial team members Coates and Adams presented testimony that both raises concerns about the current enforcement policies of the Department and provides a possible explanation for reversal in the course of the NBPP litigation. In sum, they indicated that there is currently a conscious policy within the Department that voting rights laws should not be enforced in a race-neutral fashion.
Mr. Coates and Mr. Adams testified that this hostility to race-neutral enforcement influenced the decisionmaking process in the NBPP case. The disposition of the Panther case, Mr. Coates testified, was the result of anger on the part of acting political appointees and other attorneys arising from a
These serious accusations deserve to either be proven or exposed as false. [U.S. Commission on Civil Rights, Race Neutral Enforcement Of The Law? The U.S. Department of Justice and the New Black Panther Party Litigation, 1/28/11]
Report: "Anonymous Sources" At DOJ Trying To Discredit Coates As A "Right-Wing Ideologue"; Such Claims Are "At Odds" With His Service With ACLU. From the report:
The troubling nature of these allegations of misconduct in the Division might explain why some anonymous sources within the Department have attempted to paint Coates as a disgruntled right-wing ideologue. A review of his career, however, speaks for itself and paints a picture at odds with his detractors' characterization.
Before beginning his work at the Department, Mr. Coates served with the Voting Rights Project of the American Civil Liberties Union in Atlanta, Georgia. During his time there, he litigated cases on behalf of African-American clients, particularly those challenging at-large election procedures. In 1993 he argued a case before the United States Supreme Court on behalf of six African-American citizens in the local NAACP chapter in Bleckley County, Georgia. For his service with the ACLU he was awarded the Thurgood Marshall Decade Award by the Georgia Conference of the NAACP, as well as an award from the Georgia Environmental Association for his representation of African-American clients opposing the installation of landfill in their neighborhood. [U.S. Commission on Civil Rights, Race Neutral Enforcement Of The Law? The U.S. Department of Justice and the New Black Panther Party Litigation, 1/28/11]
Report Ignores Coates' Admission That He Was Schlozman's "True Member Of The Team." From a 2008 report by the Justice Department's Inspector General and Office of Professional Responsibility on "Allegations of Politicized Hiring ... In The Civil Rights Division":
In another e-mail sent to [DOJ principal deputy director of political affairs Monica] Goodling on December 4, 2006, in which Schlozman recommended a different friend for an Immigration Judge position, Schlozman wrote,
IG/OPR Report Found Schlozman Illegally And Improperly Considered Ideology In Making Personnel Decisions. From the IG/OPR Report:
The evidence in our investigation showed that Schlozman, first as a Deputy Assistant Attorney General and subsequently as Principal Deputy Assistant Attorney General and Acting Assistant Attorney General, considered political and ideological affiliations in hiring career attorneys and in other personnel actions affecting career attorneys in the Civil Rights Division. In doing so, he violated federal law - the Civil Service Reform Act - and Department policy that prohibit discrimination in federal employment based on political and ideological affiliations, and committed misconduct. [IG/OPR report,
Coates Confirmed He Believed Schlozman Was Referring To Him. From a hearing before the commission:
COMMISSIONER YAKI: And so you are the person referenced in the report, in that e-mail, in which it says,
MR. COATES: I think that that is correct. [Hearing of U.S. Commission on Civil Rights via Media Matters, 9/24/10]
Critique Of Coates Becoming "More Conservative" Predates New Black Panthers Case. From a 2007 McClatchy Newspapers article:
Schlozman said in the interview that staff "were only treated professionally" while he was in the Civil Rights Division and that in hiring, "I didn't care what your ideological perspective was."
He pointed to the recruitment of Mark Kappelhoff, a former counsel for the liberal American Civil Liberties Union, to head the division's Criminal Section, and to the promotion of Chris Coates, a former ACLU voting counsel, to serve as the top deputy chief of the voting section.
Rich and other lawyers said politics had little or no bearing on Kappelhoff's job—overseeing prosecution of human trafficking and police misconduct. They said Coates seemed to grow more conservative after his superiors passed him over for a promotion in favor of an African-American woman, and he filed a reverse-discrimination suit. [McClatchy Newspapers, 5/6/07]
Adams Is A Right-Wing Activist Linked To Bush-Era Politicization Of DOJ. According to Media Matters for America:
For information on Adams' long history as a GOP operative with ties to the Bush-era politicization of the Department of Justice, click here.
