RUTHFULLY YOURS

Soon after his confirmation, Attorney General Eric Holder labeled us a nation of cowards, a people supposedly unwilling or afraid to discuss race. Based on my experience as an attorney at the Civil Rights Division at the Justice Department, Holder has far more to fear from that discussion than do the rest of us.

If we had that frank, truthful discussion about race, we’d learn that the Obama administration doesn’t believe some civil rights laws protect every American. The Bush Civil Rights Division was willing to protect all Americans from racial discrimination; during the Obama years, the Holder years, only some Americans will be protected. Americans have a right to know and judge the racial policies of the administration they elected in 2008.

The dismissal of the voter intimidation lawsuit against armed New Black Panthers in Philadelphia is the most prominent example of this hostility toward race-neutral enforcement of civil rights laws. But that dismissal is far from the only manifestation of the beliefs infesting the Department. Many other cases and decisions — some of which I will detail below — are in question and deserve scrutiny.

On Election Day 2008, armed men wearing the uniforms and jackboots of the New Black Panther Party were posted in Philadelphia, Pennsylvania, at the entrance to a polling site. They brandished a weapon and intimidated voters. After the election, the Civil Rights Division at the U.S. Department of Justice brought a voter intimidation case against the New Black Panther Party and these armed thugs. I, and other Justice lawyers, obtained an entry of default after the defendants ignored the case against them.

Before a final judgment could be entered, however, our superiors ordered dismissal of the claims.

Congress has sought answers from the Department about why the Black Panther case was dismissed. The Department has repeatedly claimed the “facts and law” did not support the case — which of course is false. Others have speculated about a White House involvement. But I believe the best explanation for the corrupt dismissal of the case is the profound hostility by the Obama Civil Rights Division in the Justice Department towards a race-neutral enforcement of civil rights laws.

This hostility was — and is — on open display within the Department of Justice.

Example after example exists where this dirty little secret manifested itself within the Department and affected Department policy.

Attorney General Holder and his political appointees have traveled the country claiming that they have “reopened” the Civil Rights Division. The Civil Rights Division is “back in business,” they announce, without a sniff of media scrutiny. In time, statistics and other information will present truth to this lie, as the Bush Civil Rights Division had a more robust civil rights agenda than the Obama Civil Rights Division. During the Bush years, the Civil Rights Division brought more cases in many areas of the law, particularly voting rights.

Race-neutral enforcement of civil rights law is a principle nearly all Americans agree with. Equality before the law has been cherished since the founding, and a bloody Civil War sacrificed generations of treasure and life to enshrine race equality into constitutional law.

Two obvious examples of the Obama administration’s hostility toward race-neutral enforcement of the civil rights laws:

The Department recently filed a brief supporting the use of race-based preferences at the University of Texas. Holder’s DOJ wants Texas to be able to give extra admissions credit to the skin color of certain college applicants. Of course some races won’t get the benefit of these racial preferences, while the political allies of the administration will.

In New Haven, Connecticut, the Holder Justice Department took the side of those who wanted to racially discriminate against white and Hispanic firefighters seeking promotion. Not surprisingly, the Supreme Court rejected the position of the Civil Rights Division. (It is no accident, incidentally, that senior Department attorney Steven Rosenbaum was involved in the formation of the Department’s racially biased approach in New Haven, just as he was involved in the dismissal of the New Black Panther case when he was acting deputy assistant attorney general, a political position in the Civil Rights Division.)

It wasn’t always this way.

The Bush Justice Department never filed briefs advocating racial discrimination. In fact, the Bush Justice Department was willing to protect all citizens under the civil rights laws, and brought a handful of cases protecting non-traditional racial minorities. Some pejoratively call these cases “reverse discrimination” lawsuits. Of course “reverse” discrimination does not exist: every species of racial discrimination is just that — racial discrimination. Implying a condition precedent, reversing something else, makes “reverse” discrimination at best a subset of some more legitimate wrong. At worst, the term is a historic reminder of whose ox got gored first.

