Voting Discrimination: The Real Thing

Since debates over voting discrimination today usually involves arcane notions of “vote dilution,” “majority-minority districts,” “pre-clearance” of even mundane changes in voting rules or procedures, etc., it is sometimes difficult to remember what real, unadulterated voting discrimination was like in the old days. Fortunately for those with faulty or short memories, however, Mississippi still exists, and it can provide useful if unpleasant reminders of how bad real discrimination was not so long ago.

A dramatic case in point, United States vs. Brown, recently decided by the Fifth Circuit, comes from Noxubee County, Mississippi. It has everything a Hollywood movie about the evil old South could possibly want (though even such a movie would be dismissed as so exaggerated as to be unbelievable): a corrupt County political machine determined to repress and even eliminate minority influence, bought and paid for voting registrars, massive fraud in registration and vote counting, blatant voter intimidation, and even collusive Washington bureaucrats turning a blind eye.

Here are some of the salient descriptions of how politics has been practiced in Noxubee County, taken from the recent Fifth Circuit opinion (either quoted or summarized). You may find the conditions and practices described here hard to believe in contemporary America.

• “The district court concluded that during that time ‘defendants engaged in improper, and in some instances fraudulent conduct, and committed blatant violations of state election laws[] for the purpose of diluting black voting strength. Brown, 494 F. Supp. 2d at 485. Black votes were diluted by defendants’ involvement in (1) obtaining large numbers of defective absentee ballots from white voters; (2) facilitating the improper counting of absentee ballots in order to ensure that the defective ballots were counted; and (3) permitting the improper assistance of white voters…”;
• voters being recruited by recruiters paid by the executive committee to recruit absentee voters who were not qualified to vote absentee, who did not apply to vote absentee, who did not intend to vote for the candidates marked on their ballots, and who testified that the signatures on their ballots were not theirs;
• evidence that clearly demonstrated “defendants’ attempts to obtain a disproportionate number of absentee ballots from white voters”;
• “evidence illustrated defendants’ permitting the improper counting of absentee ballots and defendants’ — specifically, Brown’s — direct influence over poll managers in counting the ballots.”
• “Brown inspected the absentee ballots the night before the runoff and placed yellow post-it notes on select ballots that he wished to be rejected. On the note, he indicated the reason why he considered the ballot deficient. The next day, Brown told the poll managers ‘I’ve already went through these absentee ballots and I put y’all’s stick-on stickers on the ballots that I want rejected and the rest of them is all right to count’”;
• “Brown’s directions were followed without deviation. All of the marked ballots were rejected, including black voters’ absentee ballots shown to possess the same deficiencies as white voters’ ballots that were counted.”
• “… the district court concluded that defendants engaged in a ‘pattern of episodic behavior intended to deny black voters equal participation in the political process.’ By soliciting large numbers of defective white absentee ballots, wielding their authority to ensure that these ballots were counted, and permitting the improper assistance of white voters—all with the intent to dilute the voting power of black Democrats—defendants were held to have violated § 2 of the Voting Rights Act.”
• “Witnesses recounted that both white poll workers … repeatedly approached white voters, who made no request for assistance, in order to solicit the provision of assistance. This assistance involved marking the ballots for the voter without consultation, and no such assistance was proffered to black voters.”
• “The government presented a press release issued by Brown prior to the 2003 primary election. In it, Brown named 174 Democratic voters, all black, whom he intended to challenge were they to vote in the 2003 Democratic primary…. As only black voters were listed, the district court considered it ‘not credible in the least that Brown was only aware of blacks who had moved and were consequently no longer eligible to vote.’”
• “In 2005, [Brown] urged voters to ‘Keep Hope Alive [and] Vote White in ’05’ in an open letter to Noxubee County voters. As chair of the NDEC, Brown voiced the opinion that all of the county’s elected officials should be white; to that end, he baldly accused black elected officials of racism, without support, in an effort to arouse black voters to vote against a black official and to support a white challenger. He also recruited white individuals to run for office even though he knew the individuals failed to meet the position’s qualifications.”

And the problems were not limited to remote Noxubee County. Although some professionals in the Civil Rights Division of the Justice Department were eager to bring suit, other long-serving lawyers there steadfastly refused. It was only through the relentless efforts of a handful of professionals, and after a bitter internal fight, that litigation was finally approved.

Well, I said you would find all this hard to believe, but everything I’ve laid out above is true … except for two small details. I’ve changed “black” to “white” and “white to black” in all the quotes and summaries, and Ike Brown’s famous mailed plea to Noxubee County voters to “Keep Hope Alive [and] Vote Black” (not “White,” as I had it above) was sent in 1995, not 2005.This would be a good place for me to point out that two thirds of the voters in Noxubee County are black and that 80% of the registered Democrats are black. Thus this case really was about oppressing minority voters.

The Fifth Circuit’s actual opinion, from which the above was bastardized, can be found here. Read it; the actual facts are as unbelievable as my counter-factual. Also read this account by Hans Bader and this excellent article by Hans von Spakovsky, a former commissioner on the Federal Election Commission and counsel to the assistant attorney general for civil rights at the Department of Justice.

As von Spakovsky reports,

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.

And how did the Obama Justice Department respond? Headed by an Attorney General who thinks we are “a nation of cowards” because we don’t talk to his satisfaction about race, it responded with … apparently embarrassed silence. As von Spakovsky notes,

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.

….

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.

Indeed.

UPDATE

Todd Zywicki has a short post noting this case on Volokh. The comments, especially those by Hans Bader, are especially interesting.