July 19, 2010

"How many bubbles are in a bar of soap?" This was one of the "qualifying" questions posed to blacks attempting to register to vote up until the Voting Rights Act of 1965 outlawed such discriminatory practices. Some states would require blacks who tried to register to vote to recite the entire Constitution by heart as a "literacy" test. In Alabama, more than 181,000 blacks were registered to vote before the state changed its constitution in 1901 to throw up a maze of barriers to voting, like a poll tax and requirements that voters be "intelligent and virtuous." After the changes, only 3,000 African-Americans registered.

Civil-rights victories shattered these egregious and widespread violations of equality under the law. But sin—including racial sin—didn't go to sleep. And the Justice Department now, according to an attorney who recently resigned from the agency, is refusing to enforce equally parts of the Voting Rights Act and to enforce at all an anti-fraud section of the "motor voter" law. As the nation gears up for midterm elections in the fall—and with contested elections in 2000 not yet a distant memory—the Department's stance raises questions about its commitment to ballot integrity.

The current controversy over voting-rights enforcement stems from 2008. A race-based incident marred the historic Election Day in which Americans chose Barack Obama to be the first African-American president. Two members of the New Black Panther Party stood outside a Philadelphia polling station, dressed in fatigues and black berets. One, King Samir Shabazz, had a nightstick. One reportedly proclaimed, "You're about to be ruled by the black man, cracker." The incident was caught on videotape.

It was a simple case of voter intimidation, and the Justice Department's Civil Rights Division (then under President Bush) filed charges against the New Black Panther Party and the members involved. The Obama administration continued the case and won a default judgment against the men in April 2009 when they didn't appear in court. However, the next month, before a final judgment could be issued, the Justice Department withdrew the charges and told Shabazz, the New Black Panther member who carried the nightstick, not to display a weapon near polling places until 2012.

Bartle Bull, a civil-rights lawyer in the 1960s and one-time manager of Robert Kennedy's presidential campaign, witnessed the New Black Panther incident and submitted an affidavit for the case against the men. He was incensed when Justice dropped the case, and told The Wall Street Journal: "This kind of double standard is not what Martin Luther King and Robert Kennedy fought for."

One of the lawyers on the case from the voting section of the Civil Rights Division, J. Christian Adams, quit in protest in May, alleging his office leadership had instructed attorneys not to pursue cases against minorities. "It's about the importance of the rule of law. Are we a nation that places the highest importance on following the law in an equal and just fashion?" he said to me. "I concluded at least where I was that the answer was no."

A battle over other policies in the division for over a year also led to Adams' resignation. He recounted that on Nov. 30, 2009, Deputy Assistant Attorney General Julie Fernandes called a meeting for the voting section and told the lawyers that they would not be enforcing section 8 of the National Voter Registration Act, or the "motor voter" law, which has to do with states clearing out voter rolls of dead people and those ineligible to vote. She said the provision wouldn't help with "increasing turnout," according to Adams.

The problem of inaccurate voter rolls is potentially large. In the 2008 election, some Missouri counties had more registered voters than people over the age of 18, the rolls congested with those who had died, moved, or were ineligible. The Bush administration Justice Department had sued to force the state to clean up its voter rolls, which is a requirement under section 8 of the motor voter law. The government won the case before the 8th U.S. Circuit Court of Appeals in July 2008, with the circuit remanding the issue to a lower court to decide the details of voter roll responsibilities between state and local officials.

But in March 2009 the Obama administration's Justice Department dismissed the case, saying that the evidence was too dated. Whatever the motives, the timing looks political: One month earlier, in February, the Democratic defendant in the case, Missouri Secretary of State Robin Carnahan, announced she was running for the U.S. Senate.

