Remember The Black Panther “Voter Intimidation” Case? Yea, It Really Was Small Potatoes
Just about a year ago, a controversy was making it’s way through the conservative blogosphere that arose out of an incident at a Philadelphia, PA voting place on Election Day 2008 where two men representing something called the “New Black Panther Party”” were standing outside purporting to intimidate voters while a Fox News Channel camera recorded the whole thing. The incident was investigated by the Department of Justice and, before Barack Obama became President, the decision was made not to pursue criminal charges in the matter. The matter eventually made its way to the U.S. Commission on Civil Rights where Abigail Thernstrom, a Republican member of the Commission, called the case “small potatoes” while others on the right attempted to turn it into a huge scandal.
The controversy mostly died out when the Summer of 2010 ended and people began focusing on the election, but Rick Hasen at Election Law Blog notes that there was a final report issued by the DOJ back in March and it turns out that the whole story really was much ado about nothing:
(1) the original NBPP controversy really was small potatoes, as Abby Thernstrom and Jonathan Adler concluded. This was a tiny incident in a single polling place about which there was not proof of a single intimidated voter.
(2) Jonathan thought the decision to narrow the injunction after obtaining the default judgment did not make sense, but the OPR gives plausible reasons for why DOJ leadership did so—reasons about the scope of injunctions and First amendment rights which seem very strong to me as a teacher of Remedies.
(3) Whether we should call DOJ’s subsequent actions a “cover-up” as Jonathan says or not, DOJ certainly did a very poor job explaining its actions. And it is only from the OPR report that one can get a clear sense as to the bona fide dispute among those at DOJ over how to handle the case.
(4) The decision of how to handle the controversy does provide a window into the shift between the Bush and Obama administrations over how to handle claims of voting rights violations against non-minority voters. The DOJ has limited resources and needs to prioritize. Cases like NBPP and the Ike Brown case in Mississippi (as well as NVRA cases requiring cleaning up of voter rolls) were of greater priority to the Bush Administration than to the Obama administration.
(5) Some on the right hoped to use the controversy over NBPP to paint the Obama DOJ as politicized and to make a scandal out of a legitimate difference in opinion over DOJ prosecutorial priorities and prosecutorial discretion. I was amazed to learn that FOX News had 95 segments on the NBPP issue in little over a two week period. J. Christian Adams, Big Government, Hans von Spakovsky, and Pajamas Media-along with the Republican-leaning commissioners on the Civil Rights Commission (aside from Thernstrom)—sought to make as much political hay out of the incident as they could.
But in the end, there’s no there there.
I hate to say I told you so, but I told you so.
H/T: Volokh Conspiracy