Cover Story

Justice undone

"Justice undone" Continued...

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

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."


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