By Jerry Markon and Krissah Thompson
Washington Post Staff Writers
Friday, October 22, 2010; 3:29 PM
On Election Day 2008, Maruse Heath, the leader of Philadelphia's New Black Panther Party, stood in front of a neighborhood polling place, dressed in a paramilitary uniform.
Within hours, an amateur video showing Heath, slapping a black nightstick and exchanging words with the videographer, had aired on TV and ricocheted across the nation.
Among those who saw the footage was J. Christian Adams, who was in his office in the Justice Department's Civil Rights Division in Washington.
"I thought, 'This is wrong, this is not supposed to happen in this country,' " Adams said. "There are armed men in front of a polling place, and I need to find out if they violated the law, because in my mind there's a good chance that they did."
The clash between the black nationalist and the white lawyer has
mushroomed into a fierce debate over the government's enforcement of civil rights laws, a dispute that will be aired next week when the U.S. Commission on Civil Rights unveils findings from a year-long investigation.
Two months after Election Day, Adams and his supervisors in the
George W. Bush administration filed a voter-intimidation lawsuit against Heath and his colleagues, even though no voters had complained. The Obama administration months later dismissed most of the case, even though the Panthers had not contested the charges.
Interviews and government documents reviewed by The Washington Post show that the case tapped into deep divisions within the Justice Department that persist today over whether the agency should focus on protecting historically oppressed minorities or enforce laws without regard to race.
The dispute over the Panthers, and the Justice Department's handling of it, was politicized from the start, documents and interviews show. On Election Day, the issue was driven by Republican poll watchers and officials and a conservative Web site.
At the department, Adams and his colleagues pushed a case that other career lawyers concluded had major evidentiary weaknesses. After the Obama administration took over, high-level political appointees relayed their thoughts on the case in a stream of internal e-mails in the days leading to the dismissal.
That decision to pull back the lawsuit caused conflicts so heated that trial team members at times threw memos in anger or cursed at supervisors.
The dismissals triggered outrage from conservatives and congressional Republicans, two internal Justice Department inquiries and the investigation by the conservative-controlled civil rights commission. The debate has thrust
Eric H. Holder Jr., the nation's first African American attorney general and long the target of Republican attacks, into an unwelcome spotlight.
In recent months, Adams and a Justice Department colleague have said the case was dismissed because the department is reluctant to pursue cases against minorities accused of violating the voting rights of whites. Three other Justice Department lawyers, in recent interviews, gave the same description of the department's culture, which department officials strongly deny.
"The department makes enforcement decisions based on the merits, not the race, gender or ethnicity of any party involved," spokeswoman Tracy Schmaler said. "We are committed to comprehensive and vigorous enforcement of the federal laws that prohibit voter intimidation, as our record reflects."
A 'non-incident'
On Election Day, Jerry Jackson arrived first at Guild House West, an assisted-living center in north Philadelphia that served as a polling place in the overwhelmingly Democratic ward. As a certified Democratic poll watcher who lives in the neighborhood, he had worked several elections at the red brick building with a circular drive in front.
Jackson was soon joined by Heath, both decked out in the uniform of the New Black Panther Party: black berets, jackets, shirts, pants and boots.
The two, regulars around the neighborhood, also protest often near City Hall. They have been shown in videos and quoted in news reports using incendiary rhetoric, telling African Americans to rise up against their "slave masters" and condemning whites as "crackers."
But neighbors said they view Jackson and Heath - who declined to comment - as annoyances rather than threats.
Jackson, 54, and Heath, 39, have criminal histories that between them include convictions for drug possession, robbery and simple assault, according to court records. Their local New Black Panther Party is part of a small, radical black nationalist organization with members in a handful of cities. It is not connected to the Black Panther Party of the 1960s.
That morning, the men stood a few feet apart on a narrow sidewalk in front of the polling place, forcing voters to walk between them.
Some in the neighborhood didn't see a problem. James "Jimmy" Whitmire, 74, who voted in the Guild House recreation room, said he saw nothing "that was destructive . . . nothing offensive." Three other residents who voted that day said in interviews that they agreed.
About 10 a.m., a complaint from an unknown caller went to the local
Republican Party headquarters. The message was relayed to Chris Hill, a
GOP poll watcher, who hurried over with two lawyers volunteering for the party.
