The Corner

Coates Speaks as Best He Can

It’s not news that Christopher Coates, the former chief of the Voting Section of the Civil Rights Division at the Justice Department, was relieved of his post on January 5 and “transferred” to South Carolina for an 18-month assignment with the U.S. attorney’s office. (See my article on the NRO home page.)

Coates had been relentlessly criticized by liberals both inside and outside the division because of his involvement in two cases — one in Noxubee County, Mississippi (U.S. v. Ike Brown et al.), the other in Philadelphia (U.S. v. New Black Panther Party et al.) — that feature clear-cut voting-rights violations (namely, discrimination and intimidation) committed by black defendants.

Coates is a former ACLU attorney who has received many awards for his work in the area of civil rights over the past four decades. He has filed numerous voting-rights cases on behalf of minority voters. But he got in trouble because some of the ideologues who inhabit the civil-rights community don’t want to accept anyone who doesn’t share their view of Voting Rights Act (VRA) enforcement. One of their unbreakable rules is that the VRA shouldn’t be used to protect white voters from discrimination committed by racial or ethnic minorities.

Apparently eager to punish Coates for his role in these cases, political appointees in the Obama administration effectively stripped him of all his management and supervisory authority soon after they came into power. The indignity and abuse to which Coates was subjected represents a disheartening example of the politicization of Eric Holder’s Justice Department, and will serve as another ugly stain on an out-of-control Civil Rights Division.

In any event, Coates had a going-away event on January 4 that was attended by the entire staff of the Voting Section and several members of the Civil Rights Division’s new political leadership, including the assistant attorney general. Several people who were there (including a former colleague who no longer works at the Justice Department but was an invited guest) told me what Coates said.

His speech is a remarkable statement by a respected career lawyer. It’s one that every Justice Department employee should hear, particularly at a time when politics seems to be driving so many law-enforcement decisions at the Justice Department.

Here’s a paraphrase of what Christopher Coates had to say:

Without question, the most controversial cases I have been involved in during my time in the Voting Section were the prosecution of the Voting Rights Act cases in Noxubee County, Mississippi, against Ike Brown, and in Philadelphia, Pennsylvania against the New Black Panther Party.

Many people inside and outside the Civil Rights Division have criticized me for those cases. Some said I only filed those cases because I wanted to curry favor with the Bush administration. I want to take a few minutes before I leave the Voting Section to respond to that criticism.

I actively participated in the prosecution of those two cases for four reasons. The first is that a plain reading of the statutory language of the Voting Rights Act indicates that it is aimed at protecting all American voters from racial discrimination and voter intimidation, and is not limited to protecting only racial-minority or language-minority voters. When Congress reenacted Section 5 in 2006 it specifically added language that prohibits voting changes that diminish the ability of “any citizens of the United States,” on account of race, color, or membership in a language minority, to elect candidates of choice.

Before I became a DOJ attorney, I read the Voting Rights Act to protect all voters; but especially as a government lawyer, I have never assumed that I was entitled to ignore that clear language in federal law and therefore ignore incidents where evidence showed white voters were discriminated against or where the wrongdoers were themselves members of a minority group.

All but two of the many cases I have participated in while at Justice have been on behalf of racial, ethnic, or language-minority voters; but when I came across the egregious circumstances in Noxubee County and in Philadelphia, I was not willing to look the other way just because the victims were white and the wrongdoers were black.

The second reason I supported the prosecution of these two cases is because the race-neutral enforcement of the Voting Rights Act is imperative to the holding of racially fair elections. As a very practical enforcement matter, the fact that the department did not bring Voting Rights Act enforcement actions to protect white voters and against minority election officials in the first decades after the enactment of the Voting Rights Act is not relevant: There were only a small number of minority poll officials in those first few decades. Fortunately, that racially unfair situation has changed dramatically, and today many jurisdictions have minority election officials in numbers close to the minority percentage in the various places where they serve. For example, when we filed the case in Noxubee, almost all of the poll and election officials were black.

As anyone knows who has observed human behavior, all races have their bad apples. Sometimes members of minority groups — like Ike Brown in Noxubee — violate the anti-discrimination provisions of the Voting Rights Act. Having worked in the Voting Section and responded to many complaints filed by voters, I know that the racially discriminatory and intimidating behavior that occurs in the voting area is not committed just by whites, although whites certainly commit their share, and that some of these outrages are committed by members of minority groups.

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.

I cannot imagine that any lawyers who believe in the rule of law would want to encourage violations of the Voting Rights Act by anyone, whether the wrongdoers are members of a minority group or white people.

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.

One of these most basic standards is equal protection under the law. When that is violated, America does not live up to the true meaning of its creed. When it is followed, the country functions the way it was intended to. For the Department of Justice to enforce the Voting Rights Act only to protect members of certain minority groups breaches the fundamental guarantee of equal protection, and could substantially erode public support for the Voting Rights Act itself.

My fourth reason for this kind of law enforcement is very simple: Selective enforcement of the law, including the Voting Rights Act, on the basis of race is just not fair and does not achieve justice.