Americans already have a fragile faith in the integrity of their elections. Almost a quarter of the population believes, according to a 2008 Rasmussen poll, that a large number of ineligible people are allowed to vote. And 17 percent of Americans believe that a large number of legitimate voters are prevented from voting. "To quote Sen. Chris Dodd, 'We need to make it easy to vote, but hard to cheat.' We can do both," John Fund wrote me in an email. Fund has written extensively about voter fraud for The Wall Street Journal and in his book, Stealing Elections: How Voter Fraud Threatens Our Democracy.

The question about enforcement of the Voting Rights Act comes at a particularly important time, as midterms approach and as the government conducts the once-a-decade census. Once the census is completed, voting section lawyers will have to review thousands of redistricting proposals.

The Justice Department in the Bush administration had its own reputation for being highly partisan, with the agency's inspector general finding that ideology had been a factor in hiring decisions. But Hans Von Spakovsky, who worked in the division under Bush and who now is at the Heritage Foundation, said the current scandals are a result of the new dynamic of the Obama administration: Now "there is almost no political or ideological difference between the majority of career lawyers and the political appointees." Adams concurred, and said among both the lawyers and the appointees there is a certain shared "worldview," which he describes as "the notion that racism or evil can only be harbored in the hearts of certain people but not others—I mean racist evil. Anyone who knows the nature of man knows that to be false."

Adams sees a more worrisome legal culture that has developed over the last 30 years or so. "For a long time law was about right and wrong. Certain principles that are universal," he told me. In the current legal atmosphere, "There really aren't any objective standards. All that matters is who has power, and they get to write the rules." He said objective rules didn't apply in the New Black Panther case—instead Justice used its power to make a decision based on who the wrongdoers were.

Adams testified under oath about his allegations to the U.S. Commission on Civil Rights, an independent government watchdog over the division, which has investigated this case for over a year despite internal divisions on the matter. (Republican-appointed commissioner Abigail Thernstrom called the case "small potatoes" and a waste of "our staff's time.") The commission has subpoenaed other lawyers involved in the case to testify, but Justice so far has refused to comply with the subpoenas—and it doesn't have to, by law.

According to Adams, deputy voting section chief Steve Rosenbaum hadn't read the legal memos that laid out the New Black Panther case before he and the acting voting section head Loretta King ordered the case dismissed. Adams said one of the attorneys on the case, Christopher Coates (a former American Civil Liberties Union attorney who has worked at Justice for many years), was so angry with Rosenbaum that he threw the memos at him. In January, Coates was transferred to the U.S. attorney's office in South Carolina and hasn't been allowed to testify.

"The stonewalling is rotten, the cover-up is rotten, the refusal to submit to subpoenas shows guilt," said Todd Gaziano, the commissioner who is leading the investigation. He worked in the Office of Legal Counsel at the Justice Department under Presidents Ronald Reagan, George H.W. Bush, and Bill Clinton.

The Justice Department responded to the allegations in a statement, saying the "facts and law" didn't support pursuing the New Black Panther case—and that a federal judge deemed the department's request that the nightstick-carrying defendant be simply banned from carrying weapons at polling places "appropriate." On the larger charges that the Civil Rights Division is not enforcing voting laws, the department said in a statement: "The department makes enforcement decisions based on the merits, not the race, gender or ethnicity of any party involved."

Coates, the lawyer who has been blocked from testifying and transferred to work for the agency in South Carolina, delivered a going-away speech to the entire voting section when he left in January. "I have never assumed that I was entitled to ignore that clear language in federal law and therefore ignore incidents where evidence showed white voters were discriminated against or where the wrongdoers were themselves members of a minority group," he said, according to National Review, which received records of the speech from those present. "I believe that one of the most detrimental ways to politicize the enforcement process in the voting section is to enforce the provisions of the Voting Rights Act only for the protection of certain racial or ethnic minorities."

"We have this enormous obligation to the people who gave their lives for these protections, to keep the ballots sanctified," Adams told me. "We can't have evil armed men at polling places in this country. That's what makes us different than other places around the world."

We believe that the Constitution of the United States speaks for itself. There is no need to rewrite, change or reinterpret it to suit the fancies of special interest groups or protected classes.