At the U.S. Civil Rights Com- mission’s upcoming hear- ing on May 14, Assistant Attorney General Thomas Perez will attempt to explain why the Obama administration dropped federal voter intimidation charges against two New Black Panthers. Clad in paramilitary uniforms and armed with a nightstick, the Panthers had spent several hours on Election Day 2008 stalking the entrance of a voting place in Philadelphia - hurling racial epithets at whites and blacks alike, taunting poll watchers, and intimidating voters who sought to cast their votes for president as well as other candidates on the ballot. These voting rights violations were captured, partially, on video and uploaded to YouTube.
Attempting to defend the Justice Department’s decision to change course in this case, the Obama administration’s apologists have tied themselves in knots and turned the Voting Rights Act on its head.
Their principal argument is that the Panthers were not scary enough. They contend that two men who dress up like soldiers and stand in the doorway of a voting place brandishing a billy club cannot be prosecuted for voter intimidation in the absence of testimony from a voter who was intimidated, or proof of someone who was turned away from voting. Without such evidence, they argue, it is impossible to prove what the Panthers intended by their actions.
This argument ignores several indisputable facts. First, the videos themselves are clear evidence of the intimidating nature of the Panthers’ actions that day, which included one man thumping the nightstick against his open palm, and one shouting that voters should prepare themselves to be “ruled by the black man.” Second, multiple witnesses have testified to seeing additional egregious behavior that was not captured on video, including one black Republican poll worker who the Panthers called a “race traitor” and promised there would be “hell to pay” when he emerged from the voting place. Another person has testified that the Panthers called him a “white devil” and a “cracker.” Witnesses also have testified that they saw voters approach the entrance, stop upon sight of the uniformed, weapon-wielding Panthers in the doorway, and turn and leave without voting. All of this evidence and testimony was known and available to Justice when it dropped charges against three of the four Panther defendants.
The argument also ignores the established, documented history of the Voting Rights Act. Testifying before the House Judiciary Committee in 1965, then-Attorney General Nicholas Katzenbach explained: “Under the language of Section [11b], no subjective ‘purpose’ need be shown. … Rather defendants would be deemed to intend the natural consequences of their actions.” The House Report on the Voting Rights Act echoed the attorney general’s interpretation: “[N]o subjective purpose or intent need be shown.”
Perhaps most troubling, though, the Obama administration’s decision to drop this case contravenes long-standing Department of Justice (DOJ) policy. The Department’s own manual, titled “Federal Prosecution of Election Offenses” (7th ed. 2007), states: “Voter intimidation is an assault against both the individual and society, warranting prompt and effective redress by the criminal justice system.” “[T]he Department’s objectives in bringing these cases are two-fold,” it continues, “to convict those who attempt to corrupt elections, and to protect the integrity of the election process by deterring others from corrupting future elections.”
The DOJ manual cautions that “intimidation is likely to be both subtle and without witnesses.” But in this case, the intimidation was blatant. It was captured on video and witnessed by several people who reported it and were willing to testify about what they observed. Yet upon taking office, political appointees at the Obama Justice Department intervened, overruled the career officials who initiated the voter intimidation charges against the Panthers, and shut down the prosecution, walking away with only a narrow, meaningless injunction against one of the defendants.
I hope Mr. Perez will explain to the Civil Rights Commission why Justice did not see this case through, and what DOJ’s handling of this case says about federal policy on voter intimidation prosecutions. Perhaps he will tell us that federal policy has changed. But if the Department of Justice will not enforce the Voting Rights Act against people who don combat-style uniforms, patrol the entrances to voting places, and sling racial slurs at voters and election officials, then when will DOJ ever enforce it? And what moral authority will it have if it attempts to do so?
The violations the Panthers committed in Philadelphia in 2008 cannot be undone, and the voters who the Panthers frightened away will not have another chance to cast their votes in that historic presidential election. But the Department of Justice should have brought the perpetrators to justice in this case, and deterred future voting rights violations like those that took place in Philadelphia.
Indeed, as the Justice Department manual explains, voting rights prosecutions are intended to send a message of deterrence in future elections. Instead, by its actions in this case, the Obama DOJ has sent a not-so-subtle message of selective enforcement.
Ashley L. Taylor Jr. is a lawyer in Virginia and Republican member of the U.S. Commission on Civil Rights.