The Corner

‘Downgrading’ Voter Intimidation

I was on vacation with my family in Yellowstone National Park when the New Black Panther voter intimidation case exploded into the headlines with the testimony of former Department of Justice career lawyer J. Christian Adams before the Civil Rights Commission. This story has been in the public domain for a year, but the reaction to Adams’s testimony was eerily similar to the many geysers I saw venting steam into the atmosphere in Yellowstone.

Adams confirmed many of the details that I have reported for National Review over the past year, and Megyn Kelly of FOX News has done an outstanding job further exposing the sordid and frankly infuriating particulars of the politically biased and pernicious actions taken by the political leadership at the DOJ, as well as the hateful, racist, and anti-Semitic views of the members of the New Black Panther Party. I will have more comments on Adams’s testimony, but first I wanted to comment on the latest excuse (and tired old refrain) that has been conjured up over the past two days: It was the fault of the Bush administration. (I kid you not.)

Yes, the latest claim, according to Cynthia Tucker of the Atlanta Journal Constitution and others, is that the “charges against the New Black Panthers were downgraded by the Bush Department of Justice [inasmuch as] the decision not to file a criminal case occurred before Obama was even in office.” This “downgrade” talking point is apparently supposed to excuse the Obama administration’s decision to dismiss virtually the entire civil voter intimidation case and to neuter the injunction sought against the one remaining defendant so substantially that what was left was little more than a minor annoyance.

These claims by a nonlawyer betray a fundamental ignorance of the difference between civil and criminal prosecutions and a total misunderstanding of how things work at the Justice Department and the Civil Rights Division. First of all, although the Civil Rights Division has a Criminal Section, the vast majority of its voting-rights prosecutions are civil cases conducted by the division’s Voting Section. Whenever someone violates the Voting Rights Act and does so in a way that is potentially both a civil and a criminal violation, the division must decide whether to proceed first with a civil or a criminal case. With most voting cases, the decision is usually to go with a civil case, particularly if there are elections coming up in the near future. That is because civil cases have a lower burden of proof and give the government the opportunity to obtain almost immediately a temporary injunction to stop the defendants from engaging in the same wrongful behavior as the case winds its way through the federal courts.

Criminal cases can take longer to develop, particularly since the government usually has to convene a federal grand jury to return an indictment. Also, criminal cases focus like a laser beam on individual defendants, whereas civil cases can include an organizational defendant (like the NBPP).

The focus for the Civil Rights Division is always on the best way to get the remedy that is needed to stop and prevent the recurrence of the voter intimidation or other wrongful behavior as soon as possible. In this particular case, when the decision was being made in January of 2009, the division knew there was going to be another election in May in Philadelphia. The fastest to way to make sure there would be no thugs in paramilitary uniforms and jackboots smacking batons into their fists at polling places in the upcoming election was to file a civil complaint and obtain a restraining order against the individual defendants and the New Black Panther Party. In fact, one of the defendants dismissed from the case was once again credentialed as a Democratic poll watcher in the May election.

Once the division obtained a judgment and an injunction in the civil case, they could have decided to further pursue a criminal prosecution against the individual New Black Panthers, but the number one priority had to be getting a civil injunction as expeditiously as possible before the next election.

On the other hand, Adams also testified that some radical career lawyers shared the apparent view of the Obama political appointees that no civil-rights cases of any kind should be brought against blacks. If that factored into any decision the career lawyers made not to initiate a criminal investigation of the NBPP actions (it looks criminal to me — just watch the video and judge for yourself), that supports Adams’s most significant testimony. It would be damning regardless of which administration it occurred under. So, this left-wing excuse (that criminal charges weren’t also brought) may strongly support what the Civil Rights Commission is now trying to focus on — and what the DOJ is desperately trying to cover up.