As he walked up the driveway to the polling place, Hill said in an interview, Heath called out: "What are you doing here, cracker?"
Hill ignored him and walked between the two men. Jackson brushed his shoulder, Hill said.
Inside, a black poll worker said that although the Panthers had made no direct threats, he didn't feel safe going outside, according to Hill, who then called police. (The worker, a registered Democrat hired that day to work the polls for the GOP, later told the civil rights commission that he did not feel threatened.)
Others from the Republican Party showed up that day, including Stephen Morse, a videographer and recent University of Pennsylvania graduate. Morse pulled out a video camera and focused on Heath.
Less than 15 minutes later, Philadelphia police arrived. A one-page police report says officers allowed Jackson to stay because he was a poll watcher but asked Heath to leave.
"That's why you're going to be ruled by a black man, now!" Heath shouted as he departed, according to witnesses. They said he also called Obama a "tool of the white man."
Morse raced back to the GOP headquarters. "This footage is golden," he recalled thinking. But Hill stayed put. A Republican official, he said, alerted him that Fox News was sending a reporter.
Within two hours, Morse's video had been uploaded to ElectionJournal.org, a conservative Web site, and Fox played it in newscasts. CNN posted the video online.
Calls poured into the Philadelphia district attorney's office reporting voter intimidation at Guild House. But staff members realized they were from cable news viewers as far away as Florida.
No call had come from a registered voter in Philadelphia. The office would deem the day's event a "non-incident.''
Deepening a divide
In Washington that day, word of the racially charged dispute reached the voting section of Justice's Civil Rights Division, a unit already divided over issues of race and enforcement.
The complaint went to Christopher Coates, the section's chief. A respected voting expert, Coates had been hired at Justice during the Clinton administration after a stint with the American Civil Liberties Union. He also came up in an internal watchdog report criticizing politicized hiring at the division during the Bush administration. The report referred to him as "a true member of the team."
Since the division was created in 1957, most of its cases have been filed on behalf of minorities. But there has not always been agreement about that approach.
Civil rights officials from the Bush administration have said that enforcement should be race-neutral. But some officials from the Obama administration, which took office vowing to reinvigorate civil rights enforcement, thought the agency should focus primarily on cases filed on behalf of minorities.
"The Voting Rights Act was passed because people like Bull Connor were hitting people like John Lewis, not the other way around," said one Justice Department official not authorized to speak publicly, referring to the white Alabama police commissioner who cracked down on civil rights protesters such as Lewis, now a Democratic congressman from Georgia.
Before the New Black Panther controversy, another case had inflamed those passions. Ike Brown, an African American political boss in rural Mississippi, was accused by the Justice Department in 2005 of discriminating against the county's white minority. It was the first time the 1965 Voting Rights Act was used against minorities and to protect whites.
Coates and Adams later told the civil rights commission that the decision to bring the
Brown case caused bitter divisions in the voting section and opposition from civil rights groups.
Three Justice Department lawyers, speaking on the condition of anonymity because they feared retaliation from their supervisors, described the same tensions, among career lawyers as well as political appointees. Employees who worked on the Brown case were harassed by colleagues, they said, and some department lawyers anonymously went on legal blogs "absolutely tearing apart anybody who was involved in that case," said one lawyer.
"There are career people who feel strongly that it is not the voting section's job to protect white voters," the lawyer said. "The environment is that you better toe the line of traditional civil rights ideas or you better keep quiet about it, because you will not advance, you will not receive awards and you will be ostracized."
The 2008 Election Day video of the Panthers triggered a similar reaction, said a second lawyer. "People were dismissing it, saying it's not a big deal. They said we shouldn't be pursuing that case."
But Coates thought differently; he dispatched two Justice Department lawyers, who interviewed Hill, the Republican poll watcher.
Asked whether any voters were intimidated, Hill said he told the lawyers he had seen three people leave the polling place when they saw the chaos out front. Hill did not have their names and did not know whether they came back to vote.
"We're not going to let this stand," one of the lawyers told him.
An unpopular case
Adams, 42, was assigned as the lead lawyer. A voting section lawyer since 2005, he would later resign over the Obama administration's handling of the case, publicizing his views in conservative media. Administration supporters call him a conservative activist; other Justice Department lawyers say his views, while conservative, did not influence his work.
Adams scrambled to make the case, documents show. In a December 2008 e-mail to a recipient whose name was redacted, he laid out what he felt he needed: "Under the
statute, a black poll watcher for you being abused or insulted is critical, and thus far, I don't have one."
A criminal investigation was dropped. But on Dec. 22, Adams, Coates and another lawyer recommended a civil lawsuit under a Voting Rights Act section banning the intimidation or attempted intimidation of voters or those "aiding" voters.
"It is shocking to think that a U.S. citizen might have to run a gauntlet of billy clubs in order to vote," they wrote in an internal memo. Although Adams has called the case a "slam dunk," lawyers acknowledged in the memo that less than 10 lawsuits had been filed under this section of the law and no plaintiff had ever won.
On Jan. 7, 2009, less than two weeks before Obama took office, the Justice Department filed a lawsuit seeking a permanent injunction against Heath, Jackson, Malik Shabazz, the party's national chairman and the party, banning them from standing in front of U.S. polling places with a weapon or wearing the party uniform.
Although the Panthers later denied intimidating voters, they said nothing about the lawsuit. On April 2, the court clerk in Philadelphia entered a "default" against the defendants for failure to respond. The Justice Department had one month to file a motion for a final judgement. A ruling on that motion would have ended the case.
Instead, the department on May 15 dismissed the charges against Jackson, Malik Shabazz and the party without citing a reason. It sought to narrow the injunction against Heath to polling places in Philadelphia through the 2012 elections. That was granted three days later.
Legal experts have called the department's reversal exceedingly rare, especially because the defendants had not contested the charges.
Coates and Adams say the case was narrowed because of opposition to filing voting-rights actions against minorities and pressure from civil rights groups, but have not cited evidence.
Justice Department officials have repeatedly said the reversal stemmed from a legal review and insufficient evidence. Documents show that two career lawyers asked to review the case before it was dropped said the evidence against the party and its chairman was weak, though they recommended that the government proceed against all four defendants.
Officials have denied any political considerations and said the final decision was made by Loretta King, a 30-year career lawyer designated by Obama as acting head of civil rights.
Asked at a civil rights commission hearing in May whether any of the department's political leadership was "involved in" the decision to dismiss the Panthers case, assistant attorney general for civil rights
Thomas E. Perez said no.
"This is a case about career people disagreeing with career people,'' said Perez, who was not in the department at the time. He also said that political appointees are regularly briefed on civil rights cases and, whenever there is a potentially controversial decision, "we obviously communicate that up the chain."
Justice Department records turned over in a lawsuit to the conservative group Judicial Watch show a flurry of e-mails between the Civil Rights Division and the office of Associate Attorney General Thomas Perelli, a political appointee who supervises the division.
"Where are we on the Black Panther case?" read the subject line of a Perelli e-mail to his deputy the day before the case was dropped. Perelli, the department's No. 3 official, wrote that he was enclosing the "current thoughts" of the deputy attorney general's office, the No. 2 official.
Perelli's staff brought the matter to Holder's attention before the department dropped the charges, other documents show. Holder did not make the decision, officials say.
In the months after the case ended, tensions persisted. A new supervisor, Julie Fernandes, arrived to oversee the voting section, and Coates testified that she told attorneys at a September 2009 lunch that the Obama administration was interested in filing cases - under a key voting rights section - only on behalf of minorities.
"Everyone in the room understood exactly what she meant," Coates said. "No more cases like the Ike Brown or New Black Panther Party cases."
Fernandes declined to comment through a department spokeswoman.
A few months later, Coates requested a transfer to the U.S. attorney's office in South Carolina. When colleagues scheduled a farewell lunch, one attorney who attended said Coates vented his frustrations, criticizing the department for failing to enforce the law "on a non-racial basis.''
Justice Department officials say they treat everyone equally. Holder, in a speech last year to the Washington Lawyers' Committee for Civil Rights and Urban Affairs said the department's "commitment to Equal Protection - and to full participation in our nation's elections - will not waiver. Never."
That was one month after the end of the New Black Panther Party case.
markonj@washpost.com thompsonk@washpost.com
Thompson reported from Philadelphia. Staff researchers Lucy Shackleford and Julie Tate contributed to this report.
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