Re: Clegg & Thernstrom on the NBP Case

by Hans A. von Spakovsky

In an article about the New Black Panther Party voter intimidation case and the shocking testimony of former Voting Section chief Christopher Coates, NRO regulars Roger Clegg and Abigail Thernstrom note that racial preferences are often engrained into federal, state and local “affirmative action” programs. They couldn’t be more correct in observing that race-conscious provisions are “programmed into the computers of most of the Hill staffers who craft legislation; the judiciary has long borne much of the blame; and federal bureaucrats in this area have never been colorblind.”

They are certainly right about Washington’s pervasive “political correctness” which perceives racial and gender discrimination as perfectly acceptable (as long as the “right” groups are being discriminated against).  And there is no doubt that such “correctness” is immoral, unconstitutional, and counterproductive.

But their article may leave some with an erroneous impression, too: the false notion that the Voting Rights Act does not bar all racial discrimination in voting or that somehow it is not against the law for racial minorities to discriminate against other voters.

Certainly the vast majority of voting rights cases involve victims who are racial minorities. In fact, Clegg and Thernstrom point out that the Voting Rights Act has “become a statute whose key provisions are used to protect only minority voters. Indeed, only once has any provision of it been used to suggest otherwise.” But that is because, until the Bush administration forced them, the career lawyers in the Civil Rights Division would not consider filing a lawsuit based on discrimination or voter intimidation against white voters by black perpetrators.

Many of those lawyers protested the launch of a 2003 investigation in Noxubee County, Mississippi, against Ike Brown, the black head of the local Democratic Party. Despite strong evidence of blatant discrimination, they refused to work on the case. Ultimately, Justice lawyers won that case — and the first lawsuit ever filed on behalf of white voters by the government in the 45-year history of the Voting Rights Act.

The question of whether the Voting Rights Act also protects white voters from discrimination is settled. The Fifth Circuit Court of Appeals affirmed the judgment obtained by the Justice Department against Ike Brown, who was found to have “violated § 2 [of the Voting Rights Act] by intentionally diluting the voting power of white Democrats.” Brown had engaged in “behavior intended to deny white voters equal participation in the political process.”

What is fascinating when one reads the 26-page opinion is that there is no discussion whatsoever about whether the Voting Rights Act even applies to white voters; there is only a discussion of the various claims made by the black defendant about the lack of credibility of the government’s witnesses or the supposed lack of evidence of racial motivation in his behavior. The fact that the law applies to the protection of white voters as well as minority voters is taken as a given.

I doubt any federal court would dare issue an opinion based on the theory that the law protects only certain voters (and not others) from racial discrimination. Neither the plain language of the statute nor its legislative history supports any such claim, even if the Voting Rights Act has not often been used in this context. This is even truer for voter intimidation claims under Section 11(b) of the Voting Rights Act — the section at issue in the New Black Panther Party case.

That is why recent testimony by Christopher Coates is so important. He lifted the lid on the unethical and unprofessional attitude of other career staffers and Obama political appointees in the Civil Rights Division who are determined not to enforce the law in a race-neutral manner.

In making this public, Coates’ had to defy his political bosses. This act of bravery was essential to what Clegg and Thernstrom rightly say in their article is needed: to tear down the edifice of discrimination that has become acceptable in education, hiring, contracting, and voting rights.

If Commissioner Thernstrom truly wants to “tear down this edifice,” she should stop criticizing — and start supporting –  the investigation of this outrageous behavior by the U.S. Commission on Civil Rights. Anything less can only be construed as condoning the Department’s unequal and illegal misapplication of the law.

Hans A. von Spakovsky is a former commissioner on the Federal Election Commission and a former counsel to the assistant attorney general for civil rights at the Justice Department.

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