Report Claims Commission Contacted "As Many People As It Could Locate" Who Witnessed Election Day Events. The Commission's report states that the Commission "attempted to interview and take the deposition of as many people as it could locate who were identified as having been at the polling site." [U.S. Commission on Civil Rights, Race Neutral Enforcement Of The Law? The U.S. Department of Justice and the New Black Panther Party Litigation, 1/28/11]
The First Person To Notice The New Black Panther Party (NBPP) Members Was Not Contacted By The Commission. In their dissent, Melendez and Yaki write:
The original Justification Memo ("J Memo") sketches out a rough account of the events. Roving Republican poll monitor Wayne Byman was apparently the first person to note the presence of the NBPP members outside the polling place.The J Memo suggests that Mr. Byman did not speak to the NBPP members, but merely reported their presence to another Republican poll watcher, Joe Fischetti.
We were unable to question Mr. Byman about his experiences on Election Day 2008 because he was neither deposed nor called as a witness at a Commission hearing. We believe this to be at odds with the Report's claim that,
The Second Republican Poll Watcher On The Scene Was Also Not Pursued By The Commission. In their dissent, Melendez and Yaki write:
The J Memo notes that Joe Fischetti was the next Republican poll watcher to arrive on the scene.
According to the J. Memo Mr. Fischetti saw the Panthers and also spoke to Larry and Angela Counts, whom he identified as Republican poll watchers. According to the J Memo, the Countses expressed their fear of the Panthers to Mr. Fischetti. Also accordin to the J Memo, Mr. Fischetti claimed that the Countses were hiding inside the polling place out of fear of the Panthers.
We cannot confirm whether the J Memo accurately reflects Mr. Fischetti's account or even whether Mr. Fischetti's account accurately reflects the events that took place. This is because the Commission also failed to depose Mr. Fischetti or call him as a witness to one of the Commission hearings. [U.S. Commission on Civil Rights, Race Neutral Enforcement Of The Law? The U.S. Department of Justice and the New Black Panther Party Litigation, 1/28/11, emphasis added]
Democratic Dissenters Protest That The USCCR Chairman Prevented Them From Questioning One Of Their Two Key Witnesses. In their dissent, Melendez and Yaki write:
In the case of Mr. Coates, the Chairman abruptly called a break in the hearing, the majority left the room with Mr. Coates, and when they returned, the Chairman announced that he was going to "wind this matter down" and not allow any additional questions of Mr. Coates. Considering the tremendous importance that the majority had placed on Mr. Coates' appearance and the substantial amount of the hearing that was consumed by Mr. Coates reading his lengthy statement, the abbreviated amount of time permitted for questions show a lack of interest in true inquiry. Instead, the hearing seemed much more like a mere opportunity to allow Mr. Coates to personally get his opinions into the record as opposed to having them communicated by way of Mr. Adams or "anonymous sources" to the Washington Times or the Weekly Standard. [U.S. Commission on Civil Rights, Race Neutral Enforcement Of The Law? The U.S. Department of Justice and the New Black Panther Party Litigation, 1/28/11, emphasis added]
GOP Commissioner Said Investigation Into NBPP Case Is An Effort To "Topple" Administration. Politico reported that Abigail Thernstrom said that the commission's investigation into the New Black Panther Party case "doesn't have to do with the Black Panthers, this has to do with their fantasies about how they could use this issue to topple the [Obama] administration." Politico also reported that Thernstrom said: "My fellow conservatives on the commission had this wild notion they could bring Eric Holder down and really damage the president." [Politico, 7/16/10]
Thernstrom Criticized The Case As "Very Small Potatoes." From Thernstrom's National Review Online blog post:
Forget about the New Black Panther Party case; it is very small potatoes. Perhaps the Panthers should have been prosecuted under section 11 (b) of the Voting Rights Act for their actions of November 2008, but the legal standards that must be met to prove voter intimidation — the charge — are very high.
In the 45 years since the act was passed, there have been a total of three successful prosecutions. The incident involved only two Panthers at a single majority-black precinct in Philadelphia. So far — after months of hearings, testimony and investigation — no one has produced actual evidence that any voters were too scared to cast their ballots. Too much overheated rhetoric filled with insinuations and unsubstantiated charges has been devoted to this case. [National Review Online, 7/6/2010]
Yaki: New Black Panther Investigation A "Partisan Farce." The Washington Post reported:
The commission, which is controlled by a bloc of conservative and libertarian members, was scheduled to vote on the report Friday morning. But it could not reach a quorum because commissioner Michael Yaki, a Democratic appointee and a former senior adviser to House Speaker Nancy Pelosi, refused to participate. The commission needs five members present to meet quorum.
