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.