Race Neutral Enforcement of the Law?

The U.S. Department of

Justice and the New Black

Panther Party Litigation

An Interim Report
U.S. Commission on Civil Rights 

The U.S. Commission on Civil Rights is an independent, bipartisan agency established by 

Congress in 1957. It is directed to: 

• Investigate complaints alleging that citizens are being deprived of their right to vote 

by reason of their race, color, religion, sex, age, disability, or national origin, or by 

reason of fraudulent practices. 

• Study and collect information relating to discrimination or a denial of equal 

protection of the laws under the Constitution because of race, color, religion, sex, age, 

disability, or national origin, or in the administration of justice. 

• Appraise federal laws and policies with respect to discrimination or denial of equal 

protection of the laws because of race, color, religion, sex, age, disability, or national 

origin, or in the administration of justice. 

• Serve as a national clearinghouse for information in respect to discrimination or 

denial of equal protection of the laws because of race, color, religion, sex, age, 

disability, or national origin. 

• Submit reports, findings, and recommendations to the President and Congress. 

• Issue public service announcements to discourage discrimination or denial of equal 

protection of the laws. 

Members of the Commission 

Gerald A. Reynolds, Chairman

Abigail Thernstrom, Vice Chair 

Todd Gaziano 

Gail Heriot 

Peter N. Kirsanow 

Arlan D. Melendez 

Ashley L. Taylor, Jr. 

Michael Yaki 

Martin Dannenfelser, Staff Director 

U.S. Commission on Civil Rights 

624 Ninth Street, NW 

Washington, DC 20425 

(202) 376-8128 

(202) 376-8116 TTY 

www.usccr.gov 

This report is available on disk in ASCII Text and Microsoft Word 2003 for persons with 

visual impairments. Please call (202) 376-8110. 
ii Race Neutral Enforcement of the Law?

Letter of Transmittal

The President 

The President of the Senate 

The Speaker of the House 

Sirs: 

The United States Commission on Civil Rights transmits this report, Race Neutral Enforcement 

of the Law? DOJ and the New Black Panther Party Litigation: An Interim Report, pursuant to 

Public Law 103-419. The purpose of the report is to examine the U.S. Department of Justice’s 

(“DOJ” or “the Department”) legal and policy rationales for dismissing a civil voter intimidation 

lawsuit against three of four defendants and reducing the relief requested against the fourth, 

despite the case being in default. Based upon the incomplete, incorrect and changing explanations 

offered by the Department for its actions, the Commission decided to examine whether the U.S. 

Department of Justice enforced voting rights in a race-neutral manner when it reversed course in 

the New Black Panther Party case. 

The case stemmed from an incident that occurred in Philadelphia during the 2008 presidential 

election in which two New Black Panther Party members stood in the entrance to a polling place 

in full paramilitary garb and shouted racial slurs. One of the two brandished a nightstick. In 

December 2008, a civil case for alleged Voting Rights Act violations for intimidating or 

attempting to intimidate voters, poll workers and observers was initiated against the NBPP, its 

chairman, and the two men at the polling place. Despite the entry of a default in DOJ’s favor 

against each of the defendants, in May 2009 the Department abruptly reversed course and 

dismissed charges against all but one of the defendants and reduced the original sanctions it 

requested against the remaining defendant, who was only enjoined from carrying a weapon at a 

polling place in Philadelphia until 2012. 

Pursuant to its investigation, the Commission has held four public hearings, taken several 

depositions and attempted several others. It has attempted to work cooperatively with DOJ, but 

has been met with substantial resistance and only contrived cooperation for public affairs 

purposes. For example, though DOJ has provided thousands of documents unrelated to its 

decision to drastically reduce the nature and scope of the relief it sought in the NBPP case, it has 

repeatedly rebuffed Commission requests for key documents. While it provided witness 

testimony from a high-level official not at the Department during the relevant time period in 

question, it has directed those of its employees under subpoena with relevant, direct knowledge 

not to provide testimony to the Commission. It has also attempted to impose unreasonable 

conditions on the Commission before it will allow the deposition testimony of other Department 

employees and has raised questionable and sweeping privilege claims. 

Two senior career attorneys who worked on the NBPP case defied DOJ’s directive not to comply 

with the Commission’s subpoenas at great personal risk to themselves. One testified after 

resigning his position at DOJ. The other, the former head of the Voting Section who was 

transferred to South Carolina, is still currently employed with DOJ. Both accused the Department 

of failing to enforce the voting rights laws in a race-neutral manner, an allegation denied by the 

current head of the Civil Rights Division who testified, but who was not at DOJ during the 

critical period in question. 
Letter of Transmittal iii

Because the Department withheld relevant documents and relevant officials’ and supervisors’ 

witness testimony, the Commission was limited in its ability to complete a final report. As a 

result, the Commission issues this interim report, which was approved on November 19, 2010. 

Part A of the report, consisting of Chapters 1 through 5 and the appendix, was approved by a vote 

of 5-2. Chairman Reynolds and Commissioners Gaziano, Heriot, Kirsanow and Taylor voted in 

the majority. Commissioners Yaki and Melendez voted against the report. Vice Chair Thernstrom 

was absent and declined an opportunity to cast her vote for the body of the report and findings 

and recommendation at a subsequent meeting. 

The Commission, by a separate 5-2 vote breaking down along the same lines, found that although 

its statute authorizes the Commission to subpoena witnesses and written material and requires 

federal agencies to cooperate fully with its investigations, its authority to seek legal recourse 

when the Attorney General refuses to enforce Commission subpoenas, as has occurred repeatedly 

during this investigation, is unclear. By a vote of 5-1-1, the Commission further found that the 

Department has an inherent conflict of interest when it would prefer not to cooperate fully with 

the Commission’s investigations of DOJ’s actions. In the New Black Panther Party investigation 

that is the subject of this report, the Department refused to comply with certain Commission 

requests for information concerning DOJ’s enforcement actions, and it instructed its employees 

not to comply with the Commission’s subpoenas for testimony. (Commissioner Yaki voted 

against; Commissioner Melendez abstained; Vice Chair Thernstrom was absent for the vote; the 

remaining Commissioners approved the finding). 

The Commission recommended, therefore, that Congress consider amendments to the 

Commission’s statute to address investigations in which the Attorney General and/or the 

Department have a conflict of interest in complying fully with the Commission’s requests for 

information. Options might include the enactment of a statutory procedure to require the 

Attorney General to respond in writing to a Commission request for the appointment of a special 

counsel to represent it in court; a statutory provision clarifying that the Commission may hire its 

own counsel and proceed independently in federal court; or a conscious decision by Congress not 

to alter the current authority that allows the Attorney General and the Department of Justice to 

act against the Commission’s interest without explanation (5-2; Commissioners Yaki and 

Melendez voted against; Vice Chair Thernstrom was absent for the vote; the remaining 

Commissioners approved the recommendation). 

The report includes separate concurring statements submitted by Commissioners Gaziano, Heriot 

and Kirsanow. Commissioners Gaziano and Kirsanow joined each other’s statements and 

Commissioner Heriot’s statement. Commissioners Melendez and Yaki filed a joint dissenting 

statement. Vice Chair Thernstrom also submitted a dissenting statement. Finally, the report 

includes a joint-rebuttal statement submitted by Commissioners Kirsanow, Heriot and Gaziano. 

For the Commissioners, 

Gerald A. Reynolds 

Chairman
iv Race Neutral Enforcement of the Law?

Table of Contents 

Letter of Transmittal ......................................................................................................... ii

Chronology of Significant Events in United States of America v.New Black Panther 

Party for Self Defense et al. ............................................................................................. vi

INTRODUCTION .................................................................................................................... 1

PART I: Factual Background ................................................................................................... 4

A. Election Day 2008 .................................................................................................. 5

PART II: The New Black Panther Party Litigation ................................................................ 14

A. History of The Lawsuit ......................................................................................... 15

B. The Department’s Explanations ........................................................................... 22

i. First Amendment Concerns ................................................................................... 23

ii. Jerry Jackson .......................................................................................................... 25

iii. Post-Election Response Of The New Black Panther Party .................................. 27

C. The Response of Christopher Coates.................................................................... 36

D. Decision Making By Political Appointees ........................................................... 37

E. Possible Involvement By The NAACP Legal Defense and Educational Fund .... 42

PART III: The Civil Rights Division and Race-Neutral Enforcement ................................... 48

A. The Testimony Of Christopher Coates and J. Christian Adams ........................... 49

i. The Decision to Testify.......................................................................................... 49

ii. Hostility to Race-Neutral Enforcement ................................................................. 51

iii. The Connection with the New Black Panther Party Lawsuit ............................... 60

iv. Reducing the Authority of Chris Coates ............................................................... 61

B. Prior Claims Of Voter Intimidation ...................................................................... 64

PART IV: The Department’s Lack of Cooperation and the Commission’s Difficulty in 

Securing Cooperation Required by Law ................................................................................. 67

A. Summary of Commission Information Requests and Department Responses ..... 68

i. Initial Letters and the Basis for an Expanded Inquiry ........................................... 69

ii. Subpoenas Issued to Christopher Coates and J. Christian Adams ......................... 71

iii. Executive Privilege and Asserted Departmental Interests .................................... 73

iv. Judicial Watch Litigation and the Failure to Identify Allegedly Privileged 

Documents .................................................................................................................. 75

v. Outstanding Discovery Issues ................................................................................ 76

PART V: Prior Enforcement of § 11(b) of the Voting Rights Act ......................................... 79

A. The Statute ............................................................................................................ 80
Table of Contents v

B. Legislative History ............................................................................................... 80

C. Penalties ................................................................................................................ 81

D. Past Department of Justice (DOJ) § 11(b) Litigation Initiated by DOJ ............... 82

PART VI: Interim Findings and Recommendation .............................................................. 86

COMMISSIONER STATEMENTS, DISSENTS AND REBUTTALS ................................ 89

A. STATEMENTS........................................................................................................... 89

Statement of Commissioner Todd Gaziano .................................................................... 89

Statement of Commissioner Gail Heriot ....................................................................... 127

Statement of Commissioner Peter N. Kirsanow ........................................................... 164

B. DISSENTS ................................................................................................................ 176

Statement of Vice Chair Abigail Thernstrom ............................................................... 176

Commissioner Arlan Melendez and Commissioner Michael Yaki .............................. 177

C. REBUTTALS ........................................................................................................... 200

Joint Rebuttal Statement of Commissioners Peter Kirsanow, Gail Heriot and Todd 

Gaziano in Response to the Vice Chair ........................................................................ 200

APPENDIX A: Background on the New Black Panther Party for Self Defense ................. 205
vi Race Neutral Enforcement of the Law?

Chronology of Significant Events in United States of America v.New

Black Panther Party for Self Defense et al.

• November 4, 2008 

Two members of the New Black Panther Party for Self Defense (NBPP), Jerry Jackson 

and Minister King Samir Shabazz, appear in front of a polling station in Philadelphia, 

Pennsylvania, sporting paramilitary-style gear. Mr. Shabazz carries a night stick and 

stands with Jackson close to the polling place entrance doors. Witnesses report that Mr. 

Shabazz shouts racial epithets and threatening statements. 

• January 7, 2009 

The U.S. Department of Justice (DOJ) files a lawsuit for voter intimidation under § 11(b) 

of the Voting Rights Act against: (1) Minister King Samir Shabazz; (2) Jerry Jackson; (3) 

NBPP President Malik Zulu Shabazz; and (4) the New Black Panther Party for Self 

Defense. 

• April 17, 2009 

A default is entered. DOJ is given until May 1, 2009 to file a motion for default judgment. 

• April 28, 2009 

DOJ provides the NBPP defendants notice of its intent to file for default judgment. 

• April 29, 2009 

Acting Deputy Assistant Attorney General Steve Rosenbaum tells trial team for the first 

time of his doubts about the case. 

• April 30, 2009 

Rosenbaum exchanges eight e-mails with Deputy Associate Attorney General Sam Hirsch 

about the case. Hirsch communicates with Associate Attorney General Thomas Perrelli. 

• May 1, 2009 

DOJ files a motion to extend the filing deadline for a default judgment until May 15, 

2009. 
Chronology of Significant Events vii

• May 6, 2009 

The trial team, made up of DOJ career attorneys Christopher Coates (the Chief of the 

Voting Section), Robert Popper (the Deputy Chief), and trial attorneys J. Christian Adams 

and Spencer Fisher, submits a Remedial Memorandum to Acting Assistant Attorney 

General Loretta King detailing legal arguments in support of the lawsuit. 

• May 7, 2009 

Rosenbaum forwards background material to Appellate Section for review of merits of the 

lawsuit. 

• May 13, 2009 

Appellate Section Chief Diana Flynn sends her comments, along with those of fellow 

Appellate Section attorney Marie McElderry, to Steven Rosenbaum, copying Coates. 

Flynn recommends proceeding to judgment against all four defendants. 

• May 15, 2009 

DOJ voluntarily dismisses three of the original four defendants. The injunctive relief 

against the remaining defendant is substantially reduced. 

• November 18, 2009 

The U.S. Commission on Civil Rights issues subpoenas to members of the trial team, 

Christopher Coates and J. Christian Adams, to testify. The Department instructs Coates 

and Adams not to comply with the subpoena. 

• May 13, 2010 

Assistant Attorney General for Civil Rights Thomas Perez has meeting with trial team 

members Christopher Coates, Robert Popper, and J. Christian Adams. Perez is told that 

the trial team believes the lawsuit was justified as to all defendants. Coates tells Perez of 

hostility within the Civil Rights Section to race-neutral enforcement of voting laws. 

• May 14, 2010 

Thomas Perez testifies before the Commission. 

• May 14, 2010 

J. Christian Adams submits resignation to the Department following Perez’s testimony. 
viii Race Neutral Enforcement of the Law?

• July 6, 2010 

J. Christian Adams testifies before the Commission, claiming that Thomas Perez testified 

inaccurately. 

• September 24, 2010 

Coates testifies before the Commission, claiming that he believes Perez’s statements to the 

Commission do not “accurately reflect what occurred in the Panther case and do not reflect 

the hostile atmosphere that has existed within the Division [Civil Rights Division] for a 

long time against race-neutral enforcement of the Voting Rights Act.”1

 

1

 Sept. 24, 2010 Hearing Before the U.S. Comm’n on Civil Rights, at 9 (Testimony of Christopher Coates), 

available at http://www.usccr.gov/NBPH/09-24-2010_NBPPhearing.pdf [hereinafter “Coates Testimony”]. 

1 Introduction

INTRODUCTION

For over a year, the U.S. Commission on Civil Rights (the Commission) has been trying to 

determine why the U.S. Justice Department took the unusual action of dismissing voter 

intimidation claims against defendants who did not contest their own liability, as well as 

significantly scaling back the injunctive relief sought against the remaining defendant. 

Almost from the beginning of its inquiry, the Commission has been interested in determining 

what could explain this abrupt change in the trajectory of the lawsuit and what the 

implications might be for other law enforcement actions. The troubling testimony of 

misconduct provided by Justice Department whistleblowers thus far deserves careful 

attention; it may even explain why the Department refuses to provide information that would 

allow the Commission to complete its inquiry. 

The facts relating to the original lawsuit, including evidence partially captured on video, have 

now become familiar. On Election Day 2008, two members of the New Black Panther Party 

for Self Defense (NBPP or the Party) appeared at a polling site in Philadelphia wearing 

paramilitary garb. One of the Party members carried a nightstick and witnesses reported that 

racially offensive and threatening statements were made to poll watchers and poll workers. 

These actions resulted in the U.S. Department of Justice (DOJ or the Department) filing a 

lawsuit against these individuals, as well as the NBPP and its leader, who was alleged to have 

encouraged and endorsed the intimidating conduct. Although the suit was uncontested, and a 

default was entered, the Department unilaterally dismissed the claims against three of the 

defendants and reduced the injunctive relief sought against the fourth. 

The Department has argued that the change was based on a review of the totality of the 

circumstances and was simply a matter of career people disagreeing with other career people 

about the adequacy of the evidence under the pertinent law. Evidence obtained by the 

Commission, however, has called this version of events into serious doubt. First, two 

members of the NBPP trial team, Christopher Coates and J. Christian Adams, have testified 

before the Commission that the lawsuit was strong and that there was no legally sound reason 

to reverse course. Second, internal Department documents obtained by the Commission show 

that an independent review of the facts and legal arguments undertaken by career attorneys in 

the Appellate Section resulted in a recommendation that the case proceed without change. 

Third, evidence obtained pursuant to a Freedom of Information Act lawsuit by a third party 

indicates that this matter was not simply a difference of opinion between career attorneys. 

Instead, the record of communications within the Department appears to indicate that senior 

political appointees played a significant role in the decision making surrounding the lawsuit. 

The involvement of senior DOJ officials by itself would not be unusual, but the Department’s 

repeated attempts to obscure the nature of their involvement and other refusals to cooperate 

raise questions about what the Department is trying to hide. 

In their appearances before the Commission, which the Department attempted to prevent, 

trial team members Coates and Adams presented testimony that both raises concerns about 

the current enforcement policies of the Department and provides a possible explanation for 
Introduction 2

the reversal in the course of the NBPP litigation. In sum, they indicated that there is currently 

a conscious policy within the Department that voting rights laws should not be enforced in a 

race-neutral fashion. In their testimony, they gave numerous specific examples of open 

hostility and opposition to pursuing cases in which whites were the perceived victims and 

minorities the alleged wrongdoers. This testimony includes allegations that some career 

attorneys refuse to work on such cases; that those who have worked on such cases have been 

harassed and ostracized; and that some employees, including supervisory attorneys and 

political appointees, openly oppose race-neutral enforcement of voting rights laws. 

Mr. Coates and Mr. Adams testified that this hostility to race-neutral enforcement influenced 

the decisionmaking process in the NBPP case. The disposition of the Panther case, Mr. 

Coates testified, was the result of anger on the part of acting political appointees and other 

attorneys arising from a “deep-seated opposition to the equal enforcement of the Voting 

Rights Act against racial minorities and for the protection of white voters who had been 

discriminated against.”2

These serious accusations deserve to either be proven or exposed as false. While the 

Department has issued general statements that it enforces the laws without regard to race, 

these assurances do not confirm, deny, or explain the specific allegations of misconduct 

raised by Mr. Coates and Mr. Adams.3 Unfortunately, the Department has thus far refused to 

address many of these specific claims or to provide the type of information that would allow 

the Commission to properly review the decision making relating to the NBPP lawsuit. 

The Commission’s interest arose from the notoriety of the incident and the unusual dismissal 

of uncontested claims. This led the Commission to issue letters to the Department dated June 

16 and June 22, 2009, requesting that the Department explain the basis for its actions. This 

initial correspondence to the Department merely requested an explanation. It was anticipated 

that the Department would either explain its decision to dismiss most of the charges, or that 

the inquiry might spur reconsideration of the Department’s actions. The Commission’s 

longer-term investigation, begun in September 2009, resulted from the Department’s initial, 

conclusory response that was largely unresponsive to the Commission’s specific requests for 

information. 

What was not anticipated was the extent of the Department’s lack of cooperation. At various 

times the Department alleged it would provide no information because the matter was being 

reviewed by its Office of Professional Responsibility. At other times, the Department raised a 

wide variety of legal privileges, many of which seemed to have no relevance to the current 

investigation. Although the Department eventually began to provide some information, 

including 4,000 pages of documents, much of the information provided either did not relate 

 

2

 Coates Testimony, supra note 1, at 23. 3

 Attorney General Holder has stated, “The notion that we are enforcing any civil rights laws – voting or others 

– on the basis of race, ethnicity or gender is simply false.” Mike Levine, Holder Vows Equal Enforcement, Calls 

Allegations to Contrary “Simply False,” FOX NEWS.COM, Oct. 4, 2010, 

http://politics.blogs.foxnews.com/2010/10/04/holder-vows-equal-enforcement-calls-allegations-contrarysimply-false (last visited Oct. 19, 2010). See also Letter from Thomas E. Perez, Asst. Atty. Gen., U.S. Dep’t of 

Justice, to Gerald A. Reynolds, Chairman, U.S. Comm’n on Civil Rights (Aug. 11, 2010), available at

http://www.usccr.gov/NBPH/AR-M620U_20100811_173009.pdf.
3 Introduction

to the New Black Panther Party litigation, involved matters that were already public, or 

involved prior voter intimidation lawsuits. While useful, this information did not address the 

core of the Commission’s inquiry as to why the NBPP lawsuit had been challenged 

internally. 

The lack of cooperation by both the Department, as well as the members of the New Black 

Panther Party, leaves this investigation with many questions. Nonetheless, the existing 

evidence is useful in shedding light on many of these questions. The purpose of this report is 

to summarize the information collected by the Commission as of this date. 

The report is in six parts. Part I examines what is known about what occurred on Election 

Day 2008. Part II examines the course of the lawsuit, the explanations provided by the 

Justice Department regarding the same, and describes the extent to which political appointees 

acknowledge that they played a part in the decision making. This section also examines 

allegations that the NAACP Legal Defense and Education Fund played a part in the decision 

to dismiss the lawsuit. 

Part III of the report examines the accusations of Mr. Coates and Mr. Adams relating to the 

Department’s Civil Rights Division as a whole, as well as prior claims and allegations of 

politicization within the Voting Rights Section. Part IV then summarizes ongoing discovery 

disputes between the Commission and the Department as to the proper scope of this 

investigation, while Part V reviews the prior enforcement of Section 11(b) cases. Lastly, Part 

VI presents the Commission’s Interim Findings and Recommendations. A separate Appendix 

provides background information about the New Black Panther Party. 
4 Part I: Factual Background 

PART I:  Factual

Background
Race Neutral Enforcement of the Law? 5

A. Election Day 2008

On November 4, 2008, two members of the New Black Panther Party for Self Defense (“the 

NBPP” or “the Party”) positioned themselves outside the entrance to the Fairmount Street 

polling site located in Philadelphia, Pennsylvania. Their names are Minister King Samir 

Shabazz, the commander of the Philadelphia Chapter of the NBPP, and his chief of staff, 

Jerry Jackson. 

 

The men were dressed in paramilitary uniforms consisting of black pants, black shirts, and 

black jackets, as well as combat boots and berets. Their clothing bore a NBPP insignia, as 

well as symbols of rank within the New Black Panther Party. The higher-ranking party 

member, King Samir Shabazz, carried a nightstick secured by a lanyard wrapped around his 

hand.4

 Mr. Shabazz was observed occasionally slapping the nightstick in his free hand in a 

menacing manner and pointing the weapon at people located at the polling site.5 According 

to witness testimony, Jackson and Shabazz stood shoulder to shoulder in front of the entrance 

to the polling place and were positioned in such a way that voters had to pass within arm’s 

length of them to gain access.6 Shabazz and Jackson were observed to be moving in concert 

and at one point closed ranks to attempt to block a poll watcher from gaining access to the 

polling entrance.7 Their presence was caught on video.8

During their time at the polling site, a series of racial epithets were directed at those at the 

polling location. This included statements calling poll watchers “white devils”9 and “white 

supremacists and crackers” and general statements such as “fuck you cracker” “how you [sic] 

white mother [expletive] gonna like being ruled by a black man?;” and “now you will see 

what it means to be ruled by the black man, cracker.”10

Video evidence and witness statements indicate that King Samir Shabazz was the only Party 

member identified as carrying a weapon, i.e., the nightstick. Yet, witnesses indicated that at 

no point did Jackson attempt to disassociate himself from Mr. Shabazz. Instead, Jackson and 

Shabazz were observed acting in concert. No witness heard Mr. Jackson request that Mr. 

 

4 See Apr. 23, 2010 Hearing Before the U.S. Comm’n on Civil Rights, at 47 (testimony of Chris Hill), available 

at http://www.usccr.gov/NBPH/04-23-2010_NBPPhearing.pdf [hereinafter “Hill Testimony”]. 5 See id. at 47; Apr. 23, 2010 Hearing Before the U.S. Comm’n on Civil Rights, at 57 (testimony of Bartle Bull), 

available at http://www.usccr.gov/NBPH/04-23-2010_NBPPhearing.pdf [hereinafter “Bull Testimony”]. 6

See Apr. 23, 2010 Hearing Before the U.S. Comm’n on Civil Rights, at 36 (Testimony of Mike Mauro), 

available at http://www.usccr.gov/NBPH/04-23-2010_NBPPhearing.pdf [hereinafter “Mauro Testimony”]; Hill 

Testimony, supra note 4, at 50. 7 See Mauro Testimony, supra note 6, at 36; Hill Testimony, supra note 4, at 47. 8 See Video: YouTube.com, “Security” Patrols Stationed at Polling Places in Philly (2008), 

http://www.youtube.com/watch?v=neGbKHyGuHU (last visited Oct. 19, 2010); Video: YouTube.com, Fox 

News- Black Panthers Guarding Polling Site (2008), http://www.youtube.com/watch?v=JwNDMdrqKcc (last 

visited Oct. 19, 2010). 

9 See Mauro Testimony, supra note 6, at 38; Hill Testimony, supra note 4, at 49. 10 See Memorandum from Christopher Coates et al. to Grace Chung Becker, at 6 (Dec. 22, 2008), available at

http://www.usccr.gov/NBPH/DOJmemo_12-22-08_rerecommendedlawsuitagainstNBPP.pdf [hereinafter “J. 

Memo”]; see also Mauro Testimony, supra note 6, at 39; Hill Testimony, supra note 4, at 58. 
6 Part I: Factual Background 

Shabazz either put away the nightstick or cease making inflammatory and racially abusive 

comments.11 The latter information is important inasmuch as Mr. Jackson was a certified poll 

watcher serving on behalf of the Democratic Party and presumably had training as to what 

constitutes improper behavior at a polling site. 

The fact that Jackson and Shabazz acted in concert is consistent with other evidence relating 

to their relationship. As is more fully discussed in the Appendix, Jackson is the chief of staff 

to King Samir Shabazz. In a documentary produced by National Geographic,12 they are often 

observed working together, posing with weapons, and standing within feet of each other as 

Shabazz makes threats of violence. 

Witnesses testified before the Commission that they observed voters turned away from the 

polling place due to the presence of the NBPP members.13 For example, Christopher Hill, a 

Republican poll watcher, testified before the Commission to the following: 

People were put off when – there were a couple of people that walked 

up, couple of people that drove up, and they would come to a 

screeching halt because it’s not something you expect to see in front of 

a polling place. As I was standing on the corner, I had two older ladies 

and an older gentleman stop right next to me, ask what was going on. I 

said, “Truthfully, we don’t really know. All we know is there’s two 

Black Panthers here.” And the lady said, “Well, we’ll just come back.” 

And so, they just walked away. I didn’t see anybody other than them 

leave but I did see those three leave.14

Similar testimony was provided by Bartle Bull, who was serving on that date as part of a 

roving legal team on behalf of Senator John McCain’s presidential campaign. Mr. Bull has 

extensive experience in political campaigns and a record of supporting the voting rights of 

minorities. Among his past activities, Mr. Bull indicated that he had served on the Lawyers’ 

Committee for Civil Rights Under Law in Mississippi in the 1960s; was the publisher of the 

Village Voice; was the New York campaign manager for Senator Robert Kennedy’s 

presidential campaign in 1968; was a campaign worker on behalf of Charles Evers’ campaign 

for Governor of Mississippi; was the 1976 New York State campaign manager for Jimmy 

Carter’s presidential campaign; was the 1980 chairman for the New York Democrats for 

Edward Kennedy; was the chairman of New York Democrats for both Mario Cuomo and 

 

11 See Mauro Testimony, supra note 6, at 37; Hill Testimony, supra note 4, at 50. 12 Inside the New Black Panthers (National Geographic television broadcast 2009). 13 While factually relevant, proof of whether voters, or those aiding voters, were actually intimidated is legally 

unnecessary for purposes of establishing liability under § 11(b) of the Voting Rights Act. As noted by one legal 

authority who formerly served in the Civil Rights Division: 

Congress’s explanations of the purposes behind Section 11(b) support the view that 

neither proof of intent to intimidate nor proof of any actual effect of voter 

intimidation must be shown to establish a violation of Section 11(b). 

J. Gerald Hebert, Rattling the Vote Cage – Part I, The Campaign Legal Center Blog, 

http://www.clcblog.org/blog_item-245.html (Aug. 8, 2008) (emphasis in original) (last visited Oct. 21, 2010). 14 Hill Testimony, supra note 4, at 50-51. 
Race Neutral Enforcement of the Law? 7

Hugh Carey; and that he worked for Ramsey Clark’s Senate campaign. As to the 2008 

election, Mr. Bull indicated that he was chairman of New York Democrats for John McCain. 

Mr. Bull was interviewed by Department of Justice personnel on Election Day, as well as in 

preparation for the lawsuit eventually filed by the Department. In a declaration prepared for 

use in the lawsuit he stated, in part: 

I watched the two uniformed men confront voters, and attempt to 

intimidate voters. They were positioned in a location that forced every 

voter to pass in close proximity to them. The weapon [a nightstick] 

was openly displayed and brandished in sight of voters. 

I watched the two uniformed men attempt to intimidate, and interfere 

with the work of other poll observers whom the uniformed men 

apparently believed did not share their preferences politically. 

In my opinion, the men created an intimidating presence at the 

entrance to a poll. In all of my experience in politics, in civil rights 

litigation, and in my efforts in the 1960’s to secure the right to vote in 

Mississippi through participation with civil rights leaders and the 

Lawyers Committee for Civil Rights Under Law, I have never 

encountered or heard of another instance in the United States where 

armed and uniformed men blocked the entrance to a polling location. 

Their clear purpose and intent was to intimidate voters with whom 

they did not agree. Their views were, in part, made apparent by the 

uniform of the organization the two men wore and the racially charged 

statements they made. For example, I have heard the shorter man make 

a statement directed toward white poll observers that “you are about to 

be ruled by the black man, cracker.” To me, the presence and behavior 

of the two uniformed men was an outrageous affront to American 

democracy and the rights of voters to participate in an election without 

fear. It would qualify as the most blatant form of voter intimidation I 

have encountered in my life in political campaigns in many states, 

even going back to the work I did in Mississippi in the 1960’s. I 

considered their presence to be a racially motivated effort to intimidate 

both poll watchers aiding voters, as well as voters with whom the men 

did not agree.15

The Department trial team prepared a memorandum dated December 22, 2008 to justify the 

filing of a possible civil lawsuit. These memoranda are typically called “J Memos” within the 

Department. The J Memo summarized Department interviews of various witnesses at the 

polling place. Although the Department has refused to turn over to the Commission the 

 

15 Declaration of Bartle Bull at 2-3, United States v. New Black Panther Party for Self-Defense et al., No. 09-

0065 SD (E.D. Pa., executed Apr. 7, 2009) (not filed), available at

http://michellemalkin.cachefly.net/michellemalkin.com/wp/wp-content/uploads/2009/05/bull-declaration_04-

07-20092.pdf (last visited Oct. 21, 2010). 
8 Part I: Factual Background 

actual witness statements without any plausible justification,16 the summary provided in the J 

Memo presumably reflects the contents of witness statements taken by the trial team17: 

[Republican poll watcher Mike] Mauro told us that he watched voters 

arrive at the polling location and exhibit manifest surprise and 

apprehension at the presence of the Black Panthers. Mauro also stated 

that he saw black voters congregate away from the entrance to the 

polling location and speak about the presence of the Black Panthers. 

He recalls them saying words to the effect of “what is going on there?” 

Mauro also witnessed an elderly black woman approaching the polls 

and exhibiting apprehension as she approached the scene. Attorney 

poll watcher Harry Lewis told us he saw voters appear apprehensive 

about approaching the polling location entrance behind the Black 

Panthers. We received similar information from [Republican poll 

watcher Joe] Fischetti. Officer Alexander said that he received a call 

from dispatch about reports of “voter intimidation” at the polling 

place. He said he saw individuals gathered within sight of the polling 

entrance, but they did not attempt to enter. Officer Alexander did not 

interview any voters while he was at the polling location.18

In addition to the threats and actions directed toward Republican poll watchers outside the 

building, the New Black Panther Party members also made threats to those serving as 

Republican poll watchers inside the polling site.19 Although registered as Democrats,20 Larry 

and Angela Counts, husband and wife, served as paid Republican poll watchers at the 

Fairmount Street location. They had performed similar services in prior elections.21

Statements made by Republican poll workers and Department of Justice records both reflect 

that the Counts indicated that the NBPP members had called them “race traitors” and 

threatened that “if [they] stepped outside of the building, there would be hell to pay.”22 The 

Republican Party representatives also indicated that the Counts had told them that they took 

these threats seriously, and that they would not leave the building until the NBPP members 

had left.23

 

16 Witness statements are not likely to contain legal analysis or deliberations that would justify the assertion of a 

legal privilege precluding disclosure. Moreover, to the extent such analysis or deliberations exist, they could be 

redacted so as to allow the release of the witnesses’ factual observations. 

17 Due to the Department’s failure to provide the underlying supporting documentation, the Commission has 

been unable to independently verify whether the representations as to the content of witness statements 

contained in the J Memo are accurate. 

18 J. Memo, supra note 10, at 6. 

19 Under § 11(b) of the Voting Rights Act, it is illegal to threaten poll watchers. See 42 U.S.C. § 1973i(b). 20 See Deposition of Larry Counts at 5, U.S. Comm’n on Civil Rights, Phila., Pa., Jan. 12, 2010, available at

http://www.usccr.gov/NBPH/LarryCountsDepositionTranscript.pdf [hereinafter “L. Counts Deposition”]; 

Deposition of Angela Counts at 4, U.S. Comm’n on Civil Rights, Phila., Pa., Jan. 12, 2010, available at 

http://www.usccr.gov/NBPH/AngelaCountsDepositionTranscript.pdf [hereinafter A. Counts Deposition]. 21 See L. Counts Deposition, supra note 20, at 5; A. Counts Deposition, supra note 20, at 4. 22 See Hill Testimony, supra note 4, at 47-48; see also J. Memo, supra note 10, at 5-6. 23 See Hill Testimony, supra note 4, at 48. 
Race Neutral Enforcement of the Law? 9

The Department trial team summarized the evidence relating to the threats made against Mr. 

and Mrs. Counts in the previously-referenced J Memo. It provided: 

The events which precipitated reports about the Black Panthers’ 

presence were statements made by [King] Samir Shabazz or [Jerry] 

Jackson, or both, to poll watchers for the Republican Party, and a 

complaint by an unspecified voter about the presence of the Black 

Panthers. [Republican poll worker Wayne] Byman was at 1221 

Fairmount Street for a short time and saw the Black Panthers. He 

characterized their presence as “menacing and intimidating.” Byman 

told us they “were the type you don’t confront unless you are ready for 

a confrontation.” He reported their presence to Joe Fischetti, an 

attorney poll watcher for the Republican Party. Fischetti then arrived 

at 1221 Fairmount Street and encountered the Black Panthers and two 

African-American poll watchers for the Republican Party, Larry 

Counts and his wife Angela Counts, who were assigned there. The 

Counts’ had credentials entitling them to enter and remain in the 

polling place. Fischetti described Larry Counts as scared and worried 

about his safety at the polling place. Counts, according to Fischetti, 

huddled away from the Panthers’ presence and kept looking over his 

shoulder as he spoke to Fischetti. Counts described to Fischetti his 

concern about leaving the polling place at the end of the day given the 

presence of the Panthers. Fischetti also described the Black Panthers’ 

presence as alarming and said members of the local community 

present at the time also seemed alarmed and annoyed by the Panthers. 

Fischetti made a call concerning the situation to the Philadelphia 

Republican Party headquarters that resulted in an incident report. 

[Republican videographer Steve] Morse, back at headquarters, also 

separately received a telephone complaint from a voter concerning a 

man with a “billy club” at 1221 Fairmount Street. 

Larry and Angela Counts, the husband and wife poll workers, 

confirmed that they were afraid to leave the polling place until the 

Black Panthers had departed. This is consistent with the behavior of 

Counts as described to us by Fischetti. Angela Counts said she kept 

looking out the window at the Black Panthers with concern. She said 

she wondered what might occur next and if someone might “bomb the 

place.” Lunch was brought to them, instead of them leaving to get it 

themselves. Larry and Angela Counts told us that when they finally 

departed the polling place, they first checked to see if the Black 

Panthers were still deployed outside. They told us that they left only 

because the Black Panthers had departed.24 

The Commission took the depositions of Larry and Angela Counts on January 12, 2010, long 

after the claim against three NBPP defendants had been dismissed and the scope of the 

 

24 J. Memo, supra note 10, at 5-6. 
10 Part I: Factual Background 

injunction sought against the fourth had been reduced. Their testimony to the Commission 

varied greatly from what was represented in the J Memo, as well as from the statements 

made by other Republican poll watchers. In their sworn depositions, Mr. and Mrs. Counts 

stated that they had not seen members of the New Black Panther Party at the polling site.25 In 

addition, both denied speaking with anyone from the Republican Party about the Panthers.26

Further, Mr. Counts even contended that he had never been interviewed by the Justice 

Department.27 His testimony on this latter point was contradicted by his wife, however, who 

indicated that they each had been interviewed by a team from the Federal Bureau of 

Investigation (FBI) and the Department of Justice several months after the election.28

 

Other than the simple passage of time, the only known change in circumstance that might 

have affected the testimony of Mr. and Mrs. Counts was the dismissal of the suit as to three 

of the defendants. The Counts live less than four miles from the Fairmont Street polling 

location and would likely be aware of the New Black Panther Party members’ activities in 

Philadelphia in recent years. If the J Memo and statements by Republican poll watchers are 

to be believed, the Counts were threatened by, and afraid of, the New Black Panther Party 

members. If the Counts’ subsequent testimony before the Commission is to be believed, they 

never saw the Black Panther Party members (who were just outside the entrance of the 

building), never spoke to any Republican Party representatives (who made contemporaneous 

reports of such conversations) and, if Mr. Counts is to be believed, never even spoke to 

anyone from the Department of Justice (although both the J Memo and his wife indicate that 

such an interview occurred).29 These claims of ignorance contrast with the documented 

statements the Counts appear to have given to the Department. The extent of the newly 

claimed ignorance is captured in the following colloquy with Mr. Counts during his 

deposition: 

QUESTION: When did you become aware that [the Party] members 

had arrived? 

COUNTS: I wasn’t aware. All I know when I was inside, all I saw was 

the news people outside, and I didn’t see anybody. I didn’t see 

anybody outside. Nobody said nothing to me about anything. I didn’t 

go outside. All I just saw the news people outside. I don’t know 

whether they were just there for the election, talking to the election 

people outside, or whatever. But as far as telling me, I didn’t see 

nobody come inside or outside.30 

 

The discrepancy between these versions of events can likely be resolved by the Department 

releasing the witness statements obtained from Mr. and Mrs. Counts as part of the 

 

25 See L. Counts Deposition, supra note 20, at 11-12, 15; A. Counts Deposition, supra note 20, at 18, 25-26. 26 See L. Counts Deposition, supra note 20, at 14, 17-18; A. Counts Deposition, supra note 20, at 11, 19. 27 See L. Counts Deposition, supra note 20, at 19. 28 See A. Counts Deposition, supra note 20, at 23-24. 

29 See J. Memo, supra note 10, at 5-6; A. Counts Deposition, supra note 20, at 23-24. 30 L. Counts Deposition, supra note 20, at 8-9. 
Race Neutral Enforcement of the Law? 11

Department’s investigation. Such records should help address whether Mr. and Mrs. Counts 

were intimidated or targeted by the NBPP members. 

The Commission attempted to interview and take the deposition of as many people as it 

could locate who were identified as having been at the polling site.31 Among them was 

Ronald Vann, who had served as a Democratic poll watcher with Jerry Jackson during prior 

elections.32 Mr. Vann indicated that Election Day 2008 was the first time that he had noticed 

Jerry Jackson wearing his Panther uniform.33 When questioned as to whether, as a certified 

poll watcher, he had requested that Jackson ask King Samir Shabazz to put away the 

nightstick or cease making inflammatory statements, he responded as follows: 

QUESTION: If you were flabbergasted – I want to make sure, and I 

know you kind of hinted before, if you were flabbergasted, why didn’t 

you go up to Jerry and say, “Why don’t you ask your friend to leave?” 

VANN: Mr. Black[wood], some things unsaid. If I said something to 

Jerry, it would be an argument, so I don’t even want to go there. My 

thing is keep my mouth shut, stay out of it, and that’s the best 

method.34 

This statement was consistent with Mr. Vann’s expressed intention that he was not going to 

interfere with Mr. Jackson’s activities. 

QUESTION: Did anybody express concern to you about Jerry and his 

friend? 

VANN: Well, you know, I mean people was talking about all the 

publicity going on about the police and the news media and stuff like 

that and the guy with the stick. 

But, you know, my thing is I just listen, keep my mouth shut. This way 

can nobody come back and say, “Mr. Vann said this,” or “Mr. Vann 

said that.” Sometimes it’s just best to keep your mouth shut. 

QUESTION: Did you even talk to Jerry until the ward leader got 

there? 

VANN: Kept my mouth shut. 

 

31 One witness of strong interest is an unidentified white woman who is shown on video at the polling site, 

directly behind Mr. Jackson and Mr. Shabazz. Throughout her time on camera, she is shown speaking on a cell 

phone. Unfortunately, none of the witnesses interviewed by Commission staff could identify this woman. 

32 See Deposition of Ronald Vann at 4-5, U.S. Comm’n on Civil Rights, Phila., Pa., Jan. 11, 2010, available at 

http://www.usccr.gov/NBPH/RonaldVannDepositionTranscript.pdf [hereinafter “Vann Deposition”]. 33 See id. at 6. 34 Id. at 19. 
12 Part I: Factual Background 

QUESTION: I’m just asking. You didn’t talk to Jerry at all and you 

didn’t call the ward leader or anybody else at the Democratic Party to 

say, “We have a problem here”? 

VANN: No.35

Mr. Vann may have been somewhat intimidated himself. 

Mr. Vann did confirm, however, that King Samir Shabazz was armed with a nightstick, and 

that he was observed smacking the stick in his hand.36 While he indicated that, in his opinion, 

King Samir Shabazz should not have been present,37 he also stated that he did not report him 

to the police.38 Mr. Vann also indicated that the voting judge at the site did not take any steps 

to address the situation.39 Finally, Mr. Vann confirmed that Mr. Jackson remains an election 

poll watcher for the Democratic Party to this day.40

Eventually the police arrived at the polling site. Their arrival and confrontation with Mr. 

Shabazz and Mr. Jackson were caught by a Fox News team that had arrived.41 Mr. Shabazz 

was ordered to leave the site. It is unclear, however, whether he surrendered his nightstick or 

kept the weapon in his possession.42 Mr. Jackson was allowed to remain on the scene. 

According to the J Memo of December 2008, the police believed that Mr. Jackson had a right 

to remain at the property due to his status as a poll watcher.43

The actions of the New Black Panther Party members quickly achieved notoriety due to the 

fact that their presence was filmed by a videographer hired by the Republican Party,44 as well 

as by a Fox News team that arrived on the scene.45 These broadcasts became widely available 

through television rebroadcasts and YouTube video clips on the Internet. At least in part 

because of this notoriety, a Department of Justice roving legal team met with several of the 

witnesses who observed the events of Election Day.46 Despite a subpoena issued by the 

Commission, the statements taken on that date have not been provided to the Commission by 

the Department. 

 

35 Id. at 21-22. 36 See id. at 12, 16, 22. 37 See id. at 17. 38 See id. at 18. 

39 See id. at 24-25. 40 See id. at 10. See also Watcher’s Certificate of Jerry Jackson, Commonwealth of Pa., County of Phila., 

available at http://www.usccr.gov/NBPH/CongressionalCorrespondencereNBPP.pdf (scroll to p. 29) 41 See Vann Deposition, supra note 32, at 23. 42 See Mauro Testimony, supra note 6, at 41; Bull Testimony, supra note 5, at 58. 43 See J. Memo, supra note 10, at 4. 44 See id. at 3-4. 45 See Video: YouTube.com, “Security” Patrols Stationed at Polling Places in Philly (2008), 

http://www.youtube.com/watch?v=neGbKHyGuHU (last visited Oct. 19, 2010); Video: YouTube.com, Fox 

News, Black Panthers Guarding Polling Site (2008), http://www.youtube.com/watch?v=JwNDMdrqKcc (last 

visited Oct. 19, 2010). 

46 See Mauro Testimony, supra note 6, at 42-43. 
Race Neutral Enforcement of the Law? 13

In addition to the Election Day interviews, trial team members J. Christian Adams and 

Spencer Fisher interviewed many of the witnesses who had been at the polling site. Some of 

these interviews were later summarized in Declarations by such witnesses as Bartle Bull, 

Chris Hill, Wayne Byman and Mike Mauro.47 Regrettably, the Department has declined to 

provide the statements taken by the trial team to the Commission.

 

47 See Declaration of Bartle Bull, United States v. New Black Panther Party for Self-Defense et al., No. 09-0065 

(E.D. Pa., executed Mar. 31, 2009) (not filed), available at

http://www.usccr.gov/NBPH/DeclarationofBartleBull(3-31-09).pdf; Declaration of Christopher Hill, United 

States v. New Black Panther Party for Self-Defense et al., No 09-0065 (E.D. Pa., executed Apr. 1, 2009) (not 

filed), available at http://www.usccr.gov/NBPH/DeclarationofChristopherHill(4-1-09).pdf; Declaration of 

Wayne Bynam [sic], United States v. New Black Panther Party for Self-Defense et al., No. 09-0065 SD (E.D. 

Pa., executed Apr. 1, 2009) (not filed), available at http://www.usccr.gov/NBPH/DeclarationofWayneByman(4-

1-09).pdf; Declaration of Michael Mauro, United States v. New Black Panther Party for Self-Defense et al., No. 

09-0065 SD (E.D. Pa., executed Mar. 31, 2009) (not filed), available at

http://www.usccr.gov/NBPH/DeclarationofMichaelMauro(3-31-09).pdf. 
PART II: The New Black

Panther Party Litigation
Race Neutral Enforcement of the Law? 15

A. History of The Lawsuit

Following its investigation of the facts and circumstances surrounding the Election Day 

incident, the Department of Justice trial team prepared a Justification Memorandum (“J 

Memo”) dated December 22, 2008.48 The memorandum was directed to the then-Acting 

Assistant Attorney General, Grace Chung Becker. The memorandum was signed by 

Christopher Coates, the Chief of the Voting Section,49 Robert Popper, the Deputy Chief, and 

attorneys J. Christian Adams and Spencer R. Fisher.50 

The memorandum summarized the evidence collected by the trial team and discussed 

theories of liability. It recommended a civil lawsuit pursuant to Section 11(b) of the Voting 

Rights Act51 and requested authorization to file a complaint against the New Black Panther 

Party for Self Defense, its Chairman, Malik Zulu Shabazz, and the two NBPP members 

present at the Fairmount Street polling site on Election Day, King Samir Shabazz and Jerry 

Jackson.52 These recommendations were approved.53

The lawsuit itself was filed in the U.S. District Court for the Eastern District of Pennsylvania 

on January 7, 2009.54 The Complaint charged each of the four defendants with 

(i) intimidation of voters (Count I); (ii) attempted intimidation of voters (Count II); 

(iii) intimidation of individuals aiding voters (Count III); and (iv) attempted intimidation of 

individuals aiding voters (Count IV). 

Each of the defendants was served with the Complaint, but none of the defendants filed an 

answer. The allegations were uncontested. The failure to file a response is particularly 

curious given that the Chairman of the NBPP, Malik Zulu Shabazz, is an attorney, and the 

 

48 J. Memo, supra note 10. 

49 The legal expertise and professionalism of Mr. Coates has been recognized. He has received the Attorney 

General’s Special Achievement and Meritorious Performance Award, the Civil Rights Division’s Walter 

Barnett Memorial Award for Excellence in Advocacy, the Environmental Justice Award from the Georgia 

Environmental Organization, and the Thurgood Marshall Decade Award from the Georgia NAACP. 50 In his testimony before the Commission, J. Christian Adams stated that “[i]t’s customary practice in the 

Department that you do not attach your name to a document that you disagree with.” July 6, 2010 Hearing 

Before the U.S. Comm’n on Civil Rights, at 17 (Testimony of J. Christian Adams), available at 

http://www.usccr.gov/NBPH/07-06-2010_NBPPhearing.pdf [hereinafter “Adams Testimony”], 51 42 U.S.C. § 1973i(b). 

52 See J. Memo, supra note 10, at 12-13. 53 According to Assistant Attorney General Thomas Perez, the Department had considered criminal charges, but 

decided that a civil suit was the appropriate course. See May 14, 2010 Hearing Before the U.S. Comm’n on 

Civil Rights, at 18 (Testimony of Thomas E. Perez), available at http://www.usccr.gov/NBPH/05-14-

2010_NBPPhearing.pdf [hereinafter “Perez Testimony”]; Statement of Thomas E. Perez, Asst. Atty. Gen., Civil 

Rights Div., U.S. Dep’t of Justice, at 5, Before the U.S. Comm’n on Civil Rights, May 24, 2010, available at 

http://www.usccr.gov/NBPH/Perez_05-14-2010.pdf [hereinafter “Perez Statement”]. 54 Complaint, United States v. New Black Panther Party for Self-Defense et al., No. 2:09-CV-065-SD (E.D. Pa. 

Jan. 8, 2009), available at http://www.usccr.gov/NBPH/COMPLAINT-USAvNBPP.pdf. 
Race Neutral Enforcement of the Law? 16

fact that Jerry Jackson apparently had consulted with Philadelphia attorney Michael Coard.55

Subsequent papers filed in the case reflect that Mr. Coard was copied on pleadings,56 but he 

never formally entered an appearance and he did not file an answer on behalf of either Jerry 

Jackson or King Samir Shabazz. 

Under the terms of the Federal Rules of Civil Procedure, the failure to contest allegations 

contained in a civil complaint has important legal ramifications. Specifically, Federal Rule of 

Civil Procedure 8(b)(6) provides, in part, that an “allegation – other than one relating to the 

amount of damages – is admitted if a responsive pleading is required and the allegation is not 

denied.” Accordingly, the failure of the defendants to contest allegations contained in the 

complaint served to establish liability as to each.57

On April 17, 2009, the Court entered an order of default and gave the Justice Department 

until May 1, 2009 to file a motion for default judgment.58 The motion for default judgment 

was necessary for the Department to specify the ultimate remedy it was seeking as to each of 

the defendants. In the Complaint, the Department indicated that it was seeking a permanent 

injunction that would prohibit voter intimidation at any polling site. As set forth in the 

Complaint: 

[T]he Plaintiff, United States of America, prays for an order that: 

* * * 

Permanently enjoins Defendants, their agents and successors in office, 

and all persons acting in concert with them, from deploying athwart 

the entrance to polling locations either with weapons or in the uniform 

of the Defendant New Black Panther Party, or both, and from 

 

55 See Adams Testimony, supra note 50, at 109; see also Supplemental Interrogatory Responses of the Dep’t of 

Justice at 6-7, Apr. 16, 2010 (Supplemental Response to Interrogatory No. 17), available at 

http://www.usccr.gov/NBPH/LetterfromHunttoUSCCRprovidingsupplementalresponses_04-16-10.pdf

[hereinafter “Supp. Interrog. Responses”]. 

56See Motion for Extension of Time to Comply with This Court’s Order of April 20, 2010, United States v. New 

Black Panther Party for Self-Defense, No. 2:09-cv-065-SD (E.D. Pa. May 1, 2009), available at 

http://www.usccr.gov/NBPH/MotionforExtensionofTimetoComplywithCourtsOrderofApril20,2009.pdf; Motion 

for Default Judgment, United States v. New Black Panther Party for Self-Defense, No. 2:09-cv-065-SD (E.D. 

Pa. May 15, 2009), available at 

http://www.usccr.gov/NBPH/MotionforDefaultJudgmentreKingSamirShabazz.pdf. 57 See Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) (“. . . a party’s 

default is deemed to constitute a concession of all well-pleaded allegations of liability . . .”); Steinberg v. Int’l 

Criminal Police Org., 672 F.2d 927, 933, n.2 (D.C. Cir. 1981) (Wright, J., concurring) (“[O]n default for failure 

to answer or otherwise defend, well-pleaded factual allegations of the pleading that relate to liability . . . will be 

taken as true.”); GMA Accessories, Inc. v. BOP, LLC, 2009 WL 2634771, at *1 n.1 (S.D.N.Y. 2009) 

(“[B]ecause [defendant] did not respond to the Complaint, they are deemed to have admitted the factual 

allegations concerning liability contained therein.”). 

58 Order, United States v. New Black Panther Party for Self-Defense et al., No. 2:09-CV-065-SD (E.D. Pa. Apr. 

17, 2009), available at http://www.usccr.gov/NBPH/OrderforGovernmenttofileMotionforDefaultJudgment.pdf. 
17 Part II: The New Black Panther Party Litigation

otherwise engaging in coercing, threatening, or intimidating, behavior 

at polling locations during elections.59

On April 28, 2009, the Department provided notice to the defendants of the Department’s 

intent to file for default judgment.60 It was at this point, after liability had been conceded, and 

only days before the motion for default judgment was due, that objections to the lawsuit were 

raised internally within the Justice Department. Specifically, it is alleged that the Acting 

Assistant Attorney General for Civil Rights, Loretta King, and the Acting Deputy Assistant 

Attorney General for Civil Rights, Steven Rosenbaum, raised objections and began the 

process by which three of the defendants were to be dismissed and the remedy sought against 

the fourth defendant was to be substantially reduced. What follows is an examination of the 

process whereby the direction of the lawsuit was reversed. 

Because the Department has refused to provide information relating to the internal 

deliberations and decisionmaking process regarding the NBPP lawsuit, the following 

discussion is based on a combination of the limited information obtained independently by 

the Commission, testimony by a former Department official regarding how these types of 

decisions are made, press reports, and the testimony of trial team members Christopher 

Coates and J. Christian Adams. 

In addition to the above, this discussion also includes references to information obtained by a 

third party, Judicial Watch, pursuant to a lawsuit it filed against the Department pursuant to 

the Freedom of Information Act (FOIA).61As of September 20, 2010, Judicial Watch 

received an index from the Department that describes the number and variety of internal 

contacts between the trial team, the Civil Rights Division, the office of the Associate 

Attorney General, and others with regard to the NBPP litigation.62 

To the extent possible, the source of each item of information is identified. While it has not 

been possible for the Commission to verify all of the information that will be described 

 

59 Complaint at 8, United States v. New Black Panther Party for Self-Defense et al., No. 2:09-CV-065-SD (E.D. 

Pa. Jan. 8, 2009), available at http://www.usccr.gov/NBPH/COMPLAINT-USAvNBPP.pdf. 60 See Letter from Spencer R. Fisher, Trial Atty., Voting Section, Civil Rights Div., U.S. Dep’t of Justice, to 

Malik Zulu Shabazz, Chairman, New Black Panther Party for Self-Defense (Apr. 28, 2009), available at

http://www.usccr.gov/NBPH/LettersfromSFisher2DefendantsreEntryofDefault.pdf; Letter from Spencer R. 

Fisher, Trial Atty., Voting Section, Civil Rights Div., U.S. Dep’t of Justice, to Jerry Jackson (Apr. 28, 2009), 

available at http://www.usccr.gov/NBPH/LettersfromSFisher2DefendantsreEntryofDefault.pdf; Letter from 

Spencer R. Fisher, Trial Atty., Voting Section, Civil Rights Div., U.S. Dep’t of Justice, to Malik Zulu Shabazz, 

(Apr. 28, 2009), available at

http://www.usccr.gov/NBPH/LettersfromSFisher2DefendantsreEntryofDefault.pdf; Letter from Spencer R. 

Fisher, Trial Atty., Voting Section, Civil Rights Div., U.S. Dep’t of Justice, to Minister King Samir Shabazz 

a/k/a Maurice Heath (Apr. 28, 2009), available at 

http://www.usccr.gov/NBPH/LettersfromSFisher2DefendantsreEntryofDefault.pdf. 61 See Judicial Watch, Inc. v. U.S. Dep’t of Justice, No. 10-CV-851-RBW (D.D.C.). 62 As is discussed infra in Part IV, from the time of its initial discovery requests to the Department, the 

Commission has sought a similar log with regard to those documents that the Department has refused to provide 

based on a claim of privilege or other objection. Although Judicial Watch obtained such information pursuant to 

its FOIA litigation, the Department has refused to provide similar information to the Commission. 
Race Neutral Enforcement of the Law? 18

below, the allegations presented are of such seriousness that they need to be addressed and 

presented to the public. 

According to The Weekly Standard, the trial team first learned of concerns by higher 

Department officials on April 29 when Acting Deputy Assistant Attorney General for Civil 

Rights, Steven Rosenbaum, informed the trial team: “I have serious doubts about the merits 

of the motion for entry of a default judgment and the request for injunctive relief.”63 The 

article indicated that Mr. Rosenbaum stated: “Most significantly, this case raises serious First 

Amendment issues, but the papers make no mention of the First Amendment.”64 The article 

further indicated that the nature of the questions raised by Mr. Rosenbaum seemed to reflect 

that he was “not familiar with the case and had not read the detailed memorandum 

accompanying the draft order.”65

The Weekly Standard article further indicated that the trial team responded the same day with 

an e-mail addressing each of Mr. Rosenbaum’s concerns. The article states: 

The trial team was surprised by the email and answered Rosenbaum 

point by point in a response sent that same evening. They corrected his 

misstatements and explained in answer to his First Amendment 

concerns, “We are not seeking to enjoin the making of those (or any) 

statements. We plan to introduce them as evidence to show that what 

happened in Philadelphia on Election Day was planned and announced 

in advance by the central authority of the NBPP, and was a NBPP 

initiative.” They pointed out that dressing in military garb did not raise 

First Amendment concerns when “used with the brandishing of a 

weapon to intimidate people going to the polling station.” They 

concluded: “We strongly believe that this is one of the clearest 

violations of Section 11(b) [of the Voting Rights Act] the Department 

has come across. There is never a good reason to bring a billy club to a 

polling station. If the conduct of these men, which was video recorded 

and broadcast nationally, does not violate Section 11(b), the statute 

will have little meaning going forward.”66 

In his testimony before the Commission, Mr. Adams confirmed that such an e-mail was 

sent,67 but refused to confirm its contents due to alleged privileges previously raised by the 

 

63 Jennifer Rubin, Friends in High Places, WEEKLY STANDARD, June 12, 2010, available at

https://www.weeklystandard.com/articles/friends-high-places (last visited Oct. 21, 2010). The index produced 

in the Judicial Watch litigation reflects a series of e-mails between Mr. Rosenbaum and Mr. Coates between 

April 28 and April 30, 2009. 

64 Id. 65 Id. 66 Id. 67 See Adams Testimony, supra note 50, at 26. In his testimony before the Commission, Mr. Coates noted that 

such memo was written, but also refused to testify as to its substance. See Coates Testimony, supra note 1, at 

59-62. 
19 Part II: The New Black Panther Party Litigation

Department.68 At the same time, the index provided in the Judicial Watch litigation shows 

that e-mails on these subjects were sent in the time frame described in the above article.69

The Weekly Standard article alleged that Mr. Coates and Mr. Popper subsequently met with 

Mr. Rosenbaum and Loretta King, the Acting Assistant Attorney General for Civil Rights. 

The article describes these meetings as “two days of shouting.”70 

In their appearance before the Commission, Mr. Coates and Mr. Adams were careful to 

explain that they would not go into the substance of any deliberations because of the 

Department’s assertions of privilege.71 Yet both witnesses did provide some corroboration 

for The Weekly Standard’s account of events: 

QUESTION: The press reports, that same article that I referenced 

before from The Weekly Standard, also indicated that, right after Mr. 

Rosenbaum made his objections, after a response was prepared by the 

trial team, there was ‘two days of yelling.’ Can you confirm that? 

ADAMS: Yelling was part of it. There were other things, profanity, 

tossing of papers at each other, all-nighters. 

QUESTION: All-nighters by the trial team? 

ADAMS: Correct. 

QUESTION: Defending their position? 

ADAMS: Correct.72

While the substance remains undisclosed, the result of these discussions is clear. The trial 

team was ordered to seek a continuance from the court requesting that the Department be 

given until May 15, 2009 for the filing of the motion for default.73

 

68 Both Mr. Coates and Mr. Adams testified that they were limiting their testimony due to the Department’s 

assertion of a deliberative process privilege as to the NBPP litigation. See Coates Testimony, supra note 1, at 

11; Adams Testimony, supra note 50, at 10-11. 69 Civil Rights Division (CRT) Index of Withheld Documents at 2, 6-7, Judicial Watch v. Dep’t of Justice, No. 

10-851 (D.D.C.), Sept. 15, 2010, available at http://www.judicialwatch.org/files/documents/2010/jw-v-dojvaughn-09152010.pdf (last visited Oct. 20, 2010) [hereinafter “Judicial Watch Vaughn Index”]. 70 See Rubin, supra note 63. The index produced in the Judicial Watch litigation reflects the following summary 

of a May 4, 2009 e-mail from Coates to King and Rosenbaum: “Section Chief [Coates] and Deputy Section 

Chief [Popper] [email] to their AAG [King] and DAAG [Rosenbaum] supervisors with candid statements about 

an earlier meeting discussing specific factual matters and clarification of issues in a draft memorandum of law 

for the NBPP litigation.” Judicial Watch Vaughn Index, supra note 69, at 9 (Doc. No. 20(a)) (emphasis added). 71 See Adams Testimony, supra note 50, at 10-11. 72 Id. at 26-27. 73 See Motion for Extension of Time to Comply with This Court’s Order of April 20, 2010, United States v. 

New Black Panther Party for Self-Defense, No. 2:09-cv-065-SD (E.D. Pa. May 1, 2009), available at 

http://www.usccr.gov/NBPH/MotionforExtensionofTimetoComplywithCourtsOrderofApril20,2009.pdf. 
Race Neutral Enforcement of the Law? 20

On May 6, 2009, after the continuance was granted, the trial team submitted a Remedial 

Memorandum to Loretta King which addressed questions that had been raised regarding the 

basis for liability and the remedies being sought.74 These issues had not been raised by the 

defendants, who had not contested the lawsuit. Instead, each of the objections had been 

raised by Department officials after a default had been entered. 

According to The Weekly Standard article, disputes with the trial team continued after the 

May 6 Remedial Memorandum was submitted.75 In his testimony before the Commission, 

Mr. Coates described the situation as follows: 

QUESTION: In a magazine article about the New Black Panther case, 

it was alleged that there were two days of yelling as arising out of the 

time that the case got continued. Can you tell us anything about that? 

COATES: Well, in terms of the – I won’t tell you what the discussions 

were. I will tell you that I became so frustrated with the process that I 

did use profanity. It wasn’t the first time that I’ve ever used profanity, 

but it was not my customary way of speaking to my supervisors at the 

Division level. And I used the “bs” word that Mr. Adams identified in 

his testimony. And so, to that extent, that yelling went on. 

QUESTION: Aside from use of profanity or not, did that arise out of 

the fact that it appeared that Mr. Rosenbaum had not been reading the 

background materials supplied by the trial team for his review? 

COATES: No. It arose because the accusation had been – was made 

against me and Mr. Popper that wasn’t true. 

QUESTION: Can you tell us what that accusation was? 

COATES: No, I can’t.76

At this stage of the debate, the four members of the career trial team, Mr. Coates, Mr. 

Popper, Mr. Adams and Mr. Fisher, remained unanimous in their recommendation that the 

case should proceed against all four defendants. Faced by this opposition, Ms. King and Mr. 

Rosenbaum took the extraordinary step of requesting a review by the Appellate Section of a 

matter that was in default.77 In their testimony before the Commission, both Mr. Coates and 

 

74 See Memorandum from Christopher Coates et al. to Loretta King (May 6, 2009), available at 

http://www.usccr.gov/NBPH/DOJremedialmemo_05-06-09_reproposedinjunction.pdf [hereinafter “Remedial 

Memo”]. 

75 See Rubin, supra note 63. 76 Coates Testimony, supra note 1, at 55-56. Mr. Coates testified that he would not discuss certain topics, 

stating: “I will not answer questions which will require me to disclose communications in the Panther case that 

are protected by the deliberative process privilege.” Id. at 11. 77 According to the index in the Judicial Watch litigation, Mr. Rosenbaum requested a review by the appellate 

section on May 7, 2009. A series of e-mails in the index indicates that Mr. Rosenbaum forwarded to Diana 

Flynn a copy of the draft remedial memorandum, his own analysis and opinion of the development of different 
21 Part II: The New Black Panther Party Litigation

Mr. Adams indicated that they were unaware of any similar review in their tenure at the 

Department.78 Other former Department officials have also indicated that they had never 

heard of an Appellate Section review being conducted in a case in which the defendants had 

conceded liability.79

The requested review was undertaken by career Appellate Section attorney Marie McElderry 

and Appellate Section chief Diana Flynn, also a career official.80 While the Appellate Section 

analysis examined the strengths and weaknesses of the lawsuit, and indicated that the trial 

court might require proceedings in addition to the filing of a motion for a default judgment, 

the analysis concluded as follows: 

We can make a reasonable argument in favor of default relief against 

all defendants and probably should, given the unusual procedural 

situation. The argument may well not succeed at the default stage, and 

we should expect the district court to schedule further proceedings. 

But it would be curious not to pray for the relief on default that we 

would seek following trial. Thus we generally concur in Voting’s 

recommendation to go forward, with some suggested modifications in 

our argument, as set out below.81

Despite the Appellate Section’s recommendation, and the fact that six career attorneys were 

now on record that the case should proceed, the trial team was instructed that the lawsuit 

should be dismissed as to defendants Jerry Jackson, the New Black Panther Party, and its 

Chairman, Malik Zulu Shabazz.82 As to the relief sought against the remaining defendant, 

King Samir Shabazz, the Department substantially limited the injunctive relief sought. 

Whereas the complaint had sought a permanent injunction with a potentially national scope, 

the final request sought only an injunction through November 15, 2012 precluding King 

Samir Shabazz from displaying a weapon within 100 feet of any polling location in 

Philadelphia.83 

 approaches under consideration, the trial team’s analysis and detailed responses to questions on the merits, as 

well as draft pleadings, witness statements, and legal research. 

78 See Coates Testimony, supra note 1, at 52; Adams Testimony, supra note 50, at 34. 79 See Statement of Gregory G. Katsas at 10, Apr. 23, 2010, available at

http://www.usccr.gov/NBPH/Katsas_04-23-2010.pdf [hereinafter “Katsas Statement”]; Affidavit of Hans A. 

von Spakovsky at 2, July 15, 2010, available at http://www.usccr.gov/NBPH/vonSpakovskyAffidavit_07-15-

10.pdf [hereinafter “von Spakovsky Affidavit”]. 80 E-mail from Diana K. Flynn to Steven Rosenbaum (May 13, 2009), available at

http://www.usccr.gov/NBPH/DOJcomments_05-13-09_reproposeddefaultjudgment.pdf. 81 Id. 82 Cf. Jerry Markon & Krissah Thompson, Dispute Over New Black Panthers Case Causes Deep Divisions, 

WASH. POST, Oct. 22, 2010, available at http://www.washingtonpost.com/wpdyn/content/article/2010/10/22/AR2010102203982.html (last visited Nov. 9, 2010) ("Legal experts have called 

the reversal exceedingly rare, especially because the defendants had not contested the charges."). 83 See Order, United States v. New Black Panther Party for Self-Defense et al., No. 2:09-cv-065-SD (E.D. Pa. 

May 18, 2009), available at 

http://www.usccr.gov/NBPH/OrdergrantingMotionforDefaultJudgmentandenjoinderreKingSamirShabazz.pdf

(granting motion for default judgment and injunction). 
Race Neutral Enforcement of the Law? 22

Original Relief Sought

An order that:

“Permanently enjoins Defendants, their agents

and successors in office, and all persons acting in

concert with them, from deploying athwart the

entrance to polling locations either with

weapons or in the uniform of the Defendant

New Black Panther Party, or both, and from

otherwise engaging in coercing, threatening, or

intimidating, behavior at polling locations during

elections.”  

(Complaint, United States v. New Black Panther Party for Self‐

Defense et al., entered Jan. 8, 2009)

Relief Ultimately Obtained

An order providing that:

“Defendant Minister King Samir Shabazz is

enjoined from displaying a weapon within 100

feet of any open polling location on any election

day in Philadelphia, Pennsylvania, or from

otherwise engaging in coercing, threatening, or

intimidating behavior in violation of Section

11(b) of the Voting Rights Act.”

And that the Court only “maintain jurisdiction

over this matter until November 15, 2012.”  

(Proposed Default Judgment Order, United States v. Minister King

Shamir Shabazz, entered May 15, 2009)

B. The Department’s Explanations

In his testimony before the Commission, Assistant Attorney General for Civil Rights Thomas 

Perez acknowledged that no new facts had come to light between the time the case had been 

filed and the time it was dismissed.84 That is to say, the six career line attorneys, and those 

who overruled them, were looking at the same set of facts. 

In explaining the Department’s reversal, Mr. Perez testified that the decision to overrule the 

position of the six line attorneys was “based on a review of the totality of the 

circumstances,”85 and simply represented the “kind of robust interaction [that] is part of the 

daily fabric of the Department of Justice.”86 He stated: “[R]easonable people can look at the 

same set of facts and reach different conclusions. Career people can disagree with career 

people. And that’s precisely what happened in this case.”87 

In his testimony before the Commission, Christopher Coates disagreed: 

. . . I have always been flabbergasted that anyone would make such a 

claim regarding the New Black Panther case. People can have 

 

84 See Perez Testimony, supra note 53, at 21-22, 27, 53; see also Adams Testimony, supra note 50, at 106-07. 85 Perez Testimony, supra note 53, at 23. 86 Id. at 25. 87 Id. at 27. 
23 Part II: The New Black Panther Party Litigation

differences about a number of things, but we had eyewitness 

testimony. 

We had videotape that there were two people standing in uniform in 

front of a polling place in violation of the distance required by 

Pennsylvania law, as I recall, for people to be away from the polling 

place. One of them had a weapon. 

They were hurling racial slurs, including to white voters, “How do you 

think you’re going to feel with a black man ruling over you?” at the 

voters. They were standing in close proximity to each other to block 

the ingress into the polling place. 

The 11(b) of the Voting Rights Act prohibits attempts to intimidate or 

coerce or threaten. It doesn’t even require that the actual intimidation 

or coercion or threat occurred. It requires that no number of people be 

intimidated but just that there was an attempt in intimidation. 

And I’ve never been able to understand how anyone could accuse us of 

not having a basis in law and fact for bringing a straightforward 11(b) 

claim in circumstances where the evidence was so compelling.88

This disagreement as to the merits of the lawsuit requires an examination of the reasons the 

Department has given as to why on the course of the litigation was reversed. The Department 

was not required to explain to the court why it decided to dismiss its claims against 

Defendants Jerry Jackson, the New Black Panther Party, and its Chairman, Malik Zulu 

Shabazz. Nonetheless, internal Department memoranda and the testimony of Assistant 

Attorney General Thomas Perez provide an indication of the Department’s concerns and 

reasoning. These are examined in turn. 

i.   First Amendment Concerns

The existing record reflects that Mr. Rosenbaum originally raised First Amendment concerns 

with the trial team after a default had been entered.89 These concerns were responded to, at 

length, in both the Remedial Memo and in the Appellate Section review.90 In both instances, 

the career attorneys argued that any First Amendment concerns could be successfully 

addressed and would not preclude a default judgment. 

 

88 Coates Testimony, supra note 1, at 57-58. 

89 See Rubin, supra note 63; Adams Testimony, supra note 50, at 24-25. 

90 This issue may also have been addressed in an e-mail by the trial team prepared in response to the doubts 

originally expressed by Mr. Rosenbaum on April 29, 2009. The Vaughn index shows a series of e-mails on 

those dates between Mr. Rosenbaum and Mr. Coates and this was the subject of testimony by Mr. Adams and 

Mr. Coates that trial team members worked all night to prepare a response. See Adams Testimony, supra note 

50, at 26-27; Coates Testimony, supra note 1, at 60. 
Race Neutral Enforcement of the Law? 24

As to the scope of the initial injunction sought by the Department, the potential relief sought 

in the Complaint focused on conduct not protected by the First Amendment. The proposed 

restrictions were directed at the behavior of the NBPP members, with no direct prohibition 

on speech. Even if the scope of the injunction was a matter of legitimate debate, however, 

such concerns would not have justified the dismissal of all claims against three of the 

defendants. Instead, the same limited restrictions approved by the Department as to King 

Samir Shabazz could have been applied to the other defendants. 

Gregory Katsas, former Acting Associate Attorney General who once supervised the Civil 

Rights Division, explained in his prepared testimony submitted to the Commission why he 

believes there were no serious First Amendment concerns: 

The alleged conduct of Minister Shabazz and Mr. Jackson was not 

constitutionally protected. To begin with, the First Amendment does not 

protect intimidation in any context, even if carried out through speech or 

expressive conduct. See Virginia v. Black, 538 U.S. 343, 360 (2003). 

Moreover, to prevent against voter intimidation, states may prohibit even pure 

political speech around entrances to polling places. See Burson v. Freeman, 

504 U.S. 191, 196-210 (1992) (plurality opinion) (upholding ban on such 

speech within 100 feet of entrance); id at 213 (Scalia, J., concurring in the 

judgment) (“restrictions on speech around polling places on Election Day are 

as venerable a part of the American tradition as the secret ballot”). 

The alleged conduct of Malik Shabazz and the New Black Panther Party, in 

directing and ratifying the conduct of Minister Shabazz and Mr. Jackson, also 

was unprotected. Even in cases involving some activity protected by the First 

Amendment, a supervisor “may be held liable for unlawful conduct that he 

himself authorized or incited.” NAACP v. Claiburne Hardware Co., 458 U.S. 

886, 920 n.56 (1982). And a political party or advocacy group, “like any other 

organization—of course may be held responsible for the acts of its agents 

throughout the country that are undertaken within the scope of their actual or 

apparent authority.” Id. at 930.91 

Finally, the relief requested would have raised no significant First 

Amendment problems. In its original complaint, DOJ asked the court for an 

order that “[p]ermanently enjoins Defendants, their agents and successors in 

office, and all persons acting in concert with them, from deploying athwart the 

entrance to polling locations either with weapons or in the uniform of the 

Defendant New Black Panther Party, or both, and from otherwise engaging in 

coercing, threatening, or intimidating, behavior at polling locations during 

elections.”92 The first clause describes the specific unlawful conduct 

committed or authorized by the defendants, and the second clause describes 

 

91 See infra Part II(B)(iii) for a discussion of the NBPP’s joint liability for the actions of King Samir Shabazz 

and Jerry Jackson. 

92 Complaint at 8, United States v. New Black Panther Party for Self-Defense et al., No. 2:09-CV-065-SD (E.D. 

Pa. Jan. 8, 2009), available at http://www.usccr.gov/NBPH/COMPLAINT-USAvNBPP.pdf. 
25 Part II: The New Black Panther Party Litigation

more generally the conduct of intimidating voters “at polling locations during 

elections.” Neither clause plausibly encompasses constitutionally protected 

conduct.93 

During his live testimony before the Commission, Mr. Katsas defended and elaborated on 

these views.94

The Department’s concern about the First Amendment rights of § 11(b) defendants also 

appears to be somewhat inconsistent. On the current record, it was Mr. Rosenbaum who 

raised purported concerns about the First Amendment rights of the New Black Panther 

defendants. Yet, several years earlier, Mr. Rosenbaum was part of the trial team that filed an 

11(b) suit in the case United States of America v. North Carolina Republican Party, et al., 

91-161 CIO-5-F (E.D.N.C.). In that suit, the Department sought to preclude both the North 

Carolina Republican Party and the Helms for Senate Committee from mailing misleading 

postcards, a type of conduct more closely aligned with the First Amendment than wielding a 

nightstick at a polling site. 

ii.  Jerry Jackson

The information collected by the trial team evidenced a long-established relationship 

between King Samir Shabazz and Mr. Jackson. Their depiction as commander and 

subordinate, as captured in a National Geographic documentary (discussed more fully in the 

Appendix), is a matter of public record. The two are shown acting in tandem, in uniform, 

posing with firearms and issuing threats of violence. The actions and relationship of the pair 

in the documentary are analogous to what occurred at the polling place on Fairmount Street. 

In both instances, Mr. Jackson and King Samir Shabazz move in concert, as part of a team. 

The nature of their joint liability is reflected in the fact that at no point in the internal 

memoranda of the Department was a distinction drawn between the potential liability of King 

Samir Shabazz and that of Mr. Jackson. The J Memo and the Remedial Memo prepared by 

the trial team, as well as the review prepared by the Appellate Section, did not even raise, let 

alone address, the issue. For these career attorneys, Jackson and Shabazz apparently were 

never regarded as anything but equally liable. Indeed, on the existing record, neither Mr. 

Rosenbaum nor Ms. King appears to have sought any legal analysis on the issue prior to the 

decision to dismiss the claims against Mr. Jackson. 

In his written statement submitted as part of his testimony before the Commission, Assistant 

Attorney General Thomas Perez indicated that the basis of dismissing the claim against Mr. 

Jackson was as follows: 

 

93 Katsas Statement, supra note 79, at 11-12. 

94 See Apr. 23, 2010 Hearing Before the U.S. Comm’n on Civil Rights, at 174-176 (Testimony of Gregory 

Katsas), available at http://www.usccr.gov/NBPH/04-23-2010_NBPPhearing.pdf [hereinafter “Katsas 

Testimony”]. 
Race Neutral Enforcement of the Law? 26

The Department concluded that the allegations in the complaint 

against Jerry Jackson, the other defendant present at the Philadelphia 

polling place, did not have sufficient evidentiary support. The 

Department’s determination was based on the totality of the evidence. 

In reaching this conclusion, the Department placed significant weight 

on the response of the law enforcement first responders to the 

Philadelphia polling place on Election Day. A report of the local police 

officer who responded to the scene, which is included in the 

Department’s production to the Commission, indicates that the officer 

interviewed Mr. Jackson, confirmed that he in fact was a certified poll 

watcher, and concluded that his actions did not warrant his removal 

from the premises.95

The Department’s decision to place “substantial weight” on the judgment of the local police 

officer is curious. First, if the police officer’s actions were determinative, the case against 

King Samir Shabazz should have been dismissed as well. The police officer did not arrest 

Mr. Shabazz. Instead, Mr. Shabazz was simply directed to leave the premises. Under the 

rationale relied upon by Mr. Perez, the failure of the police to take formal action against Mr. 

Shabazz should have resulted in the dismissal of the claims against him, as was done with 

Mr. Jackson. 

Second, local police officers are not charged with enforcement of the federal Voting Rights 

Act. The distinction between local law enforcement and the Department’s enforcement of 

federal laws was captured in the testimony of trial team members Christopher Coates and J. 

Christian Adams before the Commission. 

Mr. Coates testified as follows: 

The primary reason cited by the Division for not obtaining injunctive 

relief against Black Panther Jerry Jackson, who stood at the 

Philadelphia polling place in uniform with fellow Panther King Samir 

Shabazz but without a weapon, was that a Philadelphia police officer 

came to the polling place, made the determination that King Samir 

Shabazz had to leave the polling place, but that Black Panther Jackson 

could stay because he was a certified Democratic poll watcher. 

During my 13 and a half years in the Voting Section, I cannot 

remember another situation where a decision not to file a Voting 

Rights Act case, much less to dismiss pending claims and parties, as 

happened in the New Black Panther Party case, was made, in whole or 

in part, on a determination of a local police officer. 

In my experience, officials in the Voting Section and the Civil Rights 

Division always reserved for themselves, and correctly so, the 

determination as to what behavior constitutes a violation of federal law 

 

95 Perez Statement, supra note 53, at 8; see also Perez Testimony, supra note 53, at 69-71. 
27 Part II: The New Black Panther Party Litigation

and what does not. One of the reasons for this federal preemption of 

the determination of what constitutes a Voting Rights Act violation is 

that local police officers are normally not trained in what constitutes a 

Voting Rights Act violation.96

Mr. Adams added the following: 

QUESTION: Okay. Okay. The police, I believe, when they came and 

told the – Mr. Shabazz, the one with the billy club, that he had to 

vacate the premises, they let Mr. Jackson stay. Does the fact that Mr. 

Jackson was a poll-watcher have any bearing on his liability? 

ADAMS: No. Thank heavens, no. I mean, otherwise, you would 

appoint as poll-watchers the biggest and baddest thugs you have and 

give them credentials to roam about the community, nor does the fact 

that the police let him stay have anything to do with it. 

The federal government has never taken the position, and hopefully 

never will, that local law enforcement officials can opine on matters of 

federal law. We have entirely different laws that we enforce. 

QUESTION: Okay. 

ADAMS: And the Philadelphia police don’t enforce federal voting 

rights statutes. 

QUESTION: So you don’t have to defer to the Philadelphia police. 

ADAMS: Of course not.97

In sum, it is difficult to see why a police officer’s decision about potential criminal activity 

would determine liability in a civil suit. It should again be noted that the dismissal occurred 

despite the fact that Mr. Jackson, who was represented by counsel, did not contest the 

lawsuit. Whatever the opinion of the local police as to possible criminal culpability under 

local laws, even Mr. Jackson did not question his civil liability under federal § 11(b). 

iii.  Post­Election Response Of The New Black Panther Party

One of the subjects of this investigation is the degree of responsibility of the New Black 

Panther Party for Self Defense, and its Chairman, Malik Zulu Shabazz, for the events that 

occurred on Fairmount Street on Election Day 2008. In the lawsuit, it is alleged that the Party 

and Malik Zulu Shabazz: 

 

96 Coates Testimony, supra note 1, at 26-27. 97 Adams Testimony, supra note 50, at 89-90. 
Race Neutral Enforcement of the Law? 28

managed, directed, and endorsed the behavior, actions and statements 

of Defendants Samir Shabazz and Jackson at 1221 Fairmount Street on 

November 4, 2008... Prior to the election, Defendant New Black 

Panther Party for Self-Defense made statements and posted notice that 

over 300 members of the New Black Panther Party for Self-Defense 

would be deployed at polling locations during voting on November 4, 

2008 throughout the United States. After the election, Defendant 

Malik Zulu Shabazz made statements adopting and endorsing the 

deployment, behavior, and statements of Defendants Samir Shabazz 

and Jackson at 1221 Fairmount Street in Philadelphia, Pennsylvania.98 

In his testimony before the Commission, Assistant Attorney General for Civil Rights Thomas 

Perez stated that these claims “did not have sufficient evidentiary support.”99 He further 

indicated that the Department had taken into consideration that the Party had specifically 

disavowed the actions at the polling site in the Department’s decision to dismiss claims 

against both the Party and Malik Zulu Shabazz.100

As it relates to the national party... there is no vicarious liability so 

that – and the post-election statements from the national party that they 

didn’t condone the activities: Statements of that nature were very 

relevant in the determination that we could not sustain the evidentiary 

burden against the national party.101

According to Mr. Perez, it was based on this reasoning that, despite the fact that neither the 

NBPP nor Malik Zulu Shabazz, who is an attorney, contested the allegations in the 

Complaint, the Department proceeded to dismiss the claims against both the Party and Mr. 

Shabazz. 

The position of Mr. Perez is contrary to those with the most direct knowledge about the case. 

All four career attorneys of the trial team indicated that there was sufficient evidence to 

proceed to judgment against both the Party and Malik Zulu Shabazz. This position was also 

supported by the two career attorneys from the Appellate Section who reviewed the claim. In 

addition, the Commission heard the testimony of Gregory Katsas, who previously held a 

series of high-level positions in the Department, including that of Acting Associate Attorney 

General, which supervises the Civil Rights Division. Both in his written statement102 and in 

his oral testimony before the Commission,103 Mr. Katsas said that a judgment could have 

been obtained against both the Party and its Chairman under general principles of agency 

law.104

 

98 Complaint at 3, United States v. New Black Panther Party for Self-Defense et al., No. 2:09-CV-065-SD (E.D. 

Pa. Jan. 8, 2009), available at http://www.usccr.gov/NBPH/COMPLAINT-USAvNBPP.pdf. 99 Perez Testimony, supra note 53, at 20. 100 See id. at 23-24, 96. 101 Id. at 103; see also Perez Statement, supra note 53, at 6. 102 See Katsas Statement, supra note 79, at 7. 103 See Katsas Testimony, supra note 94, at 159. 104 See Katsas Statement, supra note 79, at 7. 
29 Part II: The New Black Panther Party Litigation

In an attempt to establish the extent of the Party’s involvement on Election Day 2008, the 

Commission subpoenaed King Samir Shabazz, Jerry Jackson, and Malik Zulu Shabazz. The 

first two individuals, who had been present at the polling site in Philadelphia, asserted their 

rights against self-incrimination under the Fifth Amendment of the U.S. Constitution and 

refused to testify.105 As of the date of this report, Malik Zulu Shabazz remains under 

subpoena, but refuses to testify, contesting the subpoena in the U.S. District Court for the 

District of Columbia.106

Faced with this lack of cooperation, the Commission reviewed publicly available sources to 

attempt to determine the extent of the Party’s programs and activities on Election Day 2008. 

This included attempting to determine: Did the Party organize a poll security program? If so, 

what steps were taken to organize or train Party members? What was the degree of control of 

the Party over its members relating to such activities? And what activities were sanctioned by 

the Party and what activities were prohibited? 

The publicly available information provided few clear answers to these questions. Instead, 

the Commission was presented with a series of confusing and contradictory statements by the 

Party and its Chairman, Malik Zulu Shabazz. An examination of these statements is 

nonetheless useful, as they raise serious questions as to the sincerity of the Party’s 

expressions of regret and whether the Department reasonably relied on such statements to 

justify the dismissal of the suit as to the Party and its Chairman. 

In a statement posted on the New Black Panther Party website, dated November 4, 2008 but 

possibly posted after that date, the Party indicated that “[it] does not now nor ever has, 

engaged in any form of voter intimidation.”107 The notice goes on to state that the Party had 

“over 350 of its members on the ground in 15 cities in order to ensure that people of color 

particularly our women, youth and elders, are ensured their right to vote and in order to 

provide security protecting our people in the face of real and confirmed Neo-Nazi, Skinhead, 

KKK, Aryan Nation and other White Supremacist threats.”108 The statement then directly 

addresses the incident in Philadelphia: 

Specifically, in the case of Philadelphia, the New Black Panther Party 

wishes to express that the actions of people purported to be members 

do not represent the official views of the New Black Panther Party and 

are not connected nor in keeping with our official position as a party. 

 

105 See Deposition of King Samir Shabazz at 4-6, U.S. Comm’n on Civil Rights, Phila., Pa., Jan. 11, 2010, 

available at http://www.usccr.gov/NBPH/KingSamirShabazzDepositionTranscript_01-11-10.pdf; Deposition of 

Jerry Jackson at 6-8, U.S. Comm’n on Civil Rights, Phila., Pa., Jan. 11, 2010, available at

http://www.usccr.gov/NBPH/JerryJacksonDepositionTranscript_01-11-10.pdf. 106 See U.S. Comm’n on Civil Rights v. Shabazz, No. 1:10-mc-00232 (D.D.C.). 107 New Black Panther Party, The NBPP Issues Official Statement re: Election 2008 and Voter Intimidation 

11/4/08, http://www.newblackpanther.com/statement-voterintimidation_phillychapter.html (last visited Mar. 30, 

2010). This statement is no longer publicly available on the New Black Panther Party’s website. A copy of the 

statement is on file with the U.S. Commission on Civil Rights. 

108 Id.
Race Neutral Enforcement of the Law? 30

The publicly expressed sentiments and actions of purported members 

do not speak for either the party’s leadership or its membership.109

The statement then notes that, “The New Black Panther Party does not issue threats of 

violence to those who we may not agree with.”110

Only three days after the election, Malik Zulu Shabazz appeared on the Fox News program, 

“The Strategy Room.”111 In that interview, Mr. Shabazz made statements that contradicted 

the representations contained in the Party’s statement on its website. 

First, Mr. Shabazz alleged that white supremacists created the incident on Fairmount Street: 

RICK LEVENTHAL: ...All right. So, first and foremost, because 

probably most of the people watching have seen some portion of it 

[videos of King Samir Shabazz and Jerry Jackson on Election Day], 

what was your reaction to that? 

SHABAZZ: After my investigation into that case, I have found that 

those members were responding to members of the Aryan Nation and 

the Nazi Party who were voting Republican and who were at those 

polling stations really intimidating black voters. 

RICK LEVENTHAL: Whoa, whoa, whoa. You’re saying that there 

were white members of, there were Aryans living in that district who 

went to vote in that polling place? 

 

109 Id.

110 Id. The above statement raises several questions: 

• The statement is dated November 4, 2008, Election Day, but it is unclear if the statement was actually 

posted on that date. Neither the efforts of the Department, nor of the Commission, were able to 

establish the actual date of posting.110 

• The notice makes reference to the actions in Philadelphia being attributed to “purported members.” 

Even as of Election Day, a national broadcast had shown the video images of King Samir Shabazz and 

Jerry Jackson. These members were well known to Party members and Malik Zulu Shabazz. Was this 

an attempt at deniability? 

• The statement that, “The New Black Panther Party does not issue threats of violence to those we may 

not agree with,” is demonstrably false. King Samir Shabazz has issued blunt threats of violence of 

which Malik Zulu Shabazz was surely aware. Yet no suspension resulted from these earlier incidents. 

While the statement indicates that the party had some form of voter plan in place (the reference to 350 members 

being on the ground in 15 cities), and makes reference to the party’s “official position,” there has been no 

explanation of what exactly the party had planned for Election Day and in what way King Samir Shabazz and/or 

Jerry Jackson violated the Party’s “official position.” If the “official position” would have exonerated the Party, 

why wasn’t it made public and provided to the Department? 

111 The Strategy Room (Fox News Internet broadcast Nov. 7, 2009), available at 

http://video.foxnews.com/v/3917372/dr-malik-shabazz (last visited Oct. 21, 2010). 
31 Part II: The New Black Panther Party Litigation

SHABAZZ: I don’t know if they were voting, but they were there. 

They were in the parking lot, they had Nazi insignia on their arms, 

and... 

RICK LEVENTHAL: This is absolutely the first I’ve heard of this. 

SHABAZZ: That is the absolute truth. And those men were not wrong, 

that they were there... 

RICK LEVENTHAL: Dr. Shabazz, why wouldn’t anyone there tell me 

that? What they told me was that that gentleman in the Black Panther 

uniform was a poll watcher who was just there to greet voters. There 

was never any mention from any one of the people who I spoke with 

that day at that location who said anything about anyone from an 

Aryan Nation or any white supremacist being there. 

SHABAZZ: I can only tell you what my investigation has uncovered. 

Yes, one of the members of the Party, he lived there, he was a poll 

watcher, and there are other elders and grandmothers that we have 

interviewed that have told of the intimidation that was taking place 

that day. And so those men were there to try to stop something, not 

start something.112

When he was asked whether he had any evidence of the existence of white supremacists, the 

following exchange took place: 

RICK LEVENTHAL: Dr. Shabazz, do you have any film or pictures 

of the presence of these Nazis at the Philadelphia polling place? Any 

evidence whatsoever? 

SHABAZZ: You check our website soon, coming out. 

RICK LEVENTHAL: Oh, soon. You’re gonna have pictures of them? 

SHABAZZ: Well, we’re gonna have interviews with the elders. You 

know, the elderly who were at that polling site were really thanking 

the New Black Panther Party for being there because they were the 

only security they had on that day.113

Mr. Shabazz also stated, “I can tell you at that polling site that there were neo-Nazis at the 

polling site, as God is my witness.”114

 

112 Id. 113 Id. 114 Id. 
Race Neutral Enforcement of the Law? 32

The testimony developed by the Commission indicates that the allegations claiming the 

presence of white supremacists at the polling site are false. Commission witnesses Chris Hill, 

Mike Mauro, Bartle Bull and Ronald Vann all testified that there was no evidence of white 

supremacists at the polling site.115 In addition, despite Mr. Shabazz’s representations, no 

evidence substantiating the presence of white supremacists has ever been posted on the 

Panthers’ website or otherwise made publicly available. 

Finally, Mr. Shabazz seemed to agree with the statement on the Party’s website that: (i) the 

Panthers were organized and appeared at numerous polling sites; (ii) the only problem had 

been at the Fairmount Street polling place; and (iii) the problem at Fairmount Street was the 

cause of white supremacists. 

RICK LEVENTHAL: Did you know that there were Black Panthers in 

Philadelphia, because when we called your office that day we were 

told that you had Black Panthers at other polling locations around the 

country but no one in Philadelphia. 

SHABAZZ: Well, once we did our research we figured out that there 

were members of the Party not only in Pennsylvania but many areas. I 

mean, obviously we don’t condone bringing billy clubs to polling sites. 

But when we found out that this was an emergency response to some 

other skinhead and white supremacist activity at that polling site, then 

there was some explanation for that.116

In the J Memo of December 22, 2008, the trial team indicates that Malik Zulu Shabazz was 

interviewed by the Department about the incident. However, the references in the J Memo do 

not provide much detail about the interview. The document simply notes that Shabazz stated 

that “[t]here were members of the party in many areas [on Election Day]” and that he 

“specifically endorsed the use and display of the weapon at 1221 Fairmount Street by Samir 

Shabazz . . . .”117 In his testimony before the Commission, trial team member J. Christian 

Adams indicated that Malik Zulu Shabazz had “said the weapon was necessary.”118

Although in the previously-cited Fox News “Strategy Room” interview Malik Zulu Shabazz 

acknowledges that the actions of King Samir Shabazz at the polling place were improper, 

there is no evidence that the Party imposed any sanction or discipline at that time. Instead, it 

appears that the alleged imposition of discipline was delayed until January 7, 2009, over two 

 

115 See Mauro Testimony, supra note 6, at 39; Hill Testimony, supra note 4, at 51; Bull Testimony, supra note 

5, at 59; Vann Deposition, supra note 32, at 21; see also L. Counts Deposition, supra note 20, at 19; Adams 

Testimony, supra note 50, at 21. 116 The Strategy Room (Fox News Internet broadcast Nov. 7, 2009), available at 

http://video.foxnews.com/v/3917372/dr-malik-shabazz (last visited Oct. 21, 2010). 117 J. Memo, supra note 10, at 7. 118 Adams Testimony, supra note 50, at 21-22. 
33 Part II: The New Black Panther Party Litigation

months after Election Day, the same date the Justice Department filed its lawsuit against 

King Samir Shabazz, Jerry Jackson, the Party, and Malik Zulu Shabazz.119 

On that date, a new notice was evidently posted on the Party’s website. The statement, in 

whole, reads as follows: 

Public Notice Regarding Philadelphia Chapter Suspension 1/7/09 

NBPP Official Statement 

Philadelphia Chapter of the New Black Panther Party is suspended 

from operations and is not recognized by the New Black Panther Party 

until further notice. 

The New Black Panther Party has never, and never will, condone or 

promote the carrying of nightsticks or any kind of weapon at any 

polling place. Such actions that were taken were purely the individual 

actions of Samir Shabazz and not in any way representative or 

connected to the New Black Panther Party. On that day November 4th, 

Samir Shabazz acted purely on his own will and in complete 

contradiction to the code and conduct of a member of our organization. 

We don’t believe in what he did and did not tell him to do what he did, 

he moved on his own instructions. 

It is true that volunteers in the New Black Panther Party successfully 

served as poll watchers all over the country and helped get the Black 

vote out. We were incident free. We are intelligent enough to 

understand that a polling place is a sensitive site and all actions must 

be carried out in a civilized and lawful manner. 

Certainly no advice from the leadership of the New Black Panther 

Party was given to Samir Shabazz to do what he did, he acted on his 

own. This will be the New Black Panther Party’s Only Statement on 

the matter.120

 

119 Press Release, U.S. Dep’t of Justice, Justice Department Seeks Injunction Against New Black Panther Party 

(Jan. 7, 2009), available at http://www.justice.gov/opa/pr/2009/January/09-crt-014.html (last visited Oct. 21, 

2010). 

120 New Black Panther Party, Public Notice Regarding Philadelphia Chapter Suspension 1/7/09 NBPP Official 

Statement, http://www.newblackpanther.com/statement-voterintimidation_phillychapter.html (last visited Mar. 

30, 2010). This statement is no longer publicly available on the New Black Panther Party’s website. A copy of 

the statement is on file with the U.S. Commission on Civil Rights. As with the Party’s other statements, 

questions arise out of the notice dated January 7, 2009. 

• On its face, it appears that the suspension of the Philadelphia Chapter only occurred after the 

Department’s lawsuit was filed. Yet, the actions of King Samir Shabazz and Jerry Jackson were known 

to the Party and Malik Zulu Shabazz no later than November 7, 2008, the date of the Fox News 

“Strategy Room” interview. Why was the suspension not imposed earlier? 
Race Neutral Enforcement of the Law? 34

The sincerity of the alleged repudiation and suspension was called into question by a 

subsequent speech given by Malik Zulu Shabazz in November 2009, at a party conference in 

Dallas.121 The Party Chairman appears in his uniform, with four stars on his lapel, and 

surrounded by Party members in paramilitary garb. During that speech, less than a year after 

the alleged suspension of King Samir Shabazz and the Philadelphia Chapter, Malik Zulu 

Shabazz stated: 

And, for the record, for the record, for inside the Party, King Samir is 

welcome back in the New Black Panther Party. King Samir is 

welcome. [applause] . . . And so he served a little suspension, but that 

suspension is up. I still charge it to his head and not our heart. He’s 

still our brother. We’re not gonna throw our brother away for no damn 

devils. [applause] No, but we also had to move in a way that gets this 

beast off our back and to get everything dropped.122 

Elsewhere in his speech, Malik Zulu Shabazz seems to indicate that the Party’s post-election 

statements and actions were taken to avoid liability. He stated: 

They only had video evidence on Samir. They didn’t have no evidence 

that I directed the operation. They had no evidence -- they say brother 

Jerry didn’t have a baton and he was a poll watcher. The New Black 

Panther Party moved in a way where they couldn’t say that the Party 

 

• There is no reference to the presence of white supremacists justifying the use of a nightstick. Should 

this have not raised questions in the Department as to whether the Party’s alleged repudiation was 

credible? Did no one at the Department question the Party’s changing positions? 

• The notice contends that, “The New Black Panther Party has never, and never will, condone or 

promote the carrying of nightsticks or any kind of weapon at any polling place.”120 Yet the Party’s own 

website and publications, as well as the media interviews with King Samir Shabazz and Malik Zulu 

Shabazz, all reflect that Party members have arms training, and often appear with weapons. Given the 

general encouragement of armed status, what specific instructions, if any, were given with regard to 

Election Day activities? 

• The statement contends that King Samir Shabazz acted in “contradiction to the code and conduct of a 

member of our organization.” Yet the rules and principles of the Party posted on its website in no way 

address electoral matters or polling activities. What code is the statement referring to? Given the past 

record of King Samir Shabazz making threats of violence (See Appendix), what steps were taken to 

prevent their reoccurrence? 

• The statement notes that, “volunteers in the New Black Panther Party successfully served as poll 

watchers all over the country and helped get the Black vote out.”120 If this statement is true, and the 

Party planned and organized Election Day activities, the instructions, training, and orders given to the 

Party members should be readily available and logically would have been produced to the Department 

as part of an argument for dismissal of the lawsuit. No such evidence has been forthcoming and the 

Party did not challenge the allegations in the suit. Why not? 121 See Video: YouTube.com, New Black Panther Party 20 Year Reunion: Dr. Malik’s Keynote Part #10 (2010), 

http://www.youtube.com/user/NewBlackPantherTV#p/u/16/1Oo65qHi4nQ (last visited Dec. 28, 2010) 

[hereinafter “Shabazz Speech Part 10”]; Video: YouTube.com, New Black Panther Party 20 Year Reunion: Dr. 

Malik’s Keynote Part #11 (2010), http://www.youtube.com/user/NewBlackPantherTV#p/u/15/BEBpERVmU94

(last visited Dec. 28, 2010[hereinafter “Shabazz Speech Part 11”]. 122 Shabazz Speech Part 11, supra note 122 (emphasis added). 
35 Part II: The New Black Panther Party Litigation

had condoned doing that. And so the Justice Department changed 

hands into the Obama administration and the Justice Department 

leadership changed into the hands of a black man by the name of Eric 

Holder, and they took a look at it and they threw most of everything 

out.123 

In the same speech, Malik Zulu Shabazz made light of the fact that King Samir Shabazz had 

a weapon at the polling site. 

And I’ve always been of the belief that Bush had vowed that before he 

left office he would try to trap us or something. And as strong as we 

were, we were still too wise to run in his traps, or into his traps. So on 

the last days of his administration, on the last day, November 4, 2008, 

he gets what he wants, some little weak charge on the New Black 

Panther Party of voter intimidation, sayin’ that we were in front of a 

polling place with a baton. Now, what would we look like in front of a 

polling place with a baton? You know we don’t carry batons. Psyche. 

I’m just playin’. [laughter]124

Lastly, in the same speech, Malik Zulu Shabazz gave the fullest explanation, to date, of what 

the Panthers were allegedly attempting to do on Election Day: 

We went out there to help the elders. We went out there to pass out 

flyers, and went out there to pass out some information to our brothers 

and sisters. That was our orders. And we went out, and for the most 

part we did that well. It’s just that the New Black Panther Party 

sometimes, whatever we do, we just tend to do it kind of strong, you 

know what I mean? [laughter] Sometimes, whatever we do, sometimes 

we just do it just real strong, and sometimes it can even be too black 

and too strong. And so what happened was, one of our men, one of our 

brothers, who’s my little brother and I love, King Samir Shabazz, just 

was a little bit too strong and he was caught out there at the polling 

place with a nightstick, at the polling place, and the John McCain 

campaign rode up on him with some cameras and some poll watchers 

and jumped all over the issue and all over the brother.125

The contradictory and seemingly tactical nature of the statements made by Malik Zulu 

Shabazz raise serious questions that call for additional investigation. On the one hand, he 

clearly acknowledges that the Party planned Election Day activities at polling sites and that 

there was some form of instruction or orders relating to conduct. At the same time, serious 

questions exist as to whether his alleged condemnations and suspension of King Samir 

Shabazz, made only after the lawsuit was filed, were genuine. By his own words, the alleged 

 

123 Id. (emphasis added). 124 Shabazz Speech Part 10, supra note 122. 125 Shabazz Speech Part 11, supra note 122. 
Race Neutral Enforcement of the Law? 36

acts of discipline appear to have been taken strictly “in a way that gets this beast off our back 

and to get everything dropped.” 

The following questions need to be addressed. What was the Party’s program for Election 

Day? What training was given? What rules or code of conduct were established? What 

activities were to occur? Why didn’t the Party suspend King Samir Shabazz immediately? 

What was the basis for the claims relating to the alleged presence of white supremacists? 

Was this merely a tactic, or was there any substance to the claim? And, finally, if the Party 

and Malik Zulu Shabazz did not believe they had any liability, why did they not defend the 

lawsuit brought by the Department? 

Even if these questions cannot be answered, a fuller explanation should be provided by the 

Department as to why the opinions of the trial team and the Appellate Section were 

disregarded. Regardless of the NBPP’s post-election comments, the Party’s control and 

discipline over its members, would seem to present a strong case that general principles of 

agency would bind the Party for the acts of Jerry Jackson and King Samir Shabazz.126 

The Department has indicated that the decision to dismiss the claim against the Party and its 

Chairman was made in part because of “post-election statements from the national party that 

they didn’t condone the activity.” As presented in this report, substantial doubt exists as to 

whether the Party’s condemnation of King Samir Shabazz was anything but a subterfuge. It 

strains credulity to believe that the Department decided to dismiss the claims against the 

Party and its Chairman based on statements that, at a minimum, were contradictory, selfserving and, with regard to the white supremacist allegations, demonstrably false. 

C. The Response of Christopher Coates

As reflected above, in his testimony before the Commission, Christopher Coates challenged 

many of the specific explanations provided by the Department to justify its reversal of the 

NBPP litigation. In addressing the Department’s overall position, he posed the following 

hypothetical: 

To understand the rationale of these articulated reasons for gutting this 

case, the Panther case, one only has to state the facts in the racial 

reverse. Assume that two members of the Ku Klux Klan, one of which 

lived in an apartment building that was being used as a polling place, 

showed up at the entrance in KKK regalia and that one of the Klansmen 

was carrying a billy stick. Further assume that the two Klansmen were 

yelling racial slurs at black voters, who were a minority of the people 

registered to vote at that particular polling place and that the Klansman 

was blocking ingress to the polling place. Assume further that a local 

policeman came on the scene and determined that the Klan with the billy 

 

126 The Appendix to this report details Mr. Jackson’s and Mr. Shabazz’s compliance with, and conformance to, 

NBPP policies generally. 
37 Part II: The New Black Panther Party Litigation

club must leave but that the other Klansman could stay because he was a 

certified poll watcher for a local political party. 

In those circumstances, ladies and gentlemen, does anyone seriously 

believe that the Assistant Attorney General for Civil Rights would 

contend that, on the basis of the facts and the law, the Civil Rights 

Division did not have a case under the Voting Rights Act against the 

hypothetical Klansman that I described because he resided in the 

apartment building where the polling place was located or because he 

was allowed to stay at the polling place by a local police officer because 

he was a poll watcher?127

As is described more fully in Part III of this report, Mr. Coates believes the change in 

direction of the NBPP litigation was not based on the specifics of the case, but instead was 

the product of ongoing hostility to the race-neutral enforcement of voting rights laws in the 

Civil Rights Division. 

D. Decision Making By Political Appointees

The Commission does not question the responsibility of political appointees to review, and in 

many instances, to overrule the decisions of career lawyers in the Department. But it is the 

Commission’s responsibility in a case like this to investigate, evaluate, and report on whether 

the Commission believes the ultimate decision was based on impermissible factors. If no 

plausible explanation is offered for overruling numerous career lawyers, it raises questions as 

to whether the purported explanation is accurate and/or legitimate. 

In the present case, the Department has taken the position that the decisions regarding the 

ultimate fate of the NBPP litigation were made by career attorneys Loretta King and Steven 

Rosenbaum.128 Ms. King and Mr. Rosenbaum are indeed career attorneys at the Department. 

At the time the decisions were made with regard to the litigation, however, both Ms. King 

and Mr. Rosenbaum were temporarily serving in political positions. Specifically, Ms. King 

was serving as the Acting Assistant Attorney General for Civil Rights, and Mr. Rosenbaum 

was serving as the Acting Deputy Assistant Attorney General for Civil Rights. It has been 

argued that, under the Vacancies Reform Act,129 Ms. King and Mr. Rosenbaum were, in fact, 

political appointees.130

 

127 Coates Testimony, supra note 1, at 29-30. 128 In his testimony before the Commission, Assistant Attorney General Thomas Perez stated, “The judgment in 

this case to proceed in the way that was chosen was made by Steve Rosenbaum and ultimately by Loretta King 

based on a review of the totality of the circumstances.” Perez Testimony, supra note 53, at 23. 

129 5 U.S.C. § 3345 et seq. 130 Under the Vacancies Reform Act, when there is a vacancy in a position that requires Senate approval, such 

as Assistant Attorney General for Civil Rights, the “President (and only the President) may direct an officer or 

employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an 

acting capacity.” Rubin, supra note 63. 
Race Neutral Enforcement of the Law? 38

The Department does not share this interpretation.131 In responses to discovery requests to the 

Commission, the Department contends: 

Career supervising attorneys [Loretta King and Steven Rosenbaum] 

who have over 60 years of experience at the Department between them 

decided not to seek relief against three other defendants after a 

thorough review of the facts and applicable legal precedent. The 

Department implemented that decision. Political considerations had no 

role in that decision and reports that political appointees interfered 

with the advice of career attorneys are false.132

At the same time, the Department has acknowledged that high-ranking political appointees at 

the Department were at least aware of the decision of Ms. King and Mr. Rosenbaum and did 

not object to the dismissal of the three defendants or the reduction of the relief sought against 

the fourth defendant. 

Consistent with the Department’s practice, the attorney serving as 

Acting Assistant Attorney General for Civil Rights [Loretta King] 

informed Department supervisors of the Division’s decisions related to 

the case. The Department supervisors [in the office of Associate 

Attorney General Thomas Perrelli] did not overrule that attorney.133

 

As a result of the FOIA lawsuit brought by Judicial Watch, additional information has been 

uncovered regarding contacts between the Civil Rights Division and the Office of the 

Associate Attorney General and others. The index of withheld documents provided by the 

Department strongly suggests that, contrary to the above assertion, senior political appointees 

outside the Civil Rights Division actively participated in the decision making regarding the 

litigation. 

As discussed previously, there were two main decision points with regard to the fate of the 

litigation. The first was just before May 1, 2009, the original date that a motion for default 

judgment was required to be filed by the Department. The second was just before May 15, 

2009, the ultimate date when the motion for default judgment was due, following the 

granting of a continuance. The index provided in the Judicial Watch litigation reflects a 

substantial increase in the involvement of political appointees in the decisionmaking process 

on or about both dates. 

With regard to the original May 1 deadline, the index reflects that the Acting Deputy 

Assistant Attorney General for Civil Rights, Steve Rosenbaum, exchanged eight e-mails on 

 

131 See Letter from Joseph H. Hunt, Dir., Fed. Programs Branch, Civil Div., U.S. Dep’t of Justice, to David P. 

Blackwood, Gen. Counsel, U.S. Comm’n on Civil Rights (Sept. 24, 2010), available at 

http://www.usccr.gov/NBPH/09-24-10_Blackwood.pdf. 132 Discovery Response of the U.S. Dep’t of Justice at 4, Jan. 11, 2010 (Response to Interrogatory No. 4), 

available at http://www.usccr.gov/correspd/1-12-10_DOJResponse2Subpoena.pdf [hereinafter “Discovery 

Responses”]. 

133Id. at 5 (Response to Interrogatory No. 4); see also Jerry Seper, Justice Appointee OK’d Panther Reversal, 

WASH. TIMES, July 30, 2009, at A01. 
39 Part II: The New Black Panther Party Litigation

April 30, 2009 with Sam Hirsch, a political appointee who was serving as a Deputy 

Associate Attorney General.134 Mr. Hirsch reports directly to Thomas Perrelli, the Associate 

Attorney General, and third-highest official within the Department. These communications 

included Mr. Rosenbaum’s “detailed response and analysis of the proposed draft filings”135

as well as discussions regarding said drafts “and legal strategy and merits of NBPP 

litigation.”136 

The index also reflects that, on the same date, Mr. Hirsch reported developments in the 

NBPP case directly to Mr. Perrelli. These communications are described in the index as: 

“Emails forwarding and discussing draft filings for the pending NBPP litigation. Emails start 

with a discussion of proposed filings, and of the merits and legal arguments underlying 

them.”137 In addition, it is reported that Mr. Hirsch provided a “briefing on the current status 

of litigation and provid[ed] his opinion on the development of different approaches under 

consideration.”138 The description then indicates that, as to the latter communication: “Email 

is then forwarded within OASG [the Office of the Associate Attorney General] with 

comment and noting need to discuss.”139

As the May 15 deadline approached, the index reflects that Mr. Rosenbaum and Mr. Hirsch 

were again in contact. Between May 8 and May 14, 2009, there were 10 e-mails between 

them.140 These messages seem to indicate that Mr. Hirsch actively sought information and 

provided direction to Mr. Rosenbaum. The index summarizes a series of e-mails between the 

parties dated May 12, 2009 as follows: “DAAG [Rosenbaum] provides OASG in charge of 

CRT [Hirsch] with requested follow-up information and confirmation that additional actions 

would be conducted by Criminal Section Chief per his request.”141 Thereafter, on the day 

before the filing deadline, the index reflects that Mr. Rosenbaum provided Mr. Hirsch with 

“revised proposed draft documents for review and analysis.” 

These communications continued up to the last minute. As late as May 15, 2009, the day the 

motion for default judgment was due, the record reflects that Mr. Hirsch was overseeing edits 

to the pleadings to be filed with the court.142

The index also reflects that Mr. Perrelli was kept informed of the change in course in the 

litigation. On May 14, 2009, Mr. Perrelli and Mr. Hirsch shared updates on the status of the 

case. In one of these e-mails, it is suggested that Mr. Perrelli’s office had been consulting 

with the Office of the Deputy Attorney General (ODAG), the second-highest office in the 

 

134 See Judicial Watch Vaughn Index, supra note 69, at 5-8 (Doc. Nos. 13(a), 14(a), 17(a)-(f)). 135 Id. at 6 (Doc. No. 14(a)). 136 Id. at 7 (Doc. No. 17(a)). 137 Id. at 53 (Doc. No. 100(a)). 138 Id. (Doc. No. 101(a)). 

139 Id. 140 See id. at 21, 25-27, 29-30 (Doc. Nos. 36(a), 44(a), 49(a), 50(a)-(d), 55(b), 55(d) & 57(a)). 141 Id. at 27 (Doc. Nos. 50(a)-(d)). In his testimony before the Commission, Mr. Coates, the Chief of the Voting 

Section, indicated that he had no knowledge of any participation by the Criminal Section in the decision making 

process. See Coates Testimony, supra note 1, at 54. 142 DOJ Motion for Summary Judgment in Judicial Watch litigation, Document 11-3, p. 55 (Docs. No. 67 and 

68). 
Race Neutral Enforcement of the Law? 40

Department, then headed by David Ogden. The index provides the following summary: 

“Email asking for update on the NBPP litigation between officials in OASG [Office of the 

Associate Attorney General], and noting ODAG’s [Ogden’s] current thoughts on the 

case.”143

The communications between Mr. Hirsch and Mr. Perrelli continued up through the court 

deadline of May 15, 2009. On e-mails of that date, Mr. Hirsch provided Mr. Perrelli with 

“the status of deliberations,”144 updates “regarding edits to court papers,”145 as well as 

“Emails forwarding and presenting legal analysis from CRT Appellate Section attorneys on 

questions presented from the CRT Front Office...”146

While the Department has refused to reveal the content of the various emails between the 

Civil Rights Division and Mr. Hirsch, and between Mr. Hirsch and Mr. Perrelli, the number, 

timing, and subject matter of such communications appear to reflect a level of 

participation by senior political appointees that is at odds with representations by the 

Department that senior career attorneys made the ultimate decision to override the opinions 

of the trial team and appellate section attorneys who supported seeking a default judgment as 

to all four NBPP defendants. 

The Department has also acknowledged that the Attorney General was made aware of the 

decision making with regard to the NBPP litigation. The Department represented the 

following: 

The Attorney General was made generally aware by the then-Acting 

Assistant Attorney General for Civil Rights [Loretta King] and the 

Associate’s staff that the Civil Rights Division was considering the 

appropriate actions to take in the New Black Panther Party litigation. 

The Associate Attorney General [Thomas Perrelli] likely provided a 

brief update to the Attorney General on the timetable for the Civil 

Rights Division’s decision. The Attorney General did not make the 

decisions regarding any aspect of the New Black Panther Party

litigation, including which claims to pursue or the scope of relief to 

seek.147

Finally, the Commission requested information as to communications by or between the 

Department and the Executive Office of the President regarding the NBPP litigation. The 

Department responded as follows: 

 

143 Judicial Watch Vaught Index, supra note 69, at 53 (Doc. No. 102). It is unclear from this passage whether the 

use of the word “current” is meant to indicate that Mr. Ogden may have made prior comments on the case. The 

index reflects no other references to communications with ODAG. 

144 Id. at 54 (Doc. No. 104(a)). 145 Id. at 55 (Doc. No. 106(c)). 146 Id. at 30 (Doc. Nos. 57(a) and 103(a)). 147 Supp. Interrog. Responses, supra note 55, at 5 (Apr. 16, 2010) (Supplemental Response to Interrogatory No. 

6). 
41 Part II: The New Black Panther Party Litigation

On January 7, 2009, the day that the Civil Rights Division filed its 

complaint against the four defendants, the Department’s press office 

notified the Executive Office of the President about a press release it 

issued on the filing of the case ... The Department has identified no 

other communication relating to this litigation with the Executive 

Office of the President prior to the May 18, 2009 court judgment 

enjoining Minister King Samir Shabazz and dismissing the three other 

defendants. The Department is aware of no information that might 

suggest that the Executive Office of the President had a role in any 

litigation decision in this case.148

At present, despite the subpoena issued to the Department, DOJ has not turned over the direct 

evidence regarding its management-level communications and decision making about the 

NBPP litigation other than (i) the above statements submitted by the Department, and (ii) the 

information provided to Judicial Watch in response to its FOIA lawsuit. Accordingly, it is not 

currently possible to verify the accuracy of the Department’s version of such 

communications, although the timing, frequency, and captions of such communications cast 

considerable doubt on several of the Department’s claims. 

In an effort to understand the normal decisionmaking process in DOJ, the Commission 

received testimony from the former Acting Associate Attorney General Gregory Katsas. Mr. 

Katsas described the normal decisionmaking process within the Department in cases like the 

NBPP litigation. He testified that he “would expect that OASG [the Office of Associate 

Attorney General, then held by Thomas Perrelli] was kept routinely apprised of significant 

developments in the [NBPP] litigation” and, moreover, that he “would expect that OASG 

played a far more active role in these decisions [to dismiss] than it likely played in its initial 

decision to file the case.”149 He explained: 

The initial decision – to file a straightforward and seemingly strong voter 

intimidation lawsuit – would not likely have raised concerns with OASG. In 

contrast, the decisions at the end of the case would have been anything but 

straightforward. They amounted to nothing less than a decision by DOJ, 

 

148 Id. at 5-6 (Supplemental Response to Interrogatory No. 15). See also Letter from Ronald Weich, Asst. Atty. 

Gen., Office of Legislative Affairs, U.S. Dep’t of Justice, to Congressman Lamar Smith (Feb. 25, 2010), 

available at http://www.usccr.gov/correspd/LetterfromWeich2Smithredecision-makingNBPP_02-25-10.pdf. 

While there has been some speculation of additional contacts with the White House, these allegations remain 

unsubstantiated. See Editorial, Panther Politics: White House Interference Derails Justice?, WASH. TIMES, Jan. 

19, 2010, at B01, available at http://www.washingtontimes.com/news/2010/jan/19/panther-politics/ (last visited 

Oct. 20, 2010).

For reports on meetings between Thomas Perrelli and Cassandra Butts, see Editorial, Annotated Panther 

Timeline; WASH. TIMES, Jan. 19, 2010, at B01, available at

http://www.washingtontimes.com/news/2010/jan/19/annotated-timeline/ (last visited Oct. 20, 2010). For an 

additional timeline, including Thomas Perrelli meetings in White House, see Hans A. von Spakovsky, The New 

Black Panthers and the White House, NATIONAL REVIEW ONLINE, Jan. 19, 2010, 

http://article.nationalreview.com/421518/the-new-black-panthers-and-the-white-house/hans-a-von-spakovsky

(last visited Oct. 20, 2010). 

149 Katsas Statement, supra note 79, at 8-9. 
Race Neutral Enforcement of the Law? 42

following a change in presidential administrations, to reverse legal positions 

asserted in a pending case. Such reversals are extremely rare – and for good 

reason: they inevitably undermine DOJ’s credibility with the courts, and they 

inevitably raise suspicion that DOJ’s litigating positions may be influenced by 

political considerations. Accordingly, while a new Administration obviously 

has wide discretion to change its enforcement priorities and even its litigating 

positions in new cases, it is extremely rare for DOJ to shift course so 

dramatically in the course of a pending case. 

Several considerations specific to the New Black Panther Party case would 

have exacerbated these general concerns. For one thing, DOJ did not merely 

abandon some of its claims in the course of ongoing and contested litigation; 

instead, it abandoned most of its claims after a default by all of the defendants, 

and an entry of that default pursuant to Federal Rule of Civil Procedure 55(a). 

I cannot think of any other instance when that has occurred. Moreover, the 

New Black Panther Party had endorsed President Obama in the 2008 election, 

and Mr. Jackson, during the events at issue, apparently was a registered poll 

watcher for the Democratic Party. Those facts inevitably would raise 

suspicion that the highly unusual decision to abandon a defaulted case was 

politically motivated, and that suspicion, in turn, would have heightened the 

sensitivity of deliberations within DOJ. 

For these reasons, I believe that OASG would have been actively involved in 

deliberations about whether to reverse positions in the New Black Panther 

Party litigation.150 

As of the date of this report, Judicial Watch has announced that it has filed another 

Freedom of Information Act lawsuit against the Department of Justice to obtain 

records relating to any meetings between Associate Attorney General Thomas Perrelli 

and White House officials regarding the NBPP lawsuit.151

E. Possible Involvement By The NAACP Legal Defense and Educational Fund

During the course of this investigation, allegations appeared that the NAACP Legal Defense 

and Educational Fund (“NAACP Legal Defense Fund”) had communicated with the 

Department regarding the course of the NBPP litigation. Such allegations raise concerns, 

 

150 Id. at 9-10. 151 See Press Release, Judicial Watch, Judicial Watch Sues DOJ for Documents Detailing White House 

Involvement in Black Panther Case Dismissal (Sept. 22, 2010), available at 

http://www.judicialwatch.org/news/2010/sep/judicial-watch-sues-doj-documents-detailing-white-houseinvolvement-black-panther-case (last visited Oct. 20, 2010); Judicial Watch, Inc. v. U.S. Dep’t of Justice, No. 

1:10-cv-1606 (D.D.C.). 
43 Part II: The New Black Panther Party Litigation

inasmuch as outside influence might, at least in part, explain the abrupt reversal in policy 

relating to the litigation.152

As part of its discovery requests, the Commission sought information with regard to any 

contacts by the Department with outside third-parties including, specifically, Kristen Clarke 

of the NAACP Legal Defense Fund.153 Although the Department has consistently raised 

assertions of privilege relating to internal decision making, no such privilege exists with 

regard to third-party contacts. In response to the Commission’s interrogatory request, the 

Department indicated that it had “identified no communication, oral or otherwise, with 

Kristen Clarke of the NAACP Legal Defense Fund relating to this litigation prior to the May 

18, 2009 court judgment enjoining Minister King Samir Shabazz and dismissing the three 

other defendants.”154

The basis of the request was a media report that Department officials and the NAACP Legal 

Defense Fund had communicated about the fate of the lawsuit. In a July 2009 article in The 

Washington Times, it was reported: 

Kristen Clarke, Director of Political Participation at the NAACP Legal 

Defense Fund in Washington ... confirmed to The Times that she 

talked about the case with lawyers at the Justice Department and 

shared copies of the complaint with several persons. She said, 

however, her organization was “not involved in the decision to dismiss 

the civil complaint.”155

The Commission deposed Ms. Clarke. In her testimony, she acknowledged only limited, nonsubstantive contacts with the Department with regard to the New Black Panther Party 

litigation. The following colloquy took place: 

CLARKE: I learned about the fact that the filing, the fact that this case 

was filed, from a Justice Department attorney. 

QUESTION: And who was that? 

CLARKE: Yvette Rivera. 

QUESTION: And who is she? 

 

152 According to an article in the Washington Post, Assistant Attorney General Thomas Perez confirmed that 

restoring relations between the Civil Rights Division and certain civil rights groups is a priority for the 

administration. John Payton, president of the NAACP Legal Defense Fund, “said the relationship is much 

improved. ‘When we call them, they listen, he said.’” Jerry Markon, Justice Dept. Steps Up Civil Rights 

Enforcement, WASH. POST, June 4, 2010. 153 See U.S. Comm’n on Civil Rights Discovery Requests to U.S. Dep’t of Justice at 10, Dec. 8, 2009 

(Interrogatory No. 12), available at 

http://www.usccr.gov/correspd/DISCOVERYREQUESTStoJosephHuntreNBPP.pdf [hereinafter “U.S.C.C.R. 

Discovery Requests”]. 

154 Supp. Interrog. Responses, supra note 55, at 5 (Supplemental Response to Interrogatory No. 12). 155 Seper, supra note 133. 
Race Neutral Enforcement of the Law? 44

CLARKE: She is an attorney in the Civil Rights Division of the 

Department in the Voting Section. . . . 

QUESTION: . . . Well, tell me when you learned about it 

approximately. 

CLARKE: I believe it was on January 8th of 2009. 

QUESTION: And how did you learn that? 

CLARKE: Through a phone call. 

QUESTION: Who called who? 

CLARKE: She called me. 

* * * 

QUESTION: And what did she say to you and what did you say to 

her? 

CLARKE: This case had been filed. That was the extent of the phone 

call. 

QUESTION: Okay. Did you subsequently have any other contacts 

with anybody at the Justice Department with regard to the litigation? 

CLARKE: No. 

* * * 

QUESTION: Can you tell me what Exhibit A is? 

CLARKE: Exhibit A is an email that was sent to me on January 13th. 

QUESTION: 2009, correct? 

CLARKE: 2009. That’s correct. 

QUESTION: And then the email appears to be from Judith Reed. Who 

is she? 

CLARKE: Judith Reed is an attorney in the Civil Rights Division of 

the Justice Department. 
45 Part II: The New Black Panther Party Litigation

QUESTION: And is it typical for Ms. Reed to send you just news clips 

of this kind? 

CLARKE: No. 

QUESTION: Did you talk to Ms. Reed about the content of this email? 

CLARKE: No, I did not.156

* * * 

QUESTION: [B]etween the time of the first email on Exhibit A, 

January 13, 2009 and then July 31, 2009 [the day after The 

Washington Times article], do you recall having any conversations or 

any communications of any kind with anybody at DOJ about the New 

Black Panther litigation? 

CLARKE: Now again as I indicated earlier, I learned about the fact of 

the filing from a Justice Department attorney. I received the email that 

we just referenced that also make mention of the fact of filing. Beyond 

that, there were no additional contacts about the litigation itself.157

While Ms. Clarke confirmed that she did talk to a reporter for The Washington Times,

158 she 

denied that the reporting set forth in the article was accurate, and claimed that she had written 

to The Washington Times requesting a correction.159 When asked what she had said to the 

reporter, however, Ms. Clarke refused to say.160

Despite Ms. Clarke’s denial, subsequent reporting in The Weekly Standard alleged that such 

contacts had indeed occurred. 

She [Kristen Clarke] spoke to a voting section attorney Laura Coates 

(no relation to Chris Coates) about the case at a Justice Department 

function. Clarke asked Coates, who she assumed was sympathetic, 

when the Panther case was going to be dismissed. The comment 

suggested that the NAACP had been pushing for such an outcome, and 

Coates reported the conversation to her superiors.161

 

156 The Department has never disclosed the contacts by Ms. Clarke with either Ms. Rivera or Ms. Reed, calling 

into question the sufficiency of its discovery responses to the Commission. 

157 See Deposition of Kristen Clarke at 15-18, U.S. Comm’n on Civil Rights, Wash., D.C., Jan. 8, 2010, 

available at http://www.usccr.gov/NBPH/KristenClarkeDepositionTranscript.pdf [hereinafter “Clarke 

Deposition”]. 

158 See id. at 46. 

159 See id. at 13-14. 160 See id. at 10-13. 161 Rubin, supra note 63. 
Race Neutral Enforcement of the Law? 46

In response to this report, on June 15, 2010 the Commission requested that the Department 

determine “whether Laura Coates had a conversation with Ms. Clarke, the date thereof, the 

content of the conversation, and whether, as represented in the... article, the conversation 

was reported to Ms. Coates’ superiors.”162 In a letter dated June 30, 2010, it was represented 

that “the Department of Justice has re-examined the accuracy of the Supplemental Response 

to Interrogatory No. 12” but “determined that the prior response remains accurate and 

therefore requires no amendment.” 163

During her deposition, Ms. Clarke was specifically asked if she recalled any conversation 

with Laura Coates: 

QUESTION: Okay. I want to make sure or follow up on one of the 

names I mentioned before. To be clear, did you – are you sure that you 

did not have a conversation with Laura Coats [sic] of the Justice 

Department with regard to the litigation? 

CLARKE: As I indicated earlier, no. I recall no such conversation with 

her.164

In his testimony before the Commission, Christopher Coates indicated that the contact 

between Ms. Clarke and Laura Coates had been reported to him: 

[I]t was reported to me that Ms. Clarke approached an AfricanAmerican attorney who had been working in the Voting Section for 

only a short period of time in the Winter of 2009, before the dismissals 

in the Panther case and asked that attorney when the New Black 

Panther Party case was going to be dismissed. The Voting Section 

attorney to whom I refer was not even involved in the Panther case. 

This reported incident led me to believe in 2009 that the Legal Defense 

Fund Political Participation Director, Ms. Clarke, was lobbying for the 

dismissal of the New Black Panther Party case before it was 

dismissed.165

In his testimony, Mr. Coates also indicated a possible motive for Ms. Clarke’s interest in 

having the NBPP litigation dismissed. Discussing the Ike Brown case, he testified: 

 

162 Letter from David P. Blackwood, Gen. Counsel, U.S. Comm’n on Civil Rights, to Joseph H. Hunt, Dir., Fed. 

Programs Branch, Civil Div., U.S. Dep’t of Justice (June 15, 2010), available at 

http://www.usccr.gov/NBPH/StatEnforce_06-15-10.pdf. 163 Letter from Joseph H. Hunt, Dir., Fed. Programs Branch, Civil Div., U.S. Dep’t of Justice to David P. 

Blackwood, Gen. Counsel, U.S. Comm’n on Civil Rights (June 30, 2010), available at

http://www.usccr.gov/correspd/6-30-10_Hunt2Blackwood.pdf. 164 Clarke Deposition, supra note 157, at 33; see also id. at 19. 165 Coates Testimony, supra note 1, at 22-23. 
47 Part II: The New Black Panther Party Litigation

[O]ne of the groups that had opposed the Civil Rights Division’s 

prosecution of the Ike Brown case the most adamantly was the 

NAACP Legal Defense Fund, through its Director of Political 

Participation, Kristen Clarke. Ms. Clarke has spent a considerable 

amount of time attacking the Division’s decision to file and prosecute 

the Ike Brown case.166

Subsequent to Mr. Coates’ testimony, the NAACP Legal Defense Fund submitted a letter to 

the Commission denying that it had either “encouraged or lobbied the Department of Justice. 

. . to drop or take some other action with respect to DOJ’s New Black Panther Party 

litigation.”167 The letter further provided: 

Neither LDF nor any of its staff ever urged DOJ to take any action 

with respect to the New Black Panther Party litigation. LDF played no 

role in, and conducted no advocacy around, DOJ’s New Black Panther 

Party litigation. Statements that LDF, or any of its staff, sought to 

influence the manner or to limit the scope of the litigation in any 

respect are false.168

As of this date, it is not possible to reconcile the competing versions of such contacts, due to 

the fact that the Department has precluded its employees from testifying before the 

Commission (and refused to provide all relevant emails and documents), and Ms. Clarke has 

refused to testify regarding certain relevant questions. At a minimum, it would be highly 

relevant if Laura Coates and others could testify as to whether the NAACP Legal Defense 

Fund was seeking to have the suit dismissed or raised other concerns about the litigation. It 

should also be determined if any such concerns were conveyed to Loretta King, Steven 

Rosenbaum, Sam Hirsch or others, and whether those concerns played a part in their decision 

making. Because such communications are not privileged, there is no reason that these 

witnesses should not be allowed to testify before the Commission on this limited topic. The 

matter deserves to be proven or disproven, and Department personnel should be allowed to 

testify before the Commission on this topic.

 

166 Id. at 21. 167 Letter from Jeffrey D. Robinson, Assoc. Dir.-Counsel, Programs & Admin., NAACP Legal Defense & Educ. 

Fund, to Gerald A. Reynolds, Chairman, U.S Comm’n on Civil Rights (October 11, 2010), available at

http://www.usccr.gov/NBPH/NAACPLDF_10-11-10.pdf. 168 Id.
PART III: The Civil Rights

Division and Race­Neutral

Enforcement
49 Part II: The New Black Panther Party Litigation

A. The Testimony Of Christopher Coates and J. Christian Adams

Much of the direct evidence in this Section has been provided by former Chief of the Voting 

Section, Christopher Coates. His testimony includes allegations that political appointees in 

the Civil Rights Division have adopted policies that oppose the race-neutral enforcement of 

this nation’s voting rights laws. His testimony also includes specific allegations that career 

attorneys have refused to work on cases in which the victims are white and the wrongdoers 

are black; that attorneys who support race-neutral policies have been harassed and ostracized; 

and that current supervisory attorneys and political appointees have openly opposed such 

race-neutral policies. 

The troubling nature of these allegations of misconduct in the Division might explain why 

some anonymous sources within the Department have attempted to paint Coates as a 

disgruntled right-wing ideologue.169 A review of his career, however, speaks for itself and 

paints a picture at odds with his detractors’ characterization. 

Before beginning his work at the Department, Mr. Coates served with the Voting Rights 

Project of the American Civil Liberties Union in Atlanta, Georgia. During his time there, he 

litigated cases on behalf of African-American clients, particularly those challenging at-large 

election procedures. In 1993 he argued a case before the United States Supreme Court on 

behalf of six African-American citizens in the local NAACP chapter in Bleckley County, 

Georgia.170 For his service with the ACLU he was awarded the Thurgood Marshall Decade 

Award by the Georgia Conference of the NAACP, as well as an award from the Georgia 

Environmental Association for his representation of African-American clients opposing the 

installation of landfill in their neighborhood. 

Mr. Coates began his career at the Department of Justice in 1996 during the Clinton 

administration. During that administration, he was promoted to Special Litigation Counsel 

and served in that position until 2005. He was later appointed Principal Deputy Chief of the 

Voting Section and became Chief of the Voting Section in May 2008. In 2007 he received 

the Hubble Award, the second-highest award given by the Civil Rights Division. In his 13 

and a half years in the Voting Section, Mr. Coates indicated that there were only two cases in 

which he was involved that concerned white victims. It is the opposition to these two cases 

which forms much of this portion of the report. 

i.   The Decision to Testify

 

169See Ryan J. Reilly, Ex-Voting Section Chief Defends Black Panther Case at Goodbye Lunch, MAIN JUSTICE, 

Jan. 8, 2010, http://www.mainjustice.com/2010/01/08/ex-voting-section-chief-defends-black-panther-case-atgoodbye-lunch/ (last visited Oct. 20, 2010); Adam Serwer, The Battle for Voting Rights, AM. PROSPECT, Jan. 8, 

2010, http://www.prospect.org/cs/articles?article=the_battle_for_voting_rights (last visited Oct. 20, 2010). 170 See Holder v. Hall, 512 U.S. 874 (1994). 
50 Race Neutral Enforcement of the Law?

In November 2009, the Commission issued subpoenas to two members of the trial team, 

Christopher Coates, the Chief of the Voting Section, and J. Christian Adams. Despite the 

statutory mandate requiring federal agencies to cooperate with the Commission,171 the 

Department directed Mr. Coates and Mr. Adams not to appear before the Commission. Mr. 

Adams indicated that the Department told him that there was no need to comply with the 

Commission’s subpoena because the Department had no intention of enforcing it.172

Despite numerous demands that the Department allow Mr. Coates and Mr. Adams to testify, 

the Department refused to change its position.173 In the meantime, in January 2010, Mr. 

Coates was transferred to the U.S. Attorney’s Office for South Carolina. 

This impasse changed following the testimony of Assistant Attorney General Thomas Perez 

before the Commission. Although Mr. Perez had not been at DOJ during the NBPP litigation, 

he was selected by the Department as its representative to testify on the issue. As part of his 

preparation, a meeting was held the day before between Mr. Perez and several members of 

the trial team. Participating in the meeting were Mr. Perez, Mr. Coates (by telephone), Mr. 

Adams, and Robert Popper. Other Department staff were also present. Both Mr. Coates and 

Mr. Adams have testified that, during this meeting, they discussed the merits of the NBPP 

litigation.174

This meeting had consequences. Both Mr. Coates and Mr. Adams have testified that, despite 

their providing the Assistant Attorney General with detailed information about the NBPP 

litigation, Mr. Perez’s testimony before the Commission was inaccurate.175 As a result of the 

nature of Mr. Perez’s testimony, Mr. Adams submitted his resignation to the Department 

later the same day.176 After formally leaving the Department, Mr. Adams then complied with 

the pending subpoena and testified before the Commission on July 6, 2010.177

A similar process occurred with regard to Mr. Coates. Although he is still currently employed 

by the Department, he testified that he was troubled by the inaccuracies of Mr. Perez’s 

testimony before the Commission. He did not take immediate action, however, because he 

 

171 See 42 U.S.C. § 1975b(4)(e): “All Federal agencies shall cooperate fully with the Commission to the end that 

it may effectively carry out its functions and duties.” 

172 See Adams Testimony, supra note 50, at 9, 83; see also 42 U.S.C. § 1975a(e)(2). Adams also rebutted 

allegations that he was a disgruntled employee, testifying that he had received a promotion two weeks before he 

resigned. See Adams Testimony, supra note 50, at 70. 173 See Letter from Ronald Weich, Asst. Atty. Gen., Office of Legislative Affairs, U.S. Dep’t of Justice, to 

Congressman Frank Wolf (Oct. 15, 2010), available at

http://www.usccr.gov/NBPH/LetterWeich2WolfreCoatestestimony_10-15-10.pdf. In a letter to Congressman 

Frank Wolf, the Department argued that “The disclosure of internal recommendations and deliberations would 

have a chilling effect on the open exchange of ideas, advice and analyses that is essential to our decisionmaking 

process. Based on this policy, the Department declined to authorize Mr. Coates to testify before the 

Commission in connection with the Commission's review of the Department's actions in United States v. New 

Black Panther Party for Self Defense, Civil Action No. 2:09-cv-0065.” 174 See Adams Testimony, supra note 50, at 68-69; Coates Testimony, supra note 1, at 103. 175 See Coates Testimony, supra note 1, at 8-10; Adams Testimony, supra note 50, at 68-69. 176 See Adams Testimony, supra note 50, at 69-70. 177 He explained to the Commission he would not testify about “genuine deliberative process” for which the 

Department had asserted a privilege. See id. at 10-11. 
Part III: The Civil Rights Division and Race-Neutral Enforcement 51

was hopeful that revisions would be made.178 When this did not occur, he decided that he 

should appear before the Commission to correct the record. He did so on September 24, 

2010. Explaining his reasons for appearing before the Commission, he testified: 

 

I do not lightly decide to comply with your subpoena in contradiction 

to the DOJ’s directives to me not to testify. I had hoped that this 

controversy would not come to this point. However, I have determined 

that I will not fail to respond to your subpoena and thereby fail to give 

this Commission accurate information pertinent to your investigation. 

Quite simply, if incorrect representations are going to successfully 

thwart inquiry into the systemic problems regarding race-neutral 

enforcement of the Voting Rights Act by the Civil Rights Division, 

problems that were manifested in the DOJ’s disposition of the New 

Black Panther Party case, that end is not going to be furthered or 

accomplished by my sitting idly or silently by at the direction of my 

supervisors while incorrect information is provided. 

I do not believe that I am professionally, ethically, legally, much less 

morally bound to allow such a result to occur. In addition, in giving 

this testimony, I am claiming the protections of all applicable federal 

whistleblower statutes.179

ii.  Hostility to Race­Neutral Enforcement

Both Mr. Coates and Mr. Adams testified that the decisions in the NBPP case should not be 

viewed in isolation; that it needed to be viewed in the context of overall hostility by many in 

the Civil Rights Division to race-neutral enforcement of the Voting Rights Act.180 This 

portion of the report relates to their testimony on this topic. 

Mr. Coates and Mr. Adams testified that the overwhelming number of cases on which they 

worked while at the Department involved the protection of minority rights. On two 

occasions, however, they worked on cases in which the victims were white and the 

defendants were black.181 These two cases were the Ike Brown case and the New Black 

Panther Party litigation.182 In the Ike Brown case, the Department filed a civil suit against 

Mr. Brown for violation of the Voting Rights Act. It was alleged that Mr. Brown, who is 

 

178 Coates Testimony at 2, U.S. Comm’n on Civil Rights, Sept. 24, 2010, available at 

http://www.usccr.gov/NBPH/TestimonyChristopherCoates_09-24-10.pdf. 179 Coates Testimony, supra note 1, at 10-11. 180 See J. Christian Adams, PJM Exclusive: Unequal Law Enforcement Reigns at Obama’s DOJ, PAJAMAS 

MEDIA, June 28, 2010, http://pajamasmedia.com/blog/j-christian-adams-you-deserve-to-know-%E2%80%94-

unequal-law-enforcement-reigns-at-obamas-doj-pjm-exclusive/ (last visited Oct. 20, 2010); [Coates Testimony 

supra note 2, at 11-12, 23-24. 181 See Adams Testimony, supra note 50, at 44, 49. 182 Id. at 49. 
52 Race Neutral Enforcement of the Law?

black, systematically violated the rights of whites and blacks in Noxubee County, 

Mississippi. The matter was tried, won, and successfully defended on appeal.183

Mr. Coates testified that the two cases were related in that they were both opposed by many 

within the Department: 

To understand what occurred in the NBPP case, those action [sic] must 

be placed in the context of United States v. Ike Brown et al. Prior to 

the filing of the Brown case in 2005, the CRD [Civil Rights Division] 

had never filed a single case under the VRA [Voting Rights Act] in 

which it claimed that white voters had been subjected to racial 

discrimination by defendants who were African American or members 

of other minority groups... I am very familiar with the reaction of 

many employees, both line and management attorneys and support 

staff in both the CRD and the Voting Section, to the Ike Brown

investigation and case because I was the attorney who initiated and led 

the investigation in that matter and was the lead trial attorney 

throughout the case in the trial court.184

Although the Ike Brown suit was successful, Mr. Coates and Mr. Adams indicated that there 

was a great deal of hostility within the Department to the filing and pursuit of the case. They 

testified to the following incidents: 

• Attorneys refused to work on the Ike Brown case. At least one attorney stated, “I’m 

not going to work on the case because I didn’t join the voting section to sue black 

people.”185

• Mark Kappelhoff, the chief of the Criminal Section, at a meeting of the chiefs of the 

Civil Rights Division, allegedly stated about the Ike Brown case, “That’s the case that 

has gotten us into many problems with civil rights groups.”186

• Robert Kengle, deputy in the Voting Section, allegedly stated to Mr. Coates during a 

trip to investigate the Ike Brown case, “Can you believe we are being sent down to 

Mississippi to help a bunch of white people?”187

 

183 See United States v. Brown, 494 F. Supp.2d 440 (S.D. Miss. 2007), aff’d, 561 F.3d 420 (5th Cir. 2009). 184 Statement of Christopher Coates at 3, U.S. Comm’n on Civil Rights, Sept. 24, 2010, available at 

http://www.usccr.gov/NBPH/TestimonyChristopherCoates_09-24-10.pdf (emphasis in original) [hereinafter 

“Coates Statement”]. 

185 See Adams Testimony, supra note 50, at 49. Coates Statement, supra note 184, at 5; see also von Spakovsky 

Affidavit, supra note 79, at 2-3 (stating that Coates told von Spakovsky that lawyers refused to work on the Ike 

Brown case). 

186 Adams Testimony, supra note 50, at 54; see also Coates Statement, supra note 184, at 6. 187 Adams Testimony, supra note 50, at 55; see also Coates Testimony, supra note 1, at 4, 103; von Spakovsky 

Affidavit, supra note 79, at 3. In a declaration submitted to the Commission in response to Mr. Coates' 

testimony, Mr. Kengle stated, in part: 

I do not recall making the statement to Mr. Coates "Can you believe that we are 

going to Mississippi to protect white voters". I certainly did express my 
Part III: The Civil Rights Division and Race-Neutral Enforcement 53

• Attorneys in the civil rights division allegedly told Adams that “until blacks and 

whites achieved economic parity in Mississippi, we had no business bringing this 

case.” A similar comment was made by a career attorney to Mr. Coates.188

• A non-lawyer minority employee at the Department was “relentlessly harassed by 

Voting Section staff for his willingness as a minority to work on the case of United 

States v. Ike Brown.”189

• “Others assigned to the case were harassed in other ways, such as being badgered and 

baited about their evangelical religious views or their political beliefs. In these 

instances, the victimized employee was openly assumed to espouse various political 

positions hostile to civil rights, simply because he worked on this case.”190

• Adams testified: “There was outrage that was pervasive that the laws would be used 

against the original beneficiaries of the civil rights laws. Some people said ‘we don’t 

have the resources to do this. We should be spending our money elsewhere.’ And that 

was how they would cloak some of these arguments.”191

 dissatisfaction to Mr. Coates on several occasions during the trip and it is possible 

that during the multi-day coverage I said something to him along the lines of "Can 

you believe we're doing this?" However, I did not complain to Mr. Coates in sum or 

substance about "protect[ing] white voters" because I did not consider that to be the 

problem. 

He further stated: 

I believed that a double standard was being applied under which complaints by 

minority voters were subjected to excessive and unprecedentedly demanding 

standards, then dismissed as not being credible, while on the other hand the Voting 

Section was being ordered to pursue the Noxubee complaint at face value – in a 

dispute over party loyalty – as a top priority. I confided my view of this doublestandard to Mr. Coates and to other management-level career staff. If I made the 

remark to Mr. Coates "Can you believe we're doing this?" it was within this context. 

Declaration of Robert A. Kengle at 1-2, Oct. 18, 2010, available at 

http://www.usccr.gov/NBPH/RAKDEC_10-18-10.pdf

Shortly after Mr. Kengle submitted his declaration, Mr. von Spakovsky submitted a response 

challenging many of Mr. Kengle’s representations. See Letter from Hans A. von Spakovsky to 

Gerald A. Reynolds, Chairman, U.S. Comm’n on Civil Rights (Oct. 28, 2010) available at

http://www.usccr.gov/NBPH/vonSpakovskyLetter_10-28-10.pdf. 188 Adams Testimony, supra note 50, at 54; see also Coates Testimony, supra note 1, at 16. 

189 Adams Testimony, supra note 50, at 56-57, 93; see also Coates Testimony, supra note 1, at 6, 17. Mr. 

Coates also indicated that this treatment extended to the harassed employee’s mother. See id.

190 Adams Testimony, supra note 50, at 57; see also von Spakovsky Affidavit, supra note 79, at 3-4 (discussing 

harassment of employees). 

191 Adams Testimony, supra note 50, at 58. 
54 Race Neutral Enforcement of the Law?

• In another instance, “[a]nother deputy in the section said in the presence of Mr. 

Coates, ‘I know that Ike Brown is crooked and everybody knows that, but the 

resources of the division should not be used in this way.’”192

As part of his testimony, Mr. Adams indicated that he had heard a report that Joe Rich, who 

was then Chief of the Voting Section, had allegedly altered a memorandum prepared by Mr. 

Coates that urged the filing of a suit against Ike Brown. Mr. Adams testified that he had 

heard Mr. Rich “omitted all of the discussion that Mr. Coates made about why a civil lawsuit 

was the best course of action” and made it appear that Mr. Coates only supported monitoring 

the situation.193 Following this testimony, Mr. Rich submitted a declaration to the 

Commission in which he countered many of Mr. Adams’ general allegations and specifically 

denied any alleged revisions to Mr. Coates’ memorandum recommending that a civil suit be 

filed against Ike Brown.194 Mr. Rich stated: “No recommendation made by Mr. Coates was 

removed or deleted from this memo.”195 

At the time Mr. Coates testified before the Commission, the allegations of Mr. Adams, and 

the rebuttal of Mr. Rich, were in the public record. On this topic, Mr. Coates testified as 

follows: 

Some time [sic], as best I recall, in the Winter of 2003 or 2004 . . . I 

wrote a preliminary memorandum summarizing the evidence that we had 

to that point and made a recommendation as to what action to take in 

Noxubee County. In that memorandum, I recommended that the Voting 

Section go forward with an investigation under the Voting Rights Act 

and argued that a civil injunction against Ike Brown and the local 

Democratic Committee was the most effective way of stopping the 

pattern of voting discrimination that I had observed. 

I forwarded this memorandum to Joe Rich, who was Chief of the Voting 

Section at that time. I later found out that Mr. Rich had forwarded the 

memorandum to the Division front office, but he had omitted the portion 

of the memorandum in which I discussed why it was best to seek a civil 

injunction in the Brown case. Because I am aware that Mr. Rich and Mr. 

Hans von Spakovsky have filed conflicting affidavits on this point with 

this Commission, I believe that I am at liberty to address this issue 

without violating DOJ privileges. 

I want to underscore that my memorandum in which Mr. Rich omitted 

portions was not the subsequent justification memorandum that sought 

 

192 Coates Testimony, supra note 1, at 102 (statement by David Blackwood). 

193 See Adams Testimony, supra note 50, at 56. 

194 See Declaration of Joseph D. Rich, Aug. 23, 2010, available at 

http://www.usccr.gov/NBPH/RichDeclaration_08-23-10.pdf. 195 Id. Mr. Adams’ version of events was corroborated by Hans von Spakovsky, former counsel to the Assistant 

Attorney General for Civil Rights, in his affidavit submitted to the Commission. See von Spakovsky Affidavit 

supra note 79, at 3. 
Part III: The Civil Rights Division and Race-Neutral Enforcement 55

approval to file the case in Noxubee County, but was a preliminary 

memorandum that sought permission to go forward with the 

investigation. 

Nevertheless, it is my clear recollection that Mr. Rich omitted a portion 

of my memorandum, a highly unusual act, and that I was later informed 

by the Division front office that Mr. Rich had stated that the omission 

was because he did not agree with my recommendation that the 

investigation needed to go forward or that a civil injunction should be 

sought. Nevertheless, approval to go forward with the investigation was 

obtained from the Bush administration Civil Rights Division front office 

in 2004.196

In response to the testimony of Mr. Coates, Mr. Rich submitted a second declaration in which 

he contends that Mr. Coates' version of events is also in error.197

Without examining the Department’s internal records, it is not possible to resolve the dispute 

regarding Mr. Rich definitively. Nonetheless, the nature of the above allegations reflects the 

contentious atmosphere within the Civil Rights Division regarding the Ike Brown case. 

That opposition to the Ike Brown case existed within the Civil Rights Division is further 

bolstered by an article that appeared in The Washington Post subsequent to Mr. Coates and 

Mr. Adams testifying before the Commission. In this article, attorneys within the Civil Rights 

Division confirmed that "the decision to bring the Brown case caused bitter divisions in the 

voting section and opposition from civil rights groups:"198

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."199

 

196 Coates Testimony, supra note 1, at 14-15; see also von Spakovsky Affidavit, supra note 79; Hans von 

Spakovsky, Enough Is Enough, Joe Rich: An Uncivil Man from the Civil Rights Division, PAJAMAS MEDIA, 

Sept. 20, 2010, http://pajamasmedia.com/blog/enough-is-enough-joe-rich-an-uncivil-man-from-the-civil-rightsdivision/ (last visited Nov. 9, 2010). 

197 See Declaration of Joseph D. Rich, Oct. 20, 2010, available at 

http://www.usccr.gov/NBPH/RichDeclaration_10-20-10.pdf. 

198 Markon & Thompson, supra note 82. 

199 Id.
56 Race Neutral Enforcement of the Law?

In each instance, the above allegations relate to comments made, or actions taken, during the 

Bush administration. Mr. Coates and Mr. Adams testified that similar opinions were more 

recently expressed by high-level attorneys (political appointees and management) during the 

Obama administration. 

Mr. Coates described the following: 

When I was Chief of the Voting Section in 2008, and because I had 

experienced, as I have described, employees in the Voting Section 

refusing to work on the Ike Brown case, I began to ask applicants for trial 

attorney positions in their job interviews whether they would be willing 

to work on cases that involved claims of racial discrimination against 

white voters as well as cases that involved claims of racial discrimination 

against minority voters. For obvious reasons, I did not want to hire 

people who were politically or ideologically opposed to the equal 

enforcement of the voting statutes the Voting Section is charged with 

enforcing. 

The asking of this question in job interviews did not ever to my 

knowledge cause any problems with applicants to whom I asked that 

question and, in fact, every applicant to whom I asked the question 

responded that he or she would have no problem working on a case 

involving white victims, such as the Ike Brown case. 

However, word that I was asking applicants that question got back to 

Loretta King. In the spring of 2009, Ms. King, who had by then been 

appointed the Acting Assistant Attorney General for Civil Rights by the 

Obama administration, called me to her office and specifically instructed 

me that I was not to ask any other applicants whether they would be 

willing to, in effect, race-neutrally enforce the Voting Rights Act. 

Ms. King took offense that I was asking such a question of job applicants 

and directed me not to ask it because I do not believe she supports equal 

enforcement of the provisions of the Voting Rights Act and she has been 

highly critical of the filing and the civil prosecution of the Ike Brown

case.200

In addition to the actions of Loretta King, both Mr. Coates and Mr. Adams described a 

series of statements by Julie Fernandes, a Deputy Assistant Attorney General for Civil 

Rights. Mr. Coates testified to the following: 

In September 2009, Ms. Fernandes held a meeting to discuss 

enforcement of the anti-discrimination provisions of Section 2 of the 

Voting Rights Act. At this meeting, one of the Voting Section trial 

 

200 Coates Testimony, supra note 1, at 19-20. 
Part III: The Civil Rights Division and Race-Neutral Enforcement 57

attorneys asked Ms. Fernandes what criteria would be used to determine 

what type of Section 2 cases the Division front office would be interested 

in pursuing. 

Ms. Fernandes responded by telling the gathering there that the Obama 

administration was only interested in bringing traditional types of 

Section 2 cases that would provide equality for racial and language 

minority voters. And then she went on to say that this is what we are all 

about or words to that effect. 

When Ms. Fernandes made that statement, everyone in the room, talking 

about the conference room on the seventh floor, where the Voting 

Section is located, understood exactly what she meant: no more cases 

like Ike Brown and no more cases like the New Black Panther Party

case. 

Ms. Fernandes reiterated that directive in another meeting held in 

December 2009 on the subject of federal observer election coverage, in 

which she stated to the entire group in attendance that the Voting 

Section's goal was to ensure equal access for voters of color or language 

minority.201

The Department has never denied that Ms. Fernandes made the above representations, and 

Ms. Fernandes has refused to respond to media inquiries about the alleged statement. 

Following a Washington Post article that ran on October 23, 2010, on the NBPP dispute, the 

Post reporters engaged in an online question-and-answer session. The following exchange 

took place: 

QUESTION: The Justice Department has never denied that Jule [sic] 

Fernandes said the things that multiple witnesses have alleged about 

not enforcing civil rights laws equally. Did you ask the DOJ if she said 

it or not, and what do you think of their response? 

REPORTER: Hi, thanks for the chat. Yes I asked the Justice 

Department several times if she said it. Their response was to say that 

their policy is to enforce the laws equally, without regard to race. I 

can't really "assess" their response, because that gets into personal 

opinion, and I don't do that. I will say that they never directly 

answered the question. It is something that Mr. Coates had alleged, 

and as we wrote, Ms. Fernandez declined to comment.202

 

201 Id. at 32-33. 202 Live Q&A: New Black Panther Case: Voter Intimidation at Philadelphia Voting Location in 2008, Oct. 22, 

2010, http://live.washingtonpost.com/black-panther-party-10-22-10.html (last visited Nov. 9, 2010) (discussion 

with Jerry Markon and Krissa Thompson). 
58 Race Neutral Enforcement of the Law?

Mr. Coates and Mr. Adams also testified that Ms. Fernandes supported selective enforcement 

of provisions of the National Voter Registration Act. Specifically, Mr. Adams testified that, 

during a meeting on November 30, 2009, 

Deputy Assistant Attorney General Julie Fernandes, when asked about 

Section 8 [of the National Voter Registration Act],203 said, ‘We have 

no interest in enforcing this provision of the law. It has nothing to do 

with increasing turnout, and we are just not going to do it.’ Everybody 

in the Voting Section heard her say it.204

On this topic, Mr. Coates testified that Ms. Fernandes’ statement regarding nonenforcement of the list maintenance requirement appeared to have been adopted as 

Department policy. He testified: 

In June 2009, the Election Assistance Commission issued a biannual 

report concerning what states appeared not to be in compliance with 

Section 8's list maintenance requirements. 

The report identified eight states that appeared to be the worst in terms of 

their noncompliance with the list maintenance requirement of Section 8. 

These were states that reported that no voters have been removed from 

any of their voters' lists in the last two years. Obviously this is a good 

indication that something is not right with the list maintenance practices 

in a state. 

As Chief of the Voting Section, I assigned attorneys to work on this 

matter. And in September 2009, I forwarded a memo to the Division 

front office asking for approval to go forward with the Section 8 list 

maintenance investigations in these states. 

During the time that I was Chief, no approval was given to this project. 

And it is my understanding that approval has never been given for that 

Section 8 list maintenance project to date. That means that we have 

entered the 2010 election cycle with eight states appearing to be in major 

noncompliance with list maintenance requirements of Section 8 of the 

NVRA. And, yet, the Voting Section, which has the responsibility to 

enforce that law, has yet to take any action. 

 

203 According to Adams, “Section 8 is a general obligation to do [voter] list maintenance. In other words, no 

dead people can be on the voter rolls, no duplicates, people who have moved away. They have to be taken off 

the rolls.” Adams Testimony, supra note 50, at 63-64. 204 Id. at 64; see also id. at 76-77, 96; Coates Testimony, supra note 1, at 33-35. Before her appointment to the 

Justice Department, Ms. Fernandes had voiced objections regarding enforcement of § 8. See generally Voting 

Section of the Civil Rights Division of the U.S. Department of Justice: Hearing Before the Subcomm. on the 

Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 110th Cong. 62 (2007), 

available at http://judiciary.house.gov/hearings/printers/110th/38637.PDF (last visited Dec. 28, 2010). 
Part III: The Civil Rights Division and Race-Neutral Enforcement 59

From these circumstances, I believe that Ms. Fernandes's statement to the 

Voting Section in November 2009 not to, in effect, initiate Section 8 list 

maintenance enforcement activities has been complied with.205

Finally, Mr. Coates testified that the hostility to race-neutral enforcement of the voting rights 

laws was also reflected in the Department’s actions regarding the pre-clearance requirements 

of Section 5 of the Voting Rights Act. 

If anyone doubts that the Civil Rights Division and the Voting Section 

have failed to enforce the Voting Rights Act in a race-neutral manner, 

one only has to look at the enforcement of Section 5's pre-clearance 

requirements. 

The statutory language of Section 5 speaks in terms of protecting all 

voters from racial discrimination. But the Voting Section has never 

interposed an objection under Section 5 to a voting change on the ground 

that it discriminated against white voters in the 45-year history of the 

Act. 

This failure includes no objections in the many majority-minority 

jurisdictions in the covered states. Indeed, the personnel in the Voting 

Section's unit which handles Section 5 submissions are instructed only to 

see if the voting change discriminates against racial, ethnic, and language 

minority voters. 

This practice of not enforcing Section 5's protections for white voters 

includes jurisdictions, such as Noxubee County, Mississippi, where the 

Ike Brown case arose, where white voters are in the racial minority. It is 

in those jurisdictions that the Voting Section's failure to apply Section 5's 

protections for white minority voters is particularly, in my opinion, 

problematic. 

On two occasions while I was Chief of the Voting Section, I tried to 

persuade officials at the Division level to change this policy so that white 

voters would be protected by Section 5 in appropriate circumstances, but 

to no avail. I believe that present management at both the Division and 

the Section are opposed to the race-neutral enforcement of Section 5 and 

continue to enforce those provisions in a racially selective manner.206

Without addressing the specific allegations of either Mr. Coates or Mr. Adams, the 

Department contends that it enforces the civil rights laws in a race-neutral fashion. In 

correspondence to the Commission, Assistant Attorney General Thomas Perez stated: 

 

205 Coates Testimony, supra note 1, at 36. 206 Id. at 24-26. 
60 Race Neutral Enforcement of the Law?

There should be no misunderstanding: the Civil Rights Division is 

firmly committed to the evenhanded application of the law, without 

regard to the race of the victims or perpetrators of unlawful behavior. 

Any suggestion to the contrary is simply untrue.207

The position of the Department has been called into question not only by the testimony of 

Mr. Coates and Mr. Adams but by representations of a Department official who made 

comments to Washington Post reporters investigating the NBPP matter: 

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 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.208

Such representations raise further doubts as to whether officials within the current Civil 

Rights Division have unilaterally limited the types of cases the Division will enforce. 

iii.  The Connection with the New Black Panther Party Lawsuit

In prior sections of this report, the factual arguments raised by the Department to justify the 

reversal in course of the NBPP litigation were examined. These arguments were challenged 

by the testimony of Christopher Coates and J. Christian Adams, and often at odds with 

internal DOJ documents received independently by the Commission. None of this evidence, 

however, presented a motive as to why the Department would reverse its course even though 

the NBPP defendants had conceded liability. 

In his testimony before the Commission, Mr. Coates explained that he believes the change in 

course of the NBPP litigation was a direct result of the overall hostility within the Civil 

Rights Division to the neutral enforcement of voting rights laws. 

It is my opinion that the disposition of the Panther case was ordered 

because the people calling the shots in May 2009 were angry at the filing 

of the Brown case and angry at the filing of the Panther case. That anger 

 

207 See Letter from Thomas E. Perez. Asst. Atty. Gen., Civil Rights Div., U.S. Dep’t of Justice, to Gerald A. 

Reynolds, U.S. Comm’n on Civil Rights (Aug. 11, 2010), available at http://www.usccr.gov/NBPH/ARM620U_20100811_173009.pdf. 208 Markon & Thompson, supra note 82. 
Part III: The Civil Rights Division and Race-Neutral Enforcement 61

was the result of their deep-seated opposition to the equal enforcement of 

the Voting Rights Act against racial minorities and for the protection of 

white voters who had been discriminated against. 

Ms. King, Mr. Rosenbaum, Mr. Kappelhoff, Ms. Clarke, a large number 

of the people working in the Voting Section and in the Civil Rights 

Division and many of the liberal [interest] groups at work in the civil 

rights field believe incorrectly but vehemently that enforcement of the 

protections of the Voting Rights Act should not be extended to white 

voters but should be extended only to protecting racial, ethnic, and 

language minorities. 

The final disposition of the Panther case, even in the face of a default by 

the defendants, was caused by this incorrect view of civil rights 

enforcement, and it was intended to send a direct message, in my 

opinion, to people inside and outside the Civil Rights Division. That 

message is that the filing of voting cases like the Ike Brown case and the 

New Black Panther Party case would not continue in the Obama 

administration. 

The disposition of the Panther case was not required by the facts 

developed during the case or the applicable case law, as has been 

claimed, but was because of this incorrect view of civil rights 

enforcement that is at war with the statutory language of the Voting 

Rights Act, which is written in a race-neutral manner, and at war with 

racially fair enforcement of federal law.209

The recent lawsuit by Judicial Watch indicates that documentary evidence exists which 

reflects frequent communications between the Civil Rights Division and political appointees 

within the Office of the Associate Attorney General and elsewhere. These communications 

should be provided, and the testimony of appropriate Department officials taken, to either 

prove or disprove these serious accusations. 

iv.  Reducing the Authority of Chris Coates

As further evidence of hostility to the Ike Brown and New Black Panther Party cases, Mr. 

Adams indicated that distrust of Mr. Coates began shortly after President Obama’s 

Inauguration. He stated that, at that time, Acting Deputy Assistant General Steven 

Rosenbaum began to closely monitor Mr. Coates’ work product. 

ADAMS: And at this time period, Rosenbaum was reviewing 

absolutely everything that Coates was doing, everything. And so he 

had a heavy workload because he was essentially acting in large status 

as the chief of the Voting section in place of Coates. So I can 

understand that Mr. Rosenbaum was probably backed up. 

 

209 Id. at 23-25. 
62 Race Neutral Enforcement of the Law?

QUESTION: All right. What you just mentioned, that Mr. Rosenbaum 

was monitoring Mr. Coates, when did that begin? 

ADAMS: After the inauguration and Mr. Rosenbaum moved into that 

position... 

QUESTION: All right. So it wasn’t just the Black Panther case that 

precipitated this dispute or being reviewed. It was shortly after the 

election that Mr. Rosenbaum was overseeing Mr. Coates -- how do 

you put it -- rather closely or excessively closely? 

ADAMS: That’s the gentle way... [E]very single paper that would go 

to court would have to be reviewed by Mr. Rosenbaum, which was a 

departure from the previous eight years, at least, the previous four 

years in my personal experience. No front office in my mind would 

have ever had the time to do that sort of thing, but they found it.210

Mr. Coates described the situation as follows: 

QUESTION: When Mr. Adams was here and testified, he indicated that 

after the election, when President Obama was elected, you were rather 

closely supervised. Could you describe what happened after the election? 

COATES: The relationships, the relationship, between Ms. King and Mr. 

Rosenbaum and I were not good. That relationship was not good. 

And as the -- as I continued to serve in the capacity as the Chief of the 

Voting Section, my -- the responsibilities and powers that a section chief 

in the Civil Rights Division normally has, such as assigning particular 

lawyers to cases, assigning the particular deputies to supervise cases, 

things of that sort, that those powers were taken away as the months 

went by in 2009, after the Obama administration came to power in 

January of 2009.211

Mr. Coates testified that his authority continued to diminish: 

[M]y powers to run the Section, to assign cases, to assign deputies, was 

being substantially reduced to where I believe that, by the late Fall of 

2009, that I was serving as Chief only in name and that the decisions 

 

210 Adams Testimony, supra note 50, at 41-42. The index produced in the Judicial Watch litigation reflects that 

all draft pleadings relating to the decision to limit the NBPP litigation were reviewed not only by Mr. 

Rosenbaum, but by members of the office of the Associate Attorney General as well. See Judicial Watch 

Vaughn Index, supra note 69, at http://www.judicialwatch.org/files/documents/2010/jw-v-doj-vaughn09152010.pdf. 211 Coates Testimony, supra note 1, at 48-49. 
Part III: The Civil Rights Division and Race-Neutral Enforcement 63

were being made by other management people in the Section and at the 

Division level. 

And, of course, as a manager who has -- who is blamed when things go 

wrong, you don't want to be in a situation where you're supposed to be 

running a section when, in fact, you're not. And so I took that into 

consideration. 

I took into consideration I knew that a number of people in the Section 

did -- in the Division, I mean, the managers in the Division, some of 

them, did not want me as the Chief, including Ms. King, quite frankly, 

Mr. Rosenbaum, quite frankly. 

And there were a number of the people in the civil rights groups who did 

not want me as Chief of the Voting Section. And some of those groups, 

as I have described, have significant influence, I believe, in the Obama 

administration.212

At this stage in this investigation, the very serious allegations raised by Mr. Coates and Mr. 

Adams have been partially corroborated. Former Department attorneys Karl Bowers,213 Hans 

von Spakovsky,214 Asheesh Agarwal, Mark Corallo and Robert Driscoll215 have all concurred 

that a generally hostile attitude toward race-neutral enforcement of civil rights laws exists 

among many career attorneys and some specific incidents of harassment have also been 

corroborated. Efforts to obtain evidence relating to the current administration’s policies 

regarding race-neutral enforcement, however, have been met with extraordinary resistance by 

the Department. 

The nature of these charges paints a picture of a Civil Rights Division at war with its core 

mission of guaranteeing equal protection of the laws for all Americans. During the Bush 

administration, the press reported ideological conflict within the Division.216 If the testimony 

before the Commission is true, the current conflicts extend beyond policy differences to 

encompass allegations of inappropriately selective enforcement of laws, harassment of 

dissenting employees, and alliances with outside interest groups, at odds with the rule of law. 

 

212 Id. at 64-65. 213 See Sworn Statement of Karl S. Bowers, Jr., Jul. 15, 2010, available at 

http://www.usccr.gov/NBPH/BowersStatement_07-15-10.pdf. 214 See von Spakovsky Affidavit, supra note 79. 215 Breaking: A Third Former DOJ Official Steps Forward to Support J. Christian Adams (Updated), 

PAJAMAS MEDIA, July 6, 2010, http://pajamasmedia.com/blog/breaking-former-doj-officials-steppingforward-to-support-j-christian-adams/?singlepage=true (Last visited Dec. 28, 2010). 216 See OFFICE OF THE INSPECTOR GEN. & OFFICE OF PROF’L RESPONSIBILITY, U.S. DEP’T OF JUSTICE, AN 

INVESTIGATION OF ALLEGATIONS OF POLITICIZED HIRING AND OTHER IMPROPER PERSONNEL ACTIONS IN THE 

CIVIL RIGHTS DIVISION (2008), available at http://www.justice.gov/oig/special/s0901/final.pdf (last visited Oct. 

20, 2010); OFFICE OF PROF’L RESPONSIBILITY & OFFICE OF THE INSPECTOR GEN., U.S. DEP’T OF JUSTICE, AN 

INVESTIGATION OF ALLEGATIONS OF POLITICIZED HIRING BY MONICA GOODLING AND OTHER STAFF IN THE 

OFFICE OF THE ATTORNEY GENERAL (2008), available at http://www.justice.gov/oig/special/s0807/final.pdf

(last visited Oct. 20, 2010). 
64 Race Neutral Enforcement of the Law?

These issues need to be thoroughly investigated and properly resolved or public confidence 

in the Civil Rights Division will be seriously eroded.217

As part of any such review, it must be determined if the allegations of Mr. Coates and Mr. 

Adams regarding the alleged current hostility to race-neutral enforcement of civil rights laws 

are true. The best way to accomplish this task is to allow Department witnesses to appear 

before the Commission. Only then can Congress and the Administration determine what 

steps are necessary to re-establish public faith in the Civil Rights Division. 

B. Prior Claims Of Voter Intimidation

In describing the decisions with regard to the New Black Panther Party litigation, the 

Department has indicated that potential voter intimidation cases that arose during the Bush 

administration underwent a similar process, sometimes resulting in matters that were not 

pursued. For example, in his written statement which accompanied his testimony before the 

Commission, Assistant Attorney General for Civil Rights Thomas Perez stated: 

One example is the recent instance we have identified that most clearly 

resembles the facts in [the NBPP case]. The Civil Rights Division 

received a complaint from a national civil rights organization 

regarding a matter in Pima, Arizona alleging that during the 2006 

election, three well-known anti-immigration advocates – one of whom 

was wearing a gun – allegedly intimidated Latino voters at a polling 

place by approaching several persons, filming them, and advocating 

against printing voting materials in Spanish. In that instance, the 

Department declined to bring any action for alleged voter 

intimidation.218

Details of the alleged incident in Pima to some extent mirror the Fairmount 

Street incident in 2008. The incident in Pima was described as follows: 

Volunteer election monitors say three men armed with a video camera 

and a gun were intimidating voters at various polling stations 

throughout Tucson during voting on Tuesday. 

 

217 By letter dated September 13, 2010, Glenn A. Fine, the Inspector General for the Department of Justice, 

provided notice to Congressmen Lamar Smith and Frank Wolf that his office was opening an investigation into 

“the types of cases brought by the Voting Section and any changes in these types of cases over time; any 

changes in Voting Section enforcement policies or procedures over time; whether the Voting Section has 

enforced the civil rights laws in a non-discriminatory manner; and whether any Voting Section employees have 

been harassed for participating in the investigation or prosecution of particular matters.” Letter from Glenn 

Fine, Inspector Gen., U.S. Dep’t of Justice, to Congressman Frank Wolf (Sept. 13, 2010), available at

http://www.usccr.gov/NBPH/LetterFine2Wolfreenforcementcivilrightslaws_09-13-10.pdf. 218 Perez Statement, supra note 53, at 3.
Part III: The Civil Rights Division and Race-Neutral Enforcement 65

From about 9:45 a.m. to noon, the men approached Hispanic voters as 

they attempted to enter Iglesia Bautista Kairos . . . said Diego Bernal, a 

lawyer with the Mexican American Legal Defense Fund. 

* * *A third man, wearing an American flag T-shirt and camouflage 

shorts, stood nearby with his hand on a handgun in a holster strapped 

around his hips, he said. 

* * * 

“It’s pure, old-fashioned voter intimidation,” he said. “If shoving a 

videotape [sic] in your face while someone with a gun stands next to 

you isn’t intimidation, I don’t know what is.”219

The activities of Russ Dove and Roy Warden, two of the men involved in the alleged Pima 

voter intimidation, have been monitored by the Southern Poverty Law Center (SPLC). In a 

2006 story called Deadly Force from the SPLC website: 

[A] Glock 9mm on his hip, and a bullhorn to amplify his outrage, Roy 

Warden . . . emerged this spring as one of the country’s most 

controversial, volatile, and, many believe, dangerous characters of the 

anti-immigration movement. Along with . . . Russ Dove, a former 

militia leader and convicted car thief . . . Warden has burned and 

trampled Mexican flags in public, nearly started at least one riot, 

regularly wreaked havoc on Tucson City Council proceedings, and Emailed a death threat to a prominent local public defender.220

Another press report presented a different version of events, claiming that only one man was 

carrying a gun, that he never came within 150 feet of any polling locations, and that he never 

had any interactions with voters.221 

At this stage, the extent of the investigation undertaken by the Department with regard to the 

incident in Pima is unknown. In addition, the Commission has no information relating to the 

decisionmaking process that led to the determination not to pursue the matter federally. In 

their testimony before the Commission, J. Christian Adams indicated that he had no 

connection with the case,222 while Christopher Coates had only a limited knowledge of what 

 

219 Claudine Lomonaco, Anti-Immigrant Activists Accused of Voter Harassment, TUCSON CITIZEN, Nov. 7, 

2006, available at http://tucsoncitizen.com/morgue/2006/11/07/31837-anti-immigrant-activists-accused-ofvoter-harassment/ (last visited Oct. 20, 2010). 220 Southern Poverty Law Center, Deadly Force, INTELLIGENCE REPORT, fall 2006, available at 

http://www.splcenter.org/get-informed/intelligence-report/browse-all-issues/2006/fall/deadly-force?page=0,0

(last visited Oct. 20, 2010). 

221 See Quin Hillyer, First Democratic Congressman Calls for Charges Against Black Panthers, WASH. TIMES 

WATER COOLER, July 27, 2010, http://www.washingtontimes.com/blog/watercooler/2010/jul/27/firstdemocratic-congressman-calls-charges-against/ (last visited Oct. 20, 2010). 222 See Adams Testimony, supra note 50, at 72. 
66 Race Neutral Enforcement of the Law?

had occurred.223 In any case, this is an additional area of inquiry that should be included as 

part of this investigation.224

 

223 See Coates Testimony, supra note 1, at 86-90. Coates testified, “I learned about it after it occurred and after 

it came to the Department. So I can talk to you more about it in 2008 than I can 2006 and 2007.” He then 

described what knowledge he had about the case. Id. at 87. 224 Other allegations of voter intimidation that were not ultimately pursued by DOJ include a cross-burning 

incident in Grand Coteau, Louisiana and mailings targeted at immigrants in Orange County, California. These 

also may be proper areas of inquiry.
PART IV:  The

Department’s Lack of

Cooperation and the

Commission’s Difficulty in

Securing Cooperation

Required by Law
68 Race Neutral Enforcement of the Law?

A. Summary of Commission Information Requests and Department Responses

The U.S. Commission on Civil Rights is an independent, bipartisan agency established by 

Congress in 1957. Among its statutory duties, the Commission is charged with investigating 

complaints alleging that citizens have been deprived of their right to vote by reason of race, 

color, religion, sex, age, disability, or nation origin. In addition, the Commission is required 

to appraise federal laws and policies with respect to discrimination or denial of equal 

protection of the laws. 

In accomplishing these tasks, Congress gave the Commission two main tools. First, Congress 

mandated that “All federal agencies shall cooperate fully with the Commission to the end that 

it may effectively carry out its functions and duties.”225 Second, the Commission was granted 

the power to “issue subpoenas for the attendance of witnesses and the production of written 

or other matter.”226 The Commission, however, does not have express authority to enforce its 

own subpoenas. Instead, the relevant statute provides that it is “the Attorney General [who] 

may in a Federal court . . . obtain an appropriate order to enforce the subpoena.”227 

In most cases, granting the Department of Justice sole discretion whether to enforce the 

Commission’s subpoenas is of little consequence. Comity and good faith are presumed. 

When the Department is the subject of a Commission investigation, however, a potential 

conflict of interest exists. 

As is reflected in the present case, the statutory mandate requiring federal agencies to 

cooperate with the Commission has much less force when the recalcitrant agency is the 

Department of Justice. The Department may refuse to provide information or witnesses safe 

in the knowledge that it will never enforce a subpoena against itself. 

As more fully described below, the inability to appeal to an independent authority to enforce 

the Commission’s information requests leaves the Justice Department as the sole arbiter of 

what will be produced. This is a situation of particular concern when the Department’s 

enforcement policies are under scrutiny. The record in this case proves the point. The 

Department has provided only limited cooperation with the Commission, and attempted to 

prevent Christopher Coates and J. Christian Adams from testifying.228 Absent the production 

of materials and information by third parties, the Department and its policies would have 

avoided the scrutiny that the Commission’s charter requires. 

 

225 42 U.S.C. § 1975b(e). 226 42 U.S.C. § 1975a(e)(2). 227 Id. 228 While the Department has provided about 4,000 pages of documents, most of these relate to either already 

public documents, or documents relating to other voter intimidation cases. While useful, the documents 

provided do not go to the core issue of the decision making relating to the New Black Panther Party litigation. 

Indeed, the Department has gone so far as to withhold witness statements from the Commission and has yet to 

provide witnesses or information about alleged instructions by Deputy Assistant Attorney General Julie 

Fernandes or similar comments as to which no privilege could apply. 
69 DOJ’s Lack of Cooperation & Commission’s Difficulty in Securing Required Cooperation 

i.   Initial Letters and the Basis for an Expanded Inquiry

The Commission’s interest in the New Black Panther Party litigation began shortly after 

three of the defendants were dismissed from the case on May 15, 2009. In a letter sent on 

June 16, 2009, the Commission asked the Department to detail (i) its rationale for dismissing 

most of the case, (ii) its evidentiary and legal standards in voter intimidation cases, and (iii) 

any similar cases where the Civil Rights Division unilaterally dismissed charges against 

defendants.229 The Department responded on July 24 that three of the defendants were 

dismissed because it was determined “after a careful and thorough review of the matter,”230

that the “facts and the law” did not support pursuing claims against them. 

The Commission found the Department’s letter to be “largely non-responsive” to its specific 

questions and requests for information in which to form its own judgment on the matter.231

The Commission next sought all documents relating to the NBPP case, including witness 

statements taken by the Department regarding the incident in Philadelphia.232 On September 

9, the Department informed the Commission that the NBPP matter had been referred to the 

Office of Professional Responsibility (OPR), and that the Department “will not provide 

further response until that review is complete.”233 

Congressmen Lamar Smith, House Judiciary Committee Ranking Member, and Frank Wolf, 

Ranking Member on the Commerce-Science-Justice Subcommittee, House Appropriations 

Committee, have pointed out that OPR restricts its investigations to whether attorneys have 

met basic ethical obligations, and that it is beyond the scope of OPR’s duties to investigate 

the broader questions raised in the NBPP investigation.234 It was also pointed out that any 

 

229 Letter from Gerald A. Reynolds, Chairman, et al., U.S. Comm’n on Civil Rights, to Loretta King, Acting 

Asst. Atty. Gen., Civil Rights Div., U.S. Dep’t of Justice (June 16, 2009), available at 

http://www.usccr.gov/correspd/VoterIntimidation2008LetterDoJ.pdf; see also Letter from Abigail Thernstrom, 

Vice Chairman & Ashley L. Taylor, Jr., Commissioner, U.S. Comm’n on Civil Rights, to Loretta King, Acting 

Asst. Atty. Gen., Civil Rights Div., U.S. Dep’t of Justice (June 22, 2010), available at

http://www.usccr.gov/correspd/Thernstrom_TaylorLetter2008.pdf. 230 Letter from Portia L. Roberson, Dir., Office of Intergovernmental & Public Liaison, U.S. Dep’t of Justice, to 

Gerald A. Reynolds, Chairman, U.S. Comm’n on Civil Rights (July 24, 2010), available at

http://www.usccr.gov/correspd/Roberson_Reynolds-07-24-09.pdf. This letter claimed that one of the dismissed 

defendants, Jerry Jackson, lived at the building where the polling place was located. The Department later 

acknowledged that this claim was incorrect. See Discovery Responses, supra note 132, at 29-30 (Response to 

Document Request No. 22). 

231 See Letter from U.S. Comm’n on Civil Rights to Eric Holder, Atty. Gen., U.S. Dep’t of Justice (Aug. 10, 

2009), available at http://www.usccr.gov/correspd/Follow-upVoterIntimidation.pdf. 232 The Department has not produced most of the witness statements taken by the Department in the case, 

including statements of poll watchers Mike Mauro, Chris Hill, Steve Morse, Wayne Byman, Joe Fischetti, Larry 

Counts, Angela Counts, and Harry Lewis; Republican Party officials Joe DeFelice and John Giordano; police 

officer Richard Alexander; and defendant Malik Zulu Shabazz. 233 Letter from Portia L. Roberson, Dir., Office of Intergovernmental & Public Liaison, U.S. Dep’t of Justice, to 

Gerald A. Reynolds, Chairman, et al., U.S. Comm’n on Civil Rights (Sept. 9, 2009), available at 

http://www.usccr.gov/correspd/LetterfromRoberson2Reynoldsetalrereferral2DOJOfficeofProfessionalResponsi

bility_09-09-09.pdf. 234 The independence of OPR and its ability to investigate sensitive cases are further called into question by 

reports of its ties to the White House. It was reported in February 2009 that the White House and the 
Race Neutral Enforcement of the Law? 70

potential investigation by OPR under the present circumstances is tainted by the fact that 

OPR reports directly to the Attorney General. As noted by Representative Wolf: “I do not 

believe that this office [OPR] is capable of conducting an unbiased and independent review 

of this case given that it reports to a political appointee – an inherent conflict-of-interest that 

can only be avoided by an independent inspector general (IG) investigation.”235 Similar 

concerns about the independence of OPR have also been raised by members of Congress 

with regard to investigations involving the Bush administration.236 

Given these concerns, and the fact that OPR still has not completed its investigation, which 

has been pending for over a year, Representatives Smith and Wolf have repeatedly asked 

Department Inspector General Glenn Fine to investigate the Department’s handling of the 

NBPP case and related issues.237 For over a year, the Inspector General’s position has been 

that his office does not have jurisdiction to investigate these matters because the allegations 

relate to Department attorneys exercising their authority to litigate and make legal 

decisions.238 The two congressmen expressed their view that Mr. Fine’s reading of both his 

jurisdiction and the NBPP matter was too narrow, as the NBPP matter is about more than 

litigation decisions.239 In light of J. Christian Adams’ testimony before the Commission, 

Representatives Smith and Wolf renewed their request for the Inspector General to 

investigate.240 

 Department were vetting the head of OPR, Mary Patrice Brown, for a federal judgeship. See Joe Palazzolo, 

White House Vetting OPR Chief for Federal Judgeship, MAIN JUSTICE, Feb. 8, 2010, 

http://www.mainjustice.com/2010/02/08/white-house-vetting-opr-chief-for-federal-judgeship/; Letter from 

Congressman Lamar Smith & Congressman Frank Wolf to Glenn A. Fine, Inspector Gen., U.S. Dep’t of Justice 

(March 2, 2010), available at http://www.usccr.gov/NBPH/CongressionalCorrespondencereNBPP.pdf. In 

addition, the attorney assigned to the investigation is alleged to have made significant political contributions to 

recent Democratic Party campaigns. See Letter from Mary Patrice Brown, Acting Counsel, Office of Prof’l 

Responsibility, U.S. Dep’t of Justice, to Congressman Lamar Smith (Aug. 28, 2009); Hans von Spakovsky, 

Investigating the Black Panther Case, NAT’L REVIEW ONLINE, Sept. 14, 2009, 

http://www.nationalreview.com/corner/187130/investigating-black-panther-case/hans-von-spakovsky (last 

visited Oct. 21, 2010). 

235 Letter from Congressman Frank Wolf to Glenn Fine, Inspector Gen., U.S. Dep’t of Justice (Jan. 26, 2010), 

available at http://www.usccr.gov/NBPH/CongressionalCorrespondencereNBPP.pdf. 236 See Ryan J. Reilly, Internal DOJ Ethics Office is Broken, Panel Says, MAIN JUSTICE, Feb. 25, 2010, 

http://www.mainjustice.com/2010/02/25/opr-report-shows-internal-doj-ethics-office-is-broken-say-panelists/

(last visited Oct. 20, 2010); Ryan J. Reilly, OPR Report Kickstarts Push to Strengthen Inspector General, MAIN 

JUSTICE, Mar. 19, 2010, http://www.mainjustice.com/2010/03/19/opr-torture-memos-report-kickstarts-push-tostrengthen-inspector-general/ (last visited Oct. 20, 2010). 237 See Letter from Congressman Frank Wolf to Glenn Fine, Inspector Gen., U.S. Dep’t of Justice (Jan. 26, 

2010), available at http://www.usccr.gov/NBPH/CongressionalCorrespondencereNBPP.pdf; Letter from 

Congressman Lamar Smith & Congressman Frank Wolf to Glenn A. Fine, Inspector Gen., U.S. Dep’t of Justice 

(Mar. 2, 2010), available at http://www.usccr.gov/NBPH/CongressionalCorrespondencereNBPP.pdf. 238 See Letter from Glenn A. Fine, Inspector Gen., U.S. Dep’t of Justice, to Congressman Frank Wolf (Feb. 2, 

2010), available at http://www.usccr.gov/NBPH/CongressionalCorrespondencereNBPP.pdf (citing 5 U.S.C. 

App. 3 § 8E(b)(3); 28 C.F.R. § 0.29c(b)). 

239 See Letter from Congressman Lamar Smith & Congressman Frank Wolf to Glenn A. Fine, Inspector Gen., 

U.S. Dep’t of Justice (Mar. 2, 2010), available at 

http://www.usccr.gov/NBPH/CongressionalCorrespondencereNBPP.pdf. 240 See Letter from Congressman Frank Wolf to Glenn Fine, Inspector Gen., U.S. Dep’t of Justice (July 14, 

2010), available at http://wolf.house.gov/uploads/fine%207%2014_20100714124633.pdf (last visited Oct. 20, 

2010); Letter from Congressman Lamar Smith to Glenn A. Fine, Inspector Gen., U.S. Dep’t of Justice (Aug 3, 
71 DOJ’s Lack of Cooperation & Commission’s Difficulty in Securing Required Cooperation 

This most recent demand resulted in a change of position by the Inspector General. In a letter 

dated September 13, 2010 to Congressman Smith and Congressman Wolf, the Inspector 

General stated: 

Through this letter I want to inform you that the OIG plans to initiate a 

review of the enforcement of civil rights laws by the Voting Section of 

the Department’s Civil Rights Division. This review will examine, 

among other issues, the types of cases brought by the Voting Section 

and any changes in these types of cases over time; any changes in the 

Voting Section enforcement policies or procedures over time; whether 

the Voting Section has enforced the civil rights laws in a nondiscriminatory manner; and whether any Voting Section employees 

have been harassed for participating in the investigation or prosecution 

of particular matters.241

In the same letter, the Inspector General also noted that: “In response to my recent inquiry, 

OPR officials have informed us that they are near the end of their investigation and are 

beginning to draft their report of investigation.”242

Regardless of belated actions by OPR and OIG, the Commission has an independent duty to 

investigate such civil rights law enforcement actions and report to Congress and the President 

its independent conclusions. The following sections detail the extent to which the 

Department has attempted to frustrate the Commission’s investigation. 

ii.  Subpoenas Issued to Christopher Coates and J. Christian Adams

After the Commission voted on September 11, 2009 to make the NBPP investigation the 

subject of its annual enforcement report, and after another round of correspondence with the 

Department,243 the Commission on November 18 subpoenaed two Department employees for 

deposition: Christopher Coates, the Chief of the Voting Section, and J. Christian Adams, a 

Voting Section attorney. Both attorneys had been part of the NBPP litigation team. In 

response, the Department told the Commission that Coates and Adams would not be 

permitted to “provide the Commission with any information (in writing, by testimony, or 

otherwise) unless and until the Department has had an opportunity to fully review and 

 2010), available at http://republicans.judiciary.house.gov/Media/PDFs/080310_Smith%20to%20Fine.pdf (last 

visited Oct. 20, 2010). 

241 Letter from Glenn Fine, Inspector Gen., U.S. Dep’t of Justice, to Congressman Frank Wolf (Sept. 13, 2010), 

available at http://www.usccr.gov/NBPH/LetterFine2Wolfreenforcementcivilrightslaws_09-13-10.pdf. 242 Id. 243 See Letter from Gerald A. Reynolds, Chairman, U.S. Comm’n on Civil Rights, to Eric H. Holder, Atty. Gen., 

U.S. Dep’t of Justice (Sept. 30, 2009), available at

http://www.usccr.gov/correspd/VoterIntimidationNBPP093009.pdf; Letter from Portia Roberson, Director, 

Office of Intergovernmental and Public Liaison, U.S. Dep’t. of Justice to Gerald A. Reynolds, Chairman, U.S. 

Comm’n on Civil Rights (Nov. 16, 2009), available at 

http://www.usccr.gov/correspd/LetterfromRoberson2Reynoldsrerequestforinformation%20_11-16-09.pdf. 
Race Neutral Enforcement of the Law? 72

consider the Commission’s demand.”244 The Commission was also copied on a letter from 

counsel for Mr. Adams, who made it clear that Adams had been ordered by the Department 

not to comply with the Commission’s subpoena.245 On January 29, 2010, the Commission 

asked the Department whether it would reconsider its position and permit Coates and Adams 

to testify.246 On March 12, 2010, the Department said that it was still evaluating the 

request.247 

Having not received a decision from the Department, the Commission asked the Department 

on March 30 to appoint a special counsel. The purpose of this request was to have an 

independent third party seek enforcement of the subpoenas directed to the Department and its 

employees. On April 16, 2010, the Department stated that it would not authorize Coates or 

Adams to provide testimony to the Commission. The Department did not respond to the 

Commission’s request that a special counsel be appointed until May 13, 2010, stating that it 

“[did] not believe it [was] appropriate to appoint a special counsel,” based on the 

Department’s “need to protect the confidentiality of the work product of our attorneys.”248

J. Christian Adams submitted his letter of resignation to the Department on or about May 14, 

due in part to what he characterized as the inaccurate testimony given by Assistant Attorney 

General Thomas Perez on that date to the Commission.249 Adams’s resignation was effective 

in June,250 and he provided testimony to the Commission on July 6. Under oath, he testified 

that he resigned for two reasons: first, he believed he was placed in an untenable position in 

that the Department instructed him not to cooperate with a lawful subpoena issued by the 

Commission; and second, he believed the testimony of Perez before the Commission was 

inaccurate, despite Perez’s having been briefed by the trial team the day before.251

Pursuant to a majority vote of the Commission during its July 16, 2010 business meeting, the 

Commission offered on July 28 to limit its initial questioning of Mr. Coates to “nondeliberative statements or actions relating to whether there is a policy and/or culture within 

 

244 See Letter from Joseph H. Hunt, Dir., Fed. Programs Branch, Civil Div., U.S. Dep’t of Justice, to Gerald A. 

Reynolds, Chairman, U.S. Comm’n on Civil Rights (Nov. 24, 2009), available at 

http://www.usccr.gov/correspd/LetterfromHunt2Reynoldsrerequestforinformation_11-24-09.pdf. 245 See Letter from Jim Miles to Joseph H. Hunt, Dir., Fed. Programs Branch, Civil Div., U.S. Dep’t of Justice 

(Nov. 25, 2010), available at http://www.usccr.gov/correspd/LetterfromMiles2HuntreAdamstestimony_11-29-

09.pdf; see also Adams Testimony, supra note 50, at 9. 246 See Letter from David P. Blackwood, Gen. Counsel, U.S. Comm’n on Civil Rights, to Joseph H. Hunt, Dir., 

Fed. Programs Branch, Civil Div., U.S. Dep’t of Justice (Jan. 29, 2010), available at 

http://www.usccr.gov/correspd/1-29-10_Blackwood2Hunt.pdf. 247 See Letter from Joseph H. Hunt, Dir., Fed. Programs Branch, Civil Div., U.S. Dep’t of Justice, to David P. 

Blackwood, Gen. Counsel, U.S. Comm’n on Civil Rights (Mar. 12, 2010), available at

http://www.usccr.gov/correspd/03-12-10_DOJ-NPPP.pdf. 248 Letter from Joseph H. Hunt, Dir., Fed. Programs Branch, Civil Div., U.S. Dep’t of Justice, to Gerald 

Reynolds, Chairman, U.S. Comm’n on Civil Rights (May 13, 2010), available at 

http://www.usccr.gov/NBPH/UnfillDiscReq_05-13-10.pdf. 249 See Adams Testimony, supra note 50, 69-70. 250 See J. Christian Adams, PJM Exclusive: Unequal Law Enforcement Reigns at Obama’s DOJ, PAJAMAS 

MEDIA, June 28, 2010, http://pajamasmedia.com/blog/j-christian-adams-you-deserve-to-know-%E2%80%94-

unequal-law-enforcement-reigns-at-obamas-doj-pjm-exclusive/ (last visited Oct. 21, 2010). 251 See Adams Testimony, supra note 50, at 68. Mr. Adams went on to state, “I have not said that he testified 

falsely. I have not said that he lied. I think he believes in some measure what he is saying.” Id.
73 DOJ’s Lack of Cooperation & Commission’s Difficulty in Securing Required Cooperation 

the Department of discriminatory enforcement of civil rights laws and whether there is a 

policy not to enforce Section 8 of the National Voter Registration Act.”252

On August 11, 2010, Mr. Perez responded to the letters of July 28 and August 6, 2010. In 

that letter, Mr. Perez simply asserted that the Department applies civil rights laws in a raceneutral fashion (without admitting, denying, acknowledging, or attempting to explain the 

specific testimony to the contrary), and reiterated the Department’s position that Christopher 

Coates would not be permitted to testify. 

Like Mr. Adams, Mr. Coates testified that the information provided by Mr. Perez and the 

Department was misleading and inaccurate. As a result, he decided to testify before the 

Commission on September 24, 2010.253 In describing his decision to appear before the 

Commission, he stated: 

[I] reviewed Mr. Perez’s August 11th letter to the Chairman, in which 

he again denied your request that I be allowed to testify before you and 

in which he made various representations concerning the Department’s 

enforcement practices. 

Based upon my own personal knowledge of the events surrounding the 

Division’s actions in the Panther case, and the atmosphere that has 

existed and continues to exist in the Division and in the Voting Section 

against fair enforcement of certain federal voting laws, I do not believe 

these representations to this Commission accurately reflect what 

occurred in the Panther case and do not reflect the hostile atmosphere 

that has existed within the Division for a long time and against raceneutral enforcement of the Voting Rights Act.254

Given the wide discrepancy between the testimony of Mr. Perez and the testimony of Mr. 

Coates and Mr. Adams, a serious question exists as to whether the Department’s attempt to 

prevent Mr. Coates and Mr. Adams from testifying was based on concerns other than 

protecting legitimate institutional privileges. 

iii.  Executive Privilege and Asserted Departmental Interests

Believing that the Department had largely failed to cooperate with its information requests, 

the Commission on December 8, 2009, served a subpoena on the Department propounding 

interrogatories and document requests. The instructions to the Department stated: 

 

252 Letter from Gerald A. Reynolds, Chairman, U.S. Comm’n on Civil Rights, to Eric Holder, Atty. Gen., U.S. 

Dep’t of Justice (July 28, 2010), available at http://www.usccr.gov/NBPH/Final_GAR_to_AGH_07-28-10.pdf; 

see also Letter from Gerald A. Reynolds, Chairman, U.S. Comm’n on Civil Rights, to Eric H. Holder, Jr., Atty. 

Gen., U.S. Dep’t of Justice (Aug. 6, 2010), available at

http://www.usccr.gov/NBPH/LetterfromChair2HolderreCoatesTest_08-06-10.pdf. 253 Press reports indicate that the Department attempted to prevent Mr. Coates from testifying as late as the night 

before his appearance before the Commission. See Daniel Halper, DOJ, the New Black Panther Party, and 

Integrity, WEEKLY STANDARD BLOG, Oct. 1, 2010, http://www.weeklystandard.com/blogs/doj-new-blackpanther-party-and-integrity (last visited Oct. 21, 2010). 254 Coates Testimony, supra note 1, at 9. 
Race Neutral Enforcement of the Law? 74

If any claim of privilege is raised relating to any document or information 

request, identify with specificity the privilege asserted, any legal authorities 

relied upon, and indicate whether any privilege so asserted can be addressed 

by agreements of confidentiality between the parties. If any claim of executive 

privilege is raised, identify the highest official within the Department 

connected with the specific document or information, and indicate whether the 

President of the United States has specifically exercised said privilege.255

The Department did not comply with this instruction. Many of its responses merely referred 

to “General Objections,” which included objecting to each interrogatory and document 

request “to the extent they seek information protected by the attorney-client, attorney-work 

product, deliberative process, law enforcement, or other recognized privilege.”256 In addition, 

the Department seemed to create a new privilege, claiming that it was “constrained by the 

need to protect against disclosures that would harm its deliberative processes or that 

otherwise would undermine its ability to carry out its mission.” (emphasis added)257 The 

Department simply ignored the question of whether the President, or any Department official 

on his behalf, had invoked executive privilege. 

On March 30, the Commission asked the Department to specify the specific privileges 

asserted, and legal authorities relied upon, to justify withholding the information requested. 

The Department has never done so, “apparently seek[ing] to obfuscate the basis for its refusal 

to provide the requested information.”258

On April 16, the Department indicated that Assistant Attorney General Thomas Perez would 

agree to testify before the Commission on May 14, 2010. In anticipation of Mr. Perez’s 

testimony, Chairman Reynolds wrote to the Attorney General on May 9, 2010, asking 

whether President Obama or the Attorney General had invoked executive privilege and 

seeking an answer prior to Perez’s scheduled testimony.259 On May 13, the day before Mr. 

Perez’s scheduled testimony, the Department stated for the first time that President Obama 

had not asserted and would not assert executive privilege, which Mr. Perez reiterated in his 

testimony the next day.260 

 

255 See U.S.C.C.R. Discovery Requests, supra note 153, at 3 256 Discovery Responses, supra note 132, at 1. 257 Letter from Joseph H. Hunt, Dir., Fed. Programs Branch, Civil Div., U.S. Dep’t of Justice, to Gerald A. 

Reynolds, Chairman, U.S. Comm’n on Civil Rights (Jan. 11, 2010), available at

http://www.usccr.gov/correspd/1-12-10_Hunt2ReynoldsCL.pdf. 258 Letter from David P. Blackwood, Gen. Counsel, U.S. Comm’n on Civil Rights, to Joseph H. Hunt, Dir., Fed. 

Programs Branch, Civil Div., U.S. Dep’t of Justice (Mar. 30, 2010), available at

http://www.usccr.gov/correspd/03-30-10_DOJ-NPPP.pdf. 259 See Letter from Gerald A. Reynolds, Chairman, U.S. Comm’n on Civil Rights, to Eric Holder, Atty. Gen., 

U.S. Dep’t of Justice (May 9, 2010), available at http://www.usccr.gov/NBPH/UnfillDiscReq_05-09-10.pdf. 260 See Letter from Joseph H. Hunt, Dir., Fed. Programs Branch, Civil Div., U.S. Dep’t of Justice, to Gerald 

Reynolds, Chairman, U.S. Comm’n on Civil Rights (May 13, 2010), available at

http://www.usccr.gov/NBPH/UnfillDiscReq_05-13-10.pdf; Perez Testimony, supra note 53, at 90-91. 
75 DOJ’s Lack of Cooperation & Commission’s Difficulty in Securing Required Cooperation 

During the May 14 hearing, Mr. Perez was questioned regarding the rationale for the 

Department’s refusal to appoint a special counsel.261 Perez’s answer was largely nonresponsive, but seemed to focus on the fact that there was no explicit statutory provision 

addressing the issue.262

As with the Department’s attempt to preclude Christopher Coates and J. Christian Adams 

from testifying before the Commission, vague and unexplained assertions of privilege by the 

Department raise serious questions as to the Department’s degree of cooperation and whether 

its explanations serve the legitimate concerns of the agency. 

iv.  Judicial Watch Litigation and the Failure to Identify Allegedly Privileged

Documents

The discovery requests served upon the Department included an instruction requiring the 

Department to identify any and all documents withheld based on alleged assertion of 

privilege. Specifically, Instruction No. 10 of the discovery requests provides, in part: 

[F]or all documents or information withheld pursuant to an objection 

or a claim of privilege, identify: 

A. the author’s name and title or position; 

B. the recipient’s name and title or position; 

C. all persons receiving copies of the document; 

D. the number of pages of the document; 

E. the date of the document; 

F. the subject matter of the document; and the basis for the claim 

to privilege.263

This demand was followed by correspondence on behalf of the Commission dated March 30, 

April 1, April 26, and May 13, 2010. Despite the Commission’s demands, the Department 

refused to detail the types of documents it claimed were privileged. Instead, on May 13, 2010 

the Department asserted: “We do not intend to provide a log of withheld materials; our 

confidentiality interests in attorney work product are so conventional that we do not see a 

basis for creating a log of these materials.”264

Despite the Department’s refusal to provide a log of withheld documents to the Commission, 

on September 20, 2010 it was learned that just such an index had been provided by the 

Department to Judicial Watch as a result of a Freedom of Information Act (FOIA) lawsuit 

 

261 See Perez Testimony, supra note 53, at 90. 262 See id. at 90-93. 263 U.S.C.C.R. Discovery Requests, supra note 153, at 2-3. 264 Letter from Joseph H. Hunt, Dir., Fed. Programs Branch, Civil Div., U.S. Dep’t of Justice, to Gerald 

Reynolds, Chairman, U.S. Comm’n on Civil Rights (May 13, 2010), available at

http://www.usccr.gov/NBPH/UnfillDiscReq_05-13-10.pdf. 
Race Neutral Enforcement of the Law? 76

filed by said organization.265 The log provided to Judicial Watch, known as a Vaughn 

Index,266 provides exactly the type of information originally requested by the Commission.267 

The fact that the Department provided such information to Judicial Watch, but not to the 

Commission, is telling. The Department’s duty to respond to the Commission is based on a 

statutory mandate requiring federal agencies to “cooperate fully” with the Commission.268

The Department also is charged with enforcement of the Commission’s subpoenas.269 Thus, 

reliance on DOJ to follow the first statute above and to enforce the Commission’s subpoenas 

in court arguably leaves the Commission without recourse in the event, as here, that the 

Department itself refuses to provide subpoenaed information and also refuses to even appoint 

a special counsel to represent the Commission’s interests or independently evaluate its 

position. 

While the Department refused to provide a log or otherwise identify the documents it has 

withheld documents to the Commission, the FOIA suit by Judicial Watch could not be 

similarly ignored. Unlike with the demands of the Commission, the Department is not the 

sole arbiter of what may be withheld from public scrutiny in FOIA cases. Given that the 

demands of both the Commission and Judicial Watch were similar in nature, the only 

explanation for the difference in treatment is that the information sought by the Commission 

could be withheld without judicial scrutiny – especially given the Commission’s superior 

claim to the actual documents and not just an index of withheld materials. It is difficult to 

attribute the Department’s different treatment to anything but a desire to avoid serious 

scrutiny into its decision making and to prevent disclosure of the extent to which political 

appointees played a role in the case. 

As of September 20, 2010, the Commission has again renewed its demand that the 

Department provide a privilege log detailing those documents and information withheld 

pursuant to alleged claims of privilege. 

v.  Outstanding Discovery Issues

As of this writing, the Department has failed to produce the following information in 

response to the Commission’s subpoenas from November and December 2009 (information 

similar to what the Commission has been seeking since its June and August 2009 letters): 

1. The Department refused to authorize Christopher Coates and J. Christian Adams to 

testify before the Commission. These individuals appeared over the objections of the 

Department. Even then, Mr. Coates and Mr. Adams felt obligated to honor the 

 

265 See Judicial Watch, Inc. v. U.S. Dep’t of Justice, No. 10-CV-851-RBW (D.D.C.). 266 See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). 267 See Judicial Watch Vaughn Index, supra note 69. 268 42 U.S.C. § 1975b(e) provides, “All Federal agencies shall cooperate fully with the Commission to the end 

that it may effectively carry out its functions and duties.” 

269 Under the terms of 42 U.S.C. § 1975a(e)(2), “[i]n case of contumacy or refusal to obey a subpoena, the 

Attorney General may in a federal court of appropriate jurisdiction obtain an appropriate order to enforce the 

subpoena.” 
77 DOJ’s Lack of Cooperation & Commission’s Difficulty in Securing Required Cooperation 

Department’s privilege claims that some on the Commission believe are not valid in 

the absence of an invocation of executive privilege. 

2. With regard to documents withheld, the Department has not specified the privileges 

being invoked, other than implying in its May 13, 2010 letter that the Department’s 

“well-established confidentiality interests” (emphasis added) override the statutory 

command that “[a]ll federal agencies shall cooperate fully with the Commission.”270

In addition, as discussed above, the Department has refused to provide a privilege log 

as requested by the Commission. 

3. The Department refused to provide witness statements from poll watchers Mike 

Mauro, Chris Hill, Steve Morse, Wayne Byman, Joe Fischetti, Larry Counts, Angela 

Counts, and Harry Lewis; defendant Malik Zulu Shabazz; police officer Richard 

Alexander; and Republican Party officials Joe DeFelice and John Giordano.271 

4. The Department heavily redacted the FBI incident reports that have been produced. 

5. The Department refused to provide the draft pleadings that were the subject of the 

dispute between the trial team and the management team of Loretta King and Steve 

Rosenbaum.272

6. The Department refused to provide documents constituting and concerning the 

communications between the trial team and Loretta King and Steve Rosenbaum, 

including an April 2009 memorandum referenced in a press report, prepared by the 

trial team in response to Mr. Rosenbaum’s concerns. 

7. The Department refused to provide e-mails between Civil Rights Division officials, 

such as Loretta King and Steven Rosenbaum, and other Department officials, such as 

Assistant Attorney General Thomas Perrelli, Deputy Assistant Attorney General Sam 

Hirsch, and Deputy Attorney General David Ogden, relating to the NBPP case. 

8. There are several documents referred to in the Appellate Section memo that have not 

been produced: an e-mail from the Voting Section to the Civil Rights Division of 

May 1, 2009; a Draft Motion for Default Judgment (dated April 30, 2009); a Draft 

Memorandum of Law in Support of Motion for Default Judgment (dated April 30, 

2009); and a Draft Proposed Order (dated May 6, 2009). 

In addition, the Department has refused to answer 18 interrogatories and refused to produce 

documents in response to 22 requests, usually citing the amorphous General Objections, as 

discussed above. 

 

270 42 U.S.C. § 1975b(e). 271 See J. Memo, supra note 10; see also Remedial Memo, supra note 74, at 4. It should be noted that the 

Department never produced the three memos regarding the NBPP case that the Commission has obtained. These 

three memos were submitted to the Commission by Congressman Frank Wolf at its April 23, 2010 hearing. 272 See J. Memo, supra note 10, at 13 n.15. 
Race Neutral Enforcement of the Law? 78

Finally, Christopher Coates’s testimony and news reports indicate that documents relevant to 

this investigation may have been prepared in April and May 2010. The Commission 

requested on October 13, 2010, that the Department provide the following documents in an 

expedited fashion, which the Department has not provided as of this writing: e-mails or 

writings prepared by Coates and J. Christian Adams in the month preceding Thomas Perez’s 

testimony to the Commission regarding the NBPP litigation or hostility to race-neutral 

enforcement of the voting laws. 

The scope and the extent of the disagreement between the Commission and the Department 

calls out for resolution by a neutral party. Under the current statutory framework, however, it 

is the Department that, as a practical matter, has final word as to what, if any, information 

will be released. 
PART V: Prior Enforcement

of § 11(b) of the Voting

Rights Act
Part V: Prior Enforcement of §11 (b) of Voting Rights Act 80

As part of this report, the Commission has examined prior enforcement of Section 11(b) of 

the Voting Rights Act, the provision used to pursue the New Black Panther Party litigation. 

This section reviews the terms of the statute, its legislative history and purpose, and provides 

a short description of each prior case brought under Section 11(b). 

A. The Statute

§ 11(b) of the Voting Rights Act provides: 

No person, whether acting under color of law or otherwise, shall 

intimidate, threaten, or coerce, or attempt to intimidate, threaten, or 

coerce any person for voting or attempting to vote, or intimidate, 

threaten, or coerce, or attempt to intimidate, threaten, or coerce any 

person for urging or aiding any person to vote or attempt to vote, or 

intimidate, threaten, or coerce any person for exercising any powers or 

duties under [relevant sections of this title].273

Under the terms of the statute, one does not have to successfully intimidate voters in order to 

be in violation of § 11(b). An attempt to intimidate is sufficient to establish liability.274 In 

addition, as acknowledged by Assistant Attorney General Thomas Perez in his testimony 

before the Commission, the statute protects not only voters, but poll watchers as well.275

Accordingly, in the New Black Panther Party litigation, Section 11(b) was used as the basis 

for four causes of action: (1) intimidation of voters; (2) attempted intimidation of voters; (3) 

intimidation of individuals aiding voters; and (4) attempted intimidation of individuals aiding 

voters. 

B. Legislative History

The legislative history of § 11(b) reflects that no intent or discriminatory motive is required 

to prove a violation: 

While the purpose of the VRA was to eliminate racial discrimination 

in voting, § 11(b) of the act does not explicitly require proof that racial 

discrimination motivated the intimidation, threats, or coercion ...The 

House report on § 11(b) states that “[t]he prohibited acts of 

intimidation need not be racially motivated; indeed, unlike 42 U.S.C. 

 

273 42 U.S.C. § 1973i(b). 274 Perez Testimony, supra note 53, at 45. 275 Id. at 69. 
81 Race Neutral Enforcement of the Law

1971(b) (which requires proof of a ‘purpose’ to interfere with the right 

to vote), no subjective purpose or intent need be shown.”276 

In addition, at least one legal authority with experience with § 11(b) cases, a former senior 

Department career attorney, contends that no proof of actual effect of voter intimidation is 

necessary to establish a violation: 

The legislative history of this law makes clear that Congress wanted to 

expand the scope of voter protection by enacting a law that would bar 

voter intimidation. In fact, Congress’s explanations of the purposes 

behind Section 11(b) support the view that neither proof of intent to 

intimidate nor proof of any actual effect of voter intimidation must be 

shown to establish a violation of Section 11(b). Rather, as DOJ has 

read the statute, an interpretation I share, plaintiffs need only show that 

the conduct engaged in had a tendency to intimidate, threaten or coerce 

a reasonable voter. Importantly, there is no requirement that to prevail 

under Section 11(b) that a plaintiff prove any purpose of subjective 

intent to intimidate.277

Section 11(b) was part of the original Voting Rights Act of 1965 and was later codified as 42 

U.S.C. § 1973i(c). The legislative history of this section illustrates that its purpose was to 

assure ballot security for the expanded franchise contemplated by the Voting Rights Act. At 

the time the statute was passed, Congress had previously enacted a provision designed to 

govern expenditures to influence voting in an election for a federal official.278 Section 

1973i(c) was intended as something more than a mere replication of the existing provision. 

Instead, its protections were extended to include coverage of local elections held in 

conjunction with those for federal office.279

C. Penalties

As originally enacted, § 11(b) was among those sections of the Voting Rights Act which 

 

276 Willingham v. County of Albany, 593 F. Supp. 2d 446, 463 (N.D.N.Y. 2006) (citing H.R. REP. NO. 89-439, 

at 30 (1965), as reprinted in 1965 U.S.C.C.A.N. 2462). 277 J. Gerald Hebert, Rattling the Vote Cage – Part I, The Campaign Legal Center Blog, 

http://www.clcblog.org/blog_item-245.html (Aug. 8, 2008) (emphasis in original) (last visited Oct. 21, 2010). 

Mr. Hebert served at the Justice Department from 1973 to 1994. According to his website, he “served in many 

supervisory capacities, including Acting Chief, Deputy Chief, and Special Litigation Counsel in the Voting 

Section of the Civil Rights Division.” He has also served part-time as a staff attorney for the national office of 

the Lawyers’ Committee for Civil Rights Under Law and as the General Counsel to the National Redistricting 

Project for Congressional Democrats. See J. Gerald Hebert, P.C., Biography, http://www.voterlaw.com/bio.htm

(last visited Oct. 21, 2010). 

278 See 18 U.S.C. § 597. 

279 See United States v. Simms, 508 F. Supp. 79, 1183 (W.D. La. 1979). 
Part V: Prior Enforcement of §11(b) of Voting Rights Act 82

provided for fines and imprisonment for violations.280 In 1968, this was revised, and 

currently the only available remedy under § 11(b) is injunctive relief.281

D. Past Department of Justice (DOJ) § 11(b) Litigation Initiated by DOJ

The Department of Justice reports that it has filed three civil lawsuits alleging voter 

intimidation under § 11(b), in addition to the New Black Panther Party case.282 The three 

cases identified by the Department are U.S. v. Harvey, U.S. v. North Carolina Republican 

Party et al., and U.S. v. Brown. These cases offer little insight into the requirements or 

effectiveness of § 11(b). In two of the cases, the matter was decided on other grounds, with 

the § 11(b) claim being rejected with minimal discussion. In the third suit, the case was 

resolved by consent decree, with no discussion of § 11(b) or its requirements. 

What follows is a brief summary of each DOJ case:283

 

280 The original language stated, “Whoever shall deprive or attempt to deprive any person of any right secured 

by section 2, 3, 4, 5, 7, or 10 or shall violate section 11(a) or (b), shall be fined not more than $5,000, or 

imprisoned not more than five years, or both.” Voting Rights Act of 1965, Pub. L. No. 89-110, § 12(a), 79 Stat. 

437, 443. 

281 Civil Rights Act of 1967: Hearing on S. 1026, S. 1318, S. 1359, S. 1362, S. 1462, H.R. 2516 and H.R. 10805 

Before the Subcomm. on Constitutional Rights of the S. Comm. on the Judiciary, 90th Cong. (1967). During the 

debate in the Senate, an explanation of Amendment 554 (Dirksen Amendment) was provided by the Department 

of Justice. The explanation of the amendment stated that “[t]he penalty section of the Voting Rights Act of 1965 

is modified to avoid duplication.” STATUTORY HISTORY OF THE UNITED STATES: CIVIL RIGHTS PART II, at 1692 

(Bernard Schwartz ed., 1970).

282 See Discovery Responses, supra note 132, at 14-16 (Response to Interrogatory No. 29). 283 Section 11(b) suits may also be brought by private plaintiffs. The reported cases initiated by private plaintiffs 

tend to focus on technical issues. Nonetheless, in some of these cases the courts have provided guidance on 

standards for applying § 11(b). As Gregory Katsas pointed out in his testimony: There are cases holding that § 

11(b) should be construed broadly rather than narrowly. See Jackson v. Riddell, 476 F. Supp. 849, 859 (D. Miss. 

1979) (citing Whatley v. City of Vidalia, 399 F.2d 521, 525 (5th Cir. 1968)). And a case has held that no 

subjective intent or purpose need be shown on the part of the perpetrator. See Willingham v. County of Albany, 

593 F. Supp. 2d 446, 462 (N.D.N.Y. 2006). 

Whatley v. City of Vidalia, 399 F.2d 521 (5th Cir. 1968).

This case focused on whether 11(b) actions could be removed to federal court. The movants alleged that they 

were arrested by police officials while engaged in peaceful activity to encourage voter registration. The Fifth 

Circuit held that the matter was properly removed to federal court. 

Bershatsky v. Levin, 99 F.3d 555 (2nd Cir. 1996). 

Plaintiff sought injunctive relief and declaratory judgment that use of voter registration lists to select jurors 

infringed upon her right to vote. The Second Circuit affirmed the lower court’s decision, ruling against the 

plaintiff. 

Willingham v. Albany, 593 F. Supp. 2d 446 (N.D.N.Y. 2006). 

The court dismissed a § 11(b) claim alleging that state actors manipulated the absentee ballot process. While the 

court held that the facts did not support the allegation of intimidation, it made the following observations 

relating to § 11(b). 
83 Race Neutral Enforcement of the Law

United States v. Harvey, 250 F. Supp. 219 (E.D. La. 1966). 

In Harvey, the U.S. sought an injunction enjoining defendants from employing coercive and 

intimidating economic penalties against African Americans who registered to vote, including 

termination of sharecropping and tenant farming relationships, eviction, termination of 

employment, and the imposition of rents on houses which were formerly occupied in 

connection with sharecropping or tenant farming agreements. The court, after questioning § 

11(b)’s constitutionality, concluded that “the evidence in this case is completely and totally 

void of any proof of intimidation, threats, or coercion.”284 Further, the court noted that, even 

if the alleged acts were committed for the reasons asserted by the plaintiffs, 

[t]here is simply no way that legislation allegedly designed solely to protect 

the constitutionally guaranteed right to be free from discrimination in the 

exercise of franchise, which, in its operation, confiscates one’s use of his 

private property and awards it to another as a penalty for the owner’s 

individual acts of discrimination could be considered constitutional.285

 

While the purpose of the VRA was to eliminate racial discrimination in voting, § 11(b) of the 

act does not explicitly require proof that racial discrimination motivated the intimidation, 

threats, or coercion. Thus, a plain reading of § 11(b) refutes the contention of [the defendants] 

that proof of racial discrimination as a motive must be shown to establish a claim under this 

provision. See Hayden v. Pataki, 449 F.3d 305, 314 (2d Cir. 2006) (noting that statutory 

interpretation first requires examination of the language of the statute itself). Moreover, the 

legislative history of that section supports this plain reading. The House report on § 11(b) 

states that “[t]he prohibited acts of intimidation need not be racially motivated; indeed, unlike 

42 U.S.C.1971(b) (which requires proof of a ‘purpose’ to interfere with the right to vote), no 

subjective purpose or intent need be shown.” H.R. REP. NO. 89-439, at 30 (1965), as reprinted 

in 1965 U.S.C.C.A.N. 2462. Research has revealed no cases directly deciding this issue. 

Accordingly, given the plain language and the legislative history of § 11(b), the contention of 

[the defendants] that this section requires proof that they were motivated by racial 

discrimination must be rejected. 593 F. Supp. 2d 446, 462 (N.D.N.Y. 2006).

Willing v. Lake Orion Cmty. Sch. Bd. of Trs., 924 F. Supp. 815 (E.D. Mich. 1996). 

The Court dismissed an 11(b) claim brought by a school district resident alleging improprieties in the conduct 

of school board elections. The Court found that the plaintiff failed to state a claim. 

Pincham v. Illinois Judicial Inquiry Bd., 681 F. Supp. 1309 (N.D. Ill. 1988). 

Pincham, a state appellate judge, gave a speech for Operation P.U.S.H. and made statements urging black voters 

to vote for a particular candidate. The Inquiry Board notified Pincham that they were considering filing a 

complaint against him for his remarks. Pincham filed a complaint alleging that the Board’s complaint violated 

his right to free speech and equal protection, among other things. 

Pincham then tried to amend his complaint to include a claim under 11(b) claiming that the Voting Rights Act 

prohibits punishment of black voters for political speech, and that no similar charges have ever been made 

against white judges who engaged in political speech. The Court held that the § 1973i(b) claim was without 

merit. 

284 250 F. Supp. 219, 237 (E.D. La. 1966). 285 Id. at 228. 
Part V: Prior Enforcement of §11(b) of Voting Rights Act 84

United States v. North Carolina Republican Party et al., No. 91-161-CIO-5-F (E.D.N.C. 

1992).

In this case, a suit was filed against the North Carolina Republican Party, the Helms for 

Senate Committee, and various others. The Complaint alleged violations of the Voting Rights 

Act (11(b) and 12(d) – 42 U.S.C. 1973i(b) and 1973j(d)) and the Civil Rights Act (131(c) – 

422 U.S.C. 1971(b) and 1971(c)), based on a “ballot security program” “purportedly 

designed to combat and deter election fraud.”286 According to the complaint, the North 

Carolina Republican Party sent first class mailings and post cards, targeting black voters, 

pertaining to voter registration and voter addresses. The postcards contained false 

information regarding residency requirements and eligibility to vote.287 

The consent decree, entered into prior to trial, provided that defendants (i) “are enjoined from 

engaging in any activity or program which is designed, in whole or in part, to intimidate, 

threaten, coerce, deter, or otherwise interfere with a qualified voter’s lawful exercise of the 

franchise;” (ii) “are enjoined from engaging in any ballot security program directed at 

qualified voters in which the racial minority status of some or all of such voters is a factor in 

the decision to target those voters;” and (iii) “shall not engage in any ballot security program 

unless and until such program has been determined by this Court to comply with the 

provisions of this decree and applicable federal law.”288 The 1992 decree was to remain in 

effect until December 1, 1996. 

United States v. Brown, 494 F. Supp. 2d 440 (S.D.Miss. 2007), aff’d, 561 F.3d 420 (5th Cir. 

2009). 

This case involved the anti-dilution provisions of the Voting Rights Act claiming that the 

defendants racially manipulated the electoral process in furtherance of an intent to 

discriminate against white voters. The Department sought (in addition to remedies under § 2 

of the Voting Rights Act) an injunction under § 11(b) permanently enjoining defendants from 

coercing, threatening, or intimidating persons voting or attempting to vote. The allegations 

accused the defendants of such actions as berating a voter for casting her ballot for an 

African American defendant’s white opponent, coercing a voter to vote by absentee ballot, 

failing to provide a voter privacy in which to cast his ballot, advertising in local newspapers 

that certain named white individuals would be prevented from voting, and impairing or 

coercing individuals attempting to exercise their right to vote. In its complaint, the 

Department identified the following specific acts as constituting intimidation and coercion in 

violation of § 11(b): 

(a) During the absentee in-person voting period before the 2003 primary 

election, Defendant Mickens [Circuit Court Clerk of Noxubee County] 

received an absentee ballot that had been voted in the courthouse by an 

 

286 Complaint for Declaratory and Injunctive Relief at 3, United States v. North Carolina Republican Party et al., 

No. 91-161-CIO-5-F (E.D.N.C. Feb. 26, 1992). 

287 Id. at 6-8. 288 Consent Decree at 4-5, United States v. North Carolina Republican Party et al., No. 91-161-CIO-5-F 

(E.D.N.C. Feb. 27, 1992). 
85 Race Neutral Enforcement of the Law

eligible voter. After receiving the ballot form this voter, Mickens set it aside 

without placing it in a sealed envelope as required by law. When this voter 

objected and asked that the unsealed ballot be spoiled and that she be allowed 

to vote a new ballot, Defendant Mickens loudly and abusively berated the 

voter and complained to the voter that she had cast her ballot for Defendant 

Mickens’ white opponent. As a result of this experience, this voter has 

resolved never to cast another absentee ballot at the courthouse as long as 

Defendant Mickens remains Circuit Clerk. 

(b) Prior to the August 2003 primary election, Defendant Mickens and others 

acting in concert with him coerced a voter to vote by absentee ballot, failed to 

provide that voter privacy in which to case his absentee ballot at the Circuit 

Clerk’s office, then instructed the voter on what candidates the voter should 

vote for, including Defendant Mickens, and looked on during the voting 

process to make sure that the voter followed the instruction.289

The court found for the plaintiff on § 2 grounds, but offered little discussion of § 11(b), 

noting only that, while there was a racial element to defendant’s publication of a list of white 

voters who would be challenged if they attempted to vote in the Democratic primary, “the 

court does not view the publication as the kind of threat or intimidation that was envisioned 

or covered by Section 11(b).”290 The court noted that “the Government has given little 

attention to this claim, and states that it has found no case in which plaintiffs have prevailed 

under this section.”291 The case was affirmed on appeal.292

 

289 Complaint at 11-12, United States v. Brown, 494 F. Supp. 2d 440 (S.D. Miss. 2007) (No. 4:05-cv-33-TSLLRA). 

290 494 F. Supp. 2d 440, 477 n.56. 

291 Id. 292 See United States v. Brown, 561 F.3d 420 (5th Cir. 2009). 
Part V: Prior Enforcement of §11(b) of Voting Rights Act 86

PART VI:   Interim Findings

and Recommendation
Part VI: Interim Findings and Recommendation 87

Findings 

A. The Commission’s organic statute authorizes it to subpoena witnesses and the 

production of written material in aid of its mission, and it authorizes the Attorney 

General to enforce the Commission’s subpoenas in federal court if any person or 

entity refuses to comply. It is unclear, however, whether the Commission has legal 

recourse if the Attorney General refuses to enforce a subpoena directed at the 

Department of Justice or its employees. The Commission’s statute also requires that 

“[a]ll Federal agencies shall cooperate fully with the Commission to the end that it 

may effectively carry out its functions and duties,” 42 U.S.C. § 1975b(e), but it is 

equally unclear whether the Commission has recourse to seek judicial enforcement of 

this command, absent representation from the Department of Justice. 

[Chairman Reynolds and Commissioners Gaziano, Heriot, Kirsanow, and Taylor voted in 

favor; Commissioners Melendez and Yaki voted against; Vice Chair Thernstrom was absent.] 

B. Although the U.S. Department of Justice has cooperated with many previous 

Commission investigations and requests, the DOJ has an inherent conflict of interest 

when it would prefer not to cooperate fully with the Commission’s investigations of 

DOJ actions. In the NBPP investigation that is the subject of this report, the 

Department of Justice refused to comply with certain Commission requests for 

information concerning DOJ’s enforcement actions, and it instructed its employees 

not to comply with the Commission’s subpoenas for testimony. Moreover, the 

Department’s denial of the Commission’s request for the appointment of a special 

counsel to help resolve the discovery disputes in federal court was communicated by 

a career attorney without addressing or acknowledging the Department’s conflict of 

interest and without any indication the Commission’s request was ever brought to the 

attention of the Attorney General. 

[Chairman Reynolds and Commissioners Gaziano, Heriot, Kirsanow, and Taylor voted in 

favor; Commissioner Yaki voted against; Commissioner Melendez abstained; Vice Chair 

Thernstrom was absent.] 

 

Recommendation 

Congress should consider amendments to the Commission’s statute to address investigations 

in which the Attorney General and/or the Department of Justice have a conflict of interest in 

complying fully with the Commission’s requests for information. Options to address a 

potential conflict of interest might include the following: 

• Enactment of a statutory procedure by which the Commission may request the 

Attorney General to appoint a special counsel with authority to represent it in federal 
88 Race Neutral Enforcement of the Law?

court, which request the Attorney General must personally respond to in writing 

within a specified period of time. 

• Enactment of a statutory provision to clarify that the Commission may hire its own 

counsel and proceed independently in federal court if the Attorney General refuses to 

enforce a subpoena or other lawful request, especially those directed at the 

Department of Justice, its officers, or its employees. 

• A conscious decision not to alter the Commission’s statute or a statutory confirmation 

that the Attorney General and Department of Justice can act against the 

Commission’s interest without any particular explanation. 

[Chairman Reynolds and Commissioners Gaziano, Heriot, Kirsanow, and Taylor voted in 

favor; Commissioners Melendez and Yaki voted against; Vice Chair Thernstrom was absent.]
89 Commissioner Statements

COMMISSIONER STATEMENTS, DISSENTS AND REBUTTALS

A. STATEMENTS

Statement of Commissioner Todd Gaziano1

Joined by Commissioner Kirsanow

 This Interim Report is the story of a cover-up of a possible racial double standard in 

law enforcement in the Civil Rights Division of the U.S. Department of Justice. The usual 

Washington refrain is that the cover-up is always worse than the original offense. But in this 

case, the underlying problem may be as damning as the wrongful cover-up—and possibly 

worse. 

Two well-placed whistleblowers have now testified before the Commission, with 

convincing detail, that there is a pervasive hostility to the race-neutral enforcement of the 

civil rights laws in the Civil Rights Division. How long-standing and how wide-spread that 

culture is remains unclear, but the testimony of the DOJ witnesses and other sworn 

statements received into evidence indicate that at least several supervising attorneys and 

officers in the Civil Rights Division share this race-based view of law enforcement. 

 Such a racial double standard in law enforcement would be at war with the very 

notion of a federal Civil Rights Division devoted to the equal protection of the laws. Yet, the 

Department of Justice is unquestionably hostile to any serious investigation of these 

allegations. 

The Department of Justice will neither admit nor deny whether the alleged racialist 

statements and instructions to its staff were uttered by its supervising attorneys and political 

appointees, even though it has a statutory duty to respond to such inquiries from the 

Commission. The Department refuses to allow those who allegedly made or heard these 

statements to testify freely. The Department steadfastly refuses to produce the documents 

and emails that describe these and similar statements, or for that matter, documents and 

emails that could refute them. The Department doggedly continues to obstruct this 

investigation. 

 

1

 Commissioner Kirsanow and I join each other’s Statements. We also join Commissioner Heriot’s Statement. 

The terms of office for Chairman Gerald Reynolds and Commissioner Ashley Taylor expired a few days after 

the adoption of the body of this report. Both Reynolds and Taylor voted to adopt the Interim Report, its findings 

and recommendation. Their support for the underlying investigating in numerous Commission votes is a matter 

of public record. At an open meeting on December 3, 2010, they expressed their view that commissioners could 

not submit or join any statement after the expiration of their terms. Although Chairman Reynolds joked that I 

could indicate that “Jerry agreed with me,” no inference should be drawn from their lack of participation in 

commissioner statements. 
90 Commissioner Statements 

Whether the Commission or some other institution succeeds in uncovering the facts 

relating to these matters, there is probably no more important issue to resolve in the area of 

federal civil rights enforcement than the truth of the whistleblowers’ allegations. Until then, 

this Interim Report and accompanying commissioner statements will highlight what has been 

uncovered thus far, what questions remain unanswered, and what evidence exists but is being 

withheld that might be valuable in that investigation. 

Introduction and Summary 

On June 16, 2009, the U.S. Commission on Civil Rights sent a simple inquiry to the 

Department of Justice asking why it dismissed most of a voter intimidation lawsuit it had 

effectively won against members of the New Black Panther Party. We expected either a 

satisfactory explanation for the dismissal or word from the Department that it was 

undertaking a review of the matter. Instead, DOJ’s written reply insisted that it made the 

right decision to dismiss the claims but offered no credible explanation for doing so and 

refused to supply the documents or witnesses that would allow the Commission to form its 

own conclusions. For the next 18 months, the Department tried to thwart the Commission’s 

investigation in many ways, despite its statutory obligation to “cooperate fully” with our 

official requests for information. 

After a year of DOJ’s intransigence and baseless refusals to comply with our 

subpoenas, two Department attorneys bravely defied orders to testify before the Commission: 

the former Civil Rights Division Voting Section chief, Christopher Coates, and a lead trial 

attorney in the NBPP case, J. Christian Adams. Their testimony and the sworn affidavits 

from former DOJ staff portray a pervasive culture of hostility to race-neutral enforcement of 

civil rights laws in the Civil Rights Division. The detailed allegations include: a former 

section chief who doctored a memo to try to prevent a meritorious case from being filed 

against black defendants, racially offensive statements by several supervisors and staff, and 

repeated instances of harassment and intimidation directed against anyone willing to work on 

lawsuits against minority defendants. 

Coates and Adams also assert, with substantial evidence, that this hostility is shared 

by several current supervising attorneys and political appointees. And they swear, without 

any reservation, that the reason their supervisors dismissed the New Black Panther Party 

lawsuit was because of their personal hostility to the race-neutral enforcement of the voting 

rights laws. 

Notwithstanding these detailed and mutually-reinforcing allegations of wrongdoing, 

the Department still refuses to produce the most important documents, emails, and witnesses 

to the Commission. To this day, it has forbidden Coates and Adams from revealing the most 

crucial facts by wrongly invoking privileges that do not apply, with the implicit threat of 

professional ethics charges if they relate the remaining details of what they know. 

This persistent interference prevented the Commission from forming definitive 

conclusions about some of the underlying actions and motives of Department of Justice 

officials. Although the Interim Report identifies key documents and emails which might 
Statement of Commissioner Todd Gaziano 91

prove or disprove the charges made by Coates and Adams (see also infra), DOJ still refuses 

to produce them. 

Until the Department is forced to disgorge the relevant witnesses and evidence, 

reasonable people will draw the logical conclusions from the weight of available evidence 

and from DOJ’s seemingly guilty conduct in obstructing the investigation. Those who review 

the sequence of events, uncontested facts, and sworn statements before the Commission 

should be deeply troubled by the Department’s refusal to cooperate as well as the credible 

testimony that offers a plausible, yet damning, explanation for what the Department has tried 

to hide. But it is still better that the whole truth be known, whatever that is. Thus, the stages 

of our investigation and the Department’s unprecedented and wrongful resistance to it should 

be carefully examined so that others may pick up where the Commission (without the power 

to enforce its own subpoenas against DOJ) has run into the administration’s stone wall. 

Nevertheless, the Department of Justice’s obstruction of the Commission’s 

investigation did yield two modest but unusual findings of fact and one recommendation, 

joined by five of the seven commissioners who participated in the final decisions. Set forth in 

full in Part V of the Interim Report, the Commission’s findings highlight the Department of 

Justice’s conflict of interest in refusing to “cooperate fully” with the Commission’s 

investigation as federal law requires, its refusal to appoint a special counsel to resolve its own 

conflict, and the lack of clear legal authority for the Commission to enforce its own 

subpoenas in court against DOJ when the Department refuses to comply with them and 

refuses to represent the Commission. 

The Commission’s sole recommendation is that Congress should consider the 

implications of a DOJ conflict of interest and refusal to cooperate and decide whether to alter 

the Commission’s organic statute to address it. The non-exclusive suggestions for Congress 

to consider include: 

• Consciously doing nothing; 

• Requiring the Attorney General to personally respond to the Commission’s request 

for representation or the appointment of a special counsel within a fixed number of 

days; 

• Authorizing the Commission to litigate on its own if DOJ refuses to represent it. 

In the absence of such a change in law, the Commission will continue to marshal facts and 

issue reports that are relevant for the nation to review. 
92 Commissioner Statements 

The Original Lawsuit and Its Dismissal by DOJ 

Although the circumstances that gave rise to the original lawsuit are far less important 

than DOJ officials’ subsequent actions and the sworn testimony about their wrongful reasons 

for their subsequent actions, they are a necessary starting point for any investigation.2

As the body of this report describes in more detail, two members of the New Black 

Panther Party appeared at the 1221 Fairmount Avenue polling site in Philadelphia on election 

day 2008 wearing dark, paramilitary uniforms with combat boots, berets, and insignia of 

rank. That building houses an assisted living facility. Video clips of the scene were later 

broadcast on national news programs and posted on YouTube. King Samir Shabazz stood 

near the door slapping a billy club in his hand, and witnesses subsequently testified before 

the Commission that he spouted racially offensive and threatening comments at poll 

watchers, poll observers, and likely others. 

Many neighborhood residents may have known of Shabazz’s violent, racist views. A 

National Geographic documentary film on the NBPP and related hate groups featured 

Shabazz regularly canvassing the area with his racist tracts, and it also showed him at a 

neighborhood fair yelling through a bullhorn that blacks need to start killing whites and white 

babies.3

 A newspaper article that appeared the week before the Election Day incident 

described him as “one of the most recognized black militants in a city known, since the days 

of MOVE, for its vocal black-extremism community.”4 The attempt by Commissioners 

Melendez and Yaki to suggest that the paramilitary uniform worn by the NBPP thugs would 

not have evoked any negative feelings ignores that the uniforms were combined with 

threatening behavior. Their claim that no one could be intimidated by their appearance alone 

is wrong for other reasons as well.5

Jerry Jackson is Shabazz’s official NBPP “deputy” in the neighborhood, and was also 

featured in the National Geographic documentary assisting Shabazz’s racist stunts and public 

rants. On Election Day 2008, Jackson stood close to Shabazz in front of (and close to) the 

 

2

 Commissioner Heriot’s observation in her accompanying statement is also correct that simple facts, or cases 

that might otherwise be “small potatoes,” may be more helpful in illuminating underlying law enforcement 

policies. 

3 Inside the New Black Panthers (National Geographic television broadcast 2009). An excerpt of the 

documentary was shown at the Commission’s first fact-finding hearing. See Commission Hearing Transcript 

(April 23, 2010). 

4

 Dana Difilippo, “New Panthers’ War on Whites,” Philadelphia Daily News, Oct. 29, 2008. 5

 In their joint dissenting statement, Commissioners Melendez and Yaki admit that the New Black Panther Party 

is a racial-separatist hate group, but they claim that most residents in Philadelphia would not have known that 

and that they would have associated the NBPP uniform with the original Black Panther Party, which was “nonracist.” The National Geographic documentary and the Philadelphia Daily News article both suggest that 

residents knew Shabazz and his associate to be hate-filled advocates of racial violence themselves (regardless of 

what they knew about the NBPP), so the addition of jackboots and paramilitary garb would only reinforce that 

perception. As for the dissenters’ warm and fuzzy feelings toward the original Black Panther Party: “By now, 

a torrent of articles and books, many written by former sympathizers, has voluminously documented the Panther 

reign of murder and larceny within their own community. So much so that no one but a left wing crank could 

still believe in the Panther myth of dedicated young blacks ‘serving the people’ while heroically defending 

themselves against unprovoked attacks by the racist police.” Sol Stern, “Ah, those Black Panthers! How 

Beautiful!” City Journal, May 27, 2003, available at http://www.city-journal.org/html/eon_5_27_03ss.html. 
Statement of Commissioner Todd Gaziano 93

only entrance to the polling place. Witnesses testified the two moved in unison, and one 

witness also testified they even closed ranks when a poll watcher approached the door and 

made it more difficult for him to get by. Commissioners Melendez and Yaki make a fanciful 

effort in their dissent to depict Jackson as an innocent bystander, but the eyewitnesses paint a 

different picture of his conduct.6

At least two eyewitnesses, both of whom testified before the Commission, reported 

seeing some voters turn away from voting rather than run the gauntlet between the Panthers 

and the entrance to the polls. Two additional witnesses, one of whom testified before the 

Commission, reported that they saw voters hesitate or look apprehensive when approaching 

the entrance.7 Whether the voters who left returned later is unknown (it is not legally 

necessary to show that any voters were actually prevented from voting to prove intimidation 

or attempted intimidation), but one witness who spoke with some of them had no doubt that 

their apprehension regarding the two uniformed Panthers was what caused them to leave.8

In early January 2009, DOJ filed a lawsuit against the two individuals at the polls, as 

well as against the Party and its Chairman, Malik Zulu Shabazz, for encouraging and 

endorsing the intimidating conduct. (Malik Shabazz said on national TV that he supported 

the use of the weapon at the polls to counter neo-Nazis who were there. He said he would 

provide evidence of the neo-Nazis’ presence but never did. Other evidence of his and the 

Party’s involvement is set forth in the body of the Interim Report and Appendix B.)9

 The suit 

was filed in federal district court in Philadelphia pursuant to section 11(b) of the Voting 

 

6

 See Testimony of Chris Hill, Bartle Bull, and Mike Mauro at the Commission Hearing on April 23, 2010. The 

dissent by Commissioners Melendez and Yaki repeatedly claims that Jackson did not join his NBPP superior in 

yelling offensive comments. Whether that is true or not (we have a limited record), it is not very important in 

evaluating whether he conspired with, aided, and abetted Shabazz. If a group of Klansmen in robes engaged in 

the exact same conduct at the polls and only one yelled racial epithets, those who were silent would not get a 

free pass. In such circumstances, actions speak louder than words. 7

 The dissent by Commissioners Melendez and Yaki attempts to nitpick the statements the eyewitnesses made 

about voters turning away or acting scared; according to the dissent, they should have been more closely 

questioned about the exact sequence of events that transpired. But three of the witnesses, Chris Hill, Bartle 

Bull, and Mike Mauro, testified before the Commission on April 23 (Hill and Bull testified they saw voters turn 

away; Mauro said he saw some voters hesitate and/or look apprehensive), so the dissenters could have asked 

them any question they wanted. It seemed like a strategic decision of theirs not to ask about the intimidated 

voters during the hearing, fearing that clarity would not help them defend DOJ’s actions. Later, they may have 

forgotten the testimony and come to believe the much repeated talking point that no voter was intimidated. (It’s 

always a risk to rely on spin rather than the actual evidence.) As late as November 19, 2010, Commissioner 

Yaki erroneously, and rather emphatically and rudely, denied anyone had ever testified that voters were turned 

away; he then was reminded of the facts. See Commission Meeting Transcript at 41-43 (Nov. 19, 2010). 

Shifting rapidly into reverse, the dissent now says the eyewitness testimony is unclear. 8

 See Testimony of Chris Hill at 50-51. 

9

 The dissenting statement by Commissioners Melendez and Yaki oddly suggests that the Commission should 

have been equally as dismissive of both the NBPP’s posted “national plan” to deploy 300 Panthers like Shabazz 

and Jackson at the polls and the lie by the NBPP chairman that neo-Nazis were at the polls in Philadelphia. But 

that makes no sense, even if one admits the NBPP likes to exaggerate its strength. In short, statements against 

interest are always treated differently in logic and law than self-serving ones. An inept militia group may lie 

about a lot of things, but if it announces plans for widespread acts of intimidation or other tortious conduct and 

it conducts at least one such act, that surely should be treated differently than a claim it later makes to evade 

responsibility. It also would not matter if can convince only two out of 300 followers to join in the wrongful 

acts in question to be jointly liable for those that take place. 
94 Commissioner Statements 

Rights Act, which prohibits intimidating, and attempts to intimidate, both voters and those 

assisting voters, such as poll watchers. 

Prior to filing the suit, the Justice Department trial team obtained witness statements, 

evidence about the operational structure of the NBPP, its stated nation-wide plan to “deploy” 

its members at the polls in November 2008, its record of racial hate incidents and objectives, 

and other evidence (at least some of which has never been turned over to the Commission). 

In preparation for trial, the trial team continued to secure other valuable evidence, including a 

declaration from a prominent 1960s civil rights advocate, Bartle Bull, who was an eye 

witness to the events in Philadelphia. In that affidavit, Bull declared that the events in 

Philadelphia in 2008 were “the most blatant form of voter intimidation I have ever 

encountered in my life ... even going back to the work I did in Mississippi in the 1960s.” 

The lawsuit was uncontested. Even though the NBPP Chairman, Malik Shabazz, is a 

lawyer and at least one of the other defendants also retained a lawyer, Michael Coard, none 

of the defendants filed an answer or otherwise contested the detailed allegations in the 

complaint. Accordingly, a default was entered in the docket of the federal court, and the 

district judge asked the Department to file its proposed injunction against all four defendants. 

It was at that point, in late April and May of 2009, that a strange turn of events began. 

The Department initially asked the district judge for an extension of time to file its proposed 

order, and then, on May 15, it unilaterally dismissed the claims against three of the 

defendants and greatly reduced the injunctive relief sought against Samir Shabazz – the 

Panther carrying the billy club. The injunction against Samir Shabazz has been, and should 

be, derided by any experienced litigator for its remarkable narrowness. 

Many of the events of those few weeks still are not known publicly (especially the 

content of internal conversations—and shouting matches—that DOJ claims are privileged 

information), but Coates and Adams later testified about the trial team’s state of disbelief 

regarding the position advanced by their supervisors, working all night to prepare legal 

memos that were not even read by some of the decision-makers who requested them, 

confrontational meetings, and other unusual conduct relating to the decision to dismiss the 

charges. 

The Commission Asks for an Explanation 

 Responding to press reports that DOJ had unilaterally dismissed a strong voting rights 

case and that the circumstances were highly unusual and possibly improper,10 the 

Commission sent letters to DOJ on June 16 and 22, 2009 asking for an explanation.11 DOJ’s 

 

10 Jerry Seper, “Career Lawyers Overruled on Voting Case,” The Washington Times, May 29, 2009; Michael 

Tremoglie, “Dept. of Justice Drops New Black Panther Case,” Philadelphia Bulletin, May 29, 2009. 11 Letter from Commission to Loretta King, Acting Assistant Attorney General (June 16, 2009). Commissioners 

Thernstrom and Taylor sent a letter to Ms. King on June 22, 2009, lending their support for the June 16 letter. 

Members of Congress Lamar Smith and Frank Wolf also sought information from the Department about the 

dismissals and were met with similar resistance. See, e.g., Letter from Congressman Frank R. Wolf to Attorney 

General Eric Holder (June 8, 2009); Letter from Congressmen Lamar Smith and Frank R. Wolf to Attorney 

General Eric Holder (July 17, 2009); Letter from Congressman Frank R. Wolf to Attorney General Eric Holder 
Statement of Commissioner Todd Gaziano 95

answer to the Commission’s initial inquiry is one of the key moments in this story. Most of 

the commissioners expected DOJ to either have a reasonable explanation, perhaps by 

revealing facts that weren’t widely known, or to say that it was reviewing the decision. I 

hoped that, barring the revelation of some unknown facts not in the complaint, DOJ would 

admit its error and re-file the civil lawsuit. Either of those responses very likely would have 

been the end of the matter as far as the Commission was concerned, at least until the review 

was completed. 

Instead, DOJ dug in its heels and said that the “facts and law did not support 

pursuing” the case.12 Yet, DOJ did not point to any unknown facts or circumstances that 

would explain the dismissal. Indeed, DOJ has never denied or disputed the lengthy facts set 

forth in the original lawsuit complaint. In short, we are all looking at the same set of facts. 

The reasons the Department gave for the dismissal in its initial response were not 

only unconvincing, they also raised new concerns about the decision. For example, the 

Department falsely claimed that Jerry Jackson was a resident of the apartment building where 

the polling place was located. Cursory research called this claim into doubt, since 1221 

Fairmount Avenue is an assisted living facility—and his poll watcher’s certificate (that the 

Department’s trial team obtained) showed he lived at a different address. The Department 

later admitted that Jackson did not live in the building.13 Even if he was a resident of the 

building, this would not entitle him to intimidate voters who showed up to vote there.14 So 

this excuse made no sense whatsoever. 

The Department also noted Jackson was a certified poll watcher and that local police 

did not order him to leave the polling place, as they had ordered fellow Panther King Samir 

Shabazz. But those facts are also legally irrelevant, unless they counsel in favor of 

maintaining the lawsuit. Certified poll watchers are not allowed to intimidate voters or other 

poll watchers.15 If anything, they should be held to a higher standard of knowledge about 

what is lawful and what is not. That Jackson was working for the Democratic Party also cut 

 (July 31, 2009); Letter from Congressmen Lamar Smith and Frank R. Wolf to Attorney General Holder (Nov. 

10, 2009); Letter from Congressman Frank R. Wolf to Inspector General Glenn Fine (Jan. 26, 2010); Letter 

from Congressmen Lamar Smith and Frank R. Wolf to Inspector General Glenn A. Fine (Mar. 2, 2010); Letter 

from Congressman Frank R. Wolf to Attorney General Holder (June 8, 2010); Letter from Congressmen Darrell 

Issa, Lamar Smith, and Frank R. Wolf to Attorney General Holder (July 29, 2010). 

12 Letter from Portia L. Roberson, Director, Office of Intergovernmental and Public Liaison, U.S. Department of 

Justice, to Chairman Gerald A. Reynolds. The letter was undated, but was stamped as received on July 24, 

2009. 

13 Response to Document Request No. 22, Response of the Department of Justice to U.S. Commission on Civil 

Rights (Jan. 11, 2010). 

14 See Testimony of Christopher Coates Before the U.S. Commission on Civil Rights at 29 (Sept. 24, 

2010)(“Even if it was true that Panther Jackson resided there, it should be quite clear to all that such a fact 

would not have provided a legal basis for intimidating voters.”). 

15 Testimony of J. Christian Adams Before the U.S. Commission on Civil Rights at 89-90 (July 6, 2010): 

Q: Does the fact that Mr. Jackson was a poll watcher have any bearing on his liability? 

Adams: No. Thank heavens, no. I mean, otherwise, you would appoint as poll-watchers the 

biggest and baddest thugs you have and give them credentials to roam about the community . . 

. . 
96 Commissioner Statements 

the other way when Democrats controlled DOJ, a fact noted in more than one news story. 

Most importantly, local police do not enforce the federal voting rights laws; nor does the 

Department defer to their judgment of what constitutes federal violations for rather obvious 

historical and other reasons.16 

 

It had taken almost six weeks for the DOJ to formulate a response to the 

Commission’s initial request for information. During that period, other newspaper stories 

appeared and Members of Congress called on the DOJ Inspector General to investigate. After 

these adverse press accounts concerning its decision and given the dueling inquiries from the 

Commission and Members of Congress about it, the Department had a good reason to get its 

facts straight. But its dismissive three-page reply on July 24 had the opposite effect. The 

decision was still fresh on the minds of those who made it. If these were the true grounds for 

the dismissal, it was a decidedly ill-advised decision that needed to be reversed. The 

Department should have known that also; something wasn’t right about its conclusory 

response. 

Indeed, most commissioners were taken aback by this response for substantive 

reasons beyond the individual factual and legal errors therein. If the facts of the NBPP case 

were not a clear example of voter intimidation, what would be? More significantly, DOJ’s 

response seemed to compound the apparent error of dismissing the suit. If DOJ had a 

different excuse that applied only to this case, it might not threaten to create a damaging 

precedent. 

 

16 See Coates Testimony at 27-28 (Sept. 24, 2010): 

During my 13 and a half years in the Voting Section, I cannot remember another situation 

where a decision not to file a Voting Rights Act case, much less to dismiss pending claims 

and parties, as happened in the New Black Panther Party case, was made, in whole or in part, 

on a determination of a local police officer. 

In my experience, officials in the Voting Section and the Civil Rights Division always 

reserved for themselves, and correctly so, the determination as to what behavior constitutes a 

violation of federal law and what does not. One of the reasons for this federal preemption is 

that local police officers are not normally trained in what constitutes a Voting Rights Act 

violation. 

In addition, in the Philadelphia police incident report provided to this Commission by the 

DOJ, the Philadelphia police officer who came to the polling place did not determine that 

Black Panther Jackson’s actions were not intimidating. Instead, he simply reported that 

Jackson was certified by the Democratic Party to be a poll watcher at the polling place and 

was allowed to remain. 

Further, as the history underlying the enactment and the extension of the Voting Rights Act 

shows, local police have on occasion had sympathy for persons who were involved in 

behavior that adversely affected the right to vote or violated the protections of the Voting 

Rights Act. 

See also Adams Testimony at 90 (July 6, 2010) (“[N]or does the fact that police let him stay have anything to 

do with it. The Federal Government has never taken the position, and hopefully never will, that local law 

enforcement officials can opine on matters of federal law. We have entirely different laws that we enforce.”). 
Statement of Commissioner Todd Gaziano 97

Yet the public statement to the Commission and several Members of Congress that 

DOJ did not believe the conduct recited in the complaint and partially caught on video stated 

a cause of action for voter intimidation seemed to constitute a dangerous shift in federal 

enforcement policy that the Commission was duty-bound to investigate, particularly since the 

Commission is specially charged with investigating federal enforcement of the voting rights 

laws. And if DOJ’s avowed legal position was correct, then the Commission thought it 

should expose this flaw in the Voting Rights Act of 1965 and recommend that the law be 

changed.17

The Commission Begins Its Formal Investigation 

Accordingly, the Commission followed up its earlier inquiry with a letter to the 

Attorney General signed by six commissioners (the remaining two abstained from the vote to 

send the letter) expanding our inquiry and requesting documents related to the case.18 It 

explained that the Commission had an independent statutory duty to evaluate the facts and 

the law, rather than simply accept DOJ’s assertion that it had made the right decision. It 

noted that the Department’s July 24 letter was not only largely non-responsive to the 

Commission’s requests for information, but also that what was related was both factually 

wrong and “even more corrosive to the rule of law than the dismissal without comment.” 

The letter also expressed concerns about new revelations in a front-page newspaper story of 

July 31 regarding the Department’s dismissal of the NBPP case, including that the Associate 

Attorney General was involved in the decision and that an NAACP Legal Defense Fund 

official had urged the Department to dismiss the lawsuit. Finally, the Commission’s letter 

reminded the Attorney General that federal law obligated the Department to “comply fully” 

with the Commission’s requests for information in the matter.19

 

17 Because of the Department’s stonewalling, the Commission still doesn’t have a lot of the evidence the NBPP 

trial team collected; nor does it have the record for other alleged incidents of intimidation. Thus, the 

Commission agreed not to make findings on the adequacy of the law until our investigation is complete. But 

based on the expert and other testimony received thus far, my view is that § 11(b) is not deficient if properly 

enforced. 

18 Letter from the Commission to Attorney General Holder (Aug. 10, 2009). The letter was signed by Chairman 

Gerald Reynolds, Vice Chair Abigail Thernstrom, and Commissioners Peter Kirsanow, Ashley Taylor, Gail 

Heriot, and Todd Gaziano. Commissioners Michael Yaki and Arlan Melendez abstained from the vote to send 

the letter. 

19 Id. at 4-5: 

In addition to our authority to subpoena documents and witnesses in aid of our mission, the 

Commission has even broader authority to require the cooperation of federal agencies. The 

Commission’s organic statute provides: “All Federal agencies shall fully cooperate with the 

Commission to the end that it may effectively carry out its functions and duties.” 42 U.S.C. 

§ 1975b(e). The Department’s previous response does not answer our most basic questions, 

which impairs our duty to investigate potential voting deprivations and federal enforcement 

policies. We trust that your response to this letter will provide us with the information 

necessary to make significant progress with our investigation. 

* * * 

The Commission has a keen interest in this case because of its special statutory responsibility 

to study the enforcement of federal voting rights laws. We believe the Department’s defense 

of its actions thus far undermines respect for the rule of law and raises other serious questions 

about the Department’s law enforcement decisions. The fundamental right that the 

Commission is investigating—the right to vote free of racially-motivated intimidation—has 
98 Commissioner Statements 

 Nevertheless, on September 9, 2009, DOJ effectively gave the Commission the back 

of its hand, saying it would not respond further until an internal ethics investigation was 

complete (which is still not complete some 16 months later).20 This is analogous to a 

corporation announcing it would not cooperate with or respond to a DOJ investigation 

regarding an oil spill until its general counsel completed an internal ethics investigation. The 

DOJ would not, and should not, stay its investigation; nor should the Commission. It was 

then that the Commission deliberated and voted to make the implications of the DOJ’s 

actions in the Panther case the subject of its statutory enforcement report for fiscal year 2010. 

Our thinking in September of 2009, at least that of most commissioners, was as 

follows: Given the video evidence and the unchallenged allegations in the complaint, the 

dismissal was highly unusual and seemingly erroneous, and thus, the burden was on DOJ to 

explain it. That made DOJ’s refusal to cooperate even more suspicious. We knew that, given 

the negative press reports on the NBPP case, DOJ had every incentive to provide a plausible 

rationale for dismissing the suit, if one existed. The stonewalling and absence of a plausible 

explanation under these circumstances suggested the Department had something to hide. Our 

Commission has been described as “the conscience of the nation.”21 Thus, we endeavored to 

uncover the facts and the truth behind them, using our subpoena power if necessary. 

And while we thought it unlikely that DOJ would be vindicated regarding its cramped 

reading of the voter intimidation provision in the Voting Rights Act, we remained open to 

that possibility. Indeed, regardless of whether DOJ was right about that or not, the 

investigative plan adopted by the Commission still required us to consider what effect the 

case and DOJ’s statements about the law might have for potential voter intimidation cases in 

the future. 

 been called the cornerstone of other civil rights in our democracy. Until it is complete, this 

investigation will remain one of the Commission’s top priorities. 

Vice Chair Thernstrom’s cryptic and unsupported claim in her accompanying statement that the 

“investigation lacked political and intellectual integrity from the outset” contradicts her own prior 

views and actions. Not only did Vice-Chair Thernstrom send her own letter on June 22, 2009 in 

support of the Commission’s inquiry (which was the “outset” of the investigation), but she signed the 

August 10, 2009 letter quoted above, which greatly expanded the scope of the Commission’s 

investigation. That letter ends with the promise that the investigation will remain “one of the 

Commission’s top priorities” until completed, so the designation of the investigation as the annual 

statutory enforcement project the next month (though opposed by Thernstrom) did not change the 

investigation at all. There was no expansion of the probe until August 2010, and that was in light of 

dramatic testimony by a DOJ civil rights lawyer of a culture of hostility to the race-neutral 

enforcement of the civil rights laws. Since she did not even attempt to support, explain or prove her 

vague claims that the process was flawed, such statements are of no value. Although the exhaustive 

record of our proceedings reflects that she also offered no “principled critiques” of the investigation 

itself, the separate Joint Rebuttal Statement by Commissioners Kirsanow, Heriot and me addresses her 

regrettable personal hostility to others on the Commission, which seems to have led her to make 

revisionist claims about the investigation that are inconsistent with her earlier statements and actions. 

20 Letter from Portia L. Roberson, Director, Office of Intergovernmental and Public Liaison to Chairman Gerald 

A. Reynolds (Sept. 9, 2009). 

21 Andrew Goldstein, “Can the U.S. Commission on Civil Rights Be Saved?,” Time, Feb. 9, 2002. 
Statement of Commissioner Todd Gaziano 99

For example, several commissioners rhetorically asked whether the Department 

would file suit if Klansmen in white robes or neo-Nazis in militia uniforms stood directly in 

front of polling place doors yelling racial epithets since the rule announced for the NBPP 

case might limit DOJ’s range of action in future cases. It might also send exactly the wrong 

message to would-be intimidators, especially existing hate groups like the NBPP. If the DOJ 

later wanted to change its position on the scope of VRA § 11(b), its official position in the 

NBPP case could be cited in court to undermine its new reading of the law.22 So even if 

DOJ’s position was arguably defensible, the matter was an important one for us to study and 

report on. 

 Starting in November 2009, the Commission subpoenaed the former defendants in the 

NBPP case, other fact witnesses present at the polls on Election Day, and two DOJ trial 

lawyers to testify. The Commission also sent DOJ interrogatories and subpoenaed relevant 

documents. In response, DOJ repeatedly ordered its subpoenaed employees not to speak to 

the Commission, and has for the most part not answered critical questions or produced 

documents or emails related to the core issues in the NBPP case, particularly those that might 

explain the motives of those who made the decisions.23 For months, it provided few if any 

justifications for its unlawful refusal to cooperate, but it eventually began to raise spurious 

privileges that either do not exist or do not apply in investigations by Congress or the 

Commission on Civil Rights. 

 As the body of this Interim Report details, the Commission proceeded to depose the 

relevant fact witnesses in Philadelphia, including poll watchers for both major parties. The 

two former defendants who personally engaged in the intimidating conduct, Samir Shabazz 

and Jerry Jackson, invoked their Firth Amendment right against self incrimination rather than 

provide deposition testimony. A witness may only invoke that right if he “reasonably 

believes” that his testimony might implicate him criminally; it cannot be invoked to avoid 

civil liability or the inconvenience of testifying.24 Thus, if the invocation was proper, it 

means the former defendants in a § 11(b) civil suit believe their conduct might be criminal. 

The NBPP Chairman, Malik Zulu Shabazz, filed an odd motion to quash his deposition. As 

of the time of writing, DOJ has not succeeded in compelling his testimony, and it is not clear 

it has tried very hard to do so. 

 Although hampered by the Department’s refusal to allow the Commission to 

interview DOJ trial attorneys or produce the exhibits, witness statements, and other evidence 

in the possession of DOJ, the Commission held its first hearing on April 23, 2010 relating to 

the facts on Election Day 2008 in Philadelphia and whether there was a sufficient basis to file 

the original charges. Three eye-witnesses, including the prominent civil rights attorney Bartle 

 

22 Under prevailing Supreme Court doctrine, courts normally accord deference to the reasonable 

interpretations of statutes by the agencies tasked with administering them, see Chevron U.S.A. v. 

NRCD, 476 U.S. 837 (1984), but not if the agency’s interpretation is a mere litigation position, see 

United States v. Mead Corp., 533 U.S. 218, 238 n.19 (2001); Bowen v. Georgetown Univ. Hosp., 488 

U.S. 204, 212-13 (1988). Thus, once an agency announces one interpretation of a statute, its contrary 

position in a future litigation might not receive judicial deference. 

23 See Note 35, infra, regarding the marginal public documents, manuals and other items produced instead. 24 United States. v. Balsys, 524 U.S. 666, 671-72 (1998); Kastigar v. United States, 406 U.S. 441, 444-45 

(1972). 
100 Commissioner Statements 

Bull, provided powerful and convincing testimony that the former defendants had engaged in 

intimidating conduct, and that voters had turned away from the polling place rather than walk 

within a billy-club swing of the entrance. Congressman Frank Wolf testified regarding his 

concerns about the case and his frustration with the lack of DOJ cooperation. 

Former Acting Associate Attorney General Gregory Katsas, who previously 

supervised the work of the Civil Rights Division, testified about which officers in the 

Department would normally be involved in a decision to dismiss a suit of this nature and 

provided expert legal testimony on whether the allegations in the original complaint 

constitute voter intimidation under federal law. Mr. Katsas strongly refuted the Department’s 

suggestion in internal memos that the suit implicated the First Amendment rights of those 

engaging in intimidating conduct at the entrance to a polling place.25 He also questioned the 

other grounds for dismissing the suit, including the Department’s stated concern about the 

vicarious liability of the NBPP. In sum, he testified that not only did the allegations in the 

complaint state a strong case for violation of section 11(b), but that the testimony he heard 

from the fact witnesses at the hearing reinforced his conclusion that the evidence was 

sufficient to maintain the lawsuit against all defendants.26

Thus, the testimony and other evidence at the April 23 hearing left little doubt that the 

original lawsuit against all four defendants was factually and legally justified, which only 

heightened the Commission’s interest in the Department’s assertions to the contrary and its 

simultaneous refusal to allow us to interview relevant witnesses or examine 

contemporaneous evidence of other possible reasons of those who decided to dismiss most of 

the lawsuit. 

DOJ’s Stonewalling and Spurious Assertions of Privilege 

DOJ did not allow the Commission to interview any of the officials who were 

involved in the decision to dismiss the charges in the NBPP case27 and has not produced 

documents or emails that memorialize the reasons or motives of those who made the 

decision. Relevant documents and emails include those sent within the Voting Section and 

the Civil Rights Division and those sent between the Civil Rights Division and more senior 

political appointees in the Department. Nor has it produced the emails and memos listed in an 

index provided to Judicial Watch pursuant to a FOIA suit Judicial Watch filed to secure 

similar information. And most recently, the Department has specifically refused to produce 

memos written by Christopher Coates or Christian Adams on or about April 26, 2010 and 

 

25 See the Interim Report’s discussion of the non-existent First Amendment issue at 33-35. The dissenting 

statement by Commissioners Melendez and Yaki fault the trial team’s J-memo for not mentioning the First 

Amendment issue, but that is not a fault. It didn’t mention the Constitution’s Preamble either, which is equally 

inapplicable. 

26 Interim Report at 28; Katsas Testimony at 145. 

27 Although the Department has done a lot to mislead and/or obscure who was involved in the decision to 

dismiss the case, there is now strong evidence in the record that at least the following six officials were 

involved: Attorney General Eric Holder, then Deputy Attorney General David Ogden, Associate Attorney 

General Thomas Perrelli, Deputy Associate Attorney General Sam Hirsch, then Acting Assistant Attorney 

General Loretta King, and then Acting Deputy Assistant Attorney General Steven Rosenbaum. 
Statement of Commissioner Todd Gaziano 101

May 10, 2010, and the multiple emails between Sam Hirsch and Steven Rosenbaum in April 

and May of 2009.28

The Department even refused to provide a privilege log of documents it withheld 

from the Commission, which it gave to Judicial Watch, although the Commission asked for 

such a log in its initial requests for production of documents on December 8, 2009 and many 

times since then. DOJ knew a judge would require such a log in its litigation with Judicial 

Watch, so it complied with the usual court rules. But because the Commission’s ability to 

appear in court to enforce its subpoenas may be limited to when the Attorney General 

represents it,29 the Department denied the Commission even the courtesy of listing the 

documents and emails it is refusing to provide, despite a statutory duty that requires more 

cooperation from DOJ than is due a FOIA requester. 

The Department eventually asserted the following real and fictitious privileges during 

the Commission’s investigation: attorney-client, attorney-work product, deliberative process, 

law enforcement, “or other recognized privilege;”30 private information prepared by or for 

the Department’s Office of Professional Responsibility;31 and, most oddly, disclosures “that 

otherwise would undermine [the Department’s] ability to carry out its mission.”32 As detailed 

below, even the privileges that are recognized at law (as opposed to being newly invented) 

are not valid against the Commission, but even if one or more of them was, the Department 

should have long ago waived such privilege and produced the requested documents in 

response to the serious and credible allegations of wrongdoing that have emerged since early 

July 2010. 

Beyond the Commission’s general subpoena power, there are two other statutes that 

command DOJ’s cooperation. The most straightforward one states: “All Federal agencies 

shall cooperate fully with the Commission to the end that it may effectively carry out its 

functions and duties.”33 The Commission has no law enforcement power; its most important 

duty, as DOJ knows, is to collect information on other agencies’ enforcement of the civil 

rights laws (especially federal agencies) and issue reports on them. As for the subject matter 

of the dispute, investigating the enforcement of federal voting rights laws is a core statutory 

function of the Commission,34 deeply rooted in the Commission’s history, well-known to 

Congress, and recognized in the legislative history of the Voting Rights Act. Thus it is 

arguably our highest statutory duty to independently evaluate whether the NBPP case was 

 

28 See Letter from Joseph H. Hunt to Commission General Counsel David Blackwood (Nov. 12, 2010). The 

relevance of the requested documents is explained in the Commission’s letter of October 13, 2010. 

29 42 U.S.C. § 1975a(2) (“In case of contumacy or refusal to obey a subpoena, the Attorney General may in a 

Federal court of appropriate jurisdiction obtain an appropriate order to enforce the subpoena.”). This presents a 

conflict of interest, noted in this report’s findings and recommendation, whenever the subject of the subpoena is 

the Department or its employees and DOJ would prefer not to comply. 

30 Response of the Department of Justice to U.S. Commission on Civil Rights at 1 (Jan. 11, 2010). 

31 Id. 32 Letter from Joseph H. Hunt, Director, Federal Programs Branch to Chairman Gerald A. Reynolds (Jan. 11, 

2010). 

33 42 U.S.C. § 1975b(e) (emphasis added). 

34 42 U.S.C. § 1975a(1) (The Commission “shall investigate allegations . . . relating to deprivations . . . because 

of color, race, religion, sex, age, disability, or national origin; or . . . as a result of any pattern or practice of 

fraud; of the right of citizens of the United States to vote and have votes counted . . . .”). 
102 Commissioner Statements 

properly handled, which the Commission repeatedly explained in its correspondence with the 

Department. 

The statutory command that all federal agencies “cooperate fully” with the 

Commission’s requests contains no exception like those in the Freedom of Information Act 

and analogous statutes. Congress knows how to create or codify government privileges, but it 

chose not to create any exception to the command to comply with Commission requests. 

And it seems quite obvious that the inclusion of the word “fully” in the command to 

“cooperate fully” was intended to prevent federal agencies from picking and choosing what 

to produce to the Commission and still claim compliance with the Commission’s statute. In 

short, it doesn’t matter how many marginal or unhelpful documents the Department has 

dumped if it steadfastly refuses to produce the ones that are most revealing.35

Although a constitutional, “executive” privilege might be asserted by the President in 

appropriate circumstances (see further below), there are several reasons why the commonlaw privileges asserted are not valid to thwart the Commission’s request for information. The 

first is that the common-law privileges that apply in court against non-governmental parties, 

such as attorney-client, work product, and the like, are not well taken against other entities in 

the federal government. One reason for that is that we all work for the same client—the 

United States government. It makes about as much sense for DOJ to assert an attorney-client 

privilege in response to an inquiry from the Treasury Department as to assert it against the 

Commission. DOJ might have fewer reasons to resist Treasury’s inquiry and the separationof-powers issues are certainly different (both Treasury and DOJ report to the President), but 

asserting an attorney-client privilege against the Treasury Department (or the Commission) is 

equally inapplicable. 

The Department’s own Office of Legal Counsel has issued at least two opinions, 

which are binding on the Department unless overruled, that came to the same conclusion and 

further explain why this is so. They hold that the interests served by the attorney-client 

privilege are subsumed within the executive privilege, which is the privilege that vindicates 

the separation of powers interests at stake when other government entities request 

information from the executive branch.36 The OLC opinions were issued in the context of a 

 

35 The Department claims that its production of 4000 pages of documents to the Commission is proof of its 

cooperation, but only DOJ’s enablers and apologists would measure the degree of cooperation by the number of 

pages produced rather than the highly-relevant items withheld. Any first-year litigation associate would be fired 

for accepting a similar story from opposing counsel. For what it is worth, almost all the documents produced 

are either publicly available (about 70% of the material)—such as court pleadings or newspaper articles—or 

correspondence with outside groups. For example, there are about 864 pages of letters from Members of 

Congress and others to DOJ and 350 pages of DOJ publications, including an employee manual. Yet, the 

Department probably could have produced 40,000 pages of marginal or non-helpful documents to the 

Commission with less effort than it has spent to withhold the ones that reveal the heart of the matter the 

Commission is investigating. The few documents that don’t fit the above categories include about five witness 

declarations in the NBPP case that were originally heavily redacted (but not their original statements) and a few 

select emails that would otherwise be covered by DOJ’s broad privilege claims, but that were nevertheless 

produced because DOJ apparently believed they helped its position. 

36 10 Op. O.L.C. 68, 78 (April 28, 1986) (“The interests implicated under common law by the attorney-client 

privilege generally are subsumed by the constitutional considerations that shape executive privilege, and 

therefore it is not usually considered to constitute a separate basis for resisting congressional demands for 
Statement of Commissioner Todd Gaziano 103

congressional inquiry, but as the Commission’s general counsel explained in a letter to DOJ 

on December 8, 2009, the Supreme Court has equated the Commission’s investigatory 

function to that of a congressional oversight committee.37 That we all work for the United 

States government is unassailable. 

In addition to the binding nature of Office of Legal Counsel opinions on DOJ and 

their underlying logic that only a separation-of-powers-based executive privilege applies as 

against other federal entities, the other reason why common-law privileges (or those made up 

out of whole cloth by DOJ) would not apply to defeat the Commission’s requests is that 

Congress can always override a common-law privilege (and those made up by DOJ) and it 

has done so with the statutory command that all federal agencies must “cooperate fully” with 

the Commission. DOJ’s interest in its internal ethics investigation is admirable (if genuine), 

and no one likes another entity’s review of its actions, but those agency “interests” simply 

cannot override Congress’s statutory determination that all federal agencies must cooperate 

fully with the Commission’s legitimate requests for information. 

Because no common-law or statutory privilege shields the Department from its 

obligation to comply with the Commission’s subpoenas, the only possible exception is a 

constitutional “executive” privilege. The “deliberative process” and “law enforcement” 

privileges are recognized categories of the President’s executive privilege (as are national 

security and foreign policy privileges, which are not at issue). Nevertheless, there are three 

independent reasons why no executive privilege shields DOJ from complying with the 

Commission’s inquiry in the NBPP matter. It is especially ironic, however, that DOJ would 

even mention a “law enforcement” privilege, which is generally limited to prevent disruption 

of potential or on-going investigations or litigation.38 DOJ’s position is that the NBPP civil 

suit should never have been filed against three defendants and dismissed it against them 

about 20 months ago. Although section 11(b) does not have an express statute of limitations, 

 information.”); 6 Op. O.L.C. 481, n.24 (Aug. 2, 1982) (“[T]he interests implicated by the attorney-client 

privilege generally are subsumed under a claim of executive privilege when a dispute arises over documents 

between the Executive and Legislative Branches, and the considerations of separation of powers and effective 

performance of constitutional duties determine the validity of the claim of privilege.”). 

37 See Hannah v. Larche, 363 U.S. 420, 489-90 (1960) (The concurrence noted that the Commission was 

“charged with responsibility to gather information as a solid foundation for legislative action,” and that the 

hearing in question was “in effect a legislative investigation.”) (Frankfurter, J, concurring). More explicitly, 

“Congress has entrusted the Commission with [the role of] investigating and appraising general conditions and 

reporting them to Congress so as to inform the legislative judgment. Resort to a legislative commission as a 

vehicle for proposing well-founded legislation and recommending its passage to Congress has ample 

precedent.” Id. at 492-93. (Frankfurter, J, concurring). See also Berry v. Reagan, No. 83-3182, 1983 WL 538, 

*2 (D.D.C. 1983) (“[I]n making investigations and reports thereon for the information of Congress under [the 

Commission’s statute], in aid of the legislative power, it acts as a legislative agency.”) (internal citation 

omitted); Buckley v. Valeo, 424 U.S. 1, 137 (1976) (Powers and functions that “are essentially of an 

investigative and informative nature” fall “in the same general category as those powers which Congress might 

delegate to one of its own committees.”). 

38 The Fifth Circuit held that the privilege only applies to on-going investigations. In re United States 

Department of Homeland Security, 459 F.3d 565, 570 n.1 (5th Cir. 2006). The Second Circuit suggested the 

privilege might continue beyond one investigation if “future investigations may be seriously impaired if certain 

information is revealed to the public.” Dinler v. City of New York, 607 F.3d 923, 944 (2d Cir. 2010) (quotation 

marks omitted). Even assuming the Second Circuit is correct, those circumstance do not exist in disparate § 

11(b) investigations. 
104 Commissioner Statements 

federal courts would likely borrow an analogous two-year limit, which has now run on the 

November 2008 conduct. Thus, no legitimate law-enforcement privilege would apply, even if 

President Obama actually tried to invoke it. 

The simplest and most powerful reason why no constitutional, executive privilege can 

support DOJ’s stonewalling against the Commission is that DOJ eventually admitted last 

May that the President’s executive privilege has not been invoked.39 Because there is a 

separation-of-powers interest on both sides of the ledger when a separation-of-powers-based 

executive privilege is invoked, the Supreme Court has quite logically held that an executive 

privilege does not automatically exist upon the insistence of some low-level official who 

wishes to thwart a subpoena from another branch or entity of government. Instead, the 

Supreme Court has held that the President or department head acting on his behalf are the 

only officers who can assert an executive privilege, and it must be asserted formally and 

explicitly.40

Like its various other supposed “interests” in not complying with the Commission’s 

subpoenas, DOJ may have a real “interest” or desire to keep its deliberations regarding past 

law enforcement decisions confidential. But those interests don’t rise to the level of a valid 

privilege to defeat a Commission subpoena, unless an appropriate executive privilege has 

been properly invoked.41 If the contrary proposition prevailed (if low-level agency officials 

could simply recite the agency’s interest in the confidentiality of its deliberative process to 

defeat an otherwise lawful subpoena—without an invocation of executive privilege), that 

would effectively overrule the Supreme Court’s careful and sound decision in United States 

v. Reynolds that the President or a department head must personally and formally invoke 

executive privilege. In short, why would the President ever take the political heat for 

invoking executive privilege (which is what Reynolds held the separation-of-powers 

required) if a low-level career lawyer like Joseph Hunt (who wrote most of the responses for 

DOJ) could simply recite the agency’s “interests” in the principles the executive privilege is 

designed to protect? That would make no sense at all. 

The Department’s formal Office of Legal Counsel opinions are fully in accord with 

this analysis, for they properly explain that the “interests” that exist in the common-law 

privileges are subsumed within executive privilege when the request is from a government 

 

39 Letter from Joseph H. Hunt, Director, Federal Programs Branch to Chairman Gerald Reynolds (May 13, 

2010). 

40 See United States v. Reynolds, 345 U.S. 1, 7-8 (1953) (“[The privilege] is not to be lightly invoked. There 

must be formal claim of privilege, lodged by the head of the department which has control over the matter,

after actual personal consideration by that officer.”) (emphasis added) (citations omitted). Executive privilege is 

sometimes called “Presidential” privilege. Nixon v. Admin. Gen’l Serv., 433 U.S. 425, 439 (1977) (“the 

Presidential privilege of confidentiality”); U.S. Department of Justice, Office of Legal Counsel, Memorandum 

Opinion for the Associate Counsel to the President, 2001 WL 36209373, *4 (June 20, 2001) (“executive 

(sometimes styled ‘Presidential’) privilege”). Then Attorney General Michael Mukasey, rather than asserting 

executive privilege himself, wrote a letter to President Bush requesting that the President assert the privilege 

with regard to certain executive-branch documents. Citizens for Responsibility & Ethics v. U.S. Dep’t of Justice, 

658 F. Supp. 2d 217, 221 (D.D.C. 2009). 

41 The deliberative process privilege is part of executive privilege. The Supreme Court described it as “the valid 

need for protection of communications between high Government officials and those who advise and assist 

them in the performance of their manifold duties.” United States v. Nixon, 418 U.S. 683, 705 (1974). 
Statement of Commissioner Todd Gaziano 105

entity such as Congress or the Commission. The interest exists independently of the 

executive privilege, but a separate privilege does not. The contrary proposition would also 

effectively overrule the Supreme Court’s decision in United States v. Reynolds. And what is 

true for recognized common-law privileges is doubly true for vague, newly-invented 

privileges, to wit: that the Department may prevent any disclosure “that would otherwise 

undermine the ability of DOJ to carry out its mission.” Many an agency would like that openended privilege (what does “undermine” mean?) since few officials want to disclose 

wrongdoing or embarrassing information, but it would be more sweeping than any current 

Presidential privilege, a point noted by at least one newspaper editorial board.42 It was quite 

disappointing that DOJ, of all agencies, would claim such a privilege. 

If the President or the Attorney General acting on his behalf personally invoked 

executive privilege in the future regarding the deliberations in the NBPP case, there are two 

other reasons why it would likely not shield most of the information sought by the 

Commission or Members of Congress from disclosure. The first is that the deliberative 

process privilege (which is the only category of executive privilege that arguably would 

apply) only covers certain types of high-level executive deliberations.43 The second is that 

even executive privilege is not absolute. As the Supreme Court famously held during the 

Watergate affair, the president’s executive privilege may be overcome in an investigation of 

wrongdoing.44 The detailed and credible allegations of wrongdoing sworn to by DOJ lawyers 

(Coates and Adams) and other affiants not only would make any future invocation of 

executive privilege untenable, but they also strongly counsel the Attorney General to waive 

any other asserted privilege that he may sincerely believe exists. In short, if even a valid 

invocation of executive privilege is defeated by credible allegations of wrongdoing, then 

surely some lower species of privilege or purported “interest in confidentiality” should also 

yield. 

 

42 Editorial: “Menacing turn in Black Panther case,” The Washington Times, Jan. 13, 2010 (“Not even President 

Nixon at the nadir of Watergate asserted such a broad privilege against outside review.”). 43 A careful determination would have to be made between what material might arguably be covered and what 

is not. It does not apply to witness statements the Department is withholding. It would not apply to nondeliberative documents. Given DOJ’s current testimony, it is doubtful that it would apply to most conversations 

between attorneys within the Civil Rights Division. This is because the Department’s oft-repeated position that 

the decision to dismiss the NBPP suit was made exclusively by career attorneys in the Civil Rights Division 

would tend to undermine any later assertion that the conversations within the Voting Section or the Civil Rights 

Division were part of the advice provided to the President or other “high Government officials,” see Nixon at 

706, although it might apply to the advice provided to the Attorney General, Deputy Attorney General, and 

Associate Attorney General. 

44 See United States v. Nixon, 418 U.S. 683, 706 (1974) (“[N]either the doctrine of separation of powers, nor the 

need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified 

Presidential privilege of immunity from judicial process under all circumstances. The President's need for 

complete candor and objectivity from advisers calls for great deference from the courts. However, when the 

privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such 

conversations, a confrontation with other values arises.”). Indeed, the Nixon case now stands for the proposition 

that executive privilege cannot be invoked to shield such wrongdoing; the “presumptive privilege must be 

considered in light of our historic commitment to the rule of law.” Id. at 708. 
106 Commissioner Statements 

Yet, the simple fact remains that DOJ has admitted that the President has not asserted 

executive privilege to withhold information from the Commission.45 Thus, DOJ has not 

validly asserted executive privilege or any common-law or other privilege subsumed within 

it. In sum, it has no lawful ground to withhold witnesses, documents or emails from the 

Commission. 

My point in describing the law requiring disclosure is two-fold: (1) so that 

congressional or other investigators may consider its implications going forward, and (2) to 

explain what conclusions the Commission began to draw from the many months of 

stonewalling and frivolous claims of privilege. As severe winter storms in Washington46 gave 

way to spring, the continued, frustrating correspondence with the Department began to 

reinforce the conclusion that something much stronger than ordinary bureaucratic resistance 

was at play. 

It is helpful to compare DOJ’s behavior in the NBPP investigation with the history of 

cooperation between the Commission and DOJ on other reports and investigations. The level 

of resistance from the Department in the NBPP investigation appears to be unprecedented in 

the Commission’s recent records and the memory of our professional staff. Normally, DOJ’s 

cooperation—and that of other federal agencies—is open and collaborative, as it was in the 

first two statutory reports I was involved with on the Commission. (The first involved 

religious liberties in prisons; the second focused on civil rights issues relating to the 

mortgage crisis. The second was somewhat critical of the agencies involved, but DOJ openly 

cooperated with it.) On other occasions, our records show the Commission issued lengthy 

subpoenas to DOJ on other voting rights issues, but there was still a high degree of 

cooperation with the Commission’s requests. The extreme lack of cooperation this year was 

quite unusual. 

Moreover, the continuing correspondence with DOJ in the NBPP investigation 

showed none of the comity or professionalism normally shown by the Department. For 

example: the Department refused repeated requests for meetings to discuss the significant 

discovery impasse;47 it would not acknowledge or answer simple questions (e.g., most 

recently it has refused to even acknowledge our question whether Deputy Assistant Attorney 

General Julie Fernandes made certain troubling statements); it wouldn’t provide a log of 

withheld documents; and it took months for DOJ to respond to whether the Attorney General 

would appoint a special counsel to help resolve the conflict of interest surrounding its failure 

to comply with Commission subpoenas (answer: no) and whether the President had invoked 

executive privilege (answer: no). 

 

45 Letter from Joseph H. Hunt, Director, Federal Programs Branch to Chairman Gerald Reynolds (May 13, 

2010). We can reasonably infer the President or Attorney General has not secretly invoked executive privilege 

since May 13, including that such private invocation would contravene Reynolds that it must be formally 

claimed and “lodged.” 

46 The two storms nicknamed Snowmageddon and Snowpocalypse in early February 2010 shut down the federal 

government for days and caused the Commission to delay its first NBPP hearing, originally scheduled for Feb. 

12. 

47 There was one meeting between the Commission General Counsel and mid-level career staff at DOJ in May 

2010 to allow our staff to look at a few photos and exhibits, but DOJ refused to discuss the more basic 

discovery disputes. 
Statement of Commissioner Todd Gaziano 107

Because I used to work in DOJ’s Office of Legal Counsel (in Republican and 

Democratic administrations) and know of the high-caliber work of the Department, the odd 

privilege claims raised in the NBPP investigation48 were another indication that something 

was wrong. In short, when the unlawful resistance dragged on, this suggested to me that 

those who acted like they had a guilty mind might not just have something embarrassing to 

conceal, but perhaps something even more troubling to hide. 

 

Testimony of Thomas Perez 

 The only witness DOJ eventually offered to appear for the Department was Assistant 

Attorney General for Civil Rights Thomas Perez, though the Commission did not ask for his 

testimony since he did not take office until well after the NBPP case was dismissed.49 

Nevertheless, the Commission welcomed Perez’s testimony at a hearing on May 14, 2010 in 

hopes that he would shed light on some of the issues. His testimony has since been called 

into serious doubt in several respects, and like DOJ’s initial letter to the Commission, has 

done more to undermine the logic of the Department’s avowed position than support it. 

 Commissioner Heriot has addressed certain DOJ legal positions Perez was not 

prudent enough to abandon, including the claim that it is harder to secure a judgment when 

civil defendants do not contest the allegations than when they do, or that making a proffer of 

evidence to the judge could not cure any perceived problem with a default judgment. The 

notion that acting political appointees (King and Rosenbaum) were not acting as political 

appointees when they ordered the trial team to dismiss the NBPP suit is an odd one, but their 

political connections may be irrelevant unless they were influenced in part by a desire for 

other political appointments. Because Commissioner Heriot distinguishes possible political 

and ideological influences, I will only discuss two factual issues and the most important legal 

concern with Perez’s testimony. 

Perez repeatedly emphasized that no one higher than the acting head of the Civil 

Rights Division in the first half of 2009 (Loretta King) was “involved in” making the 

decision to dismiss the NBPP case. This testimony was highly doubtful when uttered and 

subject to some interesting cross-examination about the role the Attorney General and 

 

48 I do not recall any suggestion the Office of Legal Counsel has endorsed the legal theories advanced by others 

in this matter, but it would be disappointing if pressure has been or is brought to bear on OLC to sanction them. 

49 On November 12, 2010, more than a month after the final draft of the Interim Report was sent to 

commissioners for review (which was already delayed more than two months by DOJ’s refusal to produce 

Coates), the Department said it would permit King, Rosenbaum, and Fernandes to be deposed if the 

Commission agreed to certain conditions DOJ knew were unacceptable. The Department refused to waive its 

alleged privileges, rendering inquiry into the conversations and deliberations about the dismissal off limits. The 

Department made it clear it would not produce relevant documents and emails, severely limiting the value of 

any deposition. Finally, the Department kept referring to this Interim Report as a “final report” and insisted that 

the Commission agree to postpone its scheduled vote to adopt the Interim Report and to incorporate new 

testimony in a new report that DOJ could review, etc. Knowing that the our last meeting of the year was 

December 3, this last condition alone would have killed the Interim Report and put the Commission in violation 

of its statutory obligation to issue at least one such enforcement report per year. Thus, the Commission’s 

General Counsel replied that relevant documents must be produced and the witnesses testify without such 

conditions, after which DOJ retracted its conditional offer to produce the witnesses. 
108 Commissioner Statements 

Associate Attorney General could play in such an unusual decision, but Perez stuck by his 

story that these officials were merely given notice of the decision. Such a claim, if it was 

ever believable, has since been seriously undermined by the email logs that DOJ produced in 

FOIA litigation brought by Judicial Watch.50 On crucial days in late April/early May 2009 

when decisions were being made, 22 emails were sent between the acting leaders of the Civil 

Rights Division and senior political appointees who supervise the Division. On May 8, when 

an extension of time to file the injunction was granted in federal court, there was a chain of 

emails between Acting Deputy Assistant Attorney General Steven Rosenbaum and Deputy 

Associate Attorney General Sam Hirsch. On May 14, there were three emails between 

Hirsch and Associate Attorney General Thomas Perrelli concerning the NBPP case. On May 

15, when most of the case was dismissed, there were four emails between Civil Rights 

Division leadership and Hirsch, and six emails between Hirsch and Perrelli. 

And according to the email headers as well as the Department’s invocation of 

relevant FOIA exemptions (for deliberative and predecisional communications), these emails 

contain deliberative discussions between the Division and its political supervisor about what 

should be done in the litigation; these are not merely emails to supervisors giving them a 

heads up. One contains the Deputy Attorney General’s “current thoughts” about the case. 

The Deputy Attorney General is the second highest ranking official in the Justice 

Department, and I have no doubt his current thoughts were given great weight. As late as 

November 12, 2010, the Department’s written excuse not to produce emails between the 

Civil Rights Division and Sam Hirsch to the Commission is that they are privileged 

deliberative emails. Yet, Perez has still not corrected his testimony to the Commission. The 

Department simply can’t have it both ways. 

To be perfectly clear, political appointees should be involved in decisions about 

whether to bring or dismiss important cases, especially the dismissal of a case the 

Department had essentially won involving a high-profile incident. And it is not a problem for 

political appointees to overrule six career attorneys in two offices, if their reasons are not 

wrongful. But what does it mean when the Department and its officials repeatedly try to 

obscure their involvement? And why not come clean now? The fact that Thomas Perez and 

others at DOJ have gone to so much trouble to mislead the public about how involved senior 

Obama appointees were in making the decision says a lot about how they think the public 

would react to the truth. 

At the May 14 hearing, I asked Perez several times whether he had investigated the 

allegations in news reports that there was hostility to race-neutral enforcement of the civil 

rights laws in the Civil Rights Division. Perez tried to evade the question, but he eventually 

responded curtly, “We don’t have people that are of that ilk” in the Division.51 Among other 

contrary evidence, the Commission later received sworn testimony that Deputy Assistant 

Attorney General Julie Fernandes, who is Perez’s senior politically-appointed deputy in 

charge of voting issues, had previously instructed the entire Voting Section that the Obama 

 

50 Judicial Watch v. U.S. Dep’t of Justice, No. 10-cv-00851 (D.D.C. filed May 24, 2010) (Civil Rights Division 

Index of Withheld Documents). 

51 Testimony of Thomas Perez, Assistant Attorney General, Before the U.S. Commission on Civil Rights at 35 

(May 14, 2010). 
Statement of Commissioner Todd Gaziano 109

administration would bring only traditional civil rights cases on behalf of minorities.52 Of 

even more relevance to the cover-up, however, we now have sworn testimony that Perez was 

aware when he testified that other of his deputies might be hostile to race-neutral 

enforcement of the law. Perez was briefed on such allegations orally and possibly in writing 

in the week prior to giving his testimony.53

In fact, Coates and Adams testified that Coates personally briefed Perez about the 

hostility to race-neutral enforcement of the civil rights laws the day before Perez testified 

before the Commission.54 If Perez did not believe any of the stories or allegations, it still was 

incumbent on him to explain what steps he had taken to investigate the allegations in 

response to my question—or to acknowledge the stories and allegations but explain why he 

didn’t believe them. It was misleading, at best, for him to emphatically claim there was no 

one “of that ilk” in his Division without more. Why wasn’t he forthcoming about the 

incidents of harassment within his Division? Why not at least admit what he had heard and 

discuss it honestly? Finally, it is troubling that Perez refuses even now to admit or deny 

whether his deputy, Julie Fernandes, made the statements subsequently attributed to her. 

Under circumstances that cry out for a confirmation or denial, his silence is deafening. 

Perez also repeatedly testified that the NBPP case was dismissed solely because the 

facts and the law did not support it.55 As with DOJ’s original letter to the Commission, this 

statement was inherently suspect for several reasons: (1) Unless the facts were different than 

what was stated in the complaint (and none were disputed), no honest civil rights lawyer 

could really believe the law did not justify the lawsuit, and if any did, that itself would be a 

scandal. (2) DOJ would not release the documents or allow the relevant attorneys to provide 

testimony that would prove or disprove whether the facts and law were the only basis for the 

decision. (3) Perez had a terrible time coming up with an explanation of why the facts did not 

support voter intimidation claims against, for example, Election Day co-conspirator Jerry 

Jackson. Perez repeated the lame excuse that the local police did not order Jackson to leave, 

which is an absurd defense to clear acts of federal voter intimidation for numerous historical 

and other reasons.56

 

52 Coates Testimony at 32-33. 

53 Coates Testimony at 134. 

54 Coates Testimony at 134; Adams Testimony at 68 (testifying the briefing was the day before Perez testified). 

55 See, e.g., Perez Testimony at 23, 33, 53, 63, 104, 107. Unless Perez conducted his own thorough investigation 

of the deliberations that took place April/May of 2009, it is unclear how he could know what the real motives or 

reasons were for those who made the decision. Did he quiz Attorney General Holder, Deputy Attorney General 

Ogden, Associate Attorney General Perrelli, and Deputy Associate Attorney General Hirsch, and read all the 

emails and other documents between them and his Division? We don’t know. Indeed, we don’t know if he had 

any solid basis to testify why the decision was made to dismiss the suit or whether he was simply following a 

script. 

56 In a belated attempt to re-interpret what Perez really meant, the dissenting statement of Commissioners 

Melendez and Yaki claims that Perez and DOJ only cited the police for the truth of the factual matters they 

related. This is not a fair reading of Perez’s testimony or DOJ’s earlier correspondence for several reasons. 

The first is that the body of the police report is about 30 words long and does not relate any facts that exonerate 

Jackson or anyone else. The heavily redacted FBI report of one officer’s statement does not support the 

dissent’s theory either. For example, it does not say who the police interviewed besides the defendants so the 

cryptic responses about who was or was not intimidated are meaningless. The second problem is that Perez and 

DOJ did not point to any facts in the police report or FBI interview (the FBI interview is never even mentioned) 

that support Perez’s conclusion that Jackson’s “actions did not warrant his removal from the premises.” Perez 
110 Commissioner Statements 

Testimony of Christopher Coates and Christian Adams 

Besides undermining DOJ’s position and leading journalists to suggest he may have 

committed perjury, Perez’s testimony did have one dramatic consequence: J. Christian 

Adams, who was a lead trial attorney on the NBPP team, submitted his resignation to the 

Department after listening to Perez’s testimony, which he later explained was “inaccurate.”57

Since DOJ had forbidden Adams to testify and he still felt lawfully obligated to comply with 

our subpoena, he resigned his position first and then provided whistleblower testimony on 

July 6, 2010. 

Former Voting Section Chief Christopher Coates, who led the NBPP trial team, was 

also distressed by Perez’s inaccurate testimony. DOJ repeatedly forbade Coates to talk to the 

Commission. Coates later said he hoped, after Adams testified, that the Department would 

amend its representations to the Commission and Congress about what happened in the 

Panther case.58 Based on additional contact between his private lawyer and the Department, it 

became clear this was not going to happen. Coates then decided to become a whistleblower 

and appear before the Commission at risk to his career, since he is still a Department 

employee.59 The afternoon before he testified, Congressman Frank Wolf sent a letter to 

Attorney General Holder cautioning against interfering with Coates’s testimony.60 Instead, 

the Department sent an email to Coates late that night instructing him again not to followthrough with his plans.61 Based on memos he sent and conversations he had with his 

superiors, the Department knew much of what he had to say. What was the Department 

trying so hard to conceal? We now know. 

 and DOJ rely exclusively on the fact that the police allowed Jackson to stay as proof that he had done nothing 

wrong. Indeed, Perez went further, stating that “The [the local police] concluded that the activities did not rise 

to the level of intimidation. And that was certainly a fact that was a fact of relevance.” Perez Testimony at 70-

71. But there is absolutely nothing the police report or FBI interview that supports this factual claim. In the 

absence of something more, it is embarrassing at best for DOJ to cite the particular, local police action to 

support their federal law enforcement decision. 

57 Adams Testimony at 69. 

58 Coates Testimony at 92-93. 

59 Coates’s background is summarized in the report on page 49: 

Before beginning his work at the Department, Mr. Coates served with the Voting Rights 

Project of the American Civil Liberties Union in Atlanta, Georgia. During his time there, he 

litigated cases on behalf of African-American clients, particularly those challenging at-large 

election procedures. In 1993 he argued a case before the United States Supreme Court on 

behalf of six African-American citizens in the local NAACP chapter in Bleckley County, 

Georgia. For his service with the ACLU he was awarded the Thurgood Marshall Decade 

Award by the Georgia Conference of the NAACP, as well as an award from the Georgia 

Environmental Association for his representation of African-American clients opposing the 

installation of a landfill in their neighborhood. Mr. Coates began his career at the Department 

of Justice in 1996 during the Clinton administration. During that administration, he was 

promoted to Special Litigation Counsel and served in that position until 2005. 

60 Letter from Congressman Frank R. Wolf to Attorney General Holder (Sept. 23, 2010). 61 Daniel Harper, “DOJ, the New Black Panther Party, and Integrity,” The Weekly Standard blog, Oct. 1, 2010, 

available at http://www.weeklystandard.com/blogs/doj-new-black-panther-party-and-integrity. 
Statement of Commissioner Todd Gaziano 111

Coates and Adams both felt constrained to abide by the Department’s highly 

questionable privilege claims with regard to the NBPP case deliberations and documents, 62

but they felt free to describe the prevailing attitude regarding suits brought against black 

defendants generally. Both Coates and Adams described a deep-seated culture within the 

Civil Rights Division that is hostile to race-neutral enforcement of the law.63 They said there 

is a widespread belief that cases should not be brought against blacks or other racial 

minorities if the victims happen to be white. And they testified that this race-based approach 

to law enforcement is shared by current political appointees in the Civil Rights Division. 

For example, Coates and Adams both testified that Deputy Assistant Attorney 

General Julie Fernandes stated in a meeting with Voting Section attorneys that the Obama 

administration only wants to bring “traditional” civil rights cases on behalf of minorities.64

Coates testified that no one in the meeting had any confusion about what she meant: there 

would be no more cases like the NBPP case or the Ike Brown case filed against racial 

minorities.65 Fernandes also said in another meeting with Voting Section attorneys that the 

Obama administration is not interested in enforcing Section 8 of the National Voter 

Registration Act, which requires states to take ineligible voters off voter rolls.66

The office statements attributed to Fernandes by Coates and Adams may be incredible 

to most Americans (perhaps this is why Vice Chair Thernstrom said it was impossible that 

Fernandes would “announce that ... unless she is some sort of moron”),67 but the alleged 

remarks are entirely consistent with statements Fernandes made when she was with the 

Leadership Conference on Civil Rights before she joined the Obama administration. 

Fernandes claimed that the Voting Rights Act was not written to protect all voters regardless 

of race: 

‘People are wondering why aren't you bring [sic] cases with voting and 

African-Americans—what is the issue,’ said Julie Fernandes of the 

Leadership Conference on Civil Rights. ‘How can it be that the biggest 

case involving discrimination in Mississippi [United States v. Ike 

 

62 Legal ethics rules provide that a lawyer may not reveal a valid client confidence (except under certain narrow 

exceptions) even after the representation is over. The Department had asserted that the deliberations over the 

NBPP case were covered by the attorney-client privilege, and while Coates and Adams might have agreed the 

assertion was wrongful, disclosing an alleged client confidence that did not satisfy one of the exceptions would 

have possibly subjected Coates and Adams to the expense and harassment of bar disciplinary proceedings. 

63 See Coates Testimony at 9-10, 16-18, 20, 23-26, 31 (Sept. 24, 2010); Adams Testimony at 47-50, 54-63, 65-

67 (July 6, 2010). 

64 Coates Testimony 32-33; Adams Testimony at 63-64 (July 6, 2010). 

65 Coates Testimony at 33; United States v. Brown, 494 F. Supp.2d 440 (S.D. Miss. 2007), aff’d, 561 F.3d 420 

(5th Cir. 2009). 

66 Id. at 33-36; Adams Testimony at 63-64. 67 Commission Business Meeting Transcript at 24-25, August 13, 2010 (emphasis added). It is unclear whether 

Vice Chair Thernstrom found it difficult to believe someone at Fernandes’s level at DOJ would believe such a 

notion or merely that it was hard for her to believe someone like Fernandes would “announce that” at DOJ. 
112 Commissioner Statements 

Brown and Noxubee County] was brought on behalf of white voters ... 

The law was written to protect black people.’ 68

Nor is Fernandes alone in this wrong-headed, race-based interpretation of federal civil rights 

law. Commissioner Heriot notes in her accompanying statement how common that racebased view of the law is in certain academic and activist circles. And Vice Chair Thernstom 

should not have forgotten that two former members of our Commission (including its former 

Chair, Mary Frances Berry) not only held such an erroneous view, they asserted that position 

in a report of this Commission: 

In their statement concerning Stotts, once again our colleagues in the 

majority insist on putting blinders on society concerning the tragic 

present and past effects of discrimination. Civil rights laws were not 

passed to give civil rights protection to all Americans, as the 

majority of this Commission seems to believe. Instead, they were 

passed out of a recognition that some Americans already had 

protection because they belonged to a favored group; and others, 

including blacks, Hispanics, and women of all races, did not 

because they belonged to disfavored groups.69

Fernandes was also publicly critical of laws designed to protect the integrity of the ballot box 

because of the disparate impact she thought these measures might have on minorities.70 In 

short, Fernandes was not reluctant to publicly state her belief that the civil rights laws should 

only be enforced on behalf of certain minorities. 

Because of DOJ’s privilege claims, Coates and Adams both declined to reveal the 

content of conversations and arguments they had with the acting officers appointed by the 

Obama administration to head the Civil Rights Division (Loretta King and Steven 

Rosenbaum) when the NBPP case was dismissed, but Coates testified plainly and without 

equivocation that the reason they ordered the dismissal was because they harbored hostility 

to cases brought against black defendants.71 Coates said that he would return and provide the 

 

68 Steven Rosenfeld, “Is the Justice Department Conducting Latino Outreach on Behalf of the GOP?,” AlterNet 

(Oct. 22, 2007) (second bracket and ellipsis in original; emphasis added), available at

http://www.alternet.org/story/65749/. 69 U.S. Commission on Civil Rights, Toward an Understanding of Stotts 63 (Jan. 1985) (Statement of 

Commissioners Blandina Cardenas Ramirez and Mary Frances Berry) (emphasis added). 

70 Sylvia A. Smith, “High Court to consider Indiana law on voter ID,” Fort Wayne Journal Gazette (IN), Jan. 6, 

2008 (“Julie Fernandes, an analyst with the Leadership Conference on Civil Rights, said voter ID laws are akin 

to poll taxes....”) available at

http://www.journalgazette.net/apps/pbcs.dll/article?AID=/20080106/NEWS03/801060306/1002/LOCAL; see 

also Hearing Before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the House 

Committee on the Judiciary, 110th Cong. at 62 (Oct. 30, 2007) (statement of Julie Fernandes, Senior Policy 

Analyst and Special Counsel, Leadership Conference on Civil Rights) (criticizing voter ID laws and voter 

integrity initiatives by DOJ), available at http://judiciary.house.gov/hearings/printers/110th/38637.PDF. 71 Coates Testimony at 23-24 (“It is my opinion that the disposition of the Panther case was ordered because the 

people calling the shots in May 2009 were angry at the filing of the Brown case and angry at the filing of the 

Panther case. That anger was the result of their deep-seated opposition to the equal enforcement of the Voting 
Statement of Commissioner Todd Gaziano 113

relevant context and reasons for his conclusion if the Department waived its assertion of 

privilege or if the privilege claims were overruled in court. Yet, on November 12, the 

Department again refused to waive its alleged privileges and allow Coates to testify about the 

conversations he had with King and Rosenbaum regarding the NBPP dismissal. Thus, the 

Department should not be heard to complain about the lack of detail in the attorneys’ 

conclusions regarding the NBPP case itself. 

Nevertheless, Coates’s conclusion that the hostility to race-neutral enforcement of the 

laws is widespread in the Division is illustrated by many anecdotes he and Adams described. 

They provided example after example of unequal treatment or racial bias, including 

harassment of black employees who worked on a case in which the defendants were black. 

As background, the Ike Brown case was a voting rights suit brought by Christopher Coates, 

Christian Adams, and a few other attorneys in the Voting Section in 2005 against the leader 

of the Democratic Party in Noxubee County, Mississippi, which is a majority-black county. 

The defendants in the case were black and the victims were both black and white voters. DOJ 

won the case in district court and it was affirmed by the Fifth Circuit. Among other incidents, 

Coates and Adams described the following:72

• Several attorneys refused to work on the Ike Brown case. At least one attorney stated, 

“I’m not going to work on the case because I didn’t join the voting section to sue 

black people.” 

• Joseph Rich, a former Voting Section chief, doctored a memo from Voting Section 

lawyers to senior Division staff, changing their recommendation to file the Ike Brown 

lawsuit to the opposite recommendation, due to Rich’s hostility to race-neutral 

enforcement of the voting laws. 

• Mark Kappelhoff, the chief of the Criminal Section, at a meeting of the chiefs of the 

Civil Rights Division, allegedly stated about the Ike Brown case, “That’s the case that 

has gotten us into many problems with the civil rights groups.” 

• Coates testified that Robert Kengle, deputy chief in the Voting Section, stated to him 

during a trip to investigate the Ike Brown case, “Can you believe we are being sent 

down to Mississippi to help a bunch of white people?” Kengle recently admitted that 

he complained about the trip and said something like that. While he invents a wholly 

implausible relative-racial-need-theory excuse for his complaint, his own statement 

makes him sound culpable, and his newly-invented excuse has now been refuted.73

 Rights Act against racial minorities and for the protection of white voters who had been discriminated 

against.”). 

72 See Interim Report at 51-56. See also Coates Testimony at 13-18, 105-06. 

73 See Letter from Hans A. von Spakovsky to the Honorable Gerald A. Reynolds (Oct. 28, 2010), refuting

Declaration of Robert A. Kengle (Oct. 18, 2010) (both are available on the Commission website). Although 

Kengle says he does not remember the precise words he used, he admits that he was upset that he was sent to 

Mississippi to monitor the local Democratic primary and he complained about it to several people, not because 

that trip would help whites—per se—but supposedly because there were relatively more deserving reports 

involving minority voters that were not being addressed. Kengle Declaration, ¶¶ 4-5. Kengle also states that he 

did not explain this relative-racial-need-theory for his complaints at the time because, in essence, Republican 

supervisors were against him. Id. at ¶ 5. So by his own admission, he complained about being sent to 

Mississippi to protect white voters, but only because he privately knew he was needed more to protect minority 

voters. Although Kengle’s belated excuse for his righteous-sounding anger seems questionable on its face 

(especially given the serious allegations of voter fraud in the Ike Brown case), it can’t stand up to even casual 
114 Commissioner Statements 

• Attorneys in the civil rights division allegedly told Adams that “until blacks and 

whites achieved economic parity in Mississippi, we had no business bringing this 

case.” 

• A similar comment about economic parity was made by a career attorney to Mr. 

Coates. 

• Adams testified that a non-lawyer minority employee at the Department was 

“relentlessly harassed by voting section staff for his willingness as a minority to work 

on the case of United States v. Ike Brown.” 

• Coates testified further that the minority employee’s mother, who worked in another 

section of the Division/Department, was also harassed because her son worked on the 

Ike Brown case. 

• Adams testified: “Others assigned to the case were harassed in other ways, such as 

being badgered and baited about their evangelical religious views or their political 

beliefs. In these instances, the victimized employee was openly assumed to espouse 

various political positions hostile to civil rights, simply because he worked on this 

case.” 

• Adams also testified: “There was outrage that was pervasive that the laws would be 

used against the original beneficiaries of the civil rights laws. Some people said ‘we 

don’t have the resources to do this. We should be spending our money elsewhere.’ 

And that was how they would cloak some of these arguments.” 

• In another instance, “[a]nother deputy in the section said in the presence of Mr. 

Coates, ‘I know that Ike Brown is crooked, and everybody knows that, but the 

resources of the division should not be used in this way.’” 

Several of these detailed anecdotes were corroborated by both Coates and Adams, by 

other sworn affiants, or by an admission of someone who uttered the statement. In addition, 

Coates and Adams were able to relate troubling incidents concerning King and Rosenbaum 

that are not client confidences. The first, involving Rosenbaum, is that he did not even bother 

to read the comprehensive legal memo prepared by the trial team on the NBPP case before he 

made up his mind to dismiss the charges.74 Given the sequence of events that led to the 

confrontation in question (see the full narrative in the body of this Interim Report), it 

certainly undermines the claim that he was interested, and only interested, in the objective 

 scrutiny. As Hans von Spakovsky’s letter explains—and the press releases he attaches from DOJ’s website 

prove—DOJ greatly expanded the number of federal election monitors in 2002 (over the previous mid-term 

election) and in 2004 (compared to 2000). In 2004, for example, DOJ supervised 162 elections in 105 political 

subdivisions in 29 states with a total of 1,463 federal observers and 533 Division personnel. This was a 

dramatic increase (2.5 times the Clinton Administration figures for the 2000 general election) and shattered the 

previous record. With the exception of a few sent to Noxubee County, Mississippi between 2003 and 2006, all 

of the remaining observers were sent to protect the rights of racial, ethnic, and language minorities. So the truth 

is that Kengle was upset that any observers were sent to protect the rights of white voters, because any is 

relatively too many. How else can one explain his claim that the first and then only deployment to protect white 

voters (of a handful of observers) was relatively too many and a doubling of federal observers (by many 

hundreds) to protect against perceived threats to minority voters was too low of a percentage? Apparently to 

Kengle, less than 1% of staff assisting white voters is too many. That sure seems like a racial double standard 

to me. See also note 81, for why the dissenters’ attempt to dismiss von Spakovsky’s letter is sadly misguided. 

74 Adams Testimony at 30. 
Statement of Commissioner Todd Gaziano 115

facts and law governing the case. It strongly suggests something other than the usual facts 

and law were at play. 

The incident involving King followed from the refusal of some Voting Section staff 

to work on the Ike Brown case and the harassment of other Section staff who agreed to do so. 

After he secured a victory in that case, Coates began asking job applicants whether they 

would be willing to work on other cases brought on behalf of white victims against minority 

defendants. He said no one ever expressed any discomfort with the question or answered 

negatively. Yet, Coates testified that when Loretta King was appointed acting head of the 

Civil Rights Division in the Obama administration she told him that he must stop asking that 

question.75 From his years working with King and her behavior in the NBPP and Ike Brown 

cases, Coates said he knew why the order was given: King does not believe in “raceneutrality” or the “equal enforcement of the provisions of the Voting Rights Act,” and thus, 

she didn’t want to exclude people who thought like her.76

Conclusion 

Loretta King was unquestionably involved in the decision to dismiss the NBPP suit as 

acting head of the Division (she now is a Deputy Assistant Attorney General for Civil Rights 

under Thomas Perez). I asked Perez if he thought it would taint a decision to file or dismiss a 

case against a minority defendant if the decision-maker did not believe the voting rights laws 

should be applied against minority defendants. Perez refused to answer the question, 

claiming he had no people “of that ilk” in his Division. But the sworn testimony before the 

Commission is that Loretta King is of that ilk. The same testimony implicates Steven 

Rosenbaum, currently Chief of the Housing and Civil Enforcement Section, and Julie 

Fernandes, Perez’s Principal Deputy Assistant Attorney General. And what about other 

senior political appointees in the Department who were involved in dismissing the NBPP 

suit? 

Until the Department produces the relevant emails and documents from the decision 

makers about their basis for dismissing the NBPP case, reasonable people will draw the 

logical conclusion from the objective facts (that the case was very strong and should not have 

been dismissed), from the lack of a plausible rationale to the contrary, from the 

unprecedented stonewalling, from the claims of privilege that would make even Watergate 

figures blush, and from the detailed and credible allegations of wrongdoing by Coates, 

Adams, and other affiants. 

Even so, neither Coates nor Adams has been allowed to tell his whole story. On 

October 13, 2010, the Commission asked the Attorney General to waive any alleged 

privilege, given the credible allegations of wrongdoing; produce the emails in the Judicial 

Watch email log; produce any documents that Coates and Adams wrote, especially those 

written on or about April 26 and May 10 to help Thomas Perez prepare for his testimony 

before the Commission; and allow Adams, Coates and other DOJ employees with 

 

75 Coates Testimony at 20. 

76 Coates Testimony at 19-21. 
116 Commissioner Statements 

information about possible malfeasance to testify freely to the Commission.77 All those 

requests were denied on November 12, 2010. 

Nevertheless, I hold out hope that the Attorney General will review the record of the 

Commission’s investigation and do the right thing by putting an end to the obstruction and 

ordering the Department to “cooperate fully” with the Commission as federal law requires. 

 While the Commission and others pursue this important inquiry, I also urge Attorney 

General Holder to issue a formal memorandum to all Department employees that they shall 

not make law enforcement decisions based on the race of the defendants or victims. I also 

believe that if there is a serious question about whether someone has made statements 

indicating they are opposed to such a directive, the Department should relieve the officer or 

employee of law enforcement responsibilities until a thorough investigation of the matter is 

concluded. 

Rebuttal to the Statement of Commissioners Melendez and Yaki 

The usually clever statements of Commissioners Melendez and Yaki follow an 

unfortunate pattern of interposing process objections after the report is completed that were 

never raised during the investigation. Yet, their joint dissent this year is even more revealing 

in what it does not address: 

• The compelling testimony from DOJ whistleblowers that there is a pervasive hostility 

to the race-neutral enforcement of the law within the Civil Rights Division as well as 

incidents of harassment and intimidation of those who have tried to enforce the civil 

rights laws in a race-neutral manner. 

• The refusal of DOJ to cooperate with the investigation and turn over the most 

important documents, emails, and witnesses—and the logical inferences that follow 

from such conduct. 

 The entire premise of the joint dissent is this: if they can come up with a plausible 

explanation why DOJ might have dismissed the NBPP voter intimidation claims, then the 

Commission was wrong to seek the actual reason for DOJ’s actions. Although their attempt 

to come up with a plausible rationale for DOJ’s actions is counterfactual and unconvincing, 

their approach is still more suited to a pro-administration pundit than members of the 

Commission with the responsibility to evaluate the actual law enforcement decisions made 

by DOJ. The dissenters assert that they “did not interpret all evidence in light of any 

foregone conclusions.” That seems doubtful, but it is far more significant that they labored 

for 16 months to prevent the most important evidence from coming to light that could be 

subject to any interpretation. 

 1. DOJ Enablers. 

In the main, the dissenters aided and abetted DOJ’s stonewalling, for whatever 

reason, time after time. They voted against official letters that merely requested critical 

 

77 These are contained in two letters from Commission to Attorney General Holder (Oct. 13, 2010). 
Statement of Commissioner Todd Gaziano 117

documents and witnesses. They opposed the original proposal to subpoena and depose any 

witnesses—although they now complain the Commission did not formally depose some who 

they secretly wanted deposed. It is certainly possible to oppose the original investigative 

plan yet provide constructive suggestions to improve it, but that is not a fair characterization 

of their efforts. The transcripts of our monthly meetings show that, from September 2009 to 

the present, they opposed almost every single request or other effort to obtain DOJ 

documents, emails, and DOJ witnesses. 

There is a confused footnote in the dissent questioning why the Commission majority 

was interested in whether the President had invoked executive privilege,78 but there is not 

even the flimsiest attempt by the dissent to justify DOJ’s refusal to produce the most relevant 

evidence to the Commission. The dissenters even opposed the Commission’s letter renewing 

its request for an index of the documents and emails that were withheld. Why didn’t they at 

least want to know the nature of the documents being withheld? Were they afraid of what 

that would reveal? 

There is no attempt in the joint dissent to defend DOJ’s spurious claims of privilege, 

which makes sense since there is no lawful defense. On the merits of the original dismissal, 

the dissenters spin long-winded, counterfactual, Republican conspiracy theories DOJ never 

advanced, but even the dissenters are silent on DOJ’s refusal to produce critical evidence. 

Given the nature and seriousness of the discovery disputes, the dissent’s silence is quite 

telling. 

It is even more disappointing that the dissenters, while purporting to keep an open 

mind, opposed almost every effort (and made no effort themselves) to secure the information 

from DOJ that would have tended to prove or disprove DOJ’s assertions. The Department’s 

statutory obligation to produce requested information to the Commission has no exception. 

All commissioners should have assisted the Commission in securing that evidence from DOJ, 

whatever interpretation they later placed on it. But the dissenters, who now seem interested 

in the most tangential minutiae about Republican poll watchers, would not join in requesting 

the emails from Steven Rosenbaum, Loretta King, Sam Hirsch, and others in DOJ that go to 

the heart of the matter the Commission has the duty to investigate: the actual reason for the 

law enforcement decisions at issue and whether they were well founded or illegitimate. 

Even if the dissenters only objected to the form of the Commission’s requests for 

information (which is implausible since they never offered substitute language), they also 

 

78 Perhaps the dissenters would have understood why the Commission wanted to know whether executive 

privilege had been invoked if they read the official correspondence between the Commission and DOJ, instead 

of reflexively opposing every letter after August 2009. Although the reason the Commission was interested in 

that question is set forth in more detail in the Interim Report and this statement above (in the absence of an 

invocation of executive privilege, there is not even a colorable basis for DOJ to withhold information from the 

Commission), it was first articulated in a five-page letter sent with the first interrogatories and formal requests 

for production of documents from the Commission to DOJ. See the Letter from David Blackwood to Joseph 

Hunt, Director, Federal Programs Branch, DOJ (Dec. 8, 2009) on the Commission’s website. That letter was 

frequently referenced in later correspondence from the Commission, for example, as a reminder that the 

Commission had asked for an index of withheld documents if DOJ continued to withhold them. 
118 Commissioner Statements 

never sent their own letters asking for the same or similar information. Instead, they 

expended lots of energy and time at Commission meetings opposing the requests that were 

made. 

2. See No Evil, Hear No Evil, and Speak of No Evil. 

The most telling omission from the dissent, however, is almost any mention of the 

sworn testimony by Christopher Coates and Christian Adams of the repeated instances of 

harassment and intimidation of anyone in the Civil Rights Division (including minority staff) 

who was willing to work on voting rights cases involving minority defendants. As the 

Interim Report, this statement and those of Commissioners Kirsanow and Heriot detail, the 

testimony is both quite detailed and consistent. It was corroborated by other sworn affidavits 

received into evidence. 

It is also corroborated by various news accounts, including racialist statements 

obtained from Civil Rights Division officials during an investigation by The Washington 

Post.

79 Indeed, a fair-minded reader of the Post’s front-page investigative reporting would 

conclude from that newspaper alone that there are attorneys in the Civil Rights Division who 

are hostile to the race-neutral enforcement of the law. That harassment was directed against 

those who did not share this caustic approach is also chronicled by the Post reporting and 

provides a strong reason to believe that decisions by those who hold such a racial double 

standard would be tainted in a case involving black defendants.80

Other than one sad attempt to soften the import of a troubling statement by Robert 

Kengle,81 the joint dissent makes no effort to dispute the many other anecdotes regarding 

harassment or intimidation of those who would enforce the civil rights laws in a race-neutral 

manner. Nor does the dissent address the conclusion that the hostility to race-neutral 

enforcement of the civil rights laws is widespread in the Civil Rights Division, the evidence 

that Loretta King and Steven Rosenbaum share that hostility, and the direct, unequivocal 

 

79 Jerry Markon and Krissah Thompson, “Dispute over New Black Panthers case causes deep divisions,” The 

Washington Post, p. 1, Oct. 22, 2010; see also Jerry Markon, “Civil rights panel postpones vote on New Black 

Panthers report after members walk out,” The Washington Post, Oct. 29, 2010 (describing DOJ obstruction). 80 The sworn affidavits and public testimony that was subjected to cross examination by the Commission are 

more valuable evidence, but for those who distrust the Commission, the Post’s investigative reporting is hard to 

dismiss. 

81 The dissent suggests that Hans von Spakovsky’s Oct. 28, 2010 letter and all its attachments, see note 73 and 

accompanying text, which renders Robert Kengle’s statement even more troubling, should be ignored because 

the letter is not sworn. Putting aside Commissioner Yaki’s unfair personal attacks on von Spakovsky that arise 

from time-to-time, the dissent’s attempt to dismiss his factual recitation just draws more helpful attention to it. I 

am confident von Spakovsky (who is my think tank colleague) would be willing to swear to the factual matters 

contained in his letter, but it should be noted that the dissenters have never asked that DOJ letters be disregarded 

because they are unsworn. The creative reason for the dissent’s special rule is that von Spakovsy’s letter 

responds to a sworn statement, but many DOJ letters also respond to sworn statements of our witnesses. And as 

a matter of logic, factual letters can refute sworn statements. Indeed, von Spakovsky’s Oct. 28, 2010 letter 

almost exclusively reports factual matters and attaches DOJ press releases that are subject to independent 

review. I suspect the dissenters have already verified the factual matters in von Spakovsky’s letter that 

thoroughly undermine Kengle’s declaration, and that is why they attempt to dismiss it with a phony form 

argument rather than address its substance. 
Statement of Commissioner Todd Gaziano 119

testimony that this was the reason King and Rosenbaum dismissed most of the claims in the 

NBPP voter intimidation lawsuit. 

Because these allegations of racial double standards in law enforcement are so 

damning and so thoroughly undermine the central purpose of the Civil Rights Division, the 

absence of any analysis of them by the dissent would lead a reasonable person to conclude 

they have no basis to question the allegations, and they simply hope to distract as much 

attention from them as possible. Thus, their entire dissent has an Oz-like quality, in which 

the Dissenters-of-Oz invoke manufactured flames and floating faces involving irrelevant or 

insignificant issues, and then when the curtain of racial double standards is drawn back by 

the whistleblowers’ testimony, they say nothing more than “pay no attention to the [DOJ 

wrongdoers] behind the curtain.” Indeed, the analogy also fits Vice Chair Thernstrom, who 

at least claims to be interested in the question of whether racial double standards exist in the 

Civil Rights Division, but instructs everyone, as the Wizard of Oz did, to “come back 

tomorrow” when DOJ will tell us what to think. 

Let us assume, only for the sake of argument, that the dissenters’ central claims are 

correct, namely that: (1) there could have been a plausible reason why someone might have 

dismissed most of the NBPP voter intimidation lawsuit, and (2) the Commission was wasting 

its time trying to find out what the real reason was. Ignore also that the second proposition 

doesn’t necessarily follow from the first. Even by their strange logic, however, the 

Commission still stumbled upon sworn testimony and other evidence of a pervasive culture 

of hostility to the race-neutral enforcement of the civil rights laws in the Civil Rights 

Division and possibly with other more senior DOJ officials who were involved in the NBPP 

dismissal. Why ignore that evidence? 

Instead of confronting the unequivocal testimony that the NBPP claims were 

dismissed because the decisionmakers imposed a racial double standard—or seeking critical 

evidence from DOJ that could prove or disprove that most troubling allegation—the 

dissenters seem desperate to invent a new rationale that could have been a basis for someone 

to dismiss the case. The most important evidence of why the claims were dismissed might be 

in the emails that were sent by those heavily involved in the dismissal decision (Sam Hirsch, 

Steven Rosenbaum, and Loretta King) or the testimony of other witnesses about the 

deliberations regarding the decision (even Coates and Adams have not testified about that). 

But when DOJ does not deny that the specific racialist statements and troubling, race-based 

instructions were uttered, there is much less reason to doubt the basic truth of Coates’s and 

Adams’s testimony regarding the existence of a racial double standard. Given that, the 

dissenters’ effective silence on the alleged guarantee of unequal justice (the most important 

issue the Commission has confronted in years) is deafening. 

 3. Belated Process Objections. 

Turning to the heretofore secret process objections in the joint dissent, it’s difficult 

not to overstate how silly they are without falling prey to their attempt to distract attention 

from the DOJ wrongdoers behind the curtain. Nevertheless, a brief rejoinder is possible. 
120 Commissioner Statements 

First, and perhaps most importantly, the transcript of our September 11, 2009 meeting 

adopting the statutory report topic shows that Commissioner Yaki was asked to serve on the 

Discovery Subcommittee with Commissioner Kirsanow and me, but he refused to do so.82

Although Commissioner Melendez was not in the room for part of the discussion (he had 

earlier walked out of the room with Commissioners Yaki and Thernstrom in an attempt to 

defeat a quorum), Commissioner Yaki reported that Melendez also was not willing to serve. 

The motion to create the Subcommittee was then amended to allow either Democratic 

commissioner to join the Discovery Subcommittee at any time they so chose.83 Neither one 

ever did. 

According to the investigative plan adopted by the Commission, the Discovery 

Subcommittee would advise the Chairman and General Counsel regarding what evidence to 

pursue and in what order, and to raise other discovery issues with the full Commission. If 

Commissioners Melendez or Yaki were really interested in providing constructive advice on 

what witnesses to depose and what evidence to obtain, they had a very effective way to do 

so. Instead, they refused the request to serve—preferring instead to withhold any 

constructive input into the discovery process and creating the wholly self-fulfilling 

accusation that the investigation lacked “bipartisan” support. 

Even so, most of the witnesses the dissenters say they want to hear more from were 

interviewed by the Commission General Counsel.84 The dissenters never asked for them to 

be deposed until after the report was adopted. Assuming that deposing them might have 

provided some slight additional evidence and that the expenditure of time and money 

justified the effort, the dissenters should not be heard to complain now if they didn’t request 

it earlier. This follows the pattern from prior years. Last year, they dissented from the 

Commission’s report on the mortgage crisis, in part, because they said a steering hypothesis 

was not adequately explored, but which they never raised until after the report was adopted.85

The dissenters also complain about the expense of the investigation, even though the 

expense has been less than previous years’ statutory report projects.86 It is odd they did not 

want to subpoena important DOJ officials who actually made the decisions at issue, but they 

now say we should have flown attorneys to Denmark to depose a videographer who taped the 

incident in Philadelphia in 2008.87 More importantly, they have not joined the Commission 

 

82 Meeting Transcript at 61-62 (Sep. 11, 2009). 

83 Id. at 68-70. 

84 The General Counsel or his staff interviewed Wayne Byman, Joe Fischetti, and Mike Roman. 

85 See Statement of Gaziano, Reynolds, Kirsanow, and Taylor, U.S. Commission on Civil Rights, Civil Rights 

and the Mortgage Crisis, 217 (Sept. 2009), available at http://www.usccr.gov/. 86 For fiscal year 2010, the Commission spent approximately $173,000 on the investigation and Interim Report, 

most of which were salaries to Commission employees. The cost to both the Commission and DOJ likely 

would have been less if DOJ hadn’t expended so much effort fighting the inquiry. The Civil Rights Division 

budget for FY 2010 was $145.4 million. The Division has 815 positions with 399 attorneys. The Voting 

Section alone has 118 positions and 43 attorneys. Yet, the Section has filed a total of only four lawsuits under 

the Voting Rights Act in the past two years, only one of which is still being litigated. I suspect a further 

examination of Division’s cost effectiveness would not be impressive compared to the Commission staff who 

worked on the NBPP investigation. 

87 The videographer, Stephen Morse, told Adams he was only on the scene in Philadelphia for 15 minutes, so it 

is doubtful he would have provided much useful information compared to those who where there longer. 
Statement of Commissioner Todd Gaziano 121

in seeking to obtain the original written witness statements the DOJ has for these individuals, 

which are still being withheld. Those statements are even more relevant for the 

Commission’s investigation than what the same witnesses might say now because it is more 

important to understand what DOJ officials knew or should have known at the time they 

dismissed the suit than to play CSI-style detective to develop a new rationale for DOJ’s 

actions.88 

It is highly doubtful these marginal witnesses would add anything significant to the 

other eye-witness accounts (the conspiratorial interpretation of an extra minute of the Philly 

video tape in the dissent is reminiscent of those questioning the Warren Commission’s lonegunman finding with novel, frame-by-frame analyses of the Zapruder film).89 Nevertheless, I 

would support the new Commission majority if it continued the investigation and sought the 

witness statements and more relevant evidence from DOJ on what their actual reasons were 

for dismissing the NBPP claims. Otherwise, arguments about these extraneous witnesses are 

simply red herrings to distract attention from the Commission’s central inquiry regarding 

why DOJ officials ordered the dismissal, and specifically, whether they were motivated by a 

race-based vision of civil rights enforcement.90

Finally, the Commission did more than enough to confirm that the original allegations 

in the complaint were well founded. Beyond that, it was incumbent on DOJ to explain its 

actions, not on the Commission to disprove every possible theory that might have motivated 

its actions. 

4. Grasping at Straws. 

Some of the remaining factual and quasi-legal claims in the dissent are hard to 

fathom, except as a further attempt to distract attention from the serious allegations of 

wrongdoing and the troubling evidence that current supervisors and political appointees in 

the Civil Rights Division think a racial double standard should apply in the enforcement of 

 Moreover, any deposition outside the United States would have had to be voluntary, if it could have been 

conducted at all. 

88 DOJ has refused to provide the witnesses statements for any of the witnesses sought by the dissent, including 

Wayne Byman, Joe Fischetti, Stephen Robert Morse, Harry Lewis, and Justin Myers. There is reason to believe 

witness statements exist for at least some of them because sworn declarations were prepared for some. Since 

DOJ won’t even provide a list of withheld documents it is impossible for us to know what statements exist. 

89 Prior to the April 23, 2009 hearing, the Commission General Counsel screened the longer National 

Geographic documentary film that featured the NBPP defendants and two complete videos taken of the scene in 

Philadelphia. All three were received into evidence in full, but only the most relevant excerpts were shown 

during the April 23 hearing. To ascribe some ulterior motive to the decision to show only an excerpt of two of 

the videos at the hearing is absurd. If the dissenters thought other portions of those tapes were highly relevant, 

they could have drawn it to everyone’s attention. Neither they nor the DOJ witness who testified the following 

month did so, and no one did so for the next six months. Indeed, the dissenters could have asked the full clip to 

be played at any subsequent hearing or business meeting from April 23 through December 3, 2010. In any 

event, the complete tape has now been posted on the Commission’s website for all to see that there is no there 

there. 

90 In addition to the documentary and email evidence that DOJ has refused to produce thus far, it would make 

sense next to hear the unrestricted testimony from Coates, Adams, others on the trial team, and perhaps others at 

DOJ. It is also safe to assume that if the DOJ had cooperated with our investigation, we would be in a much 

better position to know by now whether re-interviewing these witnesses would add any value. 
122 Commissioner Statements 

civil rights laws. Nevertheless, here are quick reactions to some of the dissent’s peculiar 

arguments: 

• The dissent claims that the J-memo “badly inflates the evidence in the trial team’s 

possession,” but how do they know the opposite is not true? DOJ refused to produce the 

trial team’s evidence. The dissent also tries to diminish the Division’s Appellate 

Section’s conclusions because those attorneys believed that evidence existed to back up 

the J-memo. The evidence discussed in the J-memo is strong enough for the career 

Appellate Section lawyers to conclude that the claims should not have been dismissed 

against any defendant, but it is also likely from the language of their memo that the 

Appellate Section’s lawyers knew of other evidence that has not yet been produced. 

• The dissenters continue to assert in part IV of their statement that “no actual voters were 

intimidated.” Attempted intimidation of voters or poll watchers also violates the Voting 

Rights Act, so it wouldn’t matter if they were right. And yet, they are wrong. They are 

so wedded to their false talking point that they ignore the two witnesses who testified 

seeing voters turn away from the polls in Philadelphia and the two others who reported 

seeing voters hesitate and act apprehensively about entering the polling place. Perhaps 

the dissent would continue to deny that voters were turned away or were intimidated if 

the proverbial “twenty bishops” so testified, but four uncontroverted eyewitnesses should 

be enough. 

• The dissenters also periodically assert there is “no evidence of” or “no proof for” some 

other proposition, but the Commission knows no such thing. The Commission still has 

little knowledge of what evidence exists, except for three memos that were leaked to 

Congressman Frank Wolf and subsequently provided to the Commission. It would be 

nice if we had all the trial team’s evidence and exhibits that were being prepared for trial 

as well as the emails relating to the decision to dismiss the claims. We don’t even know 

whether there are hundreds or thousands of pages of relevant evidence on the NBPP 

decision,91 even ignoring the evidence of harassment of those who rejected a racial 

double standard in law enforcement. We also don’t know what the trial team might have 

been able to discover had the case been allowed to proceed to an evidentiary hearing.92

• What the dissenters must mean is that they can think of no evidence supporting some 

proposition they want to question. Commissioner Yaki’s emphatic claim in November 

2010 that no witness ever claimed voters were turned away (ignoring two such witnesses) 

shows that at least his grasp of our record is fairly spotty. But since the most relevant 

evidence is being withheld by DOJ, the absence of evidence in our record doesn’t mean it 

does not exist. 

• It’s highly doubtful Christian Adams thought he literally “needed” to find a Republican 

or minority poll watcher to say that he or she was intimidated (people often express their 

wants as needs, as in “I need another cookie”). Voter intimidation does not require a 

partisan or racial component or motive, and any voting rights litigator would know that. 

• It makes absolutely no difference if Adams once did believe he needed a Republican or 

minority witness to make his case because the allegations in the complaint were more 

 

91 The thousands of pages of marginal or irrelevant material DOJ did produce are described in note 35. 

92 For example, Christian Adams testified he had some leads regarding complaints that NBPP members were 

present at the Democratic primaries intimidating supporters of Hillary Clinton. See Adams Testimony at 22 

(July 6, 2010). 
Statement of Commissioner Todd Gaziano 123

than sufficient to state a strong cause of action for voter intimidation under the Voting 

Rights Act. 

• The J-memo shows that Adams understood that Angela and Larry Counts were “AfricanAmerican poll watchers for the Republican Party” even if he or others used the 

ambiguous term “Republican poll watchers” at times. Indeed, Adams knew they were 

registered Democrats, but it makes absolutely no difference if he didn’t know that. The 

testimony is that the Countses told Joe Fischetti that King Samir Shabazz had called them 

“race traitors” and threatened them “if they stepped out of the building.” The bare threat 

was enough to violate § 11(b), without any partisan issue involved. Beyond that, the 

supposed affront that motivated the threat from Shabazz was that they were blacks who 

worked for the Republican Party. It is possible Shabazz would have thought them even 

worse “race traitors” if he learned they were (black) Democrats working for the 

Republican Party. 

• It is disappointing that DOJ selectively produces a few emails it thinks will help its story 

and withholds the rest, but the dissent’s interpretation of Adams’s emails is highly 

implausible. A good litigator is always looking for more evidence to bolster even a 

strong case, and those who communicate that they are especially eager to obtain such 

additional evidence are more likely to get it. The dissent’s idea that Adams was 

“desperate” is itself desperate. 

• From the few emails released, it is difficult to determine whether Adams was in more of a 

rush to obtain evidence in support of the NBPP lawsuit than usual (as the dissent 

surmises) or if that is his normal energetic style. For example, Adams testified that he 

doesn’t “ever leave any stone unturned on these kind of cases.”93 But if Adams was 

trying to act more expeditiously than usual, that would make perfect sense given his 

knowledge of the harassment of those who worked on the Ike Brown case and the 

possibility that the incoming administration might appoint political supervisors who also 

were hostile to suits against minority defendants. 

• The dissent also attempts to nitpick several statements and alleged actions by Bartle Bull, 

Chris Hill, and Mike Mauro, desperately trying to manufacture a Republican conspiracy 

theory to explain why voters might have turned away from the polls (other than the 

presence of the Panthers in paramilitary garb swinging a weapon in front of the door). 

Yet, all of this imaginative ground could have been covered in questions posed by the 

dissenters when Bull, Hill and Mauro appeared at our hearing to testify. It was not. The 

conspiracy theory is unsupported and fanciful, but it also suffers from the fact that the 

creative minds who dreamed it up did not think it sufficiently credible to raise with the 

supposed bad actors or at any of the other three hearings conducted by the Commission.94

 

93 Adams Testimony at 22 (July 6, 2010). 

94 The dissent also falsely alleges that “the Majority abused its powers and limited [the dissenters’] ability to 

question witnesses.” The time limits for questioning hearing witnesses were scrupulously fair, and it was only 

during Coates’s hearing that Chairman Reynolds heard any disagreement about when to end the questioning. 

The record of that hearing shows that both Commissioner Yaki and I wanted another round of questioning. Far 

from abusing his authority, Chairman Reynolds ultimately yielded to our dual requests with a compromise 

agreement among all commissioners as to how much extra time Commissioner Yaki and I would receive. See 

Hearing Transcript at 135-39 (Sept. 24, 2010). But former Chairman Reynolds surely knows by now that no 

good deed goes un-misrepresented. 
124 Commissioner Statements 

5. The Blame Bush Ploy. 

Finally, the dissenters have raised, in a rather slipshod manner, other allegations of 

voter intimidation during prior administrations in which no lawsuit was filed. It might not be 

worth responding to the dissent on these careless assertions, except that Assistant Attorney 

General Thomas Perez and some left-wing bloggers have also chimed in on this theme. 

The most obvious response is that even assuming the characterizations of these other 

incidents were true, that would hardly be a defense to dismissing the NBPP case. 

Nevertheless, I have frequently expressed interest in comparing the NBPP facts and 

disposition with other cases and past DOJ investigations. The Commission actively sought 

such information in the investigative plan I proposed 16 months ago. Needless to say, the 

Commission is seriously disappointed with the inadequate response from DOJ on these other 

incidents. More certainly could have been produced on these other alleged incidents because 

I discovered more from informal sources (including newspaper stories) than DOJ provided 

from its records. 

 One relevant point of comparison is a section 11(b) victory by DOJ in February 1992 

that the dissent briefly mentions. A sweeping injunction was secured against the North 

Carolina Republican Party and the Helms for Senate Committee because some of their staff 

mailed thousands of postcards that erroneously stated that voters must have lived in the 

precinct for at least 30 days previous to the election to be eligible to vote.95 This precedent is 

relevant for four reasons. First, it undermines the “hyper-partisan-Republicans-did-the-samething” claim, since the case was filed and won during a Republican administration against a 

state Republican Party. (Clinton was elected in late 1992.) Second, it shows the Republicanled DOJ interpreted section 11(b) very broadly so that even false or misleading postcards 

were equated with “intimidation,” and a federal judge readily upheld that interpretation.96

Third, DOJ during that time period had no qualms about seeking a sweeping, state-wide 

injunction against the Republican Party on a vicarious liability theory (i.e., the Party was 

liable because of the individual actions of its officers and/or employees) even though there 

was no Party policy to send misleading postcards. Fourth, Steven Rosenbaum was one of the 

DOJ attorneys who secured the state-wide injunction against the Republican Party even in 

the absence of evidence the Party had an official policy of sending false or misleading 

postcards, but based purely on the actions of a few of its alleged agents. 

The dissenters and Thomas Perez also cited an incident from Arizona in 2006. The 

allegation is that in Pima County, Arizona three men affiliated with the Minutemen 

intimidated Latino voters “by approaching several persons, filming them, and advocating and 

printing voting materials in Spanish,” with one of the men carrying a gun. Depending on 

other facts, the alleged behavior certainly might violate § 11(b). One report says that the man 

 

95 United States v. North Carolina Republican Party et al., No. 91-161 (E.D.N.C. filed Feb. 26, 1992). 96 The dissent seems to argue, without any real analysis, that false postcards are more intimidating than live, 

racist thugs, in paramilitary uniforms, moving in concert, yelling racial epithets, and swinging nightsticks about 

ten-feet in front of the only door to a polling place. Even if that were so (?!), that does not mean the NBPP 

conduct was lawful. 
Statement of Commissioner Todd Gaziano 125

carrying the gun never came within 150 feet of a polling place, had a permit to carry his gun, 

and never interacted with any voters.97 That paints a different picture. 

Christopher Coates testified that a DOJ attorney was sent to Pima County in 2006 to 

investigate the allegations.98 Coates didn’t remember much of the evidence adduced, except 

that he thought there was no evidence the men had entered the prohibited space around the 

polling place; nevertheless, he added that “anything that happens in a polling place that might 

keep voters from voting is a serious, serious matter.”99 He also explained that DOJ 

subsequently sent observes to Pima in 2008, based in part on the earlier report.100 

It is curious Commissioner Yaki would try to obtain the relevant evidence from a man 

(Coates) who had been shipped off to South Carolina months earlier, did not have possession 

of the DOJ files, and was using vacation days from work to testify as a private citizen. DOJ 

should have produced the entire case file and identified those who conducted the 

investigation so that we might learn what evidence DOJ was able to obtain on the incident, 

rather than hear the one-sided and misleading snippets from Perez and other activists. All 

that DOJ produced was a news article, a short memo referencing the article and ordering a 

preliminary investigation, and a “Notice to Close File.” What about all that which logically 

came between the first memo and the “Notice to Close File?” Surely there are memos from 

the attorney sent to investigate the matter, perhaps witness statements, possible pictures of 

the polling place, emails, and other material.Why withhold this old evidence from a now 

time-barred case from the Commission? 

 Another old allegation is that armed Mississippi state police investigating possible 

voter fraud in municipal elections entered elderly people’s homes and asked them who they 

voted for, even though it is against state law to ask that question. If true, this could violate 

section 11(b). But the Department has produced even less on this incident regarding what 

evidence exists that the alleged conduct took place. Some reports are shown to be false. 

Some lead nowhere, even if diligently pursued. Some are not reported to DOJ. What was 

the evidence supporting the allegations in Mississippi? What did DOJ know and when did it 

know it? 

 In short, the strength of possible charges for the Arizona and Mississippi incidents are 

very unclear. It appears DOJ did not have a video of the alleged conduct in either case. The 

nature of any witness testimony is unknown. And in neither matter did DOJ file a strong 

case and then unilaterally dismiss it after a default was entered against the defendants. 

Nevertheless, I would still like to learn more about the strength of the evidence and the 

decision-making process in the Arizona and Mississippi incidents. I certainly wish DOJ had 

done a professional job of producing the evidence relating to these incidents, rather than 

 

97 See Quin Hillyer, “First Democratic Congressman Calls for Charges Against Black Panthers,” Washington 

Times Water Cooler, July 27, 2010, available at

http://www.washingtontimes.com/blog/watercooler/2010/jul/27/firstdemocratic-congressman-calls-chargesagainst/.

98 Coates Testimony at 88. 

99 Coates Testimony at 92. 

100 Coates Testimony at 88. 
126 Commissioner Statements 

misleading the Commission (in sworn testimony) concerning what it actually knew about 

them. 

*** 
127 Commissioner Statements

Statement of Commissioner Gail Heriot

Joined by Commissioners Kirsanow and Gaziano

 The lawsuit underlying this investigation—United States v. New Black Panther 

Party—has been called “very small potatoes.”1 And although I might hesitate to describe a 

case involving fundamental voting rights in quite those terms, in some ways it was indeed 

small. This was not a case requiring an army of government lawyers to litigate. 

 But sometimes the smallest cases are the most revealing. While a large case can be 

so complex that it obscures the enforcement policies that underlie it, a simple case can 

function like a well-crafted law school hypothetical, laying bare those policies as well as the 

attitudes and biases of the policymakers behind them. 

When the Commission decided to conduct this investigation as its annual statutorilymandated enforcement report, I hoped and believed that it would shed useful light onto the 

Civil Rights Division’s behind-closed-doors enforcement policies—policies that some had 

feared lack race neutrality. I have not been disappointed.2

 At this point, even Commissioner 

Michael Yaki, one of the investigation’s most vituperative critics, has publicly admitted that 

some of the allegations of racial favoritism we have uncovered, if true, are very disturbing. 

Specifically, he said that if the allegations against Deputy Assistant Attorney General Julie 

Fernandes are true, she should be fired. 

Commissioner Yaki: “[L]et me just say this for the record. If 

someone made that statement within the Department of Justice, that 

person should be fired. That person should be tossed out on their ear 

in two seconds flat.”3 

 

1

 See Abigail Thernstrom, The New Black Panther Case: A Conservative Dissent, National Review Online (July 

6, 2010) (“Forget about the New Black Panther Case; it is very small potatoes”), available at 

http://www.nationalreview.com/articles/243408/new-black-panther-case-br-conservative-dissent-abigailthernstrom. Small cases are not unusual at the Division. See United States Department of Justice, Civil Rights 

Division, Cases and Matter, available at http://www.justice.gov/crt/records/. 2

 The decision to conduct this investigation as the Commission’s 2010 statutorily-mandated enforcement report 

came on September 11, 2009. See Transcript, Meeting of the U.S. Commission on Civil Rights at 70 

(September 11, 2009). Prior to that date, the Commission had sent a letter of inquiry asking why the Division 

had decided to dismiss three of the four defendants and to request an extremely narrow remedy as to the fourth. 

See Letter from Commission to Loretta King, Acting Assistant Attorney General (June 16, 2009). When the 

response proved surprisingly inadequate, see Letter from Portia L. Roberson, Director, Office of 

Intergovernmental and Public Liaison to Chairman Gerald A. Reynolds (received July 24, 2009), the proposal to 

conduct this investigation was made and adopted. For a chronological discussion of the investigation, see 

Statement of Commissioner Todd Gaziano, at 90-115.. 3

 Transcript, Meeting of the U.S. Commission on Civil Rights at 59 (July 16, 2010). It is unclear whether he 

has the same view of other troubling allegations against Division attorneys, but it is hard to imagine why he 

would regard them as innocuous if he viewed Fernandes’s alleged statement demonstrating a lack of racial 

neutrality as a firing offense. 

Despite this concession, at our November 19, 2010 meeting, Commissioner Yaki argued adamantly that the 

Commission should have chosen to investigate the bullying of young gay men and women instead. Transcript, 
128 Commissioner Statements 

 

The most important question, therefore, is whether the allegations about Fernandes 

and her colleagues are true—or at least whether there is enough evidence to warrant further 

inquiry, since the Commission has not yet gained access to all the evidence. Let’s take it step 

by step, beginning not with the specifics of New Black Panther Party, but with the bigpicture allegations, since they are of the greatest concern going forward. They also help put 

New Black Panther Party in perspective. 

I. There is Considerable Evidence of a Culture of Hostility to the Race-Neutral 

Enforcement of the Law Within the Division–Evidence that Can Only be Dismissed by 

Those in Basic Sympathy With that Culture. 

According to two witnesses, Deputy Assistant Attorney General Fernandes 

announced soon after arriving at her new post that she and her fellow political appointees in 

the Division oppose bringing lawsuits like United States v. Brown and United States v. New 

Black Panther Party. Put differently, but not unfairly, she allegedly announced that staff 

attorneys should not bring voting rights cases against African American defendants under 

Section 2 or Section 11(b) of the Voting Rights Act–evidently in the belief that civil rights 

laws are meant to protect African Americans and other minorities and not the rights of all 

persons, regardless of race. 

If Fernandes did issue such a directive, I believe she and her colleagues have 

misconstrued Section 2 and Section 11(b). The language of both is entirely race neutral, and 

there is every reason to believe that Congress intended it that way. Moreover, I believe they 

have misconstrued the Constitution, which demands that all laws and policies be race neutral 

except in the most unusual of circumstances. But it is unnecessary to dwell on the legal 

 Meeting of the U.S. Commission on Civil Rights at 35 (November 19, 2010). The Commission’s statute, 

however, requires it to report once a year on some issue of civil rights law enforcement. 42 U.S.C. 

1975(a)(c)(1). As Commissioner Yaki described the topic, it does not qualify as an enforcement issue. It is also 

worth noting that in 2009 when we adopted the 2010 enforcement report topic, he did not suggest bullying as an 

alternative topic. The November 19, 2010 meeting was the first time he mentioned it—more than a year too 

late. 

In his Joint Dissent(along with Commissioner Arlan Melendez), Commissioner Yaki appears to have implicitly 

backed away from his previous clear and unequivocal position that the accusations against Ms. Fernandes, if 

true, are very serious. Conspicuously absent from the text of that document is any mention of Ms. Fernandes. 

Indeed, there is hardly any mention of the alleged culture of hostility toward the race-neutral enforcement of the 

civil rights laws, which, in my view at least, lies at the heart of this investigation. Instead, the document focuses 

almost wholly on the details of the events of Election Day of 2008. It includes a few astonishing flights of 

fancy. At one point, for example, the dissenting commissioners suggest that a Republican poll watcher who 

objected to the presence of armed New Black Panther Party members at the polling station, Christopher Hill, 

was the real source of voter intimidation and that the New Black Panther Party members were essentially his 

victims. At another point, the dissenting commissioners imagine that Republican poll watchers Larry and 

Angela Counts may have been frightened not by the New Black Panther Party members, but by an unfounded 

belief that white supremacists were on their way to the 1221 Fairmount Street polling place. At a third point, 

they seem to be suggesting that the witnesses to this investigation have deluded themselves into believing that 

the fate of the Republic hinges on the success of the New Black Panther Party case. In all the ruckus they 

create, Ms. Fernandes is relegated to a footnote. Joint Dissentat 181-4, 180, 186, and n 54, respectively. 
Statement of Commissioner Gail Heriot 129

arguments here, since these points do not now appear to be in dispute. Assistant Attorney 

General Thomas E. Perez, who presumably speaks for the Department, has now agreed on 

the record that the voting rights laws “should always be enforced in a race neutral manner.”4 

Indeed, even Commissioners Yaki and Melendez seem to endorse this view.5 

 It is worth pointing out, however, that not everyone would make that concession. 

Among the small and insular group of attorneys who specialize in voting rights, many of 

whom work for the Division, there is a significant (though in my view quite misguided) 

school of thought that Section 2 and Section 11(b) only apply or only should apply when 

minority members are victimized. Indeed, one voting rights specialist has written in a 

leading law review that until quite recently “almost no one thought Section 2 of the Voting 

Rights Act would apply to whites.”6 The author, who was writing before the New Black 

Panther Party incident, presumably meant almost no one in this small and insular group, 

which makes his statement all the more useful for the purpose of this investigation. 

 

 

4

 Transcript, Hearing of the U.S. Commission on Civil Rights at 32-36 (May 14, 2010). 

In United States v. Brown, 494 F. Supp 2d 440 (S.D. Miss. 2007), aff’d, 561 F.3d 420 (5th Cir. 2009), the court 

held no trouble concluding that Section 2, which prohibits the abridgement of the right to vote on account of 

race, applies equally to all races. It noted that the Supreme Court had already held that Section 2, as originally 

enacted, “was unquestionably coextensive with the coverage provided by the Fifteenth Amendment; the 

provision simply elaborated upon the Fifteenth Amendment.” Chisom v. Roemer, 501 U.S. 380, 391-92 (1991). 

It further noted that the Supreme Court has already held in Rice v. Cayetano, 528 U.S. 495, 512 (2000), that 

while the Fifteenth Amendment’s immediate purpose was to guarantee recently-emancipated African American 

slaves the right to vote, “[t]he Amendment grants protection to all persons, not just members of a particular 

race.” See United States v. Reese, 92 U.S. 214, 218, 23 L. Ed. 563 (1876) (“If citizens of one race having 

certain qualifications are permitted by law to vote, those of another having the same qualifications must be’). 

See also White v. Alabama, 74 F.3d 1058, 1073-74 (11th Cir. 1996) (holding that the rights of “non-black 

voters” to be free from race discrimination under Section 2 were violated by a settlement agreement that 

apportioned state judicial offices by race); McMillan v. Escambia County, 748 F.2d 1037, 1042 n. 9 (5th Cir. 

1984). Finally, the Court concluded that none of the amendments to Section 2 were intended to cut back on its 

scope. Rather, just the opposite is true. See also Hayden v. Pataki, 449 F.3d 305, 353 (2d Cir. 2006) (stating 

that “from its inception and particularly through its amendment in 1982, Congress intended that § 2 . . . be given 

the broadest possible reach”). 

Section 11(b), which prohibits the intimidation of voters or of persons urging or aiding any person to vote, 

doesn’t even mention race. And the legislative history of the Voting Rights Act of 1965 makes it clear this was 

purposeful: “The prohibited acts of intimidation need not be racially motivated; indeed unlike 42 U.S.C. 

1971(b) (which requires proof of a ‘purpose’ to interfere with the right to vote) no subjective purpose or intent 

need be shown.” H.R. Rep. at 30 (1965). While at least one court, apparently unaware of this history, has held 

that proof of racial intent is necessary despite the lack of textual support for such a holding, see Gremillion v. 

Rinaudo, 325 F. Supp. 375, 376-77 (E.D. La. 1971), no court that I am aware of has ever suggested that Section 

11(b) applies only to certain races. 

5

 See also Dissent of Vice Chair Abigail Thernstrom at 176 (stating that if racial double standards “can be 

convincingly demonstrated, it will be a grave indictment of this administration”). 

6

 See Nathaniel Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 Yale L.J. 174, 217 (2007) 

(suggesting that and attempting to explain why, among voting rights attorneys, there is a school of thought that 

Section 2 of the Voting Rights Act applies only when minorities are victimized and that prior to the filing of 

United States v. Brown by the Bush administration “almost no one thought section 2 of the [Voting Rights Act] 

would apply to whites”). For a discussion of the complicated history of the Voting Rights Act, see Abigail 

Thernstrom, Voting Rights—And Wrongs: The Elusive Quest for Racially Fair Elections (2009); Abigail 

Thernstrom, Whose Votes Count? Affirmative Action and Minority Voting Rights (1989). 
130 Commissioner Statements 

 Some background is essential to place the allegations against Fernandes and her 

colleagues in context: United States v. Brown, which was brought largely under Section 2 of 

the Voting Rights Act, and United States v. New Black Panther Party, which was brought 

under Section 11(b), were the only two voting rights cases in the Division’s history to be 

brought against African American defendants.7 Both cases, according to our witnesses, had 

been intensely controversial among career attorneys at the Division. Despite the controversy, 

both received authorization to move forward from the Bush administration appointees then in 

charge–much to the consternation of the career lawyers who objected to such lawsuits.8 

 

7

 Unlike New Black Panther Party, which was brought under Section 11(b), Brown was predicated mainly on 

Section 2 of the Voting Rights Act. The latter section states: 

“(a) No voting qualification or prerequisite to voting or standard, practice, or 

procedure shall be imposed or applied by any State or political subdivision in a 

manner which results in a denial or abridgement of the right of any citizen of the 

United States to vote on account of race or color, or in contravention of the 

guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) 

of this section. 

(b) A violation of subsection (a) of this section is established if, based on the totality 

of circumstances, it is shown that the political processes leading to nomination or 

election in the State or political subdivision are not equally open to participation by 

members of a class of citizens protected by subsection (a) of this section in that its 

member have less opportunity than other members of the electorate to participate in 

the political process and to elect representatives of their choice. The extent to which 

members of a protected class have been elected to office in the State or political 

subdivision is one circumstance which may be considered. Provided, that nothing in 

this section establishes a right to have members of a protected class elected in 

numbers equal to their participation in the population.” 

Section 2 is suited for lawsuits against persons or entities in a position to impose a “voting qualification or 

prerequisite to voting or standard, practice, or procedure” like the Noxubee County Election Commission, the 

major party institutions and persons who exercised authority under state law as election judges, poll watchers, 

and providers of absentee ballots. 

Section 11(b), which is used less frequently, is best suited for cases like New Black Panther Party, in which, for 

the most part, the alleged wrongdoer is not acting under color of law. It reads: 

“No person, whether acting under color of law or otherwise, shall intimidate, 

threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting 

or attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, 

threaten, or coerce any person for urging or aiding any person to vote or attempt to 

vote, or intimidate, threaten, or coerce any person for exercising any powers or 

duties under section 3(a), 6, 8, 9, 10, or 12(e).” 

Section 11(b) was rejected for use by the court in Brown. The particular threats that had formed the basis of the 

Section 11(b) claim involved the publication in a local newspaper of a list of names of persons who would be 

challenged if they attempted to vote. The court decided that such a threat (essentially the persons would be 

prevented from voting only if that person were found not to be legally entitled to vote) was not cognizable 

under Section 11(b). Note that neither section contains any language to suggest its application only to voters of 

a particular race. Indeed, Section 11(b) makes no reference to race at all. See supra at n. 4. 8

 Statement of Christopher Coates 3 (September 24, 2010) (“Opposition within the Voting Section was 

widespread to taking actions under the [Voting Rights Act] on behalf of white voters in Noxubee County, MS 

....”). Those who object to this kind of lawsuit are not confined to the Division. And some of those outside the 
Statement of Commissioner Gail Heriot 131

 As a pair, the two cases had obvious similarities, but also important differences. The 

events in Brown, for example, took place in Noxubee County, Mississippi, a majority-black 

county where 93% of elected officials were African American. The lead defendant, while an 

ex-felon, was nevertheless in a position of authority--Noxubee County Democratic Executive 

Committee chairman Ike Brown. New Black Panther Party, by contrast, concerned African 

Americans defendants whose only claim to fame was their membership in a recognized hate 

group on the fringes of decent society.9

 Nobody could in good faith call Brown “very small potatoes”—not unless all cases 

concerning voter fraud and harassment are starchy vegetables. The defendants in that case—

Ike Brown himself, the Noxubee County Democratic Executive Committee, and the Noxubee 

County Election Commission–were accused of wide-ranging election wrongdoing. That 

wrongdoing included a massive fraudulent absentee ballot program as well as multiple 

instances of good old-fashioned election thuggery and much more.10 After a two-week trial, 

the trial court found “ample direct and circumstantial evidence of an intent to discriminate 

against white voters which [had] manifested itself through practices designed to deny and/or 

 Division are unguarded in their criticism. Main Justice, the on-line magazine specializing in reporting on the 

Department of Justice, has referred to New Black Panther Party as “Turning the Voting Rights Act on its head.” 

See The Black Panther Case: A Legacy of Politicized Hiring, Main Justice (December 23, 2009) available at 

http://www.mainjustice.com/tag/j-gerald-hebert/. Facing South, the on-line magazine for the Institute for 

Southern Studies, used almost identical language to describe Brown. See Chris Kromm, DOJ Turns Voting 

Rights Act on Its Head, Facing South (May 3, 2006)(also calling the case “ridiculous”), available at 

http://southernstudies.org/2006/05/doj-turns-voting-rights-act-on-its.html. Another new media source called 

Brown “a tragi-comic inversion of the Voting Rights Act of 1965.” See DOJ Wins Mississippi White Voter 

Suppression Case, PERRspectives (June 30, 2007), available at 

http://www.perrspectives.com/blog/archives/000655.htm. 9

 The Anti-Defamation League is among the organizations that have recognized the New Black Panther Party, a 

black nationalist organization, as a hate group. Its founder, Khallid Abdul Muhammad, established the new 

group after being dismissed from his position as a senior advisor to the Nation of Islam's Louis Farrakhan. 

Farrakhan dismissed Muhammad following a controversial 1993 speech that made questionable comments 

about whites, Jews, Catholics, and other African-American civil rights leaders. See Jayson Blair, “K.A. 

Muhammad, 53, Dies -- Ex-Official of Nation of Islam -- Obituary,” The New York Times, February 18, 2001, 

available at http://www.nytimes.com/2001/02/18/nyregion/ka-muhammad-53-dies-ex-official-of-nation-ofislam.html?ref=khalidabdulmuhammad (last accessed December 17, 2010). See Appendix B of this report for 

additional details about the history of the New Black Panther Party. 

The dissenting commissioners argue that the New Black Panther Party is a fringe group. Joint Dissent at 178. 

And so it is. Mercifully, the same can be said for all hate groups operating in the United States. The purpose of 

this investigation, however, was not to establish that the New Black Panther Party is or is not a significant threat 

to the security of the nation. Rather, this is an inquiry into whether the Division is committed to the race-neutral 

execution of the law. The question is not whether the New Black Panther Party is a fringe group. The question 

is whether the New Black Panther Party and its members were given the same legal treatment as would be given 

to fringe hate groups whose members are white—like the Ku Klux Klan and the Aryan Nations. 10 Two examples of Brown’s personal thuggery should suffice. When a poll watcher for a white candidate for 

sheriff attempted to explain that her candidate was legally entitled to four poll watchers at a precinct, she was 

told by Brown, “I said you can only have one,” and “This isn't Mississippi state law you're dealing with. This is 

Ike Brown's law.” When the poll watcher protested and asserted that her candidate planned to stand on his 

rights in this matter, Brown told her, “Fine, fine, have as many as you want. I'll send the police on around to 

arrest you.” United States v. Brown, 494 F. Supp. 2d at 472 n.51. On another occasion, he threatened to arrest 

a candidate for office attempting to approach his polling precinct in order to vote. Id. at 472. 
132 Commissioner Statements 

dilute the voting rights of white voters in Noxubee County.”11 A remedial injunction was 

issued that sharply limited the ability of Brown and his cronies to control elections in the 

future.12 By contrast, New Black Panther Party was much simpler and would have required 

fewer resources to litigate even if the defendants had appeared in court to answer the 

allegations against them (which they did not). 

 Timing and the ultimate disposition of the cases were also very different, leading 

some observers to wonder whether, under Obama administration leadership, the Division was 

no longer willing to litigate Section 2 or Section 11(b) cases against African American 

defendants or on behalf of white voters. Brown was filed in 2005, tried before a federal 

judge in 2007, and argued on appeal in 2008. When the new administration began in 2009, 

there was nothing left to do except wait for the expected favorable decision of the appellate 

court, which came just a few weeks later. It was a done deal. New Black Panther Party, on 

the other hand, was filed in early 2009–just weeks before the new administration began. As 

the foregoing Sections of this Interim Report show, it ultimately took a very different course. 

Control of this very small case was wrested from the career attorneys who had been handling 

it by attorneys appointed to interim supervisory positions in the Obama administration. 

Under their direction and over the objections of the career attorneys, three of the four 

defendants were dismissed and the remedy against the fourth scaled back considerably.13

 Fernandes, of course, did not join the Department until after these cases had been 

disposed of. She took part neither in the controversy over the filing of Brown nor in the 

battle over New Black Panther Party’s disposition. Prior to her appointment, she was 

employed by a civil rights advocacy group–the Leadership Conference for Civil Rights–

although she, like many lawyers working for such advocacy groups, had been employed by 

the Division earlier in her career.14

 There is, however, evidence that she took a keen interest in Brown, even while 

employed by the Leadership Conference on Civil Rights. During that period, she was quoted 

in a political blog expressing hostility to the Division’s decision to bring the case: 

 

11 The evidence of intent to discriminate against white voters was indeed overwhelming. As the Court put it: 

“[T]here is no doubt from the evidence presented at trial that Brown, in particular, is firmly of the view that 

blacks, being the majority race in Noxubee County, should hold all elected offices, to the exclusion of whites; 

and this view is apparently shared by his ‘allies’ and ‘associates’ on the NDEC, who, along with Brown, 

effectively control the election process in Noxubee County. This is a view that Brown has expressed publicly 

and privately over the years, and one that has been the primary driving force in his approach to all matters 

political since his first involvement in Noxubee County politics in the 1970s.” Id. at 449. And there was 

nothing subtle about it. One witness, a white Democratic poll watcher reported that Brown was not above racial 

electioneering at the polling place, speaking loudly that “‘You've got to put blacks in office, our candidates, 

because we don't want white people over us anymore.’” Id. at 450. 12 See United States v. Brown, 2007 U.S. Dist. Lexis 63228 (August 27, 2007), aff’d 561 F.3d 420 (5th Cir. 

2009). 

13 See Part II of this Interim Report, supra at 15-47. See also infra at Section II of this Statement (examining 

several of the alternative, non-race explanations for why the career attorneys handling New Black Panther Party

might have been ordered, over their objections, to abandon the case against three of the four defendants and 

sharply limit the remedy as the fourth). 

14 See Statement of Christopher Coates 13 (September 24, 2010). 
Statement of Commissioner Gail Heriot 133

People are wondering why aren’t you bring[ing] cases with voting and 

African-Americans—what it the issue,” said Julie Fernandes of the 

Leadership Conference on Civil Rights. How can it be that the biggest 

case involving discrimination in Mississippi [United States v. Ike 

Brown and Noxubee County] was brought on behalf of white voters 

...The law was written to protect black people.15 

 

 It is unclear what caused her to conclude that the events in Noxubee could not 

possibly have been the most significant case of voter intimidation in Mississippi at the time. 

The level of wrongdoing proven in Brown was unusually high. It is difficult to avoid the 

conclusion that her view was driven by bias. As she put it herself, “The law was written to 

protect black people.” To Fernandes this seems to have meant that the rights of blacks merit 

more energetic protection than the rights of non-blacks. 

Her superior at the Leadership Conference on Civil Rights, president Wade 

Henderson, went further in his testimony before the House Judiciary Committee on March 

22, 2007. In a statement that was sharply critical of the Division under the Bush 

Administration, he complained: 

Recently, the Civil Rights Division has come under intense scrutiny 

from civil rights organizations and community leaders regarding cases 

that have been filed that appear to extend beyond the Division’s 

historical mandate. Perhaps the most scrutinized of these cases was 

the Voting Section’s recent litigation on behalf of white voters in 

Noxubee, Mississippi. This case recently went to trial and a decision 

is pending. However, the Division must deal with and respond to 

growing distrust among minority communities who feel increasingly 

abandoned and marginalized by the Division’s litigation choices and 

priorities.16

 

15 Steven Rosenfeld, Is the Justice Department Conducting Latino Outreach on Behalf of the GOP?, Alternet 

(October 22, 2007) (ellipsis and second bracketed insert in original), available at 

http://www.alternet.org/rights/65749/?page=1. Alternet is described in Wikipedia as “a progressive/liberal 

activist news service.” 

16 Testimony of Wade Henderson Before the House Committee on the Judiciary (Oversight of the Civil Rights 

Division) 6 (March 22, 2007), available at 

http://judiciary.house.gov/hearings/March2007/Henderson070322.pdf. 

At our hearing on September 24, 2010, Christopher Coates testified as follows: 

[E]ven after the favorable ruling in the Ike Brown case, opposition to it continued. 

At a meeting with Division management in 2008 ..., I pointed to the ruling in Brown 

as precedent supporting race-neutral enforcement of the Voting Rights Act. Mark 

Kappelhoff, then Chief of the Division’s Criminal Section, complained that the 

Brown case had caused the Division, the Civil Rights Division, problems in its 

relation with civil rights groups. 

Mr. Kappelhoff is correct in claiming that a number of these groups are opposed to 

the race-neutral enforcement of the Voting Rights Act, that they only want the act to 

be enforced for the benefit of racial minorities, and that they had complained bitterly 
134 Commissioner Statements 

This is not the statement one would expect from a lawyer who believes that Section 2 

and Section 11(b) should be applied in a race-neutral manner. Instead, Henderson has made 

it clear that he believes that by bringing an action to protect white voters, the Division has 

“gone beyond [its] historical mandate” and somehow “abandoned and marginalized” 

minorities.17 

Fernandes and Henderson were not the only civil rights advocates (and the 

Leadership Conference was not the only civil rights advocacy group) to object to Brown. 

Mississippi NAACP state president Derrick Johnson called the case “blatantly outrageous.”18 

Similarly, the Alliance for Justice included an allegation that “the civil rights division also 

brought the first case ever on behalf of white voters, alleging that a black political leader in 

Noxubee County, Miss., was intimidating whites at the polls ...” in a litany of grievances 

against the Bush era Division.19 It is unclear why the bringing of Brown should constitute a 

grievance unless the Alliance for Justice believes that the Voting Rights Act should be 

inapplicable to white voters. 

 The direct evidence of the allegations concerning Ms. Fernandes’s directive is as 

follows: At our hearing on July 6, 2010, J. Christian Adams, a career attorney in the Division 

who had resigned position in protest his over New Black Panther Party controversy, testified 

that Fernandes had told a gathering of lawyers from the Voting Section, including himself, 

that “cases are not going to be brought against black defendants for the benefit of white 

victims, that if somebody wanted to bring these cases it was up to the U.S. Attorney, but the 

 to the Division about the Ike Brown case. But, of course, what Mr. Kappelhoff had 

not factored in his criticism of the Brown case was that the primary role of the Civil 

Rights Division is to enforce the civil rights laws enacted by Congress, not to serve 

as a crowd pleaser for many of the civil rights groups. 

Transcript, Hearing of the U.S. Commission on Civil Rights at 18-19 (September 24, 2010). 

17 As Fannie Lou Hamer put it, “Nobody’s free until everybody’s free.” That should certainly include freedom 

from voter intimidation. It is one thing to complain that the authorities have failed to bring a case that would 

have protected African Americans that he believes should have been brought. But to complain that they did 

bring a case to vindicate the rights of a different group is wholly inappropriate. 18 See Ari Shapiro, White Voters in Mississippi Allege Voting Discrimination, NPR (November 14, 2005) 

(quoting Mississippi NAACP state president Derrick Johnson calling Brown “blatantly outrageous”). 

19 See The Politicization of Justice under the Bush Administration, Alliance for Justice (no date) available at 

http://www.afj.org/crdivision.pdf. Academics also criticized the Division for Brown. University of Virginia 

professor of politics Matthew Holden, Jr., in an academic presentation, went on at length about Brown, arguing 

that “[t]he case should never have been brought” and that politically biased reporting in the New York Times

made the case seem more serious than it was. Although Dr. Holden did not reveal his evidence for his 

conclusion, he stated that “the best interpretation is that this was a case where the political appointees exercised 

their authority to override career line lawyers who denied the legitimacy of the case” and that “Noxubee County 

Republicans, white people,” had somehow used their political influence to ensure that a case would be brought. 

A fair reading of his discussion, however, would lead one to the conclusion that his opinion was driven largely 

if not solely by the race of the parties to the case. Matthew Holden, Jr., The Justice Department and American 

Politics: Functions, Process and Question [sic] about Current Politics 4-8 (April 7, 2007). 
Statement of Commissioner Gail Heriot 135

Civil Rights Division wasn’t going to be bringing it.”20 Specifically, Adams reported that 

Fernandes told them that the Civil Rights Division was “in the business of doing traditional 

civil rights work,” which meant “helping minorities.”21

 

 In addition, Adams accused Ms. Fernandes of directing a subsequent gathering of 

Voting Section attorneys not to bring lawsuits to enforce Section 8 of the National Voter 

Registration Act–the law that requires state and local governments to undertake reasonable 

efforts to remove deceased, re-located and otherwise-ineligible voters from the voting rolls. 

According to Adams, Fernandes said, “We have no interest in enforcing this provision of the 

law. It has nothing to do with increasing turnout, and we are just not going to do it.”22

 

20 Transcript, Meeting of the U.S. Commission on Civil Rights at 63-64 (July 6, 2010) (Adams’ words, not a 

direct quote of Fernandes). Adams pointed out that since voting rights issues are not within the expertise of 

U.S. Attorneys’ Offices, such cases were very unlikely to be filed by anyone. 21 Id. Although quotation marks were not used in the transcript, this appears to be an effort by Adams to quote 

Fernandes’ words from memory. 

22 Transcript, Meeting of the U.S. Commission on Civil Rights at 63-64. (July 6, 2010). Specifically, Section 8 

of the National Voter Registration Act, which requires state and local governments to implement “a general 

program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible 

voters by reason of ... the death of the registrant; or ... a change in the residence of the registrant.” 42 U.S.C. 

section 1973gg-(6)(a)(4). 

The discussion went this way: 

 

MR. BLACKWOOD: You mentioned Ms. Fernandes. There is a press report also 

that in front of the entire Voting Section, all of the career staff, she explicitly told 

them this administration would not be enforcing Section 8 of the National Voter 

Registration Act. Were you there, and did – 

MR. ADAMS: I was there– 

MR. BLACKWOOD: –she say that? 

MR. ADAMS: I was there for that, and it – I can tell you more about that .... 

MR. ADAMS: ... [A] meeting of the entire Voting Section was assembled to discuss 

NVRA 8. This occurred in November of 2009. 

Deputy Assistant Attorney General Julie Fernandes, when asked about Section 8 

said, “We have no interest in enforcing this provision of the law. It has nothing to do 

with increasing turnout, and we are just not going to do it.” 

Everybody in the Voting Section heard her say this. Mr. Coates heard her say it. If 

he were allowed to comply with the subpoena, he would testify to the exact same 

thing. 

MR. BLACKWOOD: And you heard it as well, though. 

MR. ADAMS: Absolutely. I was shocked. It was lawlessness. 
136 Commissioner Statements 

 Such a policy is partisan in the truest sense of that term. The National Voter 

Registration Act, also known as the Motor Voter Act, was intended as a compromise between 

those members of Congress whose main concern was making it easy to register (and hence 

increasing turnout) and those whose main concern was maintaining the integrity of the 

election process. While most members were concerned about both problems, those who 

emphasized turnout were more often Democrats, who, rightly or wrongly, perceived that high 

turnout would favor their candidates, while those who emphasized election integrity more 

often were Republicans, who, again rightly or wrongly, believed that election fraud would 

work against theirs. The National Voter Registration Act would never have passed without 

provisions that addressed both problems. De-coupling them at the enforcement stage, as 

Fernandes was allegedly doing, would thus be wholly inappropriate. 

 Commissioner Yaki has insisted, of course, that Ms. Fernandes never made the 

statements Adams attributed to her. Adams must be lying or he misunderstood the incidents 

he was reporting–or so Commissioner Yaki asked us to believe. But on September 24, 2010, 

Adams’ allegations were specifically corroborated by Christopher Coates, who, like Adams, 

was testifying under oath. Coates was able to furnish the Commission with a written 

statement, so his accusation was more elaborate than Adams’. He read it aloud: 

Ms. Fernandes began scheduling luncheons in the conference room of 

the Voting Section at which the various statutes the Voting Section has 

the responsibility for enforcing were discussed as well as other 

enforcement activities. 

In September 2009, Ms. Fernandes held a meeting to discuss 

enforcement of the anti-discrimination provisions of Section 2 of the 

Voting Rights Act. At this meeting, one of the Voting Section trial 

attorneys asked Ms. Fernandes what criteria would be used to 

determine what type of Section 2 cases the Division front office would 

be interested in pursuing. 

Ms. Fernandes responded by telling the gathering there that the Obama 

administration was only interested in bringing traditional types of 

Section 2 cases that would provide equality for racial and language 

minority voters. And then she went on to say that this is what we are 

all about or words to that effect. 

When Ms. Fernandes made that statement, everyone in the room, 

talking about the conference room on the seventh floor, where the 

Voting Section is located, understood exactly what she meant: no more 

cases like Ike Brown and no more cases like the New Black Panther 

Party case.23

 

23 Transcript, Hearing of the U.S. Commission on Civil Rights at 32-33 (September 24, 2010). According to 

Mr. Coates, Ms. Fernandes repeated her statement “that the Voting Section’s goal was to ensure equal access 

for voters of color or language minority” three months later at another meeting on the subject of federal 

observer election coverage. Id. at 33. Mr. Adams also testified about this second occasion, but his testimony 
Statement of Commissioner Gail Heriot 137

 was that he had heard about this incident from Mr. Coates, not that he had been present himself. Transcript, 

Hearing of the U.S. Commission on Civil Rights at 62 (July 6, 2010). 

Coates further elaborated on this during the question and answer period: 

COMMISSIONER GAZIANO: I would like to go back to that September 29 lunch 

meeting that Julie Fernandes, who is the politically appointed Deputy Assistant 

Attorney General, led. And your testimony about that is as follows, and I quote, 

“Ms. Fernandes responded by telling the gathering that the Obama administration 

was only interested in bringing traditional types of Section 2 cases that would 

provide political equality for racial and language minority voters. And she went on 

to say that this was what we all about or words to that effect.” 

 

Mr. Adams’ testimony a few months ago was almost exactly the same. And you both 

drew almost exactly the same conclusion. Your testimony says you understood that 

everyone in the room -- this is your testimony -- understood exactly what she meant: 

no more cases like Ike Brown or NBPP. Now, by “no more cases like Ike Brown or 

NBPP,” I don't think you mean with those names. You mean no more cases where 

the defendants are black or minority. Is that what you mean? 

MR. COATES: Right. 

COMMISSIONER GAZIANO: Now, it is your job as Chief of the Voting Section at 

that time to understand the instruction that is being given. And it is your job to make 

sure that people under you understand what the instruction was. You had subsequent 

-- by the way, this isn’t deliberative process. This is an instruction, an order. You had 

subsequent conversations, I assume, with other employees under you. Did anyone 

come to any different conclusion about what Ms. Fernandes was ordering? 

MR. COATES: No. The people who came and talked to me -- I don't remember how 

many in the Section, but the people who talked to me after Ms. Fernandes gave that 

instruction all construed her directive in the same way that I did. 

COMMISSIONER GAZIANO: Okay. Well, this is Mr. Adams' understanding of 

what those exact same words meant, “Cases are not going to be brought against 

black defendants for the benefit of white victims, that if someone wanted to bring 

these cases, it was up to the U.S. Attorney.” By the way, U.S. Attorneys aren't going 

to bring civil rights cases in your specialty. But, anyway, “But that the Civil Rights 

Division was not going to be bringing it.” Is that consistent with your understanding 

of what she was telling you to do? 

MR. COATES: Yes. 

COMMISSIONER GAZIANO: And you say no one in your Section had any 

different understanding? 

MR. COATES: Nobody came to me and said, “Notwithstanding what Ms. Fernandes 

said, I think that if I come across another Ike Brown case, I would be free to 

investigate.” 

COMMISSIONER GAZIANO: Well, what is the likelihood, what is the chance, you 

think -- is it slim, moderate, high? -- that you all misunderstood what she was saying, 

that her phrase, “traditional civil rights” -- 

MR. COATES: “Traditional Section 2.” 
138 Commissioner Statements 

 Similarly, he corroborated Adams’ testimony with regard to Section 8 of the National 

Voter Registration Act. Again, his testimony was in greater detail than Adams’: 

In November 2009, a similar lunch was held by Ms. Fernandes, 

probably more accurately described a brown bag lunch, at which 

people would bring their lunches and meet in the conference room. 

That meeting was held on the subject of the National Voter 

Registration Act. ... In discussions specifically addressing the list 

maintenance provision of Section 8 of the National Voter Registration 

Act, Ms. Fernandes stated list maintenance had to do with the 

administration of elections. 

She went on the say that the Obama Administration was not interested 

in that type of issue but, instead interested in issues that pertained to 

voter access. 

During the Bush Administration, the Voting Section began filing cases 

under the list maintenance provisions of Section 8 to compel states and 

local registration officials to remove ineligibles from the list. These 

 

COMMISSIONER GAZIANO: Let me get the exact, “traditional types of Section 2 

cases that would provide political equality for racial and language minority voters” 

really meant for other types of voters, too. Is there a possibility -- how likely is it that 

you misunderstood what she was trying to tell you? 

MR. COATES: No. I understood it and everybody else in the room understood it. 

Because the history had taken place before the Bush administration in, nobody in the 

Civil Rights Division had filed the kind of case that we had filed in Ike Brown and in 

New Black Panther Party. A new administration comes in. A woman is appointed 

Deputy Assistant Attorney General from the -- one of the premier civil rights groups 

in the country, Leadership for Civil Rights [sic]. And she comes in. And so if she 

had wanted, if Julie had wanted to ensure people that if you came across an Ike 

Brown case or New Black Panther case, bring it to the front office and we would be 

willing to -- they would be willing to look at it, she would have chosen different 

words. She chose the words that I have ascribed to her and that Mr. Adams had 

ascribed to her because she intended to tell people that the kind of cases that have 

been brought in Noxubee County and with regard to the Philadelphia Panthers is not 

going to continue. 

COMMISSIONER GAZIANO: And so your statement is these may be some sort of 

code word, but they weren't subtle code words. Everyone understood what they 

meant? 

MR. COATES: That's right. 

 Transcript, Hearing of the U.S. Commission on Civil Rights at 130-33 (September 24, 2010). 
Statement of Commissioner Gail Heriot 139

suits were very unpopular with a number of the groups that work in the 

area of voting rights or voter registration.24

 Despite this corroboration, Commissioner Yaki has continued to insist that the 

allegations against Ms. Fernandes lack even a modicum of credibility.25 She simply could 

 

24 Id. at 33-35. Mr. Coates’s statement that “[Section 8] suits were very unpopular with a number of the groups 

that work in the area of voting rights or voter registration” rings true with me. In connection with a recent 

briefing, the Commission made what I viewed as an even-handed and non-controversial recommendation: “The 

Department of Justice should remain actively involved in, and devote adequate resources to, the investigation of 

voter fraud and voter intimidation.” U.S. Commission on Civil Rights, Voter Fraud and Voter Intimidation at 

17 (September 2007). Much to my surprise, Commissioner Yaki strongly objected. In his Statement to that 

report, he complained of “aggressive questioning of voters at the polls; unduly restrictive and illegal 

identification requirements announced by election officials; and rudeness to minorities by election workers,” but 

argued that voter fraud is a made-up problem. He further stated: 

These examples I cite are but a tip of the intimidation iceberg that lurks in the waters of the American voting 

system. To state that enforcement of voter fraud should receive equal treatment (and, I presume, resources) is 

to make a mockery of a real problem and elevate a false one. It would divert badly needed and scarce resources 

to chase a phantom that does not exist. Which, I am sure, is exactly what the conservative right wishes to do 

with the scarce funding given to the Justice Department. 

.... Rather than throw obstacles such as untested, ill-conceived voter identification 

requirements in the way of our citizenry, ... we should be doing everything we can 

to encourage participation in our democracy. 

Id. at 27. 

25 Transcript, Meeting of the U.S. Commission on Civil Rights 17-18 (November 19, 2010). In his remarks at 

that meeting, Commissioner Yaki claims the allegations of Mr. Adams and Mr. Coates (and presumably of Mr. 

Bowers and Mr. von Spakovsky, see infra at n 33) have been “contravened by what has actually been produced 

in the record.” Id. at 18. In fact, however, nothing in the record contradicts any of the very specific allegations 

made by Mr. Adams and Mr. Coates, and at no point has the Department of Justice indicated that it contests 

anything said by either of them. The only whisper of disagreement came in the hearing testimony of Assistant 

Attorney General for Civil Rights Thomas Perez, who testified at a very general level that it was his policy and 

the policy of the Division was to administer the law race neutrally. Perez, however, was not employed by the 

Department of Justice until after October 6, 2009, the date of his Senate confirmation. He could not possibly 

have had first-hand knowledge of Ms. Fernandes’s statement, which was alleged to have been made in 

September of 2009. Nor was he aware of the public allegations made by Mr. Adams and Mr. Coates, since his 

testimony occurred before theirs. At the time of his testimony, therefore, there was nothing to respond to. 

Commissioner Yaki and Commissioner Melendez’s Joint Dissentis remarkable for how little it addresses the 

allegations of Adams and Coates against Fernandes. There is nothing in the text. The only mention of the issue 

is buried in Footnote 54. 

Footnote 54 questions Coates’s credibility and appears to suggest that Coates is inclined to interpret statements 

as anti-white when they may not have been so intended by the speaker. As proof, they cite a supposed 

inconsistency between the testimony of Adams and of Coates. According to Commissioners Yaki and 

Melendez, “Adams described [Fernandes’s] statement this way: ‘we were in the business of doing traditional 

civil rights work, and, of course, everyone knows what that means.’” By contrast, they state, “In Mr. Coates’s 

recollection ... Ms. Fernandes explicitly told the audience what Adams said she only implied: ‘My recollection 

is that she used the term “traditional types” of Section 2 cases and that she used the term “political equality for 

racial and language minority groups.”’” As they describe it, Coates seems to believe that he heard an outright 

assertion that civil rights laws are about benefiting minorities while Adams believed that statement was only 

implied. 
140 Commissioner Statements 

not have articulated the policies that Adams and Coates attribute to her.26 But he has nothing 

upon which to base that conclusion. Two witnesses have testified under oath that they heard 

the statement. Both are attorneys who well understand the seriousness of their oath and the 

need for accuracy. The Department, on the other hand, has never denied that Ms. Fernandes 

made these statements.27 To the contrary, it has only permitted staff members who could 

shed light on the matter—including Ms. Fernandes—to testify only under conditions that are 

unacceptable to the Commission.28 As a result, Ms. Fernandes herself has not been 

 The allegation of inconsistency is just plain silly. In fact, Adams’s and Coates’s testimony on this point is 

remarkably consistent. Both appear to be making an effort to remember Fernandes’s actual words. Neither 

purports to have gotten it exactly right. Indeed the sentence fragment that the dissenting commissioners quote 

from the Coates Statement reads in full: “Ms. Fernandes responded by telling the gathering that the Obama 

administration was only interested in bringing traditional types of Section 2 cases that would provide political 

equality for racial and language minority voters, and she went on to say that this was what we are all about or 

words to that effect.” Statement of Christopher Coates at 13-14 (emphasis added). 

Both report that Fernandes used the words “traditional” to describe the kind of Section 2 cases that the front 

office wished to pursue. Both report that she referred to minorities in explaining her position. The sentence 

fragment from Adams testimony that the dissenting commissioners quote reads in full, “The statement was that 

we were in the business of doing traditional civil rights work, and, of course everybody knows what that means, 

and helping minorities—helping—litigating on their behalf.” Hearing Transcript 62 (July 6, 2010). Both 

witnesses explain how in the context of the situation—given Brown and New Black Panther Party—everyone in 

the room understood the term “traditional” meant cases brought on behalf of minority members and that her 

directive amounted to a ban on cases on the model of Brown and New Black Panther Party. If the dissenting 

commissioners are looking for inconsistencies in statements made in the course of this investigation, they will 

need to look elsewhere. 

26 Commissioner Yaki is not the only member of the Commission to take this position. 

VICE CHAIR THERNSTROM: Well, a couple things. It seems to me it's strange. 

It is simply impossible to believe that Julie Fernande[s] said anything remotely like 

“We are not going to enforce civil rights laws when blacks are defendants.” 

 I mean, she cannot have said that. Maybe she said something that some people 

interpreted as saying that. But she surely didn't announce that. I mean, unless she is 

some sort of moron -- and she certainly could not have been speaking for the 

Department if she was a moron. 

CHAIRPERSON REYNOLDS: How do we go about settling this factual dispute 

over this allegation? 

VICE CHAIR THERNSTROM: I think we should assume that the Justice 

Department does not have a racial double standard? I mean, give them a break. 

Transcript of Business Meeting, U.S. Commission on Civil Rights, August 13, 2010, 24-5. But see Letter from 

Commission to the Honorable Eric Holder (August 10, 2009) (signed by Vice Chair Thernstrom and stating that 

the Commission has a “keen interest” in the New Black Panther Party case and that the case “will remain one of 

the Commission’s top priorities”). 

27 In addition, the Washington Post has reported that, although the Department was willing to comment on other 

aspects of New Black Panther Party, “Fernandes declined to comment through a department spokeswoman” 

about the accusations against her. Jerry Markon & Krissah Thompson, Dispute Over New Black Panther Case 

Causes Deep Divisions, Washington Post (October 22, 2010). 

28 Well after this Interim Report was drafted, on November 12, 2010, the Department of Justice sent a letter to 

the Commission’s General Counsel stating that it would permit Ms. Fernandes to testify in front of the 

Commission. But in that same letter, the Department refused to provide documents requested by the witness 
Statement of Commissioner Gail Heriot 141

questioned about what she said at those brown bag lunches. Nor has she been questioned 

about her earlier comments as a staff member at the Leadership Conference on Civil Rights. 

Her lips are sealed.29

 

 No one has suggested that she made these statements out of the blue or that her policy 

preference was the result of her stint at a civil rights advocacy organization and was unusual 

at the Division. Rather, it is the position of the witnesses that “a hostile atmosphere” had 

“existed within the [Division] for a long time against racial-neutral enforcement of the 

Voting Rights Act.”30 Coates, who had worked for the Division for fourteen years, testified 

that large numbers of present and former attorneys within the Division as well as civil rights 

advocates outside the Division, “believe incorrectly but vehemently that enforcement of the 

protections of the Voting Rights Act should not be extended to white voters, but should be 

extended only to protecting racial, ethnic and language minorities.”31 He gave many 

examples, among them incidents he recalled in connection with his efforts to staff Brown: 

I talked with one career attorney with whom I had previously worked 

successfully in a voting case and ask[ed] him whether he might be 

interested in working on the Ike Brown case. He informed me in no 

uncertain terms that he had not come to the Voting Section to sue 

African American defendants. One of the social scientists who 

worked in the Voting Section and whose responsibility it was to do 

past and present research into a local jurisdiction’s history flatly 

refused to participate in the investigation. On another occasion, a 

Voting Section career attorney informed me that he was opposed to 

bringing voting rights cases against African American defendants, 

such as in the Ike Brown case, until we reached a day when the socioeconomic status of African Americans in Mississippi was the same as 

the socio-economic status of whites living there. Of course, there is 

nothing in the statutory language of the [Voting Rights Act] that 

indicates that DOJ attorneys can decide not to enforce the race-neutral 

provisions in the Act ... until socio-economic parity is achieved 

 subpoenas. The Commission maintains that the withheld documents are necessary in order for us to depose the 

witnesses effectively. In addition, the Department demanded that Fernandes’s testimony be integrated into the 

Interim Report, rather than included in the final report. The effect of this demand would have been to ensure 

that the Interim Report would not be completed until after the terms of Chairman Gerald Reynolds and 

Commissioner Taylor had expired and President Obama had appointed their successors. See Letter From 

Joseph H. Hunt to David Blackwood, November 12, 2010 (available at http://www.usccr.gov/NBPH/11-12-

10_BlackwoodLetter.pdf.) The Commission maintains that the withheld documents are necessary in order for 

us to depose the witnesses effectively. 

29 Given the importance of the allegations, one would expect not only that the Department would deny them, but 

that it would issue a clarification to its career attorneys in the Voting Section to ensure that any 

misunderstandings were corrected. As far as the Commission has been told, no such clarification has issued. 

30 Statement of Christopher Coates at 2. 

31 Statement of Christopher Coates at 9. Coates identified in particular Loretta King, Steven Rosenbaum, Mark 

Kappelhoff, and Kristen Clarke in this statement. 
142 Commissioner Statements 

between blacks and whites in the jurisdiction in which the case 

arises.32

Two other former Civil Rights Division attorneys have filed affidavits 

with the Commission generally corroborating the culture of hostility to 

the race-neutral enforcement of the law at the Civil Rights Division.33 

In addition, three current Division attorneys appear to have spoken to a 

reporter for the Washington Post on the condition of anonymity and 

tend to confirm the existence of this culture.34 

 Moreover, the actual activities of the Voting Section have been consistent with the 

policy statements Ms. Fernandes is alleged to have made and not with Assistant Attorney 

General Thomas Perez’ efforts to assure the Commission that the Division operates race 

 

32 Statement of Christopher Coates at 5. 

33 See Affidavit of Karl S. Bowers, Jr., para. 8 (July15, 2010)(“In my experience, there was a pervasive culture 

in the Civil Rights Division and within the Voting Rights Section of apathy, and in some cases outright 

hostility, towards race-neutral enforcement of voting rights laws among large segments of career attorneys.”), 

available at http://www.usccr.gov/NBPH/BowersStatement_07-15-10.pdf; Affidavit of Hans A. von Spakovsky, 

para. 22 (July 15, 2010) (“While I was not at the Division at the time the New Black Panther Party case arose, I 

can confirm from my own experience as a career lawyer that there was a dominant attitude within the Division 

and the Voting Section of hostility toward the race-neutral enforcement of voting rights laws by many of the 

career lawyers and other staff.”) , available at http://www.usccr.gov/NBPH/vonSpakovskyAffidavit_07-15-

10.pdf

34 The Washington Post reported: 

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.” 

Jerry Markon & Krissah Thompson, Dispute Over New Black Panther Case Causes Deep Divisions, 

Washington Post (October 22, 2010). 

The Commission would very much have liked to have spoken with these anonymous witnesses. But given their 

perception that they would be “outed” by unsympathetic persons within the Commission, I am not surprised that 

we did not have that opportunity. 
Statement of Commissioner Gail Heriot 143

neutrally (made long before Adams’s and Coates’s whistle-blowing testimony). The New 

Black Panther Party case was indeed disposed of over the vociferous objections of the line 

attorneys who had worked on the case and against the advice of career attorneys in the 

appellate section.35 This is exactly what one would expect if the allegations against Ms. 

Fernandes were true. No further voter intimidation cases (whether brought under Section 

11(b) or the more commonly used Section 2) have been filed against African American 

defendants—again, exactly as one would expect.36

 Similarly, United States v. Missouri, the list maintenance lawsuit brought under 

Section 8 of the National Voter Registration Act during the Bush administration, was 

dropped despite the failure of Missouri to improve its efforts.37 No further Section 8 cases 

under the National Voter Registration Act have been investigated or filed—just as one would 

expect. Coates testified about his efforts to interest the administration in such cases: 

In June 2009, the Election Assistance Commission issued a biannual 

report concerning what states appeared not to be in compliance with 

Section 8's list maintenance requirements. 

The report identified eight states that appeared to be the worst.... 

These are states that reported that no voters had been removed from 

any of their voters’ lists in the last two years. Obviously this is a good 

indication that something is not right.... 

As Chief of the Voting Section, I assigned attorneys to work on this 

matter. And in September 2009, I forwarded a memo to the Division 

front office asking for approval to go forward with the Section 8 list 

maintenance investigations in these states. 

During the time that I was Chief, no approval was given to this project. 

And it is my understanding that approval has never been given for that 

Section 8 list maintenance project to date. That means we have 

entered the 2010 election cycle with eight states appearing to be in 

major noncompliance.... 

 

35 Christopher Coates testified that Appellate Section attorneys Marie McElderry and Diana Flynn agreed that 

the suit should proceed. See Transcript of September 24, 2010 at 52. Copies of the e-mails that McElderry and 

Flynn wrote explaining why the NBPP case should go forward are also available online at 

http://www.usccr.gov/NBPH/DOJcomments_05-13-09_reproposeddefaultjudgment.pdf. 36 Also consistent with the accusation of a culture of hostility towards a race neutral application of the law is the 

fact that the Division has never objected to a request for pre-clearance under Section 5 of the Voting Rights Act 

on the ground that the proposed change had a racially discriminatory purpose or would have a racially 

discriminatory effect on white voters despite the fact that there are quite a few jurisdictions where minorities are 

in the majority and hence in control of election processes. See Statement of Christopher Coates at 12. 37 United States v. Missouri, 535 F.3d 844 (8th Cir. 2008). 
144 Commissioner Statements 

From these circumstances, I believe that Ms. Fernandes’s statement to 

the Voting Section in November 2009 not to, in effect, initiate Section 

8 list maintenance enforcement activities has been complied with.38 

 Furthermore, public comments made by present and former Division attorneys, 

although sometimes phrased somewhat cagily, tend to confirm that there is a significant 

school of thought to the effect that rights of white voters either are not covered by the Voting 

Rights Act or are not due the same priority as the voting rights of other voters.39 

 

38 Coates at 35-36. Coates notes that while a letter to the Commission from Assistant Attorney General Perez 

states that the Division is currently conducting a number of investigations under Section 8 of NVRA, those 

investigation concern a different part of Section 8 and not list maintenance concerns. Id at 36. 

39 For example, in an article concerning United States v. Brown, the Christian Science Monitor quoted former 

Division attorney Steven Mulroy in a statement critical of the decision to file that case: 

“Traditionally, ‘our primary enforcement would be on groups that had historically 

suffered from a legacy of discrimination,’ says Professor Mulroy, the former Justice 

Department lawyer. ‘As far as enforcement, you might not put whites in the South at 

the top of that list.’” 

Patrik Jonsson, Mississippi Election Row Sees Race Roles Reversed, Christian Science Monitor (August 17, 

2007). 

Joseph Rich, chief of the Voting Section until 2005, admitted that the case against Ike Brown had legal merit, 

but argued that it was “‘really a question of priority’” given the limited resources available to the Division. He 

did not mention any particular case that he regarded as more meritorious on its facts. Rather the point seemed 

to be that discrimination against African Americans should be given very strong priority over discrimination 

against whites. As Rich put it, “‘The Civil Rights Division's core mission is to fight racial discrimination.’” 

“‘That doesn't seem to be happening in this administration.’” It is unclear why he did not consider the case 

against Ike Brown to be fighting race discrimination. See Paul Kiel, Under Bush, Civil Rights Division Works 

to Protect ... Whites, TPMmuckraker (April 6, 2007). See also John Fund, Voting Rights Turnabout: A Victory 

for Disfranchised Mississippi Voters—And They Happen to Be White, Opinion Journal (WSJ) (July 2, 2007). 

J. Gerald Hebert, a former acting chief of the Voting Section, complained, “Sadly, the only two [section 11(b) 

cases that have been brought by the [Bush] department have been on behalf of whites.” The Black Panther 

Case: A Legacy of Politicized Hiring, Main Justice (December 23, 2009). Hebert’s statement is highly 

misleading. Section 11(b) is rarely used at all. The number of cases brought over the last two decades may be 

countable on one hand. The “weapon of choice” is Section 2, which applies to conduct under color of law 

(while Section 11(b) also covers wholly private conduct). By far most of the Section 2 cases brought during the 

Bush administration concerned Hispanic voters, who, due to language issues, may be somewhat more likely to 

give rise to enforcement actions. See Testimony of John Tanner, Voting Section of the Department of Justice, 

Hearing Before the Subcommittee On the Constitution, Civil Rights and Civil Liberties of the Committee on the 

Judiciary, House of Representatives (110th Cong.) (October 30, 2007) (available at 

http://judiciary.house.gov/hearings/printers/110th/38637.PDF). 

Finally, the Washington Post has reported: 

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. 
Statement of Commissioner Gail Heriot 145

 Under the circumstances, it is difficult to understand how anyone could take the 

position that it is quite impossible that Fernandes could have given the directives she is 

alleged to have given. To the contrary, the evidence adduced so far is very strong that she 

did. 

II. The Disposition of the New Black Panther Party Case Was Itself an Example of 

the Division’s Hostility Toward the Race-Neutral Enforcement of the Law. 

 The most basic facts of United States v. New Black Panther Party are well known: 

On Election Day in 2008, two members of the New Black Panther Party stood immediately 

outside the doors of a Philadelphia polling place, dressed in paramilitary gear, one slapping a 

nightstick into his palm, hurling racial epithets at voters and poll workers. Rather than 

rehearse the details of the case and its procedural history here, I refer the reader elsewhere in 

this Interim Report.40 It is worth noting, however, that Bartle Bull, a seasoned poll watcher, 

lawyer and former publisher of the Village Voice, who observed the incident first hand, 

stated that it was “the most blatant form of voter intimidation I have encountered in my life 

in political campaigns in many states, even going back to the work I did in Mississippi in the 

1960's.”41 Even Commissioner Yaki, who has so vehemently opposed this investigation, has 

publicly admitted, “In my opinion there was intimidation.”42 

 The issue for the Commission is: Why was the case largely abandoned? Was its 

unusual final disposition, over the objections of the career attorneys who originally were 

assigned to it, an example of the general hostility towards race neutrality in civil rights 

enforcement that our witnesses warned of? Or was it motivated by something else? 

 Part of the reason New Black Panther Party attracted the attention of the Commission 

is that it is well-suited for an examination of the Division’s race neutrality. For one thing, all 

four of the defendants in the case had failed to appear in court to answer the allegations 

against them. The significance of that default is not easily overstated. One of the difficulties 

 

“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. 

See Jerry Markon & Krissah Thompson, “Dispute Over New Black Panthers Case Causes Deep Divisions,” The 

Washington Post, October 22, 2010 (available at http://www.washingtonpost.com/wpdyn/content/article/2010/10/22/AR2010102203982_3.html?sid=ST2010102300136). 40 See Parts I-II of this Interim Report. 

41 Declaration of Bartle Bull (April 7, 2009). For reasons I do not fully understand, Commissioners Yaki and 

Melendez challenge Bull’s assessment of his experience in this regard. Bull has indeed seen a lot in his years as 

a poll watcher—including a polling place at which nooses had been hung on a nearby tree. Contrary to 

Commissioners Yaki and Melendez’s understanding, Bull did not testify that the nooses were put there by white 

supremacists. Presumably, he did not know who placed them there—misguided, youthful pranksters, hardened 

criminals or someone else entirely. Bull’s point was that men with a weapon standing directly in front of the 

doors of a polling place hurling racial epithets is as blatant and elemental form of voter intimidation as one is 

likely to find. Ultimately, however, it doesn’t matter if the Philadelphia incident was the most blatant incident 

of voter intimidation he had ever seen or the fifth most blatant. It was blatant. 42 Transcript, Meeting of the U.S. Commission on Civil Rights at 111 (April 23, 2010). 
146 Commissioner Statements 

that oversight bodies have in keeping tabs on law enforcement agencies is that there is 

always at least one neutral-sounding reason for declining to file a case: Resources are 

limited. Not every meritorious case can be brought. If the New Black Panther Party case 

had never been brought, it is entirely possible, even likely in my opinion, that the media 

controversy over its ultimate disposition would never have occurred.43 Indeed, if the project 

had been aborted midway through the litigation, it may have raised a few eyebrows, but it 

would have been difficult to gainsay Department officials if they had argued that the case 

was going to require more resources than Department was able to spare. 

But that is not what happened. The New Black Panther Party case had been brought. 

An investigation had been conducted, witnesses had been interviewed, and a complaint 

filed.44 Moreover, as a result of the defendants’ decision not to appear, the case had 

essentially been won. Affidavits had been collected from witnesses in anticipation of a 

judgment and injunction. It required far more resources to fight the internal battle over 

whether to gut the case than it would have to obtain a default judgment enjoining all of the 

defendants from committing similar acts in the future. Whatever purpose was served by 

dismissing the case against three of the four defendants and limiting the remedy as to the 

fourth, it was not to conserve Division resources.45 The case seems to have had symbolic 

value for the players on both sides of the debate. 

 

43 The only fact about the New Black Panther Party case that causes me to hesitate in making that assertion is 

the fact that part of the incident was captured on videotape. It is thus possible that the failure to bring an 

enforcement action would have gotten some media attention. I remain persuaded, however, that far more likely 

than not, it would not have or it would have gotten very little. 

44 Commissioners Yaki and Melendez have suggested on several occasions that the speed with which Christian 

Adams conducted the investigation demonstrates that he wanted to file the case as expeditiously as possible. I 

do not know why they believe this to be so, but it would not surprise me. Government attorneys frequently 

have a lot to do. Moreover, Adams and Coates testified that it was common for career attorneys at the Division 

to oppose the race neutral application of the law and that it was Bush administration attorneys who authorized 

the Brown case. Under the circumstances, it would hardly be shocking (or inappropriate) for a career attorney 

interesting in applying the law neutrally to prefer to take his chances with the outgoing administration rather 

than the incoming one. The evidence thus far indicates that events have unfolded in a way that would vindicate 

that judgment, if indeed such a judgment was made. See Joint Dissentat 191. 45 In the Department’s response to our initial letter of inquiry, see Letter from Portia L. Roberson, Director, 

Office of Intergovernmental and Public Liaison to Chairman Gerald A. Reynolds (received July 24, 2009), it 

challenged the notion that a case in which the defendants have defaulted is essentially won. The letter seems to 

be suggesting that converting the default to a default judgment would have been a major undertaking, fraught 

with difficulties. 

This letter convinced me that the disposition of the case might merit more careful scrutiny than I had originally 

judged. A default is an extremely favorable event for a plaintiff. I have seen plaintiffs’ attorneys literally jump 

for joy at the mere possibility of a default. And if Department attorneys were suggesting otherwise, there was 

reason to be concerned about their judgment. 

While Fed.R.Civ.P. 55 permits courts to require plaintiffs to prove their case through the use of affidavits or 

testimony (and it is good practice for them to do so rather than simply rubber stamp the plaintiffs’ requested 

remedy), this is usually fairly easy, even perfunctory at times. In this case, the attorneys handling the case had 

already put in the work of gathering affidavits from the witnesses when control of the case was wrested from 

them. They had every reason to regard this as an effort to snatch defeat from the jaws of victory. 

The cases cited by the Department in its letter do not suggest anything to the contrary. United States v. 

$55,518.05 in U.S. Currency, 728 F.2d 192 (3d Cir. 1983), for example, was a civil forfeiture case that proves 
Statement of Commissioner Gail Heriot 147

Add to that the fact that the case spanned two administrations, making it plausible 

that its ultimate disposition was the result of a change in policy.46 No one claims that 

anything had changed in connection with the case itself between the time it was filed and the 

time that three of the four defendants were dismissed and the injunction against the fourth 

narrowed considerably. The witnesses had neither died nor disappeared. There had been no 

changes in the law. The case remained as strong as it had been the day it was filed. The only 

important change in circumstances was external to the case—the change in administration. 

That meant a different set of decision makers were calling the shots–decision makers who 

may have been more in sympathy with the notion that Section 2 and Section 11(b) of the 

Voting Rights Act should be used only to protect the interests of African Americans and 

other minorities. 

 

 That brings us back to the issue: What was the motive? Is the case an example of the 

alleged culture of hostility to the race-neutral enforcement of civil rights laws at the 

Division? Or is there a more benign explanation for the decision? 

 The Commission has no smoking gun in this case that directly demonstrates that a 

lack of race-neutrality motivated the disposition. But that is because Department has refused 

to hand over most of the documents in this case that might have allowed the Commission to 

track the actual thinking of the lawyers involved. The two witnesses who provided testimony 

to the Commission–Adams and Coates–felt compelled by the Department’s claim of 

privilege not to answer questions concerning the fractious deliberations that apparently 

surrounded that disposition.47 If there is a smoking gun, the Commission has no access to it. 

 just how easy it is to secure a default judgment. It is not clear whether the trial court judge required affidavits, 

testimony, or other types of documents before entering the default judgment. But when the appellant sought to 

set aside a default judgment on grounds that would excite sympathy in the minds of many, the trial court was 

unmoved. The appellate court, while acknowledging that sometimes default judgments should be vacated, 

affirmed the trial court’s decision to let it stand. Similarly, Hritz v. Woma Corp., 732 F.2d 1178 (3d cir. 1984), 

is a case in which the Court refused to set aside a default judgment, again belying the idea that it is somehow 

difficult to obtain. Shields v. Zuccarini, 254 F.3d 476 (3d Cir. 2001), is not even a default case, so it is not clear 

why it was cited. 

The Department is correct that a default judgment is not “automatic” after the entry of default. But judgment is 

not “automatic” after a jury verdict either. The point is simply that the fact of the defendants’ default had made 

the Department’s job relatively easy, and it is hardly surprising that the attorneys handling the case viewed it as 

essentially won. Any attorney would. Moreover, the efforts put into the internal struggles over the disposition 

of the case dwarf the efforts that would have been necessary to wrap up the case in default. 46 Given that the political appointees involved in the disposition–Loretta King and Steven Rosenbaum–were 

career attorneys put in charge of the Division, it is certainly plausible that any such change in policy was in 

keeping with the policy preferences of a significant number, if not a majority, of career attorneys at the 

Division. See infra at Part I of this Statement. 47 I take no position in this Statement as to whether the assertion of privilege over matters of the deliberative 

process was proper. Although I am impressed by Commissioner Gaziano’s discussion of the privilege issues in 

his Statement as well as his experience as an attorney in the Department’s Office of the Legal Counsel, where 

these issues are frequently presented, I have not had the opportunity to study them personally. At this point, I 

note only (1) that the Commission has a statutory duty to investigate and report on issues of civil rights 

enforcement and that the Department has a statutory duty to cooperate in the Commission’s investigations; (2) 

that the Commission’s ability to conduct this investigation has been significantly impaired by the Department’s 

unwillingness to turn over crucial documents or to allow witnesses to testify freely and (3) that any privilege 
148 Commissioner Statements 

The only way to demonstrate that the race of the defendants was a contributing factor to the 

decision is to eliminate one by one the many alternative motivations that have been offered 

by the Department and its defenders. 

 Surprisingly, this has turned out not to be as difficult a task as it sounds. So far at 

least, no plausible alternative reason for the full scope of the Division’s decision has been 

offered. Far more plausible is the testimony of Adams and Coates as well as the affidavits of 

Bowers and von Spakovsky that point to a general hostility toward the race-neutral 

application of the law at the Division. 

(1) Jerry Jackson: The Department advanced several reasons for why it insisted, over the 

objections of the career attorneys handling the case, that defendant Jerry Jackson be 

dismissed from the New Black Panther case despite his failure to appear in court to defend 

himself. Those reasons were: (a) He was a designated poll worker on behalf of the 

Democratic Party at the time of the incident; (b) He was a resident of the building where the 

 could have been waived by the Department if it had wished to do so. See 42 U.S.C. section 1975(b)(e): “All 

Federal agencies shall cooperate fully with the Commission to the end that it may effectively carry out its 

functions and duties.” 

The legislative issue addressed in this Interim Report – whether Congress should amend the Commission’s 

authorizing statute to address the conflict of interest that arises when DOJ is asked to enforce a subpoena 

against itself – is a serious one. This report lays out several alternatives, each with advantages and 

disadvantages. See supra at 114-7. I take no position on them. I am, however, baffled by Commissioner Yaki’s 

remark that we are somehow grabbing power that even Congress doesn’t have. As he put it: 

COMMISSIONER YAKI: All I can say is that is one, I think this is an attempt 

to arrogate to ourselves power exceeding that of Congress and other agencies. It is 

very 

 unprecedented .... 

Transcript, Meeting of the U.S. Commission on Civil Rights at 58 (November 19, 2010). 

It is well-established, of course, that Congress’s investigatory and contempt powers are implicit in the grant of 

legislative power. See McGrain v. Daugherty, 273 U.S. 135, 177 (1927). 

Both the House and Senate also have authorized special standing committees to seek civil enforcement of 

subpoenas. See, e.g., H.Res. 1420, 94th Cong. 2d Sess. (1976) (authorizing the Chairman of the House 

Interstate and Foreign Commerce Subcommittee on Oversight and Investigations to intervene in 

United States v. American Telephone & Telegraph, 419 F. Supp. 454 (D.D.C. 1976)); 

H.Res. 899, 121 CONG. REC. 918-19 (1975) (authorizing the Chairman of the House 

Interstate and Foreign Commerce Subcommittee on Oversight and Investigations to intervene in Ashland Oil 

Inc., v. FTC, 409 F. Supp. 297, 307 (D.D.C. 1976)) (cited in Morton Rosenberg and Todd Tatelman, CRS 

Report for Congress: Congress’s Contempt Power, Law, History, Practice, and Procedure (April 23, 2008) 

(available at http://www.fas.org/sgp/crs/misc/RL34097.pdf). The notion that we are asking for powers that 

even Congress doesn’t have is pure nonsense. 

Indeed, the notion that we are asking for increased power at all is nonsense. One of our proposed alternatives is 

that Congress do nothing at all to amend the applicable law. Our recommendations do not ask Congress to 

select a particular course of action. They merely draw the issue to Congress’s attention. The most likely 

explanation for Commissioner Yaki’s heated accusation is that he had not in fact read the (then-proposed) 

recommendations. 
Statement of Commissioner Gail Heriot 149

incident took place; and (c) The Philadelphia police officer who responded to the call about 

the incident made the determination that, unlike King Samir Shabazz, Jackson should be 

allowed to remain at the polling place. All three arguments are wholly without merit. 

 First of all, poll workers are not exempt from laws against voter intimidation. If 

anything, they should be held to a higher standard. They have been trained to understand that 

a polling place is a sensitive place at which a high level of decorum (as well as personal 

security) is necessary. There can be no excuse for their dressing up in paramilitary gear, 

blocking the doors to the polling station and shouting racial epithets at those who try to get 

by. As for whether Jackson should be allowed to remain at the polling station because he 

was a resident of the building, it should be noted that voter intimidation laws apply to 

building residents too. Moreover, Jackson apparently was not a resident of the building. 

This “fact” was apparently taken from a local news report on the incident; the building at 

issue is in fact a home for senior citizens, not for Jackson. A cursory examination of the case 

file prepared by the career attorneys originally in charge of the case would have revealed 

this.48 Finally, the fact that a Philadelphia police officer ordered King Samir Shabazz to 

leave the premises, but let Jerry Jackson remain is irrelevant to the issue before the Division. 

The Philadelphia police officer made a mistake. This is something human beings are prone 

to. In his defense, it is unlikely that this incident was the only problem he had to deal with 

that day. Moreover, the police officer was not an expert in election law—as Coates, Adams 

and their fellow Voting Section attorneys are. 

 But it is inappropriate for federal officials to defer to a Philadelphia police officer on 

questions of federal law enforcement. As Coates testified: 

During my 13 and a half years in the Voting Section, I cannot 

remember another situation where a decision not to file a Voting 

Rights Act case, much less to dismiss pending claims and parties, as 

happened in the New Black Panther Party case, was made, in whole or 

in part, on a determination of a local police officer. In my experience, 

officials in the Voting Section and the Civil Rights Division always 

reserved for themselves, and correctly so, the determination as to what 

behavior constitutes a violation of federal law and what does not. One 

of the reasons for this federal preemption of the determination of what 

constitutes a Voting Rights Act violation is that local police officers 

are normally not trained in what constitutes a Voting Rights Act 

violation. In addition, in the Philadelphia police incident report 

provided to this Commission by the DOJ, the Philadelphia police 

officer who came to the polling place did not determine that Black 

Panther Jackson's actions were not intimidating. Instead, he simply 

reported that Jackson was certified by the Democratic Party to be a 

poll watcher at the polling place and was allowed to remain. 

 

48 In his Statement, Assistant Attorney General Thomas Perez appears to have abandoned this argument. See 

Statement of Assistant Attorney General Thomas Perez (May 14, 2010). 
150 Commissioner Statements 

Further, as the history underlying the enactment and the extension of 

the Voting Rights Act shows, local police have on occasion had 

sympathy for persons who were involved in behavior that adversely 

affected the right to vote or violated the protections of the Voting 

Rights Act... Based upon my experience, this reasoning is 

extraordinarily strange and an unpersuasive basis to support the 

Division's disposition of the Panther case.49 

 

 Commissioners Yaki and Melendez argue that the Division deferred not to the police 

officer’s conclusions of law, but only to his findings of fact—that Jackson did not intimidate, 

threaten or coerce anybody. The problem with this argument is that the police officer made 

no such finding of fact. The police report indicates only that Jackson was a certified poll 

watcher and that he was allowed to stay.50 We have no way of knowing whether the police 

officer left Jackson alone because he concluded (as a matter of fact) that Jackson was not 

intimidating or because he concluded (as a matter of law) that poll watchers have a right to 

be present at polling stations even if they have been engaging in conduct that might 

otherwise cross the line.51 The argument that the Division was deferring to his finding that 

Jackson was not intimidating is simply frivolous. The fact that this seems to be the best 

anyone can offer is deeply troubling. 

 It is worth noting that even if the police officer had found that Jackson was not 

intimidating, he arrived on the scene late. The eyewitnesses who did observe Jackson agreed 

that he was intimidating. Take Wayne Byman, the African American Republican poll 

watcher who was first on the scene on the incident.52 His declaration states: 

 

49 Transcript, Hearing of U.S. Commission on Civil Rights Hearing at 27-29 (September 24, 2010). 

50 See Philadelphia Police Department, Complaint or Incident Report (November 4, 2008). 

51 Given the wording of the police report, the latter seems overwhelmingly more likely. The report records that 

Jackson had credentials as a poll watcher. It does not record that he, unlike King Samir Shabazz, was not 

menacing voters. Id. A video clip of the encounter provides further evidence that Jackson was not allowed to 

stay because his conduct was acceptable. When the police arrived they had no opportunity to observe any 

differences between the conduct of King Samir Shabazz and that of Jackson. All they could tell was that King 

Samir Shabazz was wielding a nightstick and that Jackson was not. This fact alone obviously did not impress 

them. The officer in charge demanded that both men follow him to his squad car. When Jackson did not 

immediately come, the officer made it crystal clear that he did indeed mean both men. When the police officers 

allowed Jackson to resume his position in front of the polling place doors, it was apparently after he had shown 

them his credentials, not because he had persuaded them that his conduct was less menacing than his comrade’s. 

The police officers would surely not have taken Jackson’s word for it that his conduct was less menacing. They 

would have interviewed the witnesses. See Video of Police Encounter with New Black Panther Party Members 

at Polling Place (November 4, 2008), available at http://www.youtube.com/watch?v=19pUz89FaaU. 52 Commissioners Yaki and Melendez lament that Byman and Joseph Fischetti were not brought to Washington 

to testify. They quote from this Interim Report—“‘[t]he Commission attempted to interview and take the 

deposition of as many people as it could locate who were identified as having been at the polling site’”—and 

argue that this statement is “at odds” with the Commission’s decision not to call Byman and Fischetti as 

witnesses at one of the hearings held before the full Commission. But both Byman and Fischetti were 

interviewed by the Commission’s General Counsel, David Blackwood. There is no truth to the suggestion that 

the Commission simply ignored these witnesses or any other witnesses. Blackwood, under the direction of the 

Commission’s Discovery Subcommittee, made the determination that neither Byman nor Fischetti were needed 

as witnesses at the full Commission hearing, since what they had to say was limited and would have been 

duplicated by Bartle Bull, Christopher Hill and Mike Mauro, all of whom had been at the scene for a longer 

period of time than either Byman or Fischetti and all of whom did testify. 
Statement of Commissioner Gail Heriot 151

On the morning of November 4, 2008, I went to the polling place at 

1221 Fairmount Street in the City of Philadelphia. I there observed 

two men wearing black uniforms with New Black Panther Party 

insignia, black boots and black berets. The two men were positioned 

directly in front of the entrance to the polling place at 1221 Fairmount 

Street. ... In my opinion, the two uniformed men created a menacing 

 

Of course, if Commissioners Yaki and Melendez had been interested in having Byman or Fischetti testify at our 

first hearing (or indeed at any subsequent hearing), all they would have needed to do is say so and their request 

would have been respected. Indeed, it is not too late. As a result of the difficulty the Commission has had in 

securing the cooperation of the Department, this is only an Interim Report. Not only have Yaki and Melendez 

chosen not to do so thus far, they have instead complained and continue to complain that the Commission was 

spending too much time and money on this investigation. Joint Dissentat 178. In addition, when the 

Commission has sought to call witnesses or to authorize the Chairman and the Discovery Subcommittee to 

subpoena witnesses, Commissioner Yaki voted no, and Commissioner Melendez has been absent. See, e.g., 

Transcript, Telephonic Meeting of the U.S. Commission on Civil Rights at 25 (October 30, 2009). On the most 

recent occasion, Commissioner Yaki did not simply vote no, he voted a “big resounding no.” Transcript, 

Meeting of U.S. Commission on Civil Rights at 12 (October 8, 2010). All of this belies the dissenting 

commissioners’ notion that “Since we did not approve the investigation at all, we would rather that no witnesses 

had been called. However, since an investigation was going to be done ..., it should have been done in a ... 

thorough ... manner.” Joint Dissentat 178-9. 

Yaki and Melendez also attempt to suggest that a two-minute video showing police arriving at the scene at 1221 

and questioning King Samir Shabazz and Jerry Jackson was somehow ignored, because it was not “screened” at 

the Commission’s public meeting. The fact that a video was not “screened” does not mean it was not carefully 

reviewed by the General Counsel or his staff or by Commissioners. In this case, the General Counsel made the 

determination that the video was not important enough to devote time during the public meeting to screen it. 

Instead it was made available to all Commissioners in a disk. I’ve seen it. Obviously Commissioner Yaki 

and/or Commissioner Melendez and/or one or more of their assistants have seen it. I concur with the General 

Counsel’s judgment. The description of the final seconds of the video in the Joint Dissentis overdramatic. 

Someone (it is not clear to me who) attempted to discourage the videographer from following the police officers 

who had taken King Samir Shabazz and Jerry Jackson back to their squad car for questioning. It has no bearing 

on the strength of the case against the defendants in New Black Panther Party and no bearing on the reasons the 

case was largely abandoned, except insofar as it tends to discredit the dissenting commissioners’ arguments as 

to Jerry Jackson. See supra at n. 51. 

 

I should note that the reason for the dissenting commissioners’ disagreement with the majority is not that the 

Commission did not seek their input on such matters. Commissioner Yaki was asked to serve on the 

Commission’s Discovery Subcommittee in order to make it bipartisan. He declined in no uncertain terms. See 

Transcript, Meeting of the U.S. Commission on Civil Rights at 61 (September 11, 2009). At the December 16, 

2009, Commissioner Yaki was again asked to serve on the subcommittee. His response was “Absolutely not.” 

Transcript, Meeting of the U.S. Commission on Civil Rights at 39 (December 16, 2009). 

It is characteristic of Commissioner Yaki and Melendez to submit hyperbolic dissenting Statements in which 

they argue that one or more aspects of the research undertaken by the Commission staff have been inadequate—

even when the topic is far less controversial than this one. It has been my experience, however, that they are 

usually careful not to air their arguments until it is too late to correct the supposed problems they complain of. 

Moreover, their particular complaints tend to be whimsical and misinformed. See, e.g., U.S. Commission on 

Civil Rights, Enforcing Religious Freedom in Prisons, September 2008, at 109-117) Statement of 

Commissioners Yaki and Melendez) (reciting a sometimes-quirky litany of ways in which the Commission 

staff’s research did not satisfy them); U.S. Commission on Civil Rights, Enforcing Religious Freedom in 

Prisons September 2008 at 118-129 (Statement of Commissioner Heriot) (responding to this litany). 
152 Commissioner Statements 

and intimidating presence at the entrance of the polls. I intentionally 

attempted to avoid any contact with them, because of this menacing 

and intimidating presence.53 

 Similarly, Michael Mauro, an attorney and Republican poll watcher, stated in his 

declaration, “In my opinion, the two uniformed men created an intimidating presence at the 

entrance of the polls.”54 

 There was clearly no need to dismiss the case against Jackson for any of the reasons 

cited by the Department. 

(2) Actual Voter Intimidation: The Department does not argue that there was no evidence 

of actual voter intimidation in the New Black Panther Party incident in Philadelphia. But 

Commissioners Yaki and Melendez have, as have others in the media, so I address the claim, 

which turns out to be another easy one to rebut.55 The answer is threefold. First, there is 

 

53 Declaration of Wayne Byman (April 1, 2009) (emphasis added), available at 

http://www.usccr.gov/NBPH/DeclarationofWayneByman%284-1-09%29.pdf. The Department has declined to 

furnish the Commission with Mr. Byman’s witness statement. See also Declaration of Michael Mauro (March 

31, 2009) (“In my opinion, the two uniformed men created an intimidating presence at the entrance of the 

polls”) (emphasis added), available at http://www.usccr.gov/NBPH/DeclarationofMichaelMauro%283-31-

09%29.pdf. 54 See Declaration of Michael Mauro (March 31, 2009) (emphasis added), available at 

http://www.usccr.gov/NBPH/DeclarationofMichaelMauro%283-31-09%29.pdf. Commissioners Yaki and 

Melendez argue that there is no evidence that Jackson personally hurled racial epithets. If so, it wouldn’t 

matter. If two men enter a liquor store together and stand shoulder to shoulder while the one with the gun 

demands money, his partner’s silence is certainly not enough to establish innocence. It is more than sufficient 

in this case that the two men “formed ranks by standing in such a way to make them a significant obstacle” for 

those seeking entry to the polls and “attempted to impair [Christopher Hill’s] entry into the polling place.” 

Declaration of Christopher Hill para. 4 (April 1, 2009) available at 

http://www.usccr.gov/NBPH/DeclarationofChristopherHill%284-1-09%29.pdf. 55 See Joint Dissent at 198 (alleging “no actual voters were intimidated”). For claims that the defendants’ 

conduct did not constitute voter intimidation, see, e.g.., David A. Graham, “The New Black Panther Party Is the 

New ACORN,” Newsweek, July 14, 2010, available at http://www.newsweek.com/2010/07/14/the-new-blackpanther-party-is-the-new-acorn0.html (last accessed December 9, 2010): “As voter-intimidation exercises go, 

this wasn’t much. ” See also David Weigel, “Second Thoughts on New Black Panthers,” The Daily Dish, 

available at http://andrewsullivan.theatlantic.com/the_daily_dish/2010/07/second-thoughts-on-the-new-blackpanthers.html (last accessed December 9, 2010): “ [I]t's not pleasant to watch racist idiots yell at people as they 

do in a pre-election day video [Glenn] Beck keeps playing, but it's not illegal. For those of us who live in cities 

and have to sneak into metro stations past the Black Israelites and other such nincompoops, it's not even 

unusual.” See also Transcript, Hearing of the U.S. Commission on Civil Rights 130 (April 23, 2010)(remarks 

of Vice Chair Thernstrom disagreeing that the incident was “a clear instance of intimidation”). But see also 

Abigail Thernstrom, Lani’s Heir: The New, Old Racial Ideology of the Holder Justice Department, National 

Review Online (December 21, 2009)(criticizing Attorney General Holder for his “questionable judgment” in 

dismissing the cases against members of the New Black Panther Party “who engaged in blatant voter 

intimidation at a Philadelphia polling place”). 

Interestingly, before submitting the Joint Dissentto the Commission, Commissioner Yaki did appear to concede 

that voter intimidation took place in Philadelphia that day. At the April 23 hearing, he said on the record: “The 

fact of the matter is that -- is that I am not as -- I am not as concerned about whether or not -- relitigating the 

issue whether there was intimidation or not. In my opinion, there was intimidation.” See Transcript of the April 

23, 2010 Hearing at p. 111. It is odd, then, that much of the Joint Dissentthat he joined appears devoted 

precisely to such relitigation of the underlying case. 
Statement of Commissioner Gail Heriot 153

evidence of actual voter intimidation. Christopher Hill, a senior registrar at the University of 

Pennsylvania Hospital and certified poll watcher, testified before the Commission on April 

23, 2010: 56

 

People were put off when -- there were a couple of people that walked 

up, couple of people that drove up, and they would come to a 

screeching halt because it's not something you expect to see in front of 

a polling place. As I was standing on the corner, I had two older ladies 

and an older gentleman stop right next to me, ask what was going on. 

I said, ‘Truthfully, we don't really know.’ All we know is there's two 

Black Panthers here.” And the lady said, "Well, we'll just come back.” 

And so they walked away. I didn't see anybody other than them leave, 

but I did see those three leave.57

Second, even if no actual voter had been intimidated, threatened, or coerced the 

statute prohibits attempts to intimidate, threaten or coerce too.58 Third, the statute prohibits 

the intimidation of persons who aid in the vote as well as voters themselves. Christopher Hill 

testified that certified Republican poll worker Larry Counts “was called a race traitor for 

being a poll watcher,”59 that Mr. Counts “was threatened if he stepped outside of the 

building, there would be hell to pay,” and that as a result Counts was “pretty shaken up” and 

“visibly upset.”60 Hill also testified that the King Samir Shabazz and Jerry Jackson had 

attempted (evidently without success) to intimidate Hill himself: 

 

56 Vice Chair Thernstrom emphasized at the hearing that it is not known if these voters came back and voted 

later and seemed to suggest that if they did their return would have some legal significance. Transcript, 

Hearing of U.S. Commission on Civil Rights at 97 (April 23, 2010). There is, however, no requirement that the 

United States prove that intimidated voters didn’t come back, so it wouldn’t matter if they had. Voters are not 

supposed to have to dodge election thugs in order to vote. It is wholly insufficient to tell them that they should 

have returned later. It is difficult not to doubt whether this argument would have been made if the defendants 

had been dressed in KKK robes. 

57 Id. at 50-1. See also Transcript, Hearing of U.S. Commission on Civil Rights 57 (April 23, 2010) (Bartle 

Bull testifying that he witnessed “voters” walk up, observe the situation and walk away). 58 Section 11(b) of the Voting Rights Act, codified at 42 U.S.C. 1973(i)(g), reads: “No person, whether acting 

under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or 

coerce any person for voting or attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, 

threaten, or coerce any person for urging or aiding any person to vote or attempt to vote, or intimidate, threaten, 

or coerce any person for exercising any powers or duties under section 3(a), 6, 8, 9, 10, or 12(e).” 

59 Transcript, Hearing of U.S. Commission on Civil Rights at 48 (April 23, 2010). 

60 Id. Larry Counts and his wife, Angela Counts, who was also a poll watcher that day, have not confirmed what 

Christopher Hill said about their experiences at the polling place that day. See Deposition Transcript of Larry 

Counts, January 12, 2010, 8-20 (available at

http://www.usccr.gov/NBPH/LarryCountsDepositionTranscript.pdf); Deposition Transcript of Angela Counts, 

January 12, 2010, 9-27 (available at http://www.usccr.gov/NBPH/AngelaCountsDepositionTranscript.pdf). 

They say they never saw King Samir Shabazz or Jerry Jackson. But given that Mr. and Mrs. Counts live in the 

Philadelphia neighborhood where this incident took place, it should not be a surprise if they are reluctant to 

come forward with testimony that would corroborate Hill’s statements. The Commission’s own experience 

with defendant King Samir Shabazz suggests that he is not above attempting to intimidate those who are in 

some way connected to the investigation into New Black Panther Party. He attended the Commission hearing 

in Washington, D.C. on April 23, 2010 at which Bartle Bull, Christopher Hill, Michael Mauro and others 

testified. During the testimony, he took photographs of several of those connected to the investigation in a way 
154 Commissioner Statements 

MR. BLACKWOOD: Did he [King Samir Shabazz] say anything to 

you? 

MR. HILL: Immediately started with, “What are you doing here, 

Cracker? And he and Mr. Jackson attempted to close ranks. I went 

straight between them through the door to find our poll watcher, who 

was inside the building at the time. 

There is an abundance of evidence of the kind of threats, intimidation and coercion that are 

prohibited by Section 11(b), also including the affidavit of Wayne Byman, also a certified 

poll worker, which stated, “I intentionally attempted to avoid any contact with [the two New 

Black Panther Party members], because of this menacing and intimidating presence.”61 This 

argument is seriously put forth only by those who are unfamiliar with the law or with the 

record.62 

(3) Racial Motivations: Another frequently-heard argument from some critics of the 

Commission’s investigation (but not from the Department) is that the defendants did not 

intend to intimidate, threaten or coerce voters or poll watchers on the basis of race when they 

showed up at a majority-black voting precinct and shouted racial insults like "Now you will 

 that seemed to be designed to unnerve. While such conduct may be only buffoonish in a government building 

in Washington, D.C., it could well seem very different to someone who lives or works in the neighborhood with 

King Samir Shabazz. 

Commissioners Yaki and Melendez place emphasis on the fact that Mr. and Mrs. Counts testified that they are 

not actually Republicans, but Democrats who were being paid to be Republican poll watchers that day. It is not 

clear why the dissenting commissioners consider this fact to be significant. It is unlikely that Mr. and Mrs. 

Counts had a conversation with the members of the New Black Panther Party members about their political or 

ideological beliefs prior to the alleged harassment. If King Samir Shabazz and Jerry Jackson were harassing 

them as “race traitors” because they thought they were African American Republicans, they probably wouldn’t 

think highly of them for working for the Republicans either. If anything, the Countses’ testimony about the 

actual party affiliation would help explain the contradictions between Christopher Hill’s testimony and their 

own. If the Countses were really Democrats, they may be less interested in getting involved in the lawsuit. If 

they are really Republicans now pretending to be Democrats, it suggests that they really have been effectively 

intimidated. Joint Dissentat 179-181. 

61 Declaration of Wayne Byman at para. 2 (April 1, 2009). 

62 Vice Chair Thernstrom has argued that the “legal standards that must be met to prove voter intimidation—the 

charge--are very high.” Abigail Thernstrom, The New Black Panther Case: A Conservative Dissent, National 

Review Online (July 6, 2010), available at http://www.nationalreview.com/articles/243408/new-black-panthercase-br-conservative-dissent-abigail-thernstrom. It is not clear what she meant to say here. But if she meant to 

suggest that the standard of proof applicable to this case is any different from the standard applicable to any 

other civil case-–preponderance of the evidence—then she is incorrect. Her use of the term “charge” suggests 

she might be confusing this case with a criminal proceeding, which would indeed have a high standard of proof. 

As for applicable legal standards, there is no law suggesting that Section 11(b)’s use of the words “intimidate, 

threaten or coerce” should be read to mean “intimidate, threaten or coerce with in a particularly spectacular 

way.” Nor is there any law requiring “any voter” to be read to mean “any twenty voters.” As the Supreme 

Court stated in Church of the Holy Trinity v. United States, 143 U.S. 457, 463 (1892), “[I]t is to be assumed that 

words and phrases are used in their ordinary meaning.” The words are themselves the applicable legal 

standards. Any suggestion to the contrary is incorrect. 
Statement of Commissioner Gail Heriot 155

see what it means to be ruled by the Black Man, Cracker” and “race traitor.”63 If they had 

intended to intimidate whites, they would have gone to a majority-white precinct, since they 

would have found more whites to intimidate or threaten there.64 This does not follow. The 

best place to intimidate any group is where their numbers are small, not where they are large, 

and both white voters and black Republicans were apparently in short supply at 1221 

Fairmount Street in Philadelphia that day. All one has to do is read what was said to 

understand that King Samir Shabazz and his comrade Jerry Jackson had racial motivations 

for their conduct. But even if racial motivation were difficult to prove, it wouldn’t matter. 

The statute does not require the Department to prove racial motivations for intimidation. 

Indeed, the word “race” does not even appear in Section 11(b). And indeed, the legislative 

history of the Voting Rights Act demonstrates that this was intentional. It states, “The 

prohibited acts of intimidation need not be racially motivated; indeed unlike 42 U.S.C. 

1971(b)(which requires proof of a ‘purpose’ to interfere with the right to vote) no subjective 

purpose or intent need be shown.”65 

(4) Narrow Injunction as to King Samir Shabazz: The Department has argued that it was 

obligated under the law to narrow the injunction even as to King Samir Shabazz. But having 

reviewed their arguments, I cannot agree that the Department was legally constrained to act 

as it did. 

 In the original Complaint, the Department had asked for a broad injunction against all 

defendants. It would have “[p]ermanently enjoin[ed] Defendants, their agents and successors 

in office, and all persons acting in concert with them, from deploying athwart the entrance to 

polling locations either with weapons or in uniform of the Defendant New Black Panther 

Party, or both, and from otherwise engaging in coercing, threatening, or intimidating 

behavior at polling locations during elections.” Over the objections of the career attorneys 

originally assigned to the case, that request was severely cut back on. 

 I believe this initial version of the requested injunction could have been improved 

upon. In particular, I would have liked to see the boundaries of “poll locations” defined 

precisely right down to the number of feet the defendants had to keep between themselves 

and the actual location. The final injunction requested by the Department and granted by the 

court, however, went far beyond that in its narrowness. It merely required King Samir 

Shabazz (the other three defendants having been dismissed) to refrain from “displaying a 

weapon within 100 feet of any open polling location on any election day in the city of 

Philadelphia., or from otherwise violating 42 U.S.C. section 1973i(b).” The injunction, 

which was issued on May 18, 2009, was good only until November 15, 2010.66 

 

63 The quotation “Now you will see what it means to be ruled by the Black Man, Cracker” appears in Id., 58. 64 See, e.g., Adam Serwer, “Section 11(b) and Why the NBPP Case Was Dropped,” The American Prospect, 

July 12, 2010, available at

http://www.prospect.org/csnc/blogs/adam_serwer_archive?month=07&year=2010&base_name=section_11b_a

nd_why_the_nbpp_c (last accessed December 9, 2010): “My own observation is that a black polling place isn't 

a very productive place to go to intimidate white voters.” 65 H.R. Rep. at 30 (1965). While at least one court has held to the contrary, see Gremillion v.Rinaudo, 325 F. 

Supp. 375, 376-77 (E.D. La. 1971), it appears the court may have been unaware of this legislative history. 

66 Order, United States v. New Black Panther Party for Self Defense, Civil Action No. 09-65 (May 18, 2009); 

Judgment, United States v. New Black Panther Party for Self Defense, Civil Action No. 09-65 (May 18, 2009) 
156 Commissioner Statements 

 Such an injunction could have been easily circumvented simply by hopping a bus to 

the Philadelphia suburbs. It is essentially useless. The question, of course, is what would 

motivate the Division to seek such a toothless injunction? Does the law really demand it? 

Or is something else at work here? 

 Some have defended the narrow injunction on the ground that the court’s geographic 

jurisdiction does not run beyond Philadelphia. This is incorrect. The United States District 

Court for the Eastern District of Pennsylvania includes all of eastern Pennsylvania, well 

beyond the Philadelphia city limits. But even if it did not, it would not matter. It is an 

elementary principle of equity that the court’s injunctions operate in personam, not in rem, 

and thus a court has jurisdiction to command a defendant who is properly before it to act or 

refrain from acting anywhere.67 Nationwide injunctions in appropriate cases are routine.68 

Indeed, international injunctions are common, even for state courts.69 It is frivolous to 

suggest that federal (or for that matter state courts) do not have the power to issue nationwide 

injunctions. 

 Courts are usually hesitant to issue nationwide injunctions against corporate 

defendants whose wrongdoing was confined to one or two localized bad apples, since 

complying with an injunction can impose burdens on innocent players.70 But King Samir 

Shabazz is not a corporation. He is a bad apple himself. There is no reason to apply such a 

rationale to his case. 

 In his Statement, Assistant Attorney General Thomas Perez cited cases that hold that 

“’an injunction must be no broader than necessary to achieve its desired goals,’ Madsen v. 

Women’s Health Center, 512 U.S. 753, 765 (1994).” It is not clear what he means by this. It 

cannot be that the goal of this litigation was to prevent voter intimidation by King Samir 

Shabazz in Philadelphia, but not in Pittsburgh or St. Louis. Moreover, none of the cases cited 

by Perez supports the proposition that it would have been inappropriate to enjoin the 

defendant from intimidation outside the city of Philadelphia. (Some do support the notion 

that the injunction should have precisely defined how close the defendant could come to a 

polling place, but that has nothing to do with why the ultimate injunction secured by the 

Division was controversial. It is the limitation to the City of Philadelphia that has astonished 

observers and caused them to question the Division’s motives.) 

 The real question is whether there was sufficient reason to believe that King Samir 

Shabazz might engage in intimidation at a polling place in the future somewhere other than 

 (emphasis added). 

67 See Douglas Laycock, Modern American Remedies 240 (2d ed. 1994) (calling it “an ancient maxim of equity 

that it acts in personam–on the person of the defendant” and that as a result a court may order a defendant “to 

act or refrain from acting anywhere in the world”). 

68 See, e.g., Califano v. Yamasaki, 442 U.S. 682, 701-703 (1979). 69 See, e.g., Dayan v. McDonald’s Corp., 382 N.E.2d 55 (Ill. App. 1978) (ordering McDonald’s Corp. not to 

cancel a franchise in France). 

70 See Marshall v. Goodyear Tire & Rubber Co., 554 F.2d 730 (5th Cir. 1977) (“[A] nationwide or 

companywide injunction is appropriate only when the facts indicate a company policy or practice in violation of 

the statute”). 
Statement of Commissioner Gail Heriot 157

Philadelphia, since courts will not issue injunction where there is no threat of wrongdoing.71 

But this is an easy case for that. The evidence against King Samir Shabazz on this count was 

more than sufficient. First, he was an adjudicated wrongdoer who had engaged in such 

behavior in the past. Second, he has expressed no contrition and indeed has essentially 

thumbed his nose at the lawsuit filed against him by the United States by declining to appear. 

Third, he is part of an organization that has advocated racial hatred and that purports to have 

deployed hundreds of its members to polling places across the country. The case for a 

national injunction is overwhelming. 

 All of this suggests that, like the decision to dismiss Jackson, the Division’s decision 

to limit the injunction against King Samir Shabazz cannot explained by the arguments the 

Department has advanced. 

 (5) Liability of Malik Zulu Shabazz and the New Black Panther Party: The Department 

also takes the position that there was insufficient evidence to find Malik Zulu Shabazz and 

the New Black Panther Party itself civilly liable for the conduct of King Samir Shabazz and 

Jerry Jackson (even in a proceeding based on the defendants’ default). Unlike its position on 

Jerry Jackson, I do not consider this position to be frivolous. Nevertheless, it persuaded 

neither me nor the career appellate attorneys who were requested to weigh in on the dispute 

between the attorneys who had been handling the case and their supervisors.72 Even if it had 

persuaded us, however, it would not explain the dismissal of Jackson or the strangely narrow 

injunction against King Samir Shabazz. 

 The allegations in the complaint are in order. They stated: 

12. Defendants New Black Panther Party for Self-Defense and Malik 

Zulu Shabazz managed, directed and endorsed the behavior, actions 

and statements of Defendants Samir Shabazz and Jackson at 1221 

Fairmount Street on November 4, 2008, alleged in this Complaint. 

Prior to the election, the New Black Panther Party for Self-Defense 

made statements and posted notice that over 300 members of the New 

Black Panther Party for Self-Defense would be deployed at polling 

locations during voting on November 4, 2008, throughout the United 

States. After the election, Defendant Malik Zulu Shabazz made 

 

71 See Humble Oil & Refining Co. v. Harang, 262 F. Supp. 39 (E.D. La. 1966) (textbook case in which court 

declines to issue injunction prohibiting defendant from destroying documents in connection with the litigation 

on the ground that no evidence that defendant was inclined toward any such misconduct was presented). 72 A chain of e-mails from DOJ appellate attorneys Marie McElderry and Diana Flynn on this subject has been 

provided to the Commission and is available on our website at http://www.usccr.gov/NBPH/DOJcomments_05-

13-09_reproposeddefaultjudgment.pdf In this chain of messages, career DOJ appellate attorney Diana Flynn 

and Marie McElderry note some of the weaknesses in the case against Malik Zulu Shabazz and the national 

New Black Panther Party organization. Still, neither recommended dropping the case altogether because of 

these concerns. McElderry appears to think that crafting a sufficiently narrowly tailored injunction against the 

parties would be a sufficient way around these problems. Flynn observes that the Voting Section has evidence 

supporting the case against Malik Zulu Shabazz, including “discussion in the internal papers of the history of 

the organization with respect to voter intimidation with the use of weapons and uniforms,” discussion which 

would support the case against them. She ultimately concluded that “we probably should not back away from 

these allegations.” 
158 Commissioner Statements 

statements adopting and endorsing the deployment, behavior and 

statements of Defendants Samir Shabazz and Jackson at 1221 

Fairmount Street in Philadelphia, Pennsylvania. 

No one disputes the authenticity of the video announcing the deployment of party 

members to polling stations.73 It seems clear that the appearance of King Samir Shabazz and 

Jackson in Philadelphia, dressed in their makeshift uniforms with prominent New Black 

Panther Party insignias, was a part of that deployment effort.74 Nor does anyone dispute the 

video showing an obviously sarcastic Malik Zulu Shabazz purporting to chastise King Samir 

Shabazz, while clearly proud of his Election Day misbehavior. Even if the former had been 

insufficient to convince a court that the Party and its president were the initiators of the 

wrongful conduct, the latter could demonstrate that the conduct had been approved and 

 

73 See AOL Video, http://video.aol.com/video-detail/dr-malik-shabazz/1916264308/?icid=VIDLRGOV07

(follow hyperlink to FoxNews). 

74 One of the more curious arguments made by the dissenting commissioners is that these uniforms would not 

have been recognized by the average voter as derivative of “the uniform of the Italian Fascist Party.” Joint 

Dissent at 184. It is wholly unclear why they consider that significant. It appears they have misunderstood a 

statement made by Bartle Bull in response to a question by Commissioner Yaki. Yaki asked, “What about the 

uniform was it that made them intimidating?” Bull replied that the uniforms—black berets, black shirts and 

jackets, military-style boots and insignia—have a history behind them. “[T]his is the way paramilitaries dressed 

in fascist Italy and Nazi Germany ...,” he said. “They wore jackboots like these gentlemen. They wore caps 

like these gentlemen. They wore uniforms with their own regalia like these gentlemen.” Commissioners Yaki 

and Melendez purport to take Bull to mean that the average American is specifically familiar with the uniform 

of the Italian Black Brigades. But that was obviously not his point, and I am surprised to have to address such 

an argument. Bull was pointing out that Americans are familiar with the traditions and practices of paramilitary 

organizations in general. Black berets have been worn not just by the Italian Black Brigades, but by Che 

Guevara, original Black Panthers Huey Newton and his colleagues, members of the Symbionese Liberation 

Army and the Provisional Irish Republican Army, and many more. Few Americans can tell you exactly what 

members of the Italian Black Brigades wore, just as few can tell you exactly whether an organization like the 

Black Beret Cadre of Bermuda even existed. But that doesn’t mean they will look at two men wearing black 

berets, military-style boots, New Black Panther Party insignia, black pants, shirts and jacket and a night stick 

and not realize that they are looking at menacing thugs emulating the dress of paramilitary and similar 

organizations of the past. Americans are not fools. No one mistook King Samir Shabazz and Jerry Jackson for 

a pair of existential philosophers on their way to sip coffee at a sidewalk café in Paris. 

Similarly, it is not clear why Commissioners Yaki and Melendez regard it as significant that these uniforms 

were not precisely uniform. Indeed, the irregularities in the uniform simply drive home the fact that these men 

were not peace officers there to maintain order at the polls. They were thugs. 

Perhaps the oddest aspect of this argument is that only two years ago, Commissioner Yaki argued that voters 

could be intimidated by DOJ poll watchers’ wearing dark suits. At a June 6, 2008 Commission briefing, 

Commissioner Yaki, who was then convinced that voter intimidation was a significant problem and that the 

Bush Justice Department wasn’t doing enough to combat it, observed that “But anecdotally, there have been 

some instances where individuals from the criminal prosecutor’s offices of Justice go out as monitors and some 

people have found them to be as intimidating, if not more intimidating, than the people who allegedly they’re 

supposed to try to keep in check, simply because I don’t know, maybe they wear the dark suits and flash a 

badge or what have you.” U.S. Commission on Civil Rights, Transcript of Briefing, 69-70 (June 6, 2008.) Yet 

DOJ lawyers’ suits also are not precisely alike. One DOJ lawyer from a pair of poll watchers might wear solid 

navy from Brooks Brothers and the other charcoal pinstripe from J. Press. It is unclear if, in the future, 

Commissioner Yaki will take these equally subtle sartorial distinctions into account when analyzing whether 

DOJ poll watchers are working together to intimidate voters. 
Statement of Commissioner Gail Heriot 159

ratified by the Party and its leader, thus clarifying that it was the conduct of the Party itself. 

Liability would thus ensue. 

 One might pause to wonder, of course, how any organization could approve and ratify 

the conduct of a man like King Samir Shabazz. This is a man who has been caught on tape at 

a Philadelphia outdoor market calling out to the crowd with a microphone, “I hate white 

people. All of them. Every last iota of a cracker I hate him. ... You want freedom? You're 

gonna have to kill some crackers. You're gonna have to kill some of their babies.” Why 

would a reputable organization be willing to tolerate such a man in its ranks? But the New 

Black Panther Party is not a reputable organization, and King Samir Shabazz is not even the 

first member of the party to be caught on video giving a murderous racist rant. Khalid Abdul 

Muhammad, national chairman of the New Black Panther Party until his death in 2001 and 

considered by some to be the father of the movement, once told a cheering crowd: 

I said if we’re going to be merciful we give ‘em [whites] 24 hours in 

South Africa to get out of town by sundown. I said if they don’t get out 

of town; we kill the men; we kill the women; we kill the children; we 

kill the babies; we kill the blind; we kill the cripple; we kill the crazy; 

we kill the faggots; we kill the lesbians; I said goddamnit, we kill ‘em 

all.75 

Sadly, it would not take a lot to convince a court that the New Black Panther Party planned, 

directed, approved and endorsed the actions of King Samir Shabazz and Jackson. 

 Some critics have suggested that Malik Zulu Shabazz and his fellow members of the 

New Black Panther Party have First Amendment rights to vent their rage against white 

people however misguided that rage may be (so long as they do it somewhere other than the 

entrance to a polling place). And so they have. But they who sow the wind must reap the 

whirlwind.76 A court of law is well within its authority to take their statements into account 

in determining whether it is more likely than not that defaulting defendants King Samir 

Shabazz and Jerry Jackson were acting as agents of the defaulting defendants New Black 

Panther Party and Malik Zulu Shabazz when they stood outside the doors of the polling place 

at 1221 Fairmount Street. The Division was not obliged by law to dismiss the case against 

the New Black Panther Party or Malik Zulu Shabazz. 

 

75 Malik Zulu Shabazz has called Khalid Abdul Muhammad “one of the greatest Black leaders ever to live” and 

“helped to shape my life and was a captain and minister over me.” Charlene Muhammad, Community Tributes 

Khallid Abdul Muhammad, FinalCall.com News (July 21, 2005), available at 

http://www.finalcall.com/artman/publish/article_2110.shtml. See also New Black Panther Party for SelfDefense: Malik Zulu Shabazz Speaks at Carnegie-Mellon University, Anti-Defamation League (February 23, 

2005) (quoting Malik Zulu Shabazz as stating that Jewish rabbis “set the stage for the African holocaust” and 

that “the very nature of white people” causes problems in the world). 

76 Hosea 8:7. 
160 Commissioner Statements 

III. The Dissenting Commissioners Apparently Do Not Claim that New Black 

Panther Party Was Not an Example of the Division’s Hostility Toward the Race-Neutral 

Law Enforcement; Rather They Attack a Straw Man by Arguing that the Case’s 

Disposition Was Not Motivated By a Desire to Support Black Supremacist Groups. 

 Another curious aspect of their dissent is its insistence that the motives of Civil 

Rights Division attorneys are inherently unknowable together with the implication that any 

investigation into those motives is therefore illegitimate. As they put it: 

Our dissent does not attempt to make definitive claims about the motives or 

actions of the United States Department of Justice ... past or present. We 

have no special insight into the hearts or minds of the people working at the 

Department.77 

 I know of no other occasion on which Commissioners Yaki and Melendez have 

shrugged their shoulders in the face of an allegation of wrongdoing and asked, “Who can 

ever know?” Indeed, my experience with them recently has been the opposite. In their Joint 

Dissent, they have been inclined to see—or at least purport to see—malicious motivations 

that do not exist. For example, they accuse unnamed witnesses (presumably Christian 

Adams and Christopher Coates) of being “disgraced and disgruntled” and out “to settle 

personal and political scores.”78 There is no evidence of this, and indeed the evidence shows 

these attorneys have particularly good records as staff members.79 Similarly, they accuse 

members of the Commission of having an “illegitimate and contemptible purpose” in 

examining the Department’s enforcement policies in connection with the New Black Panther 

Party incident.80

 As the U.S. Commission on Civil Rights, it is frequently our job to investigate 

whether executive branch agencies are executing the law in a non-discriminatory manner and 

report to Congress, the President and the American people if they are not. Indeed, our statute 

demands that we examine the enforcement of the civil rights law by agencies like the 

Department. That is not always the easiest of jobs—especially when agencies shirk their 

statutory responsibility to cooperate with the Commission’s investigation and members of the 

Commission itself attempt to thwart that investigation. But it is our job. 

 Commissioners Yaki and Melendez erect a straw man and then attack it by arguing 

that “we do not feel the need to adopt bizarre explanations that envision the Obama 

Administration doing favors for a black supremacist group.” But as the dissenting 

commissioners surely understand, no such allegation had been made in this report. The 

 

77 Joint Dissentat 177. 

78 Joint Dissentat 198 

79 Christopher Coates testified before the Commission that in 2007, he received the Civil Rights Division’s 

second highest award (the Hubble Award) for effective advocacy. U.S. Commission on Civil Rights, Transcript 

of Hearing, September 24, 2010 at 47. Coates has also received awards from the Georgia Conference of the 

NAACP and the Georgia Environmental Association. Id. at 46-7. Adams testified that he was promoted two 

weeks before he resigned from the Department and that he was at the top of the federal pay scale when he left. 

U.S. Commission on Civil Rights, Transcript of Business Meeting, July 6, 2010 at 128. 

80 Joint Dissentat 198. 
Statement of Commissioner Gail Heriot 161

allegations are that the Division does not treat Section 2 or Section 11(b) cases like Brown

and New Black Panther Party the same way they do the cases Ms. Fernandes labeled 

“traditional.” In short, the Division treats cases differently depending upon whether 

defendants are black or white. The Commission has obviously never seriously (or even notso-seriously) considered whether Assistant Attorney General Perez, Ms. Fernandes, Ms. King 

and Mr. Rosenbaum are chummy with the likes of the defendants in New Black Panther 

Party. I am confident that they do not travel in the same social circles. 

 Commissioners Yaki and Melendez also argue that this investigation and report “have 

been a tremendous waste of scarce government resources.”81 They argue that this 

investigation “was, from the very beginning, an effort to direct the resources of the 

Commission toward ... harassing the new Administration.”82 The figure they cite—

$173,000—is actually somewhat less than what the Commission has historically spent on its 

annual statutorily-required enforcement report. Admittedly, it does not include all the 

expenses that might plausibly be associated with the report. For example, it does not include 

the transportation and lodging expenses for Commissioners to meet on October 29, 2010 to 

consider this Interim Report. On that date, quorum failed because Commissioner Yaki 

refused to come in from the hallway to join the meeting and declaring it to be “not his 

problem” if the rest of the Commission could not muster a quorum. It is my hope that the 

taxpayer did not pay for his trip to Washington or indeed the cost to bring any of the 

Commissioners to Washington on that occasion. 

 All of this conduct in connection with the New Black Panther Party incident is quite 

inconsistent with Commissioner Yaki’s earlier declaration that if Deputy Assistant Attorney 

General Julie Fernandes made the statement she is alleged by Christian Adams to have made, 

she “should be fired.” As he so colorfully put it, “That person should be tossed out on their 

ear in two seconds flat.” If so, how can it be that an investigation into the matter is 

illegitimate?83

 

81 Joint Dissentat 177 

82 Joint Dissentat 198. 

83 Vice Chair Thernstrom has also argued that this investigation has been somehow illegitimate, though she 

offers little in the way of specifics. It should be noted, however, that the Vice Chair was originally in favor of 

the investigation. While she was not present at the June 12, 2009 business meeting at which the Commission 

decided to send its June 16, 2009 letter of inquiry, she and Commissioner Ashley Taylor, Jr. (who also missed 

that meeting) followed up with their own joint letter of inquiry dated June 22, 2009. In it, they concurred in the 

Commission’s original letter. Using language that was stronger than that of the Commission’s original letter, 

the Vice Chair and Commissioner Taylor wrote, “We are gravely concerned out the Civil Rights Division’s 

actions in this case and feel strongly that the dismissal of this case weakens the agency’s moral obligation to 

prevent voting rights violations, including acts of voter intimidation or voter suppression.” “We cannot 

understand the rationale for this case’s dismissal,” they continued, “and fear that it will confuse the public on 

how the Department of Justice will respond to claims of voter intimidation or voter suppression in the future.” 

For a more detailed response to the Vice Chair, see Joint Statement of Commissioners Peter Kirsanow, Gail 

Heriot and Todd Gaziano to the Vice Chair at 200-4. 
162 Commissioner Statements 

IV. The New Black Panther Case Is Not Best Seen as an Effort by Partisan 

Political Appointees Improperly to Overrule Non-Partisan Career Attorneys; Rather 

Should Be Viewed as a Struggle Between Those Who Would Enforce the Laws and the 

Constitution in Good Faith and Those Who Prefer to Pursue Instead Their Own Policy 

Preferences. 

 Both critics and defenders of the Department’s handling of the New Black Panther 

Party case seem to agree on one thing: When political appointees overrule the judgment of 

career attorneys, something is deeply wrong. The difference between them is that critics 

believe that this is exactly what happened with the New Black Panther Party case. 

Defenders, on the other hand, argue that the case is better understood as a clash between two 

sets of career attorneys, since Loretta King and Steven Rosenbaum, while Obama 

administration appointees, were originally career attorneys within the Division.84 

 Both sides have it wrong. The Constitution states that the President of the United 

States “shall take Care that the Laws be faithfully executed.”85 There is nothing in the 

Constitution about the need for his appointees to defer to the judgment of an unelected and 

unaccountable career staff. Rather, if political appointees see that career staff has run amok 

with the law and the Constitution, it is their duty to intervene.86 Policy is supposed to be set 

by political appointees; it is not supposed to be set by the staff members they supervise. If 

indeed there is a culture of hostility toward the race-neutral enforcement of civil rights laws, 

it is the duty of political appointees to root it out. 

 

 In the case of the New Black Panther Party case, the problem is not that the wrong 

persons made the decision. The problem is that the wrong decision appears to have been 

 

84 See, e.g., Statement of Assistant Attorney General Thomas E. Perez 8 (May 14, 2010). “The decisions 

regarding the disposition of the case ... ultimately was [sic] made by the career attorney who was then serving as 

the Acting Assistant Attorney General for the Civil Rights Division. Another attorney who was then serving as 

the Acting Deputy Assistant Attorney General who responsibility for supervising the Voting Section also 

participated directly in the decision-making process.” 

85 U.S. Const. art. II, sec. 3, cl. 4. 

86 In evaluating arguments between career attorneys and the political appointees who manage them, it is always 

important to remember that “career” in this context does not mean non-partisan or non-ideological. It simply 

means that the employees were hired and retained under what used to be called the “civil service” procedures, 

which among other things, forbid consideration of the employee’s political views in deciding whether to hire or 

fire. It has been my experience that career employees who inhabit policy-oriented parts of the federal 

bureaucracy, like the Division, are often highly ideological and sometimes quite partisan too. 

 

I tend to prefer the terms “partisan” and “ideological” to the more all-encompassing “political,” because I think 

they make a distinction that is worth making. A person is “partisan” if he is motivated by party loyalty and nonpartisan if he is not. A person is “ideological” if he subscribes to a set of ideas and principles, not shared by 

everyone, that drive his preferences on public policy issues in an organized and predictable manner; he is nonideological if his policy preferences are not so organized or predictable or if they are organized on the basis of 

such things as personal loyalties or antipathies or immediate self-interest. I do not mean either term as an insult; 

nor do I mean them as praise. Some ideological persons are also partisan; some are not. Some partisan persons 

are also ideological, some are not. As I use the term “ideological” and “partisan,” I do not mean impervious to 

evidence, since in my experience some are and some are not, just as some non-ideological and non-partisan 

persons are and some are not. 

 
Statement of Commissioner Gail Heriot 163

made. Nobody in the Division should be deciding which cases to bring under Section 2 or 

Section 11(b) based on the race of the defendants–not political appointees, not career 

attorneys, not anybody. 
164 Commissioner Statements

Statement of Commissioner Peter N. Kirsanow1  

Joined by Commissioner Gaziano 

The Commission’s investigation into the Department of Justice’s (“DOJ” or “the 

Department”) near-total dismissal of United States v. New Black Panther Party (“NBPP” or 

“NBPP case”)—a voter intimidation case it had essentially won—raises troubling questions 

that strike at the heart of DOJ’s fidelity to the Constitution’s equal protection guarantee. 

Specifically, does the Department’s Civil Rights Division (“CRD” or “the Division”), the 

primary entity charged with enforcing voting rights for all Americans, maintain or tolerate a 

culture in which some Americans’ voting rights are deemed more worthy of protection than 

others based on their race? Relatedly, is there a class of defendants CRD exempts from 

vigorous prosecution for voting rights violations based on those same impermissible 

considerations? If the Civil Rights Division is permeated by a culture hostile to the raceneutral enforcement of the laws, what, if any, measures have Department officials taken to 

rectify the problem? 

The Commission’s pursuit of the answers to these questions has been stymied by a 

Department that has consistently tried to cultivate the public appearance of cooperation with 

the Commission’s investigation, while engaging in a degree of stonewalling and obstruction 

inexplicable for an agency professing clean hands. We have heard compelling testimony 

from former Voting Section attorneys Christian Adams and Christopher Coates—

corroborated in part by the sworn affidavits of former Department employees,2

 along with 

press statements made by three anonymous current Department employees too afraid to 

speak publicly for fear of retribution3—of this culture of hostility. If these collective sources 

 

1

 Commissioner Gaziano and I join each other’s Statements. We also join Commissioner Heriot’s Statement. 2 See Affidavit of Karl S. “Butch” Bowers, Jr., ¶ 8 (July15, 2010) (“In my experience, there was a pervasive 

culture in the Civil Rights Division and within the Voting Rights Section of apathy, and in some cases outright 

hostility, towards race-neutral enforcement of voting rights laws among large segments of career attorneys.”), at 

http://www.usccr.gov/NBPH/BowersStatement_07-15-10.pdf; Affidavit of Hans A. Von Spakovsky, ¶ 22 (July 

15, 2010) (“While I was not at the Division at the time the New Black Panther Party case arose, I can confirm 

from my own experience as a career lawyer that there was a dominant attitude within the Division and the 

Voting Section of hostility toward the race-neutral enforcement of voting rights laws by many of the career 

lawyers and other staff.”), at http://www.usccr.gov/NBPH/vonSpakovskyAffidavit_07-15-10.pdf. 3

 Jerry Markon and Krissah Thompson, Dispute Over New Black Panthers Case Causes Deep Divisions, WASH.

POST (Oct. 22, 2010), available at 

http://www.washingtonpost.com/wpdyn/content/article/2010/10/22/AR2010102203982.html?sid=ST201010230

0136 (“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.’”).
165 Commissioner Statements

are to be believed, what emerges is the picture of a Civil Rights Division fundamentally “at 

war with its core mission.”4

 

It is against this backdrop that the Department’s reversal in the NBPP case must be 

considered. The case was solid on the merits, though not without its imperfections (not 

unusual, as far as most cases go), and no less than six career attorneys agreed that the 

Department should move forward with its request for default judgment.5 Nonetheless, the 

case was dismissed as to three of the four defendants and the sanctions requested against the 

remaining defendant were dramatically reduced. To the extent that this drastic reversal of 

course is a window into a broader culture in the Division that is unable or unwilling to 

administer voting rights laws on a race neutral basis, the case is significant indeed. 

If polled, I suspect that most Americans would agree with the proposition that while 

“the history and condition of black Americans were the impetus for the Civil Rights 

Division's creation and much of its work. . .its mission [today] extend[s] to all Americans.”6

(The same can be said of the Commission’s present-day mission). Yet our investigation has 

revealed that there are many within both the career and current political ranks at DOJ who 

hold a very different view. Observers have noted “deep divisions within the Justice 

Department that persist today over whether the agency should focus on protecting historically 

oppressed minorities or enforce the laws without regard to race.”7 It would be difficult to 

explain why the United States v. Brown and NBPP cases—the only two cases ever 

prosecuted by the Department to protect the voting rights of whites—were the source of so 

much bitter consternation within the Department’s ranks otherwise. 

For its part, if “Step One” requires admitting that it has a problem, the Department of 

Justice remains in denial. It has essentially admonished us to “pay no attention to the man 

behind the curtain.” It has refused to answer or address the specific allegations made by 

Coates, Adams and others in any meaningful way other than with blanket assurances of its 

even-handed enforcement.8

 It has also denied the Commission access to vital documents, 

 

4

 U.S. COMMISSION ON CIVIL RIGHTS, RACE NEUTRAL ENFORCEMENT OF THE LAW? DOJ AND THE NEW BLACK 

PANTHER LITIGATION: AN INTERIM REPORT 63 (2010). 5

 These attorneys included members of both the Voting and the Appellate Sections: then-Chief Christopher 

Coates, Deputy Chief Robert Popper, Christian Adams and Spencer Fisher (Voting) and Chief Diana Flynn and 

Deputy Marie McElderry (Appellate). 

6

 Testimony of Theodore M. Shaw Before the United States Senate Committee on the Judiciary, Hearing on 

The 50th Anniversary of the Civil Rights Act of1957 and its Continuing Importance (Sept. 5, 2007), available at 

http://judiciary.senate.gov/hearings/testimony.cfm?id=2885&wit_id=6632. 7

 Markon and Thompson, supra note 2. 8

 “The Civil Rights Division is firmly committed to the evenhanded application of the law, without regard to the 

race of the victims or perpetrators of unlawful behavior. Any suggestion to the contrary is simply untrue.” 

Letter from Assistant Attorney General Thomas Perez to Chairman Reynolds (Aug. 11, 2010), at 

http://www.usccr.gov/NBPH/AR-M620U_20100811_173009.pdf . Notably, Mr. Perez was not yet at DOJ at 

the time the Division made its decision to dismiss the NBPP case, and thus would have no knowledge of the 

particulars and only limited knowledge of the existence of long-term hostility to race-neutral enforcement of 

civil rights laws there. 

In an Oct. 4, 2010, press conference regarding unrelated matters, Attorney General Holder was asked about the 

Department’s commitment to the race-neutral enforcement of the civil rights laws and made a blanket assertion 

similar to that of Mr. Perez: “The notion that we are enforcing any civil rights laws—voting or others—on the 
166 Statement of Commissioner Peter N. Kirsanow 

correspondence, witnesses and other information that would have enabled us to fully 

complete this investigation. In so doing, it has deliberately tried to thwart the Commission’s 

efforts, secure in its ability to do so because of the Attorney General’s total discretion over 

whether or not to enforce Commission subpoenas coupled with the Commission’s lack of 

recourse to a neutral third party when there are disputes, even in the face of a conflict of 

interest as egregious as the one presented by this case. As a result, the Commission transmits 

this interim report to the President and Congress with limited findings and only one 

recommendation directed at addressing future, similar impasses.9 In the meantime, the 

Commission’s investigation should continue and I encourage other entities with civil rights 

oversight responsibilities to undertake formal investigative efforts as well.10 

On the merits, the Commission has gathered evidence around four principal areas of 

inquiry: (1) whether high-level political appointees within the Department of Justice have 

enunciated a policy or tolerate a practice of enforcing certain civil-rights laws in a racially 

discriminatory manner; (2) whether high-level political appointees within the Department of 

Justice have enunciated a policy or tolerate a practice of not enforcing Section 8 of the 

National Voter Registration Act; (3) whether there is pervasive hostility within the ranks of 

the Civil Rights Division toward enforcing the nation’s civil-rights laws in a color-blind 

manner; and (4) why the Department of Justice dismissed most of the claims of voter 

intimidation in the New Black Panther Party voter-intimidation lawsuit after there had been 

an entry of default in the matter. 

I. Culture of Hostility: Race-Based and Politicized Enforcement of Neutral Voting 

Rights Laws 

On September 24, 2010, over the Department’s objection, the U.S. Commission on 

Civil Rights heard the testimony of Christopher Coates, a distinguished, veteran career 

Department attorney and former Chief of the Voting Section. Mr. Coates testified to 

“systemic problems regarding race-neutral enforcement of the voting rights laws by the Civil 

Rights Division that were manifested in the DOJ’s disposition of the New Black Panther 

Party case . . . .”11 His testimony corroborates that of former Voting Section attorney J. 

 basis of race, ethnicity or gender is simply false.” Mike Levine, Holder Vows Equal Enforcement; Calls 

Allegations to Contrary Simply False, FOXNEWS.COM (Oct. 4, 2010), at 

http://politics.blogs.foxnews.com/2010/10/04/holder-vows-equal-enforcement-calls-allegations-contrarysimply-false. 9

 Some Commissioners have questioned on the record the Commission’s issuance of an interim, rather than a 

final, report. That the Commission might from time to time need to issue interim reports due to the ongoing 

nature of its investigations was an uncontroversial proposition recognized in the earliest proposals for the 

Commission’s existence. See Letter from Attorney General Herbert Brownell, Jr., to Vice President Richard M. 

Nixon and Speaker of the House Sam Rayburn (Apr. 9, 1956) (transmitting the Eisenhower Administration’s 

proposal for what would become the 1957 Civil Rights Act), at 

http://www.eisenhower.archives.gov/Research/Digital_Documents/Civil_Rights_Civil_Rights_Act/New%20PD

Fs/Cabinet_Paper_CP5648310_1956_04_01.pdf. 10 Rep. Frank Wolf, ranking member on the House Commerce-Justice-Science Appropriations subcommittee at 

the time our investigation began, appeared before the Commission to testify regarding his office’s inquiries into 

the NBPP dismissal and culture of hostility at the Department. Rep. Lamar Smith, then-ranking member on the 

House Judiciary Committee and now Chairman, has joined Mr. Wolf in doggedly pursuing the case. 
167 Commissioner Statements

Christian Adams regarding a CRD culture hostile to the color-blind enforcement of federal 

voting rights laws such as the Voting Rights Act and the National Voter Registration Act. 

Based on the subpoenaed witnesses’ testimony, offered at great professional risk to 

themselves, this culture manifested itself in various ways, including, but not limited to: career 

attorneys allegedly refusing to work on voting rights cases involving black defendants, such 

as Brown and NBPP; other Voting Rights personnel objecting to the use of departmental 

resources to bring cases against minority defendants; still others expressing the opinion that 

voting rights laws should be selectively enforced so as to only protect minorities and not 

white victims; others citing the trouble such filings created between CRD and civil rights 

groups as a reason not to do so; and still others allegedly harassing individuals who worked 

on (and, in one instance, even the mother of an employee who worked on) Brown.

12

Furthermore, Coates testified that a preliminary case-justification document he prepared in 

Brown was altered to eliminate a substantial portion of his original recommendation, which 

advocated filing the case even though it involved black defendants.13 There are also alleged 

incidents of retaliation against Mr. Coates for his willingness to bring such cases, including 

the effective stripping of his management duties as Voting Section Chief.14 

More disturbingly, the culture of hostility described by Messrs. Adams and Coates 

was apparently not limited to rank-and-file career attorneys within the Division. Rather, their 

testimony shows that the tone appears to have been set from the top, permeating the ranks of 

Civil Rights Division management. Senior career officials such as Mr. Rosenbaum and Ms. 

King (who at the time of the NBPP case dismissal served in political positions pursuant to the 

Vacancies Reform Act), and later, political appointees such as Deputy Assistant Attorney 

General for Civil Rights Julie Fernandes all allegedly held, and in some notable cases, 

actually expressed hostility towards race-neutral enforcement of civil rights laws.15

The uncontroverted testimony of J. Christian Adams is that Ms. Fernandes gave 

instructions that the Voting Rights Section was not going to bring cases “against black 

 11 Transcript, Testimony of Christopher Coates, Hearing of the United States Commission on Civil Rights at 10 

(Sept. 24, 2010), http://www.usccr.gov/NBPH/09-24-2010_NBPPhearing.pdf (hereinafter “Testimony of 

Christopher Coates”). 

12 U.S. COMMISSION ON CIVIL RIGHTS, RACE NEUTRAL ENFORCEMENT OF THE LAW? DOJ AND THE NEW BLACK 

PANTHER LITIGATION: AN INTERIM REPORT 52-54 (2010). 13 Testimony of Christopher Coates, supra note 10 at 15; see also Affidavit of Hans A. Von Spakovsky, ¶¶ 17-

19, supra note 1. 14 Testimony of Christopher Coates at 48-49, 64; see also, Transcript, Testimony of J. Christian Adams, 

Hearing of the U.S. Commission on Civil Rights at 41-43 (July 6, 2010), at http://www.usccr.gov/NBPH/07-06-

2010_NBPPhearing.pdf. 

15 Ms. Fernandes joined the Civil Rights Division after Brown and NBPP were concluded, but was a harsh critic 

of race-neutral enforcement of the laws before assuming her current post there. For example, she made public 

statements while employed by the Leadership Conference on Civil Rights in the wake of the Department’s 

decision to file Brown that align her with those who share racialist sentiments about the Department’s core 

mission. See Steven Rosenfeld, Is the Justice Department Conducting Latino Outreach by the GOP? Alternet, 

Oct. 22, 2007, at http://www.alternet.org/rights/65749/?page=entire (last visited Oct. 5, 2010)). (“People are 

wondering why aren't you bring cases with voting and African-Americans–what is the issue,’ said Julie 

Fernandes of the Leadership Conference on Civil Rights. ‘How can it be that the biggest case involving 

discrimination in Mississippi [United States v. Ike Brown and Noxubee County] was brought on behalf of white 

voters. . . .The law was written to protect black people.’”). 
168 Statement of Commissioner Peter N. Kirsanow 

defendants on the benefit of white victims.”16 As the number two official in the Civil Rights 

Division with oversight responsibility over the Voting Section, Ms. Fernandes’ statements 

would have been understood as an expression of Department policy by rank-and-file 

attorneys within the Section regarding DOJ’s civil rights enforcement approach. 

Messrs. Adams and Coates both testified that they understood Ms. Fernandes’ alleged 

directive to be instituting a policy in conflict with the equal enforcement of the nation’s civil 

rights laws. For example, Mr. Coates testified that in September 2009, Ms. Fernandes held a 

meeting to discuss enforcement of the anti-discrimination provisions of Section 2 of the 

Voting Rights Act at which she allegedly told those assembled that “the Obama 

administration was only interested in bringing traditional types of Section 2 cases that would 

provide equality for racial and language minority voters. And then she went on to say that ‘this 

is what we are all about’ or words to that effect.”17 

Mr. Coates testified that everyone in the room “understood exactly what she meant: no 

more cases like Ike Brown and no more cases like the New Black Panther Party case.”18 He 

testified further that she reiterated that directive in another, similar meeting in December 2009 

regarding federal observer election coverage, during which she stated that the “Voting Section’s 

goal was to ensure equal access for voters of color or language minorit[ies]” without reference 

to or emphasis on its obligations to ensure equal access for all voters.19 Adams, Coates and 

others within the Voting Section understood this directive to mean that cases would not be 

brought by the Civil Rights Division against black defendants for the benefit of white victims.20 

If such a directive were in place at the Department, it would mean that factors other than the 

facts and the law (which Mr. Perez testified is what dictated the NBPP reversal) are at play 

when the Department decides whether and how to enforce certain civil rights laws—

impermissible factors like the race of the defendants or victims. 

Even Commissioner Yaki, who has been a persistent critic of this investigation, admitted 

that if such statements were made, they would be grounds for Fernandes’s immediate 

dismissal.21 Racialist sentiments like those attributed to Fernandes demonstrate a deeply flawed 

understanding of the Voting Rights Act, whose plain language protects all American voters, not 

just members of minority groups. Nor can the application of race-neutral statutes in a colorconscious fashion credibly be said to fall within the Department leadership’s discretion over 

policy, priority-setting and resource allocation. Once CRD commits resources for a specific 

enforcement purpose—ensuring “equal access” to the ballot, for example—it treads on 

constitutionally treacherous ground where it identifies the beneficiaries of its enforcement 

efforts on the basis of race. To put it differently, it cannot announce or engage in a policy of 

pursuing meritorious voter intimidation cases, but only where black or other minority voters are 

targets of the intimidation. It similarly cannot rule out prosecuting an entire class of potential 

defendants on the basis of their race. Our Constitution forbids this type of gross, race-based 

 

16 Testimony of J. Christian Adams, supra note 13 at 61-63. 17 Testimony of Christopher Coates at 32. 

18 Id. 19 Id. at 33. 20 Id. at 129-131. 21 Testimony of J. Christian Adams, supra note 13 at 59. 
169 Commissioner Statements

meting out of benefits and burdens. Historic grievances and the lingering effects of past 

discrimination do not vitiate this basic principle. Racialist applications of the Department’s 

prosecutorial discretion are likely to corrode the public trust and deepen, rather than lessen, 

perceived racial divides. 

When Assistant Attorney General Thomas Perez appeared before the Commission in 

May 2010, he was asked whether he would investigate charges that supervising attorneys or 

political appointees in the Civil Rights Division made statements indicating that the 

Administration should not or would not bring voting rights cases for the protection of white 

voters or against blacks or other minorities because of their race.22 He stated that if the 

Commission had such a statement it should “bring such a statement to [the Department’s] 

attention.”23 

After Mr. Adams’ testimony, Chairman Reynolds sent a letter to Mr. Perez regarding 

the alleged statements, inquiring about whether the Department would investigate whether 

Mr. Adams’ allegations were accurate and requesting the testimony of Mr. Coates.24 In Mr. 

Perez’s subsequent response, he failed to address any of the Commission’s questions with 

respect to Ms. Fernandes’ alleged statements.25 Following that exchange, Mr. Coates came 

forward and testified to the same statements having been made by Ms. Fernandes—

statements made pursuant to a directive she conveyed to members of the Voting Section that 

the race of violators and victims is an appropriate consideration in the Division’s 

enforcement decisions. 

The uncontroverted testimony of Messrs. Coates and Adams also identify Ms. 

Fernandes as having explicitly told a brown-bag lunch gathering of the entire Voting Section 

that the administration would not enforce the list maintenance provisions of Section 8 of the 

National Voter Registration Act (“NVRA”).26 The purpose of Section 8 is two-fold: its listmaintenance provisions place an affirmative duty on jurisdictions to ensure that persons 

ineligible to vote in the jurisdiction no longer appear on its rolls (for example, those who 

have died) and its notice provisions set forth certain notice requirements that are to be 

followed by the jurisdiction in order to legally remove persons from its voter registration list. 

During the Bush Administration, the Division had begun filing suits in states with 

jurisdictions maintaining voter registration lists with more names than actual, eligible voters 

in those jurisdictions and that had not scrubbed their roles in many years. When the Election 

Assistance Commission in 2009 identified eight states in which no voters had been removed 

from the rolls in over two years, an indicator of problems with the states’ voter registration 

 

22 Transcript, Testimony of Thomas Perez, Hearing of the U.S. Commission on Civil Rights 37, 63-64 (May 14, 

2010), at http://www.usccr.gov/NBPH/05-14-2010_NBPPhearing.pdf. 23 Id. at 64. 24 Letter from Chairman Gerald A. Reynolds to Assistant Attorney General for Civil Rights Thomas Perez (July 

14, 2010), at http://www.usccr.gov/NBPH/GARtoTP_07-14-10.pdf. 25 Letter from Assistant Attorney General for Civil Rights Thomas Perez to Chairman Gerald A. Reynolds 

(Aug. 11, 2010), at http://www.usccr.gov/NBPH/AR-M620U_20100811_173009.pdf. 26 Fernandes was heard saying, “We have no interest in enforcing this provision of the law. It has nothing to do 

with increasing turnout, and we are just not going to do it.” Testimony of Christian Adams at 64; see also 

Testimony of Christopher Coates at 33-35. 
170 Statement of Commissioner Peter N. Kirsanow 

list maintenance efforts according to Mr. Coates, he sought permission from the Department 

to conduct investigations in those states. He never received it, nor was permission granted for 

such investigations after he left his post as Voting Section Chief. He attributes that fact to 

Ms. Fernandes’s directive having been followed.27 In fact, the new Division authorities 

dropped a solid case—United States v. Missouri28—filed under the Bush Administration to 

enforce such list maintenance provisions against the habitually non-compliant state of 

Missouri. As Commissioner Heriot similarly notes in her concurring statement, if the dual 

purpose of the NVRA is to increase turnout (a priority typically emphasized by Democrats) 

while also requiring jurisdictions to maintain accurate rolls to prevent the opportunity for 

voter fraud (a priority typically emphasized by Republicans), it seems the Division under 

new leadership was not terribly concerned with the latter. By severing these provisions from 

one another, once-neutral enforcement of the NVRA becomes enforcement (or nonenforcement, as in this case) targeted for partisan advantage. 

 

The Department declined to allow Ms. Fernandes to answer questions about these 

allegations herself when it ultimately refused to honor the Commission’s subpoena for her 

appearance.29 For her part, when asked directly by reporters, Ms. Fernandes declined to 

comment.30 Because the Department has never acknowledged the statements attributed to 

Ms. Fernandes and has not released her to testify, the Commission lacks even basic 

information as to whether the Department conducted any investigation into the matter. 

Likewise, if Ms. Fernandes did make the statements attributed to her, the Commission has no 

knowledge of any steps taken by the Department to ensure that members of the Civil Rights 

Division do not operate under the impression that the race of violators or victims is a 

permissible factor in determining whether it should investigate or bring civil rights cases or 

that the Division is entitled to exercise its prosecutorial discretion in a way that abuses the 

intent of Congress by not enforcing carefully crafted laws like the NVRA aimed at carefully 

balancing partisan interests. 

II. The Department’s Questionable Dismissal of the Meritorious New Black 

Panther Party Case 

The Commission’s interim report chronicles in detail the 2008 Philadelphia polling 

place incident wherein two men dressed in paramilitary garb, one of them brandishing a night 

stick, positioned themselves at the entrance to a polling place shouting racial slurs at various 

individuals. The individual with the billy club (King Samir Shabazz) tapped it in his hand 

 

27 Testimony of Christopher Coates, supra note 10, at 36. 28 535 F.3d 844 (8th Cir. 2008). 

29 In a letter dated November 12, 2010, the Department claimed it was prepared to offer the testimony of Julie 

Fernandes, Loretta King, and Steven Rosenbaum, but with limitations and on conditions that would have 

rendered such testimony meaningless to the Commission’s investigation. Letter from Jody H. Hunt to David 

Blackwood (Nov. 12, 2010) (on file with the Commission, Office of the General Counsel). The Department 

subsequently withdrew its offer to have the witnesses testify. 30 When Washington Post reporter Jerry Markon asked the Justice Department several times if Fernandes made 

the comments attributed to her, its response to him, which he noted did not actually answer the question, was to 

say that “its policy is to enforce the laws equally, without regard to race.” When asked directly, Markon noted, 

Ms. Fernandes declined to comment. Jerry Markon and Krissah Thompson, New Black Panthers case: Voter 

intimidation at Philadelphia voting location in 2008, Live Q & A, Wash. Post, at

http://live.washingtonpost.com/black-panther-party-10-22-10.html. 
171 Commissioner Statements

menacingly, according to eyewitnesses. The men were members of the New Black Panther 

Party for Self Defense—a recognized racial separatist hate group. During the waning days of 

the Bush Administration, the Civil Rights Division’s Voting Section filed a civil suit in the 

case against the two men, the Chairman of the New Black Panther Party, and the Party itself 

for violations of Section 11(b) of the Voting Rights Act, which prohibits voter intimidation 

and attempted voter intimidation. The defendants in the case failed to appear to defend 

themselves, essentially admitting liability. Despite the court’s entry of a default in DOJ’s 

favor, in May 2009 the Department, under new management as the result of the 2008 

presidential election, abruptly reversed course in the case. It dismissed the charges against all 

but one of the defendants and as to the remaining defendant, significantly weakened the 

original sanctions it sought against him. In its notice of dismissal, it cited as its rationale only 

that the defendants failed to appear and respond.31

Unlike other instances of intimidation or attempted intimidation, this incident was 

captured on videotape. It was broadcast widely on Election Day and in the days following by 

various media outlets. A quick look at just one of the numerous You Tube entries featuring 

this video shows that it has been viewed well over a million and a half million times. Since 

CRD is the primary entity charged with enforcing voting rights laws, including prohibitions 

against voter intimidation, one might expect the Department to swiftly address such a highlyvisible affront to the sanctity of the polling place. Part of its goal in doing so would be to 

foster broader compliance with the voting rights laws. Instead, it did exactly the opposite. 

The highly visible nature of the incidents giving rise to the case, the Department’s 

curious and sudden reversal, the timing of the reversal, and the case’s relationship to the 

Commission’s core function of appraising federal laws and policies with respect to voting 

rights, caused it to pique this Commission’s curiosity. We were concerned at the outset—and 

most of us remain so—about the signal the Department’s treatment of the NBPP case might 

send to future would-be violators. Most of us assumed that the Department had either come 

across additional evidence that warranted the case’s near-total dismissal that it would share 

with us or that it would reconsider its position and re-file the case against all four defendants 

in response to our inquiries. 

We could not have been more wrong. Instead, what the Commission got in response 

to its initial letters was a series of shifting and odd rationales for why the reversal had 

occurred and subsequently why it would not provide the information the Commission 

requested to get at the legal and policy standards it applied in reversing course. The 

Department’s public rationale was that it pursued the course that it had because the 

defendants failed to respond to the lawsuit. In a response to one of the Commission’s early 

letters of inquiry, it then claimed that the “facts and the law” supported its dismissal. But in 

my questioning of Mr. Perez, he admitted that the Department adduced no new facts in the 

 

31 In our earliest letters of inquiry to then Acting Assistant Attorney General for Civil Rights, Loretta King, we 

noted the peculiarity of this rationale and its tendency to send the wrong message entirely to would-be violators 

“that attempts at voter suppression will be tolerated so long as the groups or individuals who engage in them fail 

to respond to the charges leveled against them.” Furthermore, we were troubled by the fact that the rationale 

would “equally support dismissal of all claims in this case, not just the dismissal against some defendants.” U.S. 

Commission on Civil Rights Letter to Loretta King (Jun. 16, 2010), at 

http://www.usccr.gov/correspd/VoterIntimidation2008LetterDoJ.pdf. 
172 Statement of Commissioner Peter N. Kirsanow 

case between the time it notified defendants that it would file a motion for default judgment 

and when it then filed for an extension of time with the court to do so, only to voluntarily 

dismiss most of the case. 

The “facts and the law” cited to justify the reversal included the following: (1) that it 

might be difficult to win a motion for default judgment in the case; (2) that the Department 

did not have a robust history of utilizing Section 11(b) of the voting rights act before; (3) that 

defendants had significant First Amendment interests that needed to be balanced against the 

Department’s interest in enforcing the voting rights laws; (4) that any calls by the NBPP for 

its members to appear at the polls were not accompanied by directives for them to appear at 

those polls armed; (5) that the Party’s post hoc denunciation of its members’ conduct was 

sufficiently indicative of the Party’s lack of complicity; (6) that Mr. Jackson—whose conduct 

differed from billy club-wielding King Samir Shabazz’s only in that he did not carry a 

weapon—was a resident of the building wherein the polling place was located and so was 

entitled to be there (an assertion that turned out to be false—he did not live at the assisted 

living facility that was the site of the polling place); and (7) that the local police who 

responded to complaints about the presence of the NBPP members at the polling place 

permitted Mr. Jackson to remain at the polling location because he was a credentialed 

Democrat party poll watcher. One or more of these talking points has been repeated by 

members of the press, defenders of the Department’s actions, and sadly, some members of 

our own Commission, to justify the Department’s reversal. 

Each of these defenses fails upon closer scrutiny and I direct readers to the concurring 

statement of Commissioner Heriot, in which I join, where she eviscerates some of the most 

egregious. Equally ineffective are suggestions that there is no evidence that voters were 

turned away from the polls. Commissioner Heriot addresses this point effectively as well, so 

I note only the obvious point that the Commission heard testimony from eyewitness 

Christopher Hill that directly contradicts this assertion. Again, even Commissioner Yaki, this 

investigation’s fiercest critic, concedes that intimidation likely occurred. 

After the dust settles, we are left with the impression that the NBPP dismissal was 

about something more than “career people disagreeing with career people,” despite what Mr. 

Perez claimed. Former Acting Associate Attorney General Greg Katsas testified that the 

political leadership of the Department would have to have been consulted in the case of such 

a dramatic reversal, especially given the change in presidential administrations, which would 

have raised significant institutional interests for DOJ: 

In contrast [to the decision to bring the case], the decision at the end of the 

case would have been anything but straightforward. They amounted to 

nothing less than a decision by DOJ, following a change in presidential 

administrations, to reverse legal positions asserted in a pending case. Such 

reversals are extremely rare—and for good reason: they inevitably undermine 

DOJ’s credibility with the courts, and they inevitably raise suspicion that 

DOJ’s litigating positions may be influenced by political considerations. 

Accordingly, while a new Administration obviously has wide discretion to 

change its enforcement priorities and even its litigating positions in new cases, 
173 Commissioner Statements

it is extremely rare for DOJ to shift course so dramatically in the course of a 

pending case.32

I agree with Commissioner Heriot that the involvement of political appointees in the 

ultimate disposition of this case is not in and of itself the issue, though I do find it curious 

that in his testimony before the Commission, Mr. Perez seems to have gone to great lengths 

to attribute the decision to career people without acknowledging the role of high-level 

political appointees in the decision-making.33 

What is problematic is that after dispensing with all of the non-credible explanations 

proffered for why the case was dismissed, the only plausible explanation pointed to by the 

evidence is the culture of hostility to the race-neutral enforcement of civil rights laws alleged 

by Adams, Coates and others. If this is not the case, the Department would have every 

motive to cooperate fully with this Commission’s investigation. Instead, it has sought to 

thwart it at multiple turns. 

III. Stonewalling of the Commission’s Investigation by the Department of Justice 

Both the interim report and Commissioner Gaziano’s concurring statement, in which I 

join, have done a thorough job of chronicling the extraordinary lengths to which the 

Department has gone in withholding vital information from the Commission in hindrance of 

its investigation and in violation of the Congress command that it “cooperate fully” with the 

Commission. I will not recount all those circumstances here, except to note some of the many 

times where the Commission sought in good faith to find common ground with the 

Department over the discovery disputes and was met with bad faith in return. 

For example, the Department prevented subpoenaed officials from appearing for their 

depositions and hearings even though it had previously supplied witnesses to the 

Commission in other voting rights related hearings.34 Over a two month period, it refused no 

less than five separate requests regarding whether it would release Department personnel to 

testify with regard to the New Black Panther Party litigation saying only that it would 

“continue[] to evaluate the Commission’s requests.”35 It instructed Coates and Adams that it 

would not enforce the Commission’s lawful subpoenas against them and repeatedly directed 

them not to testify. After a significant delay, it then declined to appoint a special counsel to 

enforce the Commission’s subpoena request, despite its obvious conflicts of interest. 

 

32 Prepared Testimony of Gregory Katsas, Hearing of the U.S. Commission on Civil Rights (Apr. 23, 2010), at 

http://www.usccr.gov/NBPH/Katsas_04-23-2010.pdf. 33 The privilege log obtained of Department communications related to this case by Judicial Watch show its 

political appointees heavily involved in discussions surrounding the ultimate disposition of this case. 34 See Briefing of the U.S. Commission on Civil Rights, DOJ Voting Rights Enforcement for 2008 US 

Presidential Election (Jun. 6, 2008) (Mr. Coates, then-Acting Voting Section Chief, was permitted to appear 

before the Commission to discuss the Voting Section’s preparations to ensure adequate election monitoring 

during the 2008 election cycle.). 

35 See Letter from David Blackwood to Joseph H. Hunt at 2 (Mar. 13, 2010), http://www.usccr.gov/correspd/03-

30-10_DOJ-NPPP.pdf. 
174 Statement of Commissioner Peter N. Kirsanow 

Furthermore, it maintained its refusal to allow Coates to testify even when the 

Commission took specific steps to try to accommodate some of its deliberative process 

privilege concerns. For example, the Commissione offered to limit its examination of 

subpoenaed witnesses to matters unrelated to NBPP case deliberation, i.e., whether highlevel political appointees within the Department of Justice have enunciated a policy or 

tolerate a practice of enforcing certain civil rights laws in a racially discriminatory manner; 

whether high-level political appointees within the Department of Justice have enunciated a 

policy or tolerated a practice of not enforcing Section 8 of the NVRA; and whether there is 

pervasive hostility within the ranks of the Civil Rights Division toward enforcing the nation’s 

civil rights laws in a color-blind manner. None of these matters is privileged. Again, the 

Department refused to fulfill its statutory obligations to cooperate with the Commission’s 

investigation and produce the requested witnesses able to testify about these matters. Adams 

and Coates decided to testify despite the risk to their careers in order to correct inaccuracies 

in the testimony of Mr. Perez.36 Mr. Adams resigned from the Department to do so. 

When Commission staff offered to meet with Department personnel to discuss other 

possible discovery concerns so as to avoid extensive discovery delays over possible claims of 

privilege, the Department rebuffed the effort, with no such meeting ever taking place. Having 

rejected the opportunity to meet, the Department refused to provide any substantive response 

to the Commission’s discovery requests relating to the New Black Panther Party litigation. It 

refused to identify the specific nature of the privileges it asserted and failed to provide the 

Commission with a requested log of items withheld, although it ultimately provided a similar 

log to Judicial Watch pursuant to a private lawsuit filed by the group. The Commission had 

to obtain that log from Judicial Watch, since the Department refused to provide it even after 

having turned it over in the private litigation. 

IV. Conclusion 

 

The United States Commission on Civil Rights and the Division are statutory cousins, 

tracing their beginnings to the same source—the Civil Rights Act of 1957. The central thrust 

of that Act was voting—it prohibited any interference with any individual’s right to vote in a 

federal election, regardless of whether such interference was motivated by race or committed 

under the color of law—and it was adopted in the face of massive resistance in certain areas 

of the country to the promise of the Fifteenth Amendment. In furtherance of eliminating such 

impediments to the vote, the 1957 Act conferred on the Department of Justice, through the 

newly-created Civil Rights Division, the enforcement authority to seek injunctive relief from 

 

36 Transcript, Testimony of Christopher Coates at 9-10 (“Based upon my own personal knowledge of the events 

surrounding the Division's actions in the Panther case, and the atmosphere that has existed and continues to 

exist in the Division and in the Voting Section against fair enforcement of certain federal voting laws, I do not 

believe these [Perez’s] representations to this Commission accurately reflect what occurred in the Panther case 

and do not reflect the hostile atmosphere that has existed within the Division for a long time against race-neutral 

enforcement of the Voting Rights Act”). Mr. Coates then noted that while he does not believe that Mr. Perez 

knowingly provided false testimony, Mr. Perez was not present in the Division at the disposition of the NBPP 

case and might not yet be fully aware of the long-term hostility to race-neutral enforcement within the Division. 

Id. 
175 Commissioner Statements

federal courts to prevent race discrimination in voting by both private individuals and voting 

authorities. 

The right to vote free of interference, intimidation and coercion was perceived as a 

fundamental right that, once vindicated, would serve as the building block by which other 

rights could be secured. Voting rights thus lie at the very core of both the Division and 

Commission’s historic mandates. In fact, data gathered by the Commission, in its earliest 

hearings in Alabama formed the basis for the Voting Rights Act of 1965, which included the 

voter intimidation provision—Section 11(b)—at the center of the New Black Panther Party 

case. The Division used its authority to seek injunctive relief as a powerful means of 

enforcing that Act. That the Department would decide to shy away from its distinguished 

history simply because the NBPP case involved New Black Panthers and not Klansmen 

seems to me a betrayal of that history and a decision fundamentally at odds with the spirit of 

the times in which the Division was founded, where color-blindness was a critical first 

principle. 

Appraising federal laws and policies with respect to the equal administration of 

justice is also a part of the Commission’s statutory charge.37 From time to time, the 

Commission has had to exercise its responsibility as the “conscience of the nation” to prod 

enforcement entities like the Department to acknowledge where there are serious problems 

within its ranks that threaten its constitutional obligation to administer justice equally and 

without regard to factors like race. The evidence adduced by the Commission in its 

investigation thus far point to a culture within the Department hostile to the race-neutral 

enforcement of voting rights laws and the NBPP case dismissal appears, regrettably, to be a 

symptom of that broader culture.

 

37 42 U.S.C. § 1975a(a)(2)(B) (“The Commission shall make appraisals of the laws and policies of the Federal 

Government with respect to discrimination or denials of equal protection of the laws under the Constitution of 

the United States because of color, race, religion, sex, age, disability, or national origin, or in the administration 

of justice.”). 
176 Commissioner Statements

B. DISSENTS

Statement of Vice Chair Abigail Thernstrom

New Black Panther Party Report: 

Dissent of Vice Chair Abigail Thernstrom 

December 19, 2010 

 

I cannot support the majority report on the New Black Panther Party investigation. 

This investigation lacked political and intellectual integrity from the outset, and has been 

consistently undermined by the imbalance between the gravity of the allegations and the 

strength of the evidence available to support such charges. Some commissioners offered 

serious, principled critiques of the process, and questioned the evidentiary record. Their 

views were contemptuously ignored by the commission's majority. 

The majority charges that racial double standards govern the enforcement of the Voting 

Rights Act in the Holder Justice Department. If that can be convincingly demonstrated, it will 

be a grave indictment of this administration. 

But that evidentiary showing awaits further investigation by the Department of Justice and 

Congress. I applaud that investigation, and hope that it will shed more light on this important 

question than the tendentious report provided by the commission’s majority. 

***
Commissioner Statements 177

Commissioner Arlan Melendez and Commissioner Michael Yaki

Regarding 

Race-Neutral Enforcement of the Law? 

Department of Justice and the New Black Panther Party 

An Interim Report 

December 12, 2010 

INTRODUCTION: 

The Commission’s investigation into, and this Report concerning, the New Black Panther 

Party (“NBPP”) have been a tremendous waste of scarce government resources. They have 

wasted our own resources at the Commission1

 but those of the Department of Justice as well. 

In addition to squandering time, money and attention, the majority has further squandered the 

reputation of the United States Commission on Civil Rights as it spent more than a year on 

an Ahab-like quest to hobble the Obama Administration2 and to attempt to rehabilitate the 

disgraced record of the previous Administration’s Department of Justice. 

Our dissent does not attempt to make definitive claims about the motives or actions of the 

United States Department of Justice (“Department”) past or present. We have no special 

insight into the hearts or minds of the people working at the Department. Where we differ 

from our colleagues is that we did not enter into this investigation having already made up 

our minds that there was wrong-doing by the Department. Therefore, we did not interpret all 

evidence in light of any foregone conclusions or ignore any evidence that flatly contradicted 

any conclusions. 

We cannot prove, and do not bother to try to prove, that the Obama Administration is not 

rife with covert NBPP sympathizers. Since there are reasonable explanations for the 

Department’s actions, we do not feel the need to adopt bizarre explanations that envision the 

Obama Administration doing favors for a black-supremacist group.3

 It will suffice for us to 

detail and explain the short-comings with the original case, as well as short-comings in how 

the case and the broader issue of civil rights enforcement were discussed in the Commission 

hearings and in this Report. It is in this light that our comments such as, “X should have been 

called as a witness,” should be read. Since we did not approve of the investigation at all, we 

 

1

Ryan J. Reilly, Conservative Civil Rights Commission Spent $173K Exclusively On Black Panther Query, 

TPMMUCKRAKER, Oct. 25, 2010. The figure cited in the article underestimated the cost to the Commission on 

account of Commissioner and Commissioner Assistant salaries not being included. 2

 Ben Smith, A Conservative Dismisses Right-wing Black Panther 'Fantasies', POLITICO, Jul 19, 2010, (“My 

fellow conservatives on the commission had this wild notion they could bring Eric Holder down and really 

damage the president.”) available at http://www.politico.com/news/stories/0710/39861.html 3

J. Christian Adams, Pigford and New Black Panthers: Friends at DOJ, Dec. 2, 2010. (“Did Perrelli’s zeal to 

have the case dismissed have anything to do with the New Black Panther’s endorsement of candidate Obama 

during the primaries?”) available at

http://biggovernment.com/jcadams/2010/12/02/pigford-and-new-black-panthers-friends-at-doj/
178 Commissioner Statements 

would rather that no witnesses had been called. However, since an investigation was going to 

be done over our objections, it should have been done in a fair. thorough, and impartial 

manner. 

Our dissent should also not be read as a defense of the NBPP. The NBPP is a hate group 

whose views are as ugly as they are outlandish. We would not even bother to include this 

disclaimer were it not for the fact that a good deal of this Report relies on sources who 

maintain absurd beliefs in the out-sized significance and influence4 of what is in reality a tiny 

fringe group. Among the many ironies surrounding this NBPP hullabaloo is the fact that the 

NBPP’s exaggerated sense of its own importance (or menace) and its conspiracy theory 

mentality is matched (or even exceeded) by the Commission’s majority and its ideological 

allies in the news media and in government. A further irony is the fact that, but for the 

constant promotion of this partisan investigation by FOX News and the USCCR, the NBPP 

might well have vanished into even further obscurity these last two years. We must posit that 

the USCCR majority has given the NBPP more media attention than it ever could have 

garnered or purchased on its own. 

I. The Philadelphia Incident 

Byman & Fischetti 

Despite the presence of a videographer and multiple eye-witnesses, the details of what 

actually took place at the polling place at 1221 Fairmont Street in Philadelphia on Election 

Day 2008 remain unclear to this day. The original Justification Memo (“J Memo”) sketches 

out a rough account of the events. Roving Republican poll monitor Wayne Byman was 

apparently the first person to note the presence of the NBPP members outside the polling 

place.5

 The J Memo suggests that Mr. Byman did not speak to the NBPP members, but 

merely reported their presence to another Republican poll watcher, Joe Fischetti.6 

We were unable to question Mr. Byman about his experiences on Election Day 2008 

because he was neither deposed nor called as a witness at a Commission hearing. We believe 

this to be at odds with the Report’s claim that, “[t]he Commission attempted to interview and 

take the deposition of as many people as it could locate who were identified as having been 

 

4

Christian Adams “Friends in High Places” http://biggovernment.com/jcadams/2010/12/02/pigford-and-newblack-panthers-friends-at-doj/

5

12-22-08 J Memo, p. 5. 

6

 In his questioning of Larry Counts, General Counsel Blackwood mentions a conversation he, Mr. Blackwood, 

may have had with Mr. Byman, in which the latter claims to have spoken to Mr. Counts. Larry Counts 

Deposition, p. 18. In a series of email exchanges prior to the drafting of the J. Memo, Christian Adams 

expresses the importance to the case of finding an African-American poll-worker who was harassed, as well as 

his inability to find any. He mentions believing that he thought he knew someone who was an AfricanAmerican Republican who had been harassed by the NBPP, but having interviewed that person he was 

mistaken. It seems likely that the person Mr. Adams spoke to was Wayne Byman. See, DoJ Doc. Request #29, 

p. 144-45. ("Under the Statute, a black poll watcher for you being abused or insulted is critical, and thus far, I 

don't have one. I thought it was [redacted], but we interviewed him and it wasn't.") Since we have no record of 

any conversations with Mr. Byman and the account of his contact with the Counts is at odds with both the Mr. 

Adams’s e-mails, the J. Memo’s account and Mr. Counts’s sworn statement, we can only repeat that it is 

unfortunate that the Commission did not see fit to call Mr. Byman as a witness. 
179 Commissioner Statements

at the polling site.”7 Unfortunately, Mr. Byman was not the only person who was clearly 

identified as having been at the polling site whom the Commission failed to use as a witness 

for this Report. 

The J Memo notes that Joe Fischetti was the next Republican poll watcher to arrive on 

the scene.8 According to the J. Memo Mr. Fischetti saw the Panthers and also spoke to Larry 

and Angela Counts, whom he identified as Republican poll watchers. According to the J 

Memo, the Countses expressed their fear of the Panthers to Mr. Fischetti. Also according to 

the J Memo, Mr. Fischetti claimed that the Countses were hiding inside the polling place out 

of fear of the Panthers. 

We cannot confirm whether the J Memo accurately reflects Mr. Fischetti’s account or 

even whether Mr. Fischetti’s account accurately reflects the events that took place. This is 

because the Commission also failed to depose Mr. Fischetti or call him as a witness to one of 

the Commission hearings. The J Memo merely states in a cursory manner that Justice 

Department employees subsequently questioned the Counts and that the answers given in this 

subsequent interview corroborated Mr. Fischetti’s account. As this Report notes, the account 

of events in the J Memo differs sharply with the account of events described in the 

Commission’s depositions of Mr. and Mrs. Counts.9

 

Angela & Larry Counts 

This Report infers that the discrepancy between the J Memo’s account and the sworn 

statements that the Counts made to the Commission were due to the Countses' persisting fear 

of the NBPP. We cannot say whether this is the case or not. We wish only to note other 

outstanding issues regarding the differing stories about the Counts’ experiences on Election 

Day. 

The first issue is that the DoJ employees who interviewed the Countses, J. Christian 

Adams and Spencer Fischer, failed to learn that the Countses were not actually Republicans, 

but were in fact registered Democrats.10 Their purpose for working as poll watchers for the 

Republicans was not political or ideological, but rather that it was an easy job for which each 

would be paid $200 (plus some free meals) for remaining inside the polling place for the 

entire day. The failure on the part of the litigation team to uncover this very basic and 

significant fact about Mr. and Mrs. Counts is perhaps the result of the rushed nature of the 

trial team’s investigation, which we will discuss at greater length later. Furthermore, the 

actual Party status of Mr. and Mrs. Counts raises doubts about the narrative that the trial team 

and some of its witnesses provided.11 

 

7

 Report, p. 11. 

8

 12-22-08 J. Memo, p. 5. 

9

 Report, p. 10-11. 

10 Angela Counts Deposition, p. 4; Larry Counts Deposition, p. 5-6. 

11 In the exchange of emails noted above, Mr. Adams repeatedly stresses how crucial it was for him to 

substantiate rumors that the NBPP harassed a Republican poll worker or workers and called him/them “race 

traitor(s).” See, supra note 6 ("Under the Statute, a black poll watcher for you [Mike Roman, a Republican 

political consultant] being abused or insulted is critical, and thus far, I don't have one") The vagueness in the 
180 Commissioner Statements 

 Another is issue is how, when, or even whether, the NBPP might have had contact 

with the Countses. In none of the documents available to the Commission is a time of arrival 

for the NBPP members even proposed (much less confirmed).12 According to Mrs. Counts' 

deposition, she and her husband arrived at 6:00 a.m. and no one, was at the polls, including 

the NBPP members.13 The Countses testified that from that point on, until the end of the day, 

they remained inside the building. No witness has reported seeing the Countses outside of the 

building, nor did any witness allege that either of the NBPP members entered the polling 

place. 

While it is true that some witnesses have alleged that the Countses were frightened by 

the NBPP members, none of these witnesses have provided an account of when and how the 

Countses supposedly were threatened. The J Memo’s account of the interview of the 

Countses does not make it clear whether the Countses theoretically were afraid of the NBPP 

because they themselves were threatened by the NBPP members, or whether they were 

concerned about the alleged threat of white supremacists, or whether they thought that the 

NBPP members might cause some sort of disturbance into which the Countses might be 

inadvertently drawn. Inasmuch as the DoJ interviewers were convinced that the Countses 

were Republicans (or were desperate for them to be Republicans), and so failed to establish 

that the two were actually Democrats, it is also appropriate to note that the interviewers also 

failed to correctly establish, what, if anything, transpired between the Countses and the 

NBPP and what the former might have been concerned about on Election Day. 

The J Memo mentions that Mrs. Counts had wondered whether someone might 

“bomb the place.”14 It is somewhat difficult to understand where this idea of bombing the 

place might have come from. Despite their violent rhetoric and penchant for displaying 

weapons in public, it is difficult to conceive that anyone would think that the NBPP had an 

interest in bombing a building or a polling place in an overwhelmingly African-American 

neighborhood. Perhaps the mention of a bombing was somehow associated with the rumored 

white supremacists whom the NBPP claim were at, or were going to be at, the polling place. 

However improbable the claim was that white supremacists were going to show up at the 

Fairmount St. polling place might be, there is at least an internal logic (and historical 

precedent) for a fear that white-supremacists might target groups of African-Americans with 

explosives, as opposed to black-supremacists doing so. 

Lastly, no account has been provided as to how the NBPP members supposedly 

concluded that the Countses were either Republicans or were at least working for the 

Republican Party, if in fact they had contact with the Countses at all. Some have argued that 

the NBPP was attempting to bully those whom they “apparently believed did not share their 

 chronology and what was said to whom (if anything), is only marginally resolved in the J. Memo that prepared 

shortly thereafter the noted email exchange. 12 In DoJ Doc. Request #3, p. 6, the police incident report lists 10:40am as the time the officers intervened at the 

Fairmount St. polling place. 

13 Angela Counts Deposition, p. 6-7. 

14 J Memo, p. 6. 
181 Commissioner Statements

preferences politically.”15 It is not clear how this motive on the part of the NBPP was 

ascertained or how members of the NBPP would act, or did act, on this motive. 

This is especially true in light of the fact that NBPP is a radical political organization 

and that some of its members—including Minister King Samir Shabazz—believe that 

President Barack Obama is "a puppet on a string""16 If Mr. Shabazz believed that thenSenator Obama was going to be “the next slave master,”17 what bearing would this have on 

Mr. Shabazz’s alleged efforts to intimidate Republican poll-workers? The explanation 

seemingly embraced by the trial team was that the Countses were Republicans and the NBPP 

members were Democrats. Unfortunately for the majority, this explanation is at odds with the 

facts. Perhaps, had the trial team investigated the case more thoroughly, it would have 

avoided these erroneous conclusions. 

Mauro, Hill & Bull 

At some point after Mr. Fischetti left the polling place, Mike Mauro and Chris Hill 

arrived at the Fairmount St. Polling Place.18 The record is ambiguous as to the order of events 

which took place after the men’s arrival on the scene. The declarations which these men 

provided the trial team make no mention of people whom they believed to be voters stopping 

in front of or turning away from the polling place.19 As a result, it is difficult to establish 

whether these alleged would-be voters were noticed and spoken to by Mr. Mauro and Mr. 

Hill either before or after Mr. Hill confronted the NBPP members and entered the polling 

place. 

It is unclear why none of the declarations concerning alleged voter intimidation by 

the NBPP make any mention of the people whom Mr. Mauro and Mr. Hill claim to have seen 

be intimidated by the NBPP presence. The J Memo mentions that Mr. Mauro and Harry 

Lewis observed people they assumed to be voters stop before entering the polling place.20 No 

mention of Mr. Hill’s21 or Bartle Bull’s22 similar stories are mentioned in the J Memo. The 

absence of these additional allegations of instances of intimidation is puzzling. In crafting a 

 

15 DoJ Doc. Request #23, p. 10. (Declaration of Bartle Bull). Mr. Bull, in his declaration, states that the views of 

the NBPP members were “made apparent by the uniform” that the two were wearing. Inasmuch as Mr. Bull 

seems to have read an endorsement of Candidate Obama, for instance, into the uniform of King Samir Shabazz, 

it would seem the message the uniforms were meant to convey (if any) was ambiguous. The J. Memo also 

attributes to the NBPP members a desire to intimidate voters into supporting their preferred candidate. J. Memo, 

p. 11. 

16 See generally, the Anti-Defamation League’s account of the NBPP: 

http://www.adl.org/main_Extremism/new_black_panther_party.htm?Multi_page_sections=sHeading_5 17 Id. 

18 They were accompanied by an additional attorney-poll watcher, probably named Justin Myers. J. Memo, p. 6. 

For reasons undisclosed to me/us, Mr. Myers was not called to testify at our hearing, despite the fact that he was 

identified as an eye-witness on the scene. Another attorney-poll watcher named Harry Lewis was also on the 

scene. It may have been Mr. Lewis who had arrived with Hill & Mauro, and Mr. Myers arrived with 

videographer Stephen Robert Morse—or Morse may have arrived with a different man. The record is not clear 

and neither the J. Memo nor the Commission’s investigation bothered to clarify. 

19 See DoJ Document Request #23, p. 6-12. 

20 J. Memo, p. 6. 

21 4/23/2010 Hearing, p.97-99. 

22 Id., p.99. 
182 Commissioner Statements 

justification for a voter intimidation case, one would think that including every credible 

witness statement concerning intimidated voters would strengthen the argument. Perhaps the 

absence was due to concerns about the credibility of some of the claims, or perhaps it might 

simply be due to the trial team having failed to ask all the witnesses about supposedlyintimidated voters as it moved in undue haste to put to the case together. 

 Also unclear from the record is what happened between Mr. Hill and the NBPP 

members. In his declaration,23 Mr. Hill states: 

When I attempted to exercise my rights as a credentialed poll watcher, and 

enter the polling place, the two men formed ranks and attempted to impair my 

entrance into the polling place. They formed ranks by standing in such a way 

to make them a significant obstacle to my entrance . . . . I was forced to avoid 

their formation in order to enter the polling location. I did not make physical 

contact with either of them. 

In the first segment of the video shot by Stephen Robert Morse, the two men do appear to be 

standing close together, although it would be a stretch of the imagination (or a lack of 

familiarity with military formations) to claim that they were in any sort of “formation”—at 

least at the time the video had recorded. 

 This account of the NBPP “forming ranks” and thereby forcing Mr. Hill to go around 

them, even if credible, is at odds with the account that he provided to FOX News’s Rick 

Leventhal24 as well as the account that he provided to the Commission: “[H]e and Mr. 

Jackson attempted to close ranks. I went straight between them through the door to find our 

poll watcher.”25 At a later point in the hearing, Mr. Hill describes his encounter with the 

NBPP thusly, “Not on my watch, ma'am. I was standing there. I saw these guys. They 

attempted to intimidate me. I'm Army Infantry. I don't intimidate.”26

 

It is impossible to determine, based on our scanty and gap-laden record, whether Mr. 

Shabazz was immediately hostile to Mr. Hill and others, or whether Mr. Shabazz’s invectives 

came as a result of Mr. Hill walking in between Mr. Shabazz and Mr. Jackson while the two 

NBPP members were standing “shoulder to shoulder, or close to shoulder to shoulder.” 27

Mr. Hill stated that his encounter with the NBPP, in Mr. Hill’s words, “got my Irish up.”28

The timing of events is, of course, important, since any instances of would-be voters pausing 

or turning away from the polls might have been a result of Mr. Hill storming between the 

 

23 See DoJ Document Request #23, p. 7. 

24 http://www.youtube.com/watch?v=94b78rnWMP4&feature=related (“As I walked up they closed ranks next 

to each other—you know, I'm an Army veteran. That doesn't scare me—So I walked directly in between them 

and went inside.") Mr. Hill goes on to tell Mr. Leventhal that after he left the building, Mr. Shabazz turned to 

Mr. Hill and said, “We’re tired of white supremacy.” Considering Mr. Hill’s confrontational tactics, this remark 

by Mr. Shabazz might have been based less on a generalized hatred of white people and more in response to Mr. 

Hill’s provocations.” 

25 4/23/2010 Hearing Transcript, p. 47. 

26 Id., p. 98. 

27 Id., p. 33. 

28 Id., p. 109 
183 Commissioner Statements

NBPP members and the resulting fracas that ensued. Mr. Hill himself mentioned that the 

unidentified female poll watcher in the video claimed that it was Mr. Hill, and not the NBPP, 

that was intimidating voters.29 

 Unfortunately, the videographer, Mr. Morse, was not yet present on the scene in time 

to record any of the Republican poll watchers’ interactions with the NBPP or with members 

of the public. The only video footage that the Commission received that is not publicly 

available, and that records the actions of Republican poll watchers, comes from a longer 

version of the video that shows the police arriving at Fairmount Street.30 In the video edited 

and released by Election Journal, the police arrive, they approach the NBPP members, and 

then they order