Yaki Calls Investigation Into The Case "Shallow, Expensive, And Partisan" And "Reminiscent Of ... A Witch Hunt." From a July 2010 statement by Yaki:
This investigation, such as it is, has been incredibly shallow, expensive, and partisan. There exist serious issues today involving discrimination and racism in this country that the Commission's far-right majority has ignored in its quixotic pursuit of a conspiracy and a policy that do not exist. These proceedings are reminiscent of an inquisition, a star chamber, and a witch hunt. They are not worthy of the U.S. Commission on Civil Rights. [Yaki statement via Media Matters, 7/7/2010]
Yaki Calls New Black Panther Investigative Panel "Dysfunctional, Overtly Partisan." In a letter to the editor sent to Politico, Yaki wrote:
This is a panel that I have called dysfunctional, overtly partisan and a star chamber - and that was on a good day. I was the most visible critic of the partisan pie-in-the-face that was the New Black Panther investigation and report...Perhaps the real solution is that the appointing authorities need people who have the ability and desire to look beyond partisan politics as well as a deep and abiding commitment to civil rights. Now THAT would be a refreshing change. [Politico, 12/24/10]
Yaki And Melendez: Investigation Was "A Tremendous Waste Of Scarce Government Resources." In their dissent, Melendez and Yaki wrote:
The Commission's investigation into, and this Report concerning, the New Black Panther Party ("NBPP") have been a tremendous waste of scarce government resources....In addition to squandering time, money and attention, the majority has further squandered the reputation of the United States Commission on Civil Rights as it spent more than a year on an Ahab-like quest to hobble the Obama Administration and to attempt to rehabilitate the disgraced record of the previous Administration's Department of Justice. [U.S. Commission on Civil Rights, Race Neutral Enforcement Of The Law? The U.S. Department of Justice and the New Black Panther Party Litigation, 1/28/11]
2007: Federal Judge Ruled Black Democratic Leader Brown Had Systematically Discriminated Against White Voters In Mississippi. The Associated Press reported:
The removal of Ike Brown as chairman of the Noxubee County Democratic Executive Committee came Monday in an order issued by U.S. District Judge Tom S. Lee.
Lee's order satisfied his June 29 opinion that black political leaders in Noxubee County violated the 1965 Voting Rights Act by discriminating against white voters.
The U.S. Department of Justice brought the federal lawsuit, the first of its kind in the country, accusing black political leaders of discriminating against white voters in the majority black county.
"This is an important victory for all the voters of Noxubee County," said Assistant U.S. Attorney Wan Kim, who announced his resignation Aug. 24. "The court's ruling helps to reform an unlawful system by placing management of the elections in the hands of an impartial and respected referee-administrator."
In his 13-page ruling, Lee permanently prohibited Brown, who is black, along with the mostly black Noxubee County Democratic Executive Committee that he heads and their agents, employees, contractors, successors, and all other persons representing them from:
Imposing qualifications or a prerequisite to voting or "applying any standard, practice, or procedure" that would deny or abridge, based on race or color, a citizen's right to vote.
Maintaining an electoral system or election-related infrastructure that "is not equally open to participation by members of a class of citizens" that would prohibit them from participating in the political process or electing "representatives of their choice."
Lee appointed former state Supreme Court Justice Reuben Anderson, the first black to serve on the court, as superintendent of elections for all Democratic primaries and runoffs through Nov. 20, 2011. Both the Justice Department and attorneys for Brown and the county Democratic Executive Committee had earlier agreed on Anderson's appointment.
Based upon Lee's order, Anderson will assume all electoral duties of the chairman of the executive committee and its members. He will certify candidates, appoint and assign poll workers and officials, distribute regular ballots and ballot boxes containing absentee ballots, supervise polling locations and officials and certify election results. [Associated Press via Nexis, 8/28/07]
2010: Brown-Backed Committee Submitted Request To DOJ. From a letter from the attorney representing the Noxubee County Democratic Executive Committee to the Department of Justice:
Request Was To Close Democratic Primary. From an attachment to the letter:
DOJ Refused To Make Determination In Case, Said Only Anderson Can Make That Determination. From the response letter from T. Christian Herren, chief of the DOJ's voting section:
[T]he Referee-Administrator, and not the Noxubee Country Democratic Executive Committee, is the only proper submitting official under Section 5 for any proposed voting change in Democratic Party primary elections in Noxubee County during the term of the Remedial Order. Accordingly it would be inappropriate for the Attorney General to make a determination regarding your submission. [Letter From Herren to Colom via PACER, 7/12/10]
Justice Department Responded By Filing Motion To Extend Injunction Against Brown. From the motion:
The United States requests that the Court order the following additional relief:
Defendant Brown and Defendant Noxubee County Democratic Executive Committee ("NDEC"), their agents, employees, contractors, successors, and all other persons representing the interests of the Defendants should be enjoined from implementing their "Motion to close Democratic Primary," submitted by Defendants to the Attorney General for preclearance under Section 5 of the Voting Rights Act. (A copy of the Defendants' submission of the "Motion to close Democratic Primary" is annexed hereto as Exhibit A. A copy of the response letter of the Attorney General is annexed as Exhibit B. Also annexed hereto as Exhibit C is a true and correct copy of the Declaration of Scott Boyd, executed July 9, 2010, with Attachment A.)