Indeed, the person who would have been responsible for making a recommendation on whether to file a subsequent criminal charge against the individual New Black Panther defendants was Mark Kappelhoff, the “career” chief of the Criminal Section and a former ACLU lawyer. Besides being a big contributor to Democratic candidates like Barack Obama and John Kerry, as well as the DNC, Kappelhoff was considered such a liberal loyalist that he was moved into the political position of chief of staff to the acting assistant attorney general for civil rights by the Obama transition team almost as soon as they came in the door.

Sources tell me that Kappelhoff never recommended a criminal case against the baton-yielding thugs, so the claim that the Bush administration is somehow responsible for “downgrading” this case is complete nonsense. This is no surprise, given Kappelhoff’s very liberal ideology, and given his associations: In this photo, taken at a dinner of the Leadership Conference on Civil Rights in May of 2009, he can be seen to the right of Julie Fernandes, the deputy assistant attorney general for civil rights who is now at the center of controversy. Christian Adams testified under oath last week that Fernandes said that no voting-rights cases of any kind would be brought against minorities during this administration by the Civil Rights Division and that Section 8 of the National Voter Registration Act, which requires states to delete ineligible voters who have died or moved away from their voter registration list, will not be enforced. Given the action of the career criminal section in CRD, it is unreasonable to expect the Bush political appointees to initiate a criminal investigation of their own in the waning days of the administration when the civil suit was being filed.

Yet Kappelhoff and the Obama administration could make the decision today to indict the members of the New Black Panther Party, since they are still well within the applicable criminal statute of limitation. But you can rest assured that they will not do so. It is more important to them to block the investigation of the U.S. Commission on Civil Rights and to creatively excuse what they have done in this case, which was throw away the opportunity to obtain an exhaustive and wide-ranging permanent injunction against the NBPP in the civil case, which would have ensured that what happened in Philadelphia in November of 2008 never happened again at any polling place anywhere in the country.

Another point: These same liberals are making the false claim that the Bush administration failed to file similar charges against members of the Minutemen, “one of whom allegedly carried a weapon while harassing Hispanic voters in Arizona in 2006.” “Allegedly” is the correct term to use: While I was not at the Justice Department in 2006, I have talked to sources inside the Civil Rights Division who were and who have first-hand knowledge of the facts of this matter. The Voting Section sent lawyers to Arizona to investigate these allegations. They were told that the people in question (who were apparently there with some sort of English-only petition) did not enter the polling place and stayed outside the state-imposed limit around polling places where campaigning is forbidden. No one (including Democratic poll watchers) saw them talking to any voters while they were there — nor could the lawyers find any evidence that they prevented or discouraged anyone from entering the polling place (which is directly contrary to the witnesses in the NBPP case, who testified that they saw voters approaching the polls turn around and leave when they saw the Panthers blocking the entrance to the polling place).

The Voting Section was not able to make any recommendations to move forward with a lawsuit because the career lawyers assigned to the case could not find any evidence to support the claims being made. In fact, the Voting Section even referred the case to the criminal section (headed up by Mr. Kappelhoff, the trusted Obama confidant), who also declined to do anything about it. There was no viable case to be “dismissed” by the Bush administration. Some of the individuals pressing this preposterous comparison are the same militant partisans who masqueraded as career civil servants for many years in the Civil Rights Division but whose true political colors were always on full display. These individuals are as unworthy of credibility as their absurd allegations.

Finally, and perhaps most importantly, at its last hearing, Civil Rights Commissioner Todd Gaziano (who is also my colleague at the Heritage Foundation) expressed particular interest in securing testimony from the individual who would know the most about the Arizona case the liberals keep mentioning: Chris Coates, the former Voting Section chief, whom the Commission has subpoenaed. The department has ordered Mr. Coates not to comply with the lawful subpoena because he would tell too many inconvenient truths the Holder DOJ would prefer to keep bottled up. Here’s hoping that Congress may finally be able to help and apply more pressure on DOJ to stop stonewalling the commission’s investigation.

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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