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Justice undone

The resignation of a civil-rights attorney at the Justice Department sheds light on the administration's refusal to enforce election laws fully. Are some voters more equal than others?

Issue: "Your right to vote," July 31, 2010

WASHINGTON-"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.

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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.

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