Abigail Thernstrom: New Black Panther Case Is “Small Potatoes”

Conservatives aren't as united over the "outrage" of the New Black Panther Case as you might think.

Two weeks ago, I noted that Abigail Thernstrom, an AEI scholar and Vice-Chair of the U.S. Commission on Civil Rights, had contended in National Review that the New Black Panther case wasn’t nearly the big deal that many on the right were making it out to be. Today, she’s out with a much longer piece responding to arguments raised by NRO’s Andrew McCarthy and arguing, in essence, that the case isn’t anything close to being what the right thinks it is:

As I said in my NRO piece, conservative commentators habitually describe the Panthers as wearing “jackboots” and being “armed.” It strikes me as a somewhat overwrought characterization; while a stick or club may be a weapon, I think the word “armed” usually connotes images of guns or knives in most peoples’ minds, and it seems gratuitous to object to the Panthers’ choice of footwear. The courts, as far as I know, have not established standards for prosecution of intimidating attire, and the libertarian in me questions why boots (not unlike ones my husband owns) are relevant to the question of voter intimidation

McCarthy is thrown into a tizzy by my mild observations. Apparently, I am to be excoriated for feeling that the allegations of “armed” and jackboot-clad Panthers invoke inappropriate images of Kristallnacht. His fulminations on this question quickly elide from the Panthers’ attire to their comments; he quotes them as saying things like “you’re about to be ruled by the black man,” “kill some crackers,” and “kill some of their babies.” But who said what to whom — and when?

The first statement was indeed made at the polling place, but it was directed to Bartle Bull, a Republican poll-watcher, not a voter. Bull later claimed that the conduct he witnessed that day in Philadelphia was “the most blatant form of voter intimidation” that he had encountered in his life, dating back to elections in Mississippi in the 1960s.

McCarthy and Bull can’t be serious. In Mississippi, before the 1965 Voting Rights Act was passed, fewer than 7 percent of eligible black voters had been allowed to register to vote. They were disfranchised by fraudulent literacy tests, widespread (and often lethal) violence, and intimidation. Whites in the Jim Crow South did not need to stand around polling places looking menacing to keep blacks at home on voting day: Would-be black voters knew they were putting their lives, their homes, and their jobs on the line if they approached a polling booth.

(…)

McCarthy refers to the testimony of two other Philadelphia poll-watchers. He writes: “two African-American poll watchers testified to the Commission that they were personally threatened by the Panthers.” He notes they “were black Republicans.” In fact, they were registered Democrats, working for the Republican party. Their statements to the Justice Department and the Civil Rights Commission were contradictory on this point; they initially said they had been intimidated, but their later deposition did not make that claim.

Nor is it established, McCarthy’s allegations to the contrary notwithstanding, that “voters approaching the polls promptly turned around and left upon seeing the menacing Panthers stationed out front.” Over the course of the day, some witnesses noticed a few people who approached the polling place and then turned away — but the depositions and testimony heard at the Commission have failed to establish that any of the individuals in question were potential voters who had been frightened away. A picky little legal point, you might think, but the outcome of prosecutions can hinge on such distinctions.

Indeed, without actual intimidated voters it’s a little hard to make out a case of voter intimidation, something that the Dept. of Justice would still be required to do notwithstanding the fact that the Defendants in the civil lawsuit had been declared to be in default. It’s a simple principle, really, but one that the people who are yelling — Scandal ! — at the top of their lungs don’t seem to recognize.

As Thernstrom goes on to note, the legal issues raised by this case are far from clear, in fact:

Is there an open-and-shut case that the conduct of the Panthers at that Philadelphia polling place in November 2008 constituted “voter intimidation” or “vote suppression” under Section 11(b) of the Voting Rights Act? I argued previously that it was doubtful, because “the legal standards that must be met . . . are very high.” McCarthy claims, to the contrary, “the legal standards are actually quite easy to meet.” Upon reflection, I think neither of us was correct. My oversimplified formulation ignored the fact that this section of the act has been litigated so rarely that there are no clear legal standards at all, no substantial body of precedent to define precisely what is needed to prove a violation.

McCarthy, though, is surely wrong in asserting that the standards are “quite easy to meet.” The Voting Rights Act has governed the conduct of the last eleven presidential elections, 22 congressional elections, and literally thousands of state and local elections. And yet there have been only three successful prosecutions of voter intimidation under Section 11 (b). Is it possible that nothing conceivably intimidating to prospective voters ever occurred in our vast country over such a long span of time? No. Clearly, it is not “quite easy” to prove voter intimidation, or else there surely would be a very different track record to examine.