I have had many discussions concerning these cases. In one of my discussions concerning the Ike Brown case, I had a lawyer say he was opposed to our filing such suits. When I asked why, he said that only when he could go to Mississippi (perhaps 50 years from now) and find no disparities between the socioeconomic levels of black and white residents, might he support such a suit. But until that day, he did not think that we should be filing voting-rights cases against blacks or on behalf of white voters. 

The problem with such enforcement is that it is not in compliance with the statute enacted by Congress. There is simply nothing in the VRA itself or its legislative history that supports the claim that it should not be equally enforced until racial socioeconomic parity is achieved. Such an enforcement policy might be consistent with certain political ideologies, but it is not consistent with the Voting Rights Act that Justice is responsible for enforcing.

Some who criticized the two cases about which I speak claim that they are not opposed to protecting the rights of white voters, but question using the resources of the Voting Section in that manner. I question the validity of that criticism. Given the number of cases the Voting Section has filed during the past 40 years on behalf of racial minorities, I do not understand why a mere two cases on behalf of white voters would have raised the ire of most of the critics of the Ike Brown and New Black Panther Party cases to the level that has been observed. Those critics are not motivated primarily by resource concerns, but rather, in my opinion, by a strongly held but erroneous view that the work of the Civil Rights Division in its enforcement of the VRA should be limited to protecting racial-, ethnic-, and language-minority voters. The resource issue is a red herring raised by those who want to continue to enforce the Voting Rights Act in a racially biased fashion and to turn a blind eye whenever incidents arise that indicate that minority persons have acted improperly in voting matters.

A lot has been said about the politization of the Civil Rights Division. I believe that one of the most detrimental ways to politicize the enforcement process in the Voting Section is to enforce the provisions of the Voting Rights Act only for the protection of certain racial or ethnic minorities; or to take the position that the Voting Section is not going to enforce certain provision of any of the voting statutes the Voting Section has the responsibility to enforce. Such decisions carry with them obvious, enormous implications for partisan political struggles. 

While in the Voting Section, I have faithfully worked to enforce all of the voting statutes we are charged with enforcing without regard to the race or ethnicity of the alleged wrongdoers or the victims.

During the early part of the Bush administration, I championed the filing of traditional vote-dilution cases on behalf of African Americans, and argued strenuously with officials that such suits should be filed. During the Bush administration, we were given approval to continue the prosecution of two major pieces of vote-dilution litigation that were filed during the Clinton administration. One was a suit in Blaine County, Montana, on behalf of American-Indian voters that resulted in a ruling upholding the constitutionality of Section 2 of the VRA by the Ninth Circuit Court of Appeals. 

The second suit was against Charleston, South Carolina, filed only three days before the Bush administration came into office. I got approval to continue that suit, as well, on behalf of black voters, and we won the case. After I became principal deputy of the Voting Section in 2005, I successfully pushed for the filing of voting dilution cases in Osceola County, Florida; Port Chester, New York; and Euclid, Ohio — all on behalf of racial minorities.

But when I came across the outrageous activities in Noxubee County and Philadelphia, I championed the filing of Voting Rights Act suits there as well for the reasons I have outlined today. I did my best to enforce all of our voting statutes for all Americans, and I leave here with my soul rested that I did the right thing to the best of my ability.

This paraphrase of Coates’s remarks is based on the notes and recollections of several who were in attendance. The only way to get a more accurate account of what Coates said would be if the Justice Department finally allowed him to comply with the subpoena issued by the Civil Rights Commission for information about the New Black Panther case.

A couple of notes of clarification: At one point, Coates says that he thinks it is irresponsible to take the position that the Civil Rights Division will only enforce the Voting Rights Act to protect certain racial or ethnic minorities, or that it will eschew enforcement of certain other provisions within its jurisdictional mandate. The first part of that statement relates to the Noxubee and Philadelphia cases.

Although he is not explicit about it, the second part of the statement no doubt refers to the Obama political appointees’ egregious actions with respect to enforcement of the National Voter Registration Act (“NVRA”).

In particular, Coates seems to be calling out — in his southern, gentlemanly way — the new political appointees’ scandalous dismissal of another lawsuit filed during the Bush administration against the State of Missouri for not complying with a provision of the NVRA that requires states to periodically clean up their voter-registration lists by deleting the names of voters who have died or moved away.

Liberals were outraged when the Bush administration actually started enforcing this provision, which had been totally ignored by the Clinton administration. I have already heard from a number of different sources that the political appointees in the Civil Rights Division have made it very clear that this particular NVRA requirement will not be enforced. This unintentionally exposes the hypocrisy of Assistant Attorney General Tom Perez, who had proclaimed that the Civil Rights Division would never treat its enforcement responsibilities like a cafeteria buffet, picking and choosing which provisions to enforce. 

Coates never identified whom he was referring to in his speech, but my former colleague says it was very clear to everyone in the room whom Coates was talking about. It is easy to understand why Coates could take no more of this.

If all of the career lawyers in the Civil Rights Division were as professional as Christopher Coates, there would be no reason to worry about the enormous amount of power entrusted to them, or their ability to enforce the law in an intelligent, fair, and apolitical manner. 

Unfortunately, that is not the case. There are simply too few lawyers there like Coates, and it’s likely that the new attorneys soon to be hired by the Obama administration will fall short of his standards. Best of luck, Chris.

– Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation and a former counsel to the assistant attorney general for civil tights at the Justice Department.

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