Abigail Thernstrom, Kirsten Powers, the DOJ and the New Black Panther Party Case

I appeared on “Reliable Sources” yesterday discussing the Black Panthers case; CNN contributor Roland Martin — as withdrawn and taciturn as ever — already has the segment up on YouTube.

We do not know, with absolute certainty, why the Department of Justice dropped civil charges against the two men seen outside this Philadelphia polling place; whistle-blower J. Christian Adams has made disturbing, and to many eyes plausible, allegations. But it’s theoretically possible that the decision stemmed from something besides racial politics; it could be fear of botching what is seen as an easy case, or office politics, or some personal grudge.

But what we do know is that these two guys were seen marching around the polling place, one with his billy club. On whether this meets the legal standard of voter intimidation, as I said on the program, neither intent nor an intimidated voter is required to prove the charge:

The legislative history of this law makes clear that Congress wanted to expand the scope of voter protection by enacting a law that would bar voter intimidation. In fact, Congress’s explanations of the purposes behind Section 11(b) support the view that neither proof of intent to intimidate nor proof of any actual effect of voter intimidation must be shown to establish a violation of Section 11(b). Rather, as DOJ has read the statute, an interpretation I share, plaintiffs need only show that the conduct engaged in had a tendency to intimidate, threaten or coerce a reasonable voter. Importantly, there is no requirement that to prevail under Section 11(b) that a plaintiff prove any purpose of subjective intent to intimidate.

The question before any jury or judge would be, did the men’s behavior have a “tendency to intimidate, threaten or coerce a reasonable voter”? I think it’s yes, and I have a hard time believing many prosecutors would look at this videotape and conclude, “oh, we can’t prove that.”

Also worth noting — a point Martin found unbelievable* — is that the New Black Panther party is not particularly enamored with Barack Obama; by the standards of billy-club-carrying conspiracy-theory-espousing radicals, Obama’s a pretty milquetoast sellout. Note that this was a heavily African-American ward in North Philadelphia. It’s worth noting that Fox News is objecting strenuously to the lack of prosecution of two men who attempted to intimidate likely Obama voters on Election Day 2008. Ironically, Fox News and others beating the drum on this story are fighting for the right of Obama voters to cast their ballots in an environment free from intimidation.

I had a feeling Kurtz would bring up Abigail Thernstrom’s NRO piece arguing that the case is small potatoes; I responded:

She’s a nice lady, but I think in this case, she is mistaken. She says that they have not produced any evidence of a person being intimidated, but that is actually not the standard of the law. Under the law, you don’t necessarily have to prove intent and you don’t have to produce an intimidated voter. All you have to demonstrate is that the behavior would be considered intimidating to a reasonable voter. Now, in this case, a lot of cases, it’s the he said versus he said. But in this case, we have the videotape. So we can just play the videotape.

I didn’t get a chance to mention this, but I have to strenuously object to Thernstrom’s declaration that “my fellow conservatives on the commission had this wild notion they could bring Eric Holder down and really damage the president.” If we really wanted to damage the president, we would try to keep Eric Holder in place as long as possible.

This prompted Kirsten Powers — last seen insisting Megyn Kelly not put words in her mouth — to claim, via Twitter, that I had to apologize for my “sexist dismissal of voting rights scholar Abigail Thernstrom as just a ‘nice lady.’” Actually, the only person who’s using the words “just a nice lady” is Kirsten Powers. So perhaps she should apologize to Abigail Thernstrom, right after she apologizes for putting words in my mouth — because we all know that bothered her so much during her appearances on Fox News.

For a moment, I was worried that people might think I’m sexist, but then I remembered no one listens to Kirsten Powers.

UPDATE: For what it’s worth, there is testimony suggesting that indeed, there were intimidated voters that day. From the testimony of Chris Hill, senior registrar for the University of Pennsylvania Hospital Dermatology, and a poll watcher at that site that day:

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, “Truthfully, we don’t really know. All we know is there’s two Black Panthers here.” And the lady said, “Well, we’ll just come back.” So, I didn’t see anybody other than them leave, but I did see those three leave.

For Abigail Thernstrom to conclude that “after months of hearings, testimony and investigation — no one has produced actual evidence that any voters were too scared to cast their ballots,” as she does in her piece for NRO, seems a glaring omission; Hill’s testimony above was before Thernstrom herself.

* ANOTHER UPDATE: Via Twitter, Martin says that he did know that the New Black Panther Party were not supportive of Obama, making his point in his traditional polite and understated manner. I should have been clearer; Martin found my point that Fox News was asserting the right of black voters to cast their voters in an environment free from intimidation unbelievable.

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