It lessens the evil of the discrimination, an evil the Constitution bans without equivocation.

I worked closely with the former chief of the Voting Section, Christopher Coates, during my time at the Justice Department. He was a voting rights giant. He brought cases to stop racial discrimination as far back as 1976, just a decade after passage of the Voting Rights Act. Coates was a former attorney with the ACLU, and while at Justice, he was instrumental in bringing the case against the New Black Panther Party.

Because he believed in race-neutral enforcement of the civil rights laws, his powers as voting section chief were slowly sucked away by the Holder Justice Department.

Eventually made an intentionally powerless figurehead, Coates was transferred to South Carolina to work in the U.S. Attorney’s Office. His courageous going-away speech to the entire Voting Section and to the deputy assistant attorney general left little doubt about the “change” at Justice:

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. … 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 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.

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.

Coates was not issuing a hypothetical warning for some future dereliction of the Department’s duty. The danger had already arrived.

United States v. Ike Brown

Coates and I learned about the hostility towards equal enforcement of the civil rights laws long before United States v. New Black Panther Party. Coates brought, and we won, the case of United States v. Ike Brown arising out of Mississippi.

Brown was the head of the Democratic Party in Noxubee County, a majority black county. The party ran the Democratic primaries, which served as de facto general elections, and Brown made no secret about his desire to see every government office in the county held by a black officeholder. Brown ran a Tammany Hall-style political operation. During one election, he literally stuffed illegal ballots he knew were marked for black candidates through an optical scanner in front of a crowd of angry citizens shouting provisions of Mississippi law at him.

“You ain’t dealing with Mississippi law, this is Ike Brown’s law,” he replied.

Brown organized teams of notary publics to roam the county collecting absentee ballots. In many cases, the notaries cast the ballots themselves instead of the voters.

Brown took absentee ballots to his home the night before the election, and put yellow sticky notes on them instructing compliant poll workers — whom he chose — why the ballots of white voters should be rejected. The poll workers complied, and canceled their votes.

Brown imported ineligible black candidates from outside the county to run against white incumbents.

He allowed squads of “assistors” to pollute the voting sites and impose “assistance,” telling black voters how to vote inside the booth — in many cases marking the ballots for the voters. During one election, teams of federal observers counted hundreds of verified examples of illegal assistance. Brown lawlessly disqualified white candidates from running for office. He published the names of 174 white citizens in the newspaper, and said they would be subject to challenge if they tried to vote.

Ike Brown institutionalized racial lawlessness, and brazenly victimized white voters during the 2003 and 2007 elections. And yet, many in the Voting Section never wanted the Department even to investigate the matter.

They voiced explicit opposition to Coates about investigating the discrimination. Superiors were reluctant to recommend to political appointees approval of a lawsuit. After the case was filed, the hostility continued. Most attorneys — except one brave woman — refused to work on the matter with Coates. Hostility pervaded the Voting Section, directed at Coates personally and also towards the theory of the case.

I also encountered open skepticism about the Ike Brown case after I was assigned to work on it in 2005. All manner of reasoning was offered to me regarding why the case should not have been brought.

Some said that unless whites were victims of historic discrimination, they shouldn’t be protected. Voting Rights lawyers will recognize this as an argument grounded in Senate Factor One of the Supreme Court’s Gingles v. Thornburg jurisprudence. Other lawyers grounded their objections in Senate Factor Five, which speaks generally of educational and economic differences between races. Because whites were better off than blacks in Mississippi, no lawsuit should be allowed to protect whites, they argued.

Of course, all of these lawyers knew that the settled law was directly contrary to their reliance on the Senate Factors. No Senate Factor can serve as a veto on any case. But they sought mightily to ground their hostility in some sort of legal theory.

There were more sinister explanations for the hostility. During a deposition I did of a black elected official in Noxubee, he agreed that racially discriminatory behavior against whites occurred:

“But you got to understand,” he admitted saying, “now it’s payback time.”

