March 17, 2009

March 17, 2009 | Commentary on Legal Issues

A Leadership of Cowards?: Why is Eric Holder Embarrassed About Enforcing Civil Rights in Noxubee County?

Attorney General Eric Holder calls the U.S. "a nation of cowards" because we "do not talk enough about race." I find this ironic, since the Justice Department seems embarrassed about a recent judgment in its favor by the U.S. Court of Appeals for the Fifth Circuit. U.S. v. Ike Brown isa major Voting Rights Act case involving intentional race-based discrimination by local officials in Noxubee County, Miss.

When the Fifth Circuit issued its decision on February 27, there was complete silence from Justice. The department typically issues a press release after any significant litigation victory, and the Civil Rights Division trumpets every success. But not here. The silence from the nation's leading news outlets was also deafening: Not a word was published about the case by the New York Times, the Washington Post, or any other major publication. Why? Because the offensive conduct at issue did not conveniently track with the Left's view of race discrimination.

The Noxubee County case presents a deeply disturbing account of some of the most egregious racial discrimination the Justice Department has encountered in decades. In Noxubee, 80 percent of Democrats are black; 20 percent are white. (There are some Republicans as well, but the number is negligible.) The chairman of the Democratic party, Ike Brown, is black, and he, along with the Noxubee County Democratic Executive Committee, set about to effectively disenfranchise white voters.

The court decision shows that Brown had his own local version of Tammany Hall, and local election officials followed his orders. This included publishing in the local newspaper a list of 174 white Democratic voters whose eligibility he intended to challenge if they tried to vote in an upcoming election. According to the court, Brown compiled the list based on the individuals' perceived lack of support for black candidates. One voter testified that she was so intimidated she didn't vote. Another testified that she was so scared she felt she couldn't approach the polls alone.

The court also found that Brown took measures to ensure that absentee ballots from black voters were automatically counted even if they didn't comply with Mississippi law, while absentee ballots from white voters with the same deficiencies were challenged and not counted. He even reviewed many absentee ballots the night before an election, placing notes on them saying which should be counted and which should be rejected.

One victim, whose absentee ballot was basically stolen by the defendants and whose signature on the application and ballot envelope were obviously forged, was brought in a second time to testify after she was confronted by a member of the local Democratic party following her initial testimony. The witness was told that "we black people need to stick together" and was urged to testify that she "probably didn't understand what [she was] being asked" during the first go-around.

The court also found that Brown recruited black individuals to run for office against white incumbents despite knowing that they didn't meet residency requirements; refused to appoint whites as poll workers; and sent out Democratic party members to give unrequested "assistance" to black voters, marking their ballots for them and telling them how to vote. All of this was intended to dilute the voting strength of white voters and to achieve his goal, which he openly expressed -- "that all of the county's elected officials should be black."

Even after the lawsuit was filed and Brown's lawyers told the federal court that Brown wouldn't interfere in any ongoing elections, he continued his pervasive racial discrimination. In fact, he told a federal observer that "I don't care what the court says. I am still primarily responsible for running this election." That's exactly the kind of defiance that white officials engaged in during the 1960s, when the Voting Rights Act was first passed.

None of these voting abuses in Noxubee County surprised the career lawyers at the Bush administration's Civil Rights Division when they filed suit against Brown and the Noxubee County Democratic Executive Committee in 2005. Brown's exploits were legendary. In fact, he had issued an open letter to county voters years before, urging them to "Keep Hope Alive [and] Vote Black in '95." Yet the Clinton administration's Civil Rights Division consistently refused to take action.

This is probably one of the worst cases of intentional voting discrimination that the Justice Department has prosecuted since the 1960s. But the lawsuit was filed only after a vicious internal fight in the Civil Rights Division. Left-wing career lawyers in the Voting Section made it abundantly clear that they didn't want to use the Voting Rights Act to protect white voters, no matter how egregious the violations. The former Voting Section chief even deleted the recommendation to file suit from the memo sent up to the Bush political appointees running the division. Other partisan career lawyers refused to work on the case. One who went to Noxubee County as an observer admitted to another lawyer that if he had seen the same type of illegal behavior being committed against black voters, he would have been outraged. But he wanted nothing to do with a suit filed on behalf of white voters.

Fortunately, the honest trial attorneys on the case did their best to ensure that the division's political leadership knew about Brown's outrageous conduct, and litigation was ultimately approved. Thanks to their hard work, the court found that the defendants had "intentionally discriminated against the county's white voters in violation of ยง 2 of the Voting Rights Act," "engaged in improper, and in some instances fraudulent conduct," and "committed blatant violations of state election laws . . . for the purpose of diluting white voting strength." These trial attorneys endured significant criticism and abuse from their colleagues for their work on the case and probably jeopardized their career advancement.

If the races had been reversed, does anyone doubt this would have been front-page news? Or that Eric Holder would have been prominently quoted in a Justice Department press release calling attention to this outrageous discrimination? The Department of Justice should be proud of this victory. If Attorney General Holder is serious about talking about race, perhaps he could start with this case.

Hans A. von Spakovsky is a visiting legal scholar at the Heritage Foundation. He is also a former commissioner on the Federal Election Commission and counsel to the assistant attorney general for civil rights at the Department of Justice.

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

Related Issues: Legal Issues

First Appeared in the National Review Online