The terms of the Court's original Remedial Order, as well as any amendments to that Remedial Order, should be extended until November 20, 2013. [United States' Motion For Additional Relief Against Defendants Ike Brown And The Noxubee County Democratic Executive Committee via PACER, 7/13/10]
Justice Department Specifically Cited Brown Proposal's Potential Harm To White Voters In Calling For Extended Injunction. From the DOJ's memorandum of law in support of its motion:
The current effort by the Defendants is a part of the same pattern of behavior described by the Court in its liability opinion, in which Mr. Brown was seen to combine partisan motives with underlying racial motives. In the liability opinion, the Court noted that the list of 174 voters Mr. Brown threatened to challenge on party loyalty grounds included only white voters, despite the presence of black voters who met the terms of his party loyalty standard. Brown, 494 F. Supp. 2d at 476. These facts established that Mr. Brown's actions were motivated in part by racial concerns.
In the present situation, the facts show that, as Mr. Brown explained to Mr. Boyd, the February 1, 2008 cut-off date for his new loyalty standard was chosen in order to ensure that it would not unfavorably impact a black Democrat, Noxubee County Justice Court Judge Dirk Dickson, who voted in the 2007 Republican primary. These facts again suggest that Mr. Brown is motivated, at least in part, by racial concerns. This conclusion is bolstered by Mr. Brown's prior history of using a party loyalty standard to reduce white voter participation in Noxubee County Democratic Party primaries, while at the same time not applying a party loyalty standard to similarly situated black voters. Mr. Brown's interest in executing a party loyalty campaign in this way is similar to his 2003 attempt to enforce a party loyalty standard. In 2003, Mr. Brown personally knew that a black Democrat, Shuqualak Mayor Velma Jenkins, publicly supported a Republican candidate, yet he did not include her in the list of 174 white voters whom he threatened to challenge on party loyalty grounds. (Trial Tr. 2475-76.) Indeed, after Mr. Brown learned that Mayor Jenkins was supporting Republican Congressman Chip Pickering, he did not withdraw his support for her for Mayor of Shuqualak. Id.
The United States therefore respectfully requests that the Court enjoin the Defendants from making any attempt to enforce the provisions of their "Motion to close Democratic Primary." [United States' Memorandum Of Law In Support Of Its Motion For Additional Relief Against Defendants Ike Brown And The Noxubee County Democratic Executive Committee via PACER, 7/13/10]
The USCCR report does not reference DOJ's attempt to extend the injunction in the Brown case.
Report Cites From Perez Letter To The Commission. According to the report:
Without addressing the specific allegations of either Mr. Coates or Mr. Adams, the Department contends that it enforces the civil rights laws in a race-neutral fashion. In correspondence to the Commission, Assistant Attorney General Thomas Perez stated:
There should be no misunderstanding: the Civil Rights Division is firmly committed to the evenhanded application of the law, without regard to the race of the victims or perpetrators of unlawful behavior. Any suggestion to the contrary is simply untrue. [U.S. Commission on Civil Rights, Race Neutral Enforcement Of The Law? The U.S. Department of Justice and the New Black Panther Party Litigation, 1/28/11]
Report Ignores Perez Citation Of Ike Brown Case To Address Those Very Allegations. From Perez' letter:
Our commitment to evenhanded enforcement of our civil rights laws extends to every part of the Division, and our work in the voting area is no exception. This commitment is evidenced by our ongoing work in Mississippi. There, the Division recently filed a Motion to prevent actions by defendants Ike Brown and the Noxubee County (Mississippi) Democratic Executive Committee on the grounds that the actions were motivated in part by racial animus against white voters. [Perez letter to commission, 8/11/10]
Coates Testified That Bush Political Appointee Overrode His Recommendation To Continue Investigating Claims That MS Government Officials Intimidated Black Voters. From a hearing of the commission:
COMMISSIONER MICHAEL YAKI: You were also there in 2005. There were allegations that investigators for the State of Mississippi who were armed went into the homes of elderly, minority voters, in municipal elections asking them who they voted for. Generally for them, they felt very intimidated. I believe that a complaint was relayed to the Civil Rights Division. Can you tell me what the disposition of that complaint was?
COATES: Yes. And since Mr. Perez talked about that in his testimony, I'm going to talk about that, too. I was in charge of that investigation as the principal deputy. And we interviewed African-American voters in Panola - the name or that jurisdiction is Panola County Mississippi. We interviewed telephonically witnesses who had some investigators from the Attorney General's office come in. They were doing a voter fraud investigation. They asked these people they interviewed for whom they voted.
There is a Mississippi law that prohibits that except in very special circumstances. Judge Lee, for example, in the Ike Brown case would not let lawyers on either side ask for whom people voted. We did that investigation, and I recommended that we do a complete investigation in Panola County, because I felt that those questions were inappropriate and improper, and it was not a way to conduct, properly conduct a voting fraud investigation. My recommendation in that regard was not followed, and the matter was not followed up.
YAKI: Who did you send the recommendation to?
COATES: Mr. Schlozman. [Hearing of U.S. Commission on Civil Rights via Media Matters, 9/24/10]
The report does not reference Coates' testimony with regard to the Mississippi case.
DOJ Did Not Pursue Allegations That Minutemen Intimidated Hispanic Voters With A Gun In 2006. Perez testified that in 2006 the Justice Department "declined to bring any action for alleged voter intimidation" "when three well-known anti-immigrant advocates affiliated with the Minutemen, one of whom was carrying a gun, allegedly intimidated Latino voters at a polling place by approaching several persons, filming them, and advocating and printing voting materials in Spanish." [Hearing Of U.S. Commission on Civil Rights, 5/14/10]
Anti-Immigrant Activist In 2006 Case Reportedly Had "9mm Glock Strapped To His Side" At Polling Place. A November 2006 Austin American-Statesman article reported:
In Arizona, Roy Warden, an anti-immigration activist with the Minutemen, and a handful of supporters staked out a Tucson precinct and questioned Hispanic voters at the polls to determine whether they spoke English.
Armed with a 9mm Glock automatic strapped to his side, Warden said he planned to photograph Hispanic voters entering polls in an effort to identify illegal immigrants and felons. [Austin American-Statesman via Nexis, 11/8/06]
Arizona Daily Star: "Anti-Immigrant Activist" "Stood By With A Firearm In A Holster." A November 2006 Arizona Daily Star article reported:
A crew of anti-immigrant activists, meanwhile, visited several South Side polling places in what one poll-watch group called a blatant attempt to intimidate Hispanic voters.
Anti-immigrant crusader Russ Dove circulated an English-only petition, while a cameraman filmed the voters he approached and Roy Warden stood by with a firearm in a holster.
Diego Bernal, a staff attorney with the Mexican American Legal Defense and Education Fund (MALDEF), said the trio was trying to intimidate Hispanic voters.
Bernal said his group encountered the men at the Precinct 49 polling place at South 12th Avenue and West Michigan Street and began documenting the scene with their cameras.
The report does not reference the Minuteman associations of the alleged offenders.
Report Says Coates "Had Only A Limited Knowledge" Of Case. From the report:
At this stage, the extent of the investigation undertaken by the Department with regard to the incident in Pima is unknown. In addition, the Commission has no information relating to the decisionmaking process that led to the determination not to pursue the matter federally. In their testimony before the Commission, J. Christian Adams indicated that he had no connection with the case, while Christopher Coates had only a limited knowledge of what had occurred. In any case, this is an additional area of inquiry that should be included as part of this investigation. [U.S. Commission on Civil Rights, Race Neutral Enforcement Of The Law? The U.S. Department of Justice and the New Black Panther Party Litigation, 1/27/11]
Report Ignores Coates' Testimony That Bush DOJ Did Not Pursue Charges Because Gun Was Holstered. From Coates' testimony to the USCCR:
The investigation, as I recall, determined that he did not draw the pistol. And, fortunately or unfortunately, under Arizona law, I think that our investigation determined that one can wear a holstered pistol in Arizona.
The attorney that was looking at it did some state law research to find out that the person was legally entitled to wear a pistol. Now, I think that, if the pistol had been drawn, then that would be a different set of facts. And those facts would militate much more in favor of an 11(b) violation. [Hearing of U.S. Commission on Civil Rights, 9/24/10]