Before the trial, article after article appeared in the New York Times and other newspapers critical of the decision to bring the Ike Brown case. ABC News presented it as a classic man-bites-dog story. Even National Public Radio traveled to Noxubee to do a story suspicious of the Bush administration’s decision to sue Ike Brown. The benefit of hindsight makes the national media effort to demean the case, and the hostility from the civil rights community, look laughable and petty. We won the case, and the Fifth Circuit Court of Appeals affirmed the decision in two historic opinions.

Not surprisingly, Ari Shapiro at NPR never did a follow-up story. ABC News fell silent, too.

Election rigging … the good kind

Ike Brown was the worst example, though surely not the only one.

Down along the Big Muddy south of Natchez is Wilkinson County, Mississippi. All sorts of electoral mischief took place there throughout 2007, ultimately resulting in the home of a white candidate for county supervisor being doused with gasoline and burned to the ground. Others who complained about election misconduct were promptly arrested by the sheriff. Even though some of the accused wrongdoers were black, the Bush Civil Rights Division flooded the county with observers and brought calm to the election process.

Over in Alabama, Perry County had the Yellowhammer State’s answer to Ike Brown. This majority black county also had pervasive forced “assistance” occurring at the polls. Of course, the effect of racially motivated stuffing of the ballot box via forced “assistance” is the dilution of the votes of white voters, and the denial of votes of black voters who were improperly assisted. The Bush Justice Department was willing to investigate the claims and monitor elections there. But many within the Department were opposed to closely monitoring this forced assistance.

They reasoned that higher rates of illiteracy in the black community merited assistors entering the polling booth and casting ballots for voters — one after another, hundreds of them. Of course, when the volume of assistance bears no relation to illiteracy rates, reasonable people understand what is going on. Worse, when assistance is imposed, it isn’t assistance; it’s a tool for a partisan cause.

Some in the Department acknowledged that the end result was the likelihood of more black elected officials (at the expense of electing white officials), and on this basis were willing to turn a blind eye to the violations.

Perry wasn’t the only place in Alabama this racially motivated rigging of elections occurred. Hale County was also victimized. The Department’s opponents of race-neutral enforcement of the civil rights laws were particularly obstructionist in Hale. But some courageous lawyers persisted, and sought to ensure federal election observers memorialized all of the racially motivated illegal assistance and vote denial.

It will be interesting to see how much attention the Obama Justice Department devotes to Perry County, Hale County, and Noxubee County given the long history of vote dilution and denial through forced assistance of minority voters. Given the attitudes of some career lawyers expressed during the Bush administration, I suspect very little. Any attention they do give to these places will likely be to assure the wrongdoers that new management has arrived in Washington, that the Civil Rights Division is back in business, indeed.

Most remain rightfully disgusted by America’s long history of slavery and segregation. The idea that the civil rights law would be used against the original beneficiaries extremely agitates them. These employees of the Department oppose race-neutral enforcement of the law on these grounds. While the “original beneficiary” argument against a race-neutral application of the civil rights laws may have emotional appeal, it is legally and ethically bankrupt.

“You are about to be ruled by the black man, cracker.”

The day after the Black Panthers intimidated voters in Philadelphia, I heard Department of Justice employees speaking in the hallways making light of the intimidation: “No big deal,” one said. “Just a media generated event,” said another, echoing the familiar excuses of the southern segregationists in the 1960s when a New York Times reporter was sniffing about town.

I never dreamed that these amateur and uninformed assessments would evolve into official policy.

Other employees voiced opinions that the case should not be brought against the New Black Panthers. The Panthers did good work in the 1960s, right? Wrong, the New Black Panthers are a different, more dangerous, anti-Semitic separatist group. But it was an isolated incident, right? Wrong, but even if that were true, the behavior was still illegal.

