Cord Jefferson thinks I haven’t adequately explained why the Justice Department didn’t “throw the book” at the New Black Panthers involved in the 2008 Philadelphia voter intimidation case:

Why didn’t Justice throw the book at these clowns? It’s certainly wasn’t a case that required the time, energy and finances of the entire Civil Rights Division, but was it really a case that should have resulted in little more than a warning to not be a bad boy again?

Jefferson accuses me of “slight of hand” for not linking to any explanation of why they didn’t pursue the case, and instead just linking to accounts of how politicized the Bush era was. Well, (a) I was focusing on the Bush Civil Rights Division’s focus (or lack thereof) since the case was filed by them and (b) several of the links I gave in fact contained the explanation. Since Jefferson seems to have missed them, I’ll excerpt the relevant parts, like this one:

The question was whether to use a rarely used provision of the Voting Rights Act that was originally meant to prevent state-wide voter suppression campaigns, Section 11(b), against a small group of NBPP members. Prior to the Bush administration, the last time Section 11(b) had been used was to prevent a state-wide voter caging effort in North Carolina initiated by then-Senator Jesse Helms. Adams, and the USCCR are, almost comically, demanding to know why it wasn’t used against four people involved in an incident at a single polling station in Philadelphia. Imagine charging a jaywalker with attempted first-degree murder because they could have caused an accident.

Or this one:

At the heart of the New Black Panther case was Section 11(b) of the Voting Rights Act, which offers legal protections against voter intimidation. It had only been used once prior to the Bush administration — in 1992 to prevent a statewide voter-suppression effort initiated in South Carolina by then-Sen. Jesse Helms. In this case, the Bush administration wanted to use Section 11(b) against several New Black Panthers who had stood in front of a polling place in a black neighborhood, one of whom wielded a baton.

“There was no pattern and practice, no concerted effort to cage thousands of voters like in the [1992] Jesse Helms case,” said Gerry Hebert, a former senior Voting Rights Section attorney who has served under multiple administrations. “That strikes me as the kind of large-scale voter-suppression case that would be more appropriate for Justice Department resources to be spent on.”

So I’ll reiterate: Section 11(b) of the Voting Rights Act has generally been used to prevent large voter-suppression campaigns like statewide voter-caging efforts — not for situations involving a few individuals in which there’s no proof of a wider voter-suppression scheme. The career attorneys who decided to pursue a civil injunction rather than a criminal case made a judgment call about how the resources of the Voting Section should be spent. Seeing that there was no evidence of a wider effort to prevent people from voting — and despite the racist language of the perpetrators — they determined there was not enough evidence of criminal intent to pursue a criminal rather than a civil case. At first glance it may seem like a slam-dunk case, but the few Section 11(b) cases have been brought in the past have had to conform to a really high standard of evidence in order to succeed.

My own observation is that a black polling place isn’t a very productive place to go to intimidate white voters — I imagine that the New Black Panthers thought they were protecting black voters from some phantom white-supremacist conspiracy. Jefferson has a problem with the DoJ’s contention that no one came forward and said they were intimidated, writing, “Well, isn’t that the entire point of intimidation, guys?” Point taken, but that doesn’t change the fact that, plainly put, it’s difficult to prosecute a crime for which there is no victim. Being a racist, anti-Semitic asshole is not a prosecutable crime.

Frankly, there are also much bigger fish for the Voting Rights Section to fry than the New Black Panthers — say, like, flawed voter databases that disenfranchise millions of people, practices the Bush folks actively encouraged. What’s remarkable to me is that we’re still talking about a case in which no one is actually alleged to have been disenfranchised, and ignoring the kind of systemic practices that keep millions from exercising their right to vote.

Jefferson writes that “I also think you’d have to be naïve to assume that things in Justice would have played out the same way had it been white men carrying clubs and threatening ‘niggers’ with ‘the white man’s reign.'” Actually, in 2007 the Voting Section declined to bring charges against a group of Minutemen — one of whom was armed with a gun — hanging outside a polling place in Arizona during elections the year before. According to press reports at the time collected by Media Matters, their intent was to “photograph Hispanic voters entering polls in an effort to identify illegal immigrants and felons.” I myself reported on an incident in New Mexico in 2008 in which Republicans sent a private investigator to the homes of Latino voters they thought were registered by ACORN in order to demand proof of citizenship. Nothing was ultimately done about that either.

To reiterate: The decision to drop the NBPP case was a judgment call based on how to prioritize the section’s resources and the available evidence. Unlike the last Section 11(b) case in Noxubee Mississippi (filed on behalf of white voters, also during the Bush administration) there was no broad campaign to disenfranchise or intimidate voters. In practice, the section tends to focus on larger, systemic voting-rights issues instead of individual instances. In the NBPP case, the local police could have, say, brought a menacing charge that would have been easier to prove and involved fewer resources, but they didn’t.

That said, a number of veterans from the voting rights section have told me that they’d broadly like to see more Section 11(b) cases filed, and that there are enough instances of voter intimidation to justify them. That’s a different argument; the decision not to pursue the New Black Panther case in particular reflects longstanding Voting Section practice regarding Section 11(b), not special treatment. The opposite is true — had this individual instance with no pattern or practice involved The Minutemen, it’s unlikely there would have been a case filed at all.

A final point: Jefferson says the Obama Justice Department should “explain itself.” It
already did,
but just so we’re clear, the decision to pursue civil rather than
criminal charges was made in January 2009, prior to Obama actually
taking office.