DOJ’s assistant attorney general for civil rights, Thomas Perez, testified before the Commission that DOJ was concerned that it could not meet the standard of proof required for these cases. That is a debatable proposition — but that was exactly Perez’s point: This is a judgment call that falls within DOJ’s discretion, not per se evidence of a policy of racial double standards.

Exactly. This was a matter of prosecutorial discretion and, under the facts available, there’s precious little evidence that discretion was abused for a nefarious or discriminatory purpose. These are the kinds of hard decisions that lawyers that work for the government have to make every day, and there’s no reason to think there’s anything wrong here.

FILED UNDER: Race and Politics, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020.

Comments

  1. steve says:

    The Bush DOJ dropped criminal charges. The remaining charges were iffy, and w/o anyone willing to testify, they did not have much of a case. I think what the right was also trying to claim was that the Obama DOJ was refusing to prosecute blacks. That is essentially what Adams claimed. That is easily resolved by looking at the number of cases being handled. Has anyone published data showing that the DOJ under Obama has stopped prosecuting blacks?

    Steve

  2. ponce says:

    Somebody at the Fox/RNC nexus decided to push this story hard.

    Are they just stupid or is it the best the Right has?

  3. Brummagem Joe says:

    Abigail Thernstrom v Andy McCarthy. Any questions?

  4. Steve Plunk says:

    It may not be as big of a deal but it’s still worthy of our attention.

    Thernstrom’s assertion the club as not being “armed” is stupid. Check the law. I’ve seen people accused of being armed with soda cans. I guess it’s just how you want to portray things but a club is a club.

    As for proof there was a default judgment so that hurdle had been cleared so why drop the case when the work was already done? One official claims it was politics and that’s reason enough to check into things.

  5. G.A.Phillips says:

    lol, wow, unbeliveable…..

    .***Somebody at the Fox/RNC nexus decided to push this story hard.***

    You mean they took the time to cover it—> http://www.youtube.com/watch?v=94b78rnWMP4

  6. Dantheman says:

    ponce,

    “Are they just stupid or is it the best the Right has?”

    Why is this an either/or question?

  7. Herb says:

    It’ s been my understand that this Black Panther thing has never been about the legal merits of the case. Hasn’t it always been about beating the “Chicago politics/ACORN/radical socialist black man” drum?

    Or am I just being honest with myself here?

  8. Herb says:

    Steve……no offense, buddy, but read this again:

    “One official claims it was politics and that’s reason enough to check into things.”

    And then think about why that statement is ridiculous.

  9. steve says:

    “As for proof there was a default judgment so that hurdle had been cleared so why drop the case when the work was already done?”

    The official default punishment was that only the guy with the club could not carry a weapon near polling places in the future as I understand it.

    Steve

  10. ponce says:

    “Thernstrom’s assertion the club as not being “armed” is stupid.”

    I wonder if the Fox/RNC sewer system would have considered this guy armed if he’d had a pistol in his hand?

    Let’s ask the NRA…

  11. Steve Plunk says:

    Herb,

    My statement is concerning politics being the motivation for dropping the case after the default judgment. Political favoritism versus rule of law. Far from ridiculous and no offense taken.

    Steve,

    I thought they dropped the case before any punishment or fines were levied.

  12. Zelsdorf Ragshaft III says:

    Let us wait and see what happens to this incident when the Republicans are in control of congress. I’ll bet Eric Holder is not AG by the end of 2011. Any takers?

  13. sam says:

    Ah, yes, the time-honored Scare Whitey tactic. Not that Zels or Ga need much scaring. (I was going to write, “They’re scared witless,” when I realized the “witless” part is pretty much the predicate, spoken or unspoken, in anything you could say about them.)

  14. Zelsdorf Ragshaft III says:

    I am not scared Sam. Are you? Funny thing about this is your willingness to dismiss career lawyers who worked for DOJ who said this was one the the clearest cases of a violation of voting rights they had seen. Both the attorney who was handling the case and his supervisor. I am beginning to believe some of the people posting here are bias and would stickup for this administration even if it were revealed they harbored radicals who sought to bring down our economic system curtail our freedoms and take our money to distribute it as they see fit. Sam, investigate Pigford. It will be the end of this Administration when the truth is known.