In hindsight, it was not an accident that these early informal arguments echoed the eventual justifications used to dismiss the case, and then ultimately the spin given to the public, leaked to sycophantic amateur blogs such as Main Justice. The liberal echo chamber within the Civil Rights Division was talking about the case, mostly to each other. But attorneys who were working hard to investigate and prove the case weren’t part of the discussion. We were part of the problem. And we didn’t realize how extensive the hostility toward the New Black Panther case had already become.

Contrary to the views of some conservatives, racial discrimination still exists. A black motorist pulled over by the police is likely to have a different experience than a similarly situated white motorist. Without question, some apartment complexes and dining establishments still treat blacks differently from whites. The Department of Justice’s undercover housing testing program demonstrates this fact over and over again.

Some leading conservatives also are wrong when they argue that voting has become post-racial in America, that race no longer is an important factor in electoral outcomes. It is possible to calculate voting behavior and ascertain who black voters chose and who white voters chose in any given election. The statistical methods which allow us to peer into private choices inside the voting booth are beyond the scope of this discussion, but it is without doubt that racially polarized voting still determines election outcomes in America. Race continues to negatively affect traditional minorities, whether during traffic stops or a statewide campaign for office.

Yet after the proliferation of race-based preferences in college admission or hiring, minorities may in fact now enjoy an advantage in some places. This is particularly true in large institutions with aggressive “affirmative action” policies. Abundant data show that Asians, in particular, are victimized in university admissions by a race-based thumb on the scales. Our nation has struggled to find the right balance to remedy past discrimination. In some areas we do better than others, but the correct approach is never simply to leverage the outcome reflexively as much as possible in only one direction.

The massive engine of federal government should not be used to leverage outcomes as far as possible for only national racial minorities, but that is exactly what is happening. Indeed, many of the advocates of limitless leveraging of government power for the benefit of traditional national minorities view this as a backdoor way to achieve reparations for slavery and discrimination. If the American public won’t tolerate monetary reparations, which they won’t, then a one-way approach to civil rights laws is seen as the next best alternative for their unpopular agenda. Best of all, hardly anybody notices.

Because few Americans understand the hyper-technical components of civil rights law, such as disparate impact theory, regression analysis, and redlining cases, this litigation-based substitute for reparations has been largely successful and almost entirely free from broad public scrutiny. To the extent the public is aware of the activities of civil rights litigation, it is packaged to them as part of the noble and seemingly endless effort to escape the nation’s unjust past.

This aggressive one-way approach toward the civil rights laws is central to understanding why the voter intimidation case against the New Black Panther Party was dismissed by the Obama Justice Department. To some, the civil rights laws are not meant to protect all Americans, they are meant to protect certain Americans. Naturally the universal protections that apply to all Americans in the 14th and 15th Amendments are no barrier to one-way enforcement when you control the mechanics of the federal bureaucracy. After all, few will ever know about the civil rights cases this administration refuses to bring. A perk of being in charge is deciding what is the best use of government resources, and what is the best exercise of prosecutorial discretion.

Americans have the right to know, however, whether or not this administration harbors hostility towards a race-neutral enforcement of the civil rights laws. The firsthand experience of many within the Justice Department leaves no doubt about this insidious attitude.

Some activists may claim this is much ado about nothing. This view is shortsighted: it is hard to imagine what would erode support for the civil rights laws more than the idea that many of us aren’t protected. Equal enforcement of the law vests all of us in the mission of equality. Protecting everyone seems a small price to pay for civil rights organizations to preserve the popularity of their agenda. Failing to protect everyone only fuels hostility to their agenda.

Refusing to enforce the law in a race-neutral manner is a curable malaise. The Department of Justice can still redeem itself — it might start by refiling the lawsuit against the dismissed defendants in the New Black Panther Party case. It ought to abandon its advocacy of race-based preferences in future cases. And it should be willing to diligently pursue investigations and cases no matter the race of the victim or the perpetrator, especially in voting rights cases.

If they don’t, Americans have the right to know and judge this administration’s neglect of our civil rights.