Section 11(b) And Why The NBPP Case Was Dropped.

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. In fact, the first link in the list contains an explanation of Section 11(b) and what it's traditionally been used for. You can't accuse me of being dishonest for not explaining something if you're not even going to read the first link in the list.

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.

As Gerry Hebert, a longtime veteran of the Voting Rights Section explained in another story I had linked to in that post, "There was no pattern and practice, no concerted effort to cage thousands of voters like in the [1992] Jesse Helms case. ... 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." This may be a bit confusing because the statute itself doesn't say that; it's just that in practice, the standard for proving Section 11(b) cases has been so high that the Voting Section tends not to pursue them unless there's a high probability that a large number of voters will be disenfranchised and a great deal of evidence to work with.

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 (their public statements say as much). 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-Semite is not in and of itself a prosecutable crime.

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.'" Yes, you'd have to be naive, or you'd have to have not read Civil Rights Division head Thomas Perez's testimony explaining that, 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." Another case involved law-enforcement officers visiting elderly voters at their homes in Mississippi.  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. Generally, the Voting Section is focused on larger systemic issues that have the potential to disenfranchise large numbers of voters -- not single instances that are unlikely to occur again in the future.

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. You also don't see a broad conservative call for more of these types of cases in general--they're plainly just concerned with this case because it involves black defendants and it supports a conservative narrative about the Obama administration being anti-white.

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 or any of his political appointees actually
taking office.

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