  15. ponce says:

    “I am beginning to believe some of the people posting here are bias and would stickup for this administration ”

    Um,

    It was the Bush Administration that dropped the charges against these two terrifying black men, Zel.

    BTW, would you consider it voter intimidation if they had been two white guys standing there with visible guns in holsters?

  16. tom p says:

    ***BTW, would you consider it voter intimidation if they had been two white guys standing there with visible guns in holsters?***

    Now Ponce, you know one is a gauranteed right under the 2nd amendment and and the other is just “uppity ni**ers”, don’t ya?

  17. tom p says:

    too much “crazy” … Time for some daily show.

  18. anjin-san says:

    This just in. New Black Panthers have joined with Mexican druggies and Hezbollah terrorists to drive God fearing Americans into the sea. Wide swaths of Texas are now under the Mexican flag. Huey Newton posters mandatory in many Texas schools. Cowboys Stadium now renamed “Eldridge Cleaver Stadium”. The only thing available to eat there is ribs with Bobby Seal’s BBQ sauce.

    Really. This is all true.

  19. anjin-san says:

    It may not be as big of a deal but it’s still worthy of our attention.

    Sort of like guys with semi-automatic rifles showing up at venues where Obama is speaking. Which does not seem to bother the right even a teeny bit.

  20. Juneau: says:

    Ah, yes, the time-honored Scare Whitey tactic.

    Let’s scare darkey, instead! You see how asinine you sound? Liberals are, without a doubt, the most bigoted, emotionally stunted people in the political spectrum..

  21. Juneau: says:

    Sort of like guys with semi-automatic rifles showing up at venues where Obama is speaking.

    Oh. You mean like the black people showing up with guns at tea party rallies, only to have the media crop the picture, claim it was a white man, and then be horribly humiliated when they were proven to be liars?

    The world, and the country, are not stupid. There’s a reason you folks are losing badly across the country, and it ain’t ‘got nuthin’ to do with the “right.” You made your bed. Now you’re going to get to lie in it.

  22. sookie says:

    >>> while a stick or club may be a weapon, I think the word “armed” usually connotes images of guns or knives in most peoples’ minds, <<>> and it seems gratuitous to object to the Panthers’ choice of footwear. <<<

    Under normal circumstances, I'd agree with this… except to the extent that they were menacing people coming to vote. Dressing in para-military type apparel only added to the effect they wanted to present. Outside of their actions, their dress here would have meant nothing to me. The fact that the one guy was carrying a nightstick would have rung my bell though. I'd be watching him under any circumstances.

    However keep in mind how important 'dress' is to gangs and gang mentality, so the way they were dressed is not exactly nothing from that aspect.

    Quit minimizing what the NBP's did. We all know that if this had been white thugs outside a polling place, menacing and posturing both physically and verbally about who people were going to vote for, who was going to be the next president, who was going to live under who's rule, there is no doubt that it would have been considered voter intimidation. What they did was intimidate voters. Doesn't matter what race the voters were who were intimidated, but for the record at least some of the voters who have expressed fear were black.

    The case was won and for reasons of race the Obama admin dropped it. It IS a big deal.

  23. sookie says:

    geez… I wish this site had a preview option…

  24. wr says:

    Sookie sez: “What they did was intimidate voters. Doesn’t matter what race the voters were who were intimidated, but for the record at least some of the voters who have expressed fear were black.”

    Only one problem with that: The Bush DOJ couldn’t find one single voter who would claim to have been intimidated.

    The fact that TeaBaggers are terrified of Scary Black Men doesn’t mean that the voters in this district were.

  25. G.A.Phillips says:

    You have got to love the Democrates and who they protect at all costs for their votes and because of their race, er, color, er, er,er,er,errg…..

    http://www.youtube.com/watch?v=q8uMM58a6SE

  26. anjin-san says:

    The world, and the country, are not stupid.

    Perhaps not. But clearly, you are.

  27. Tom Geraghty says:

    The neo-Nazis march waering jack boots. They wore uniforms. Not even armed with clubs. Is it OK for them to stand in the door of the voting place? hmm Abigail? Or is that called “intimidation”

    These guys wore Panther uniforms and brandished clubs. They stood in a voting place doorway and made hostile remarks to whites who went there to vote.

    Clearly Abby, you have a case of the willies when confronting REAL racism, the kind some African Americans hold for whites. Yes, there is that kind too, uncomfortable as that is to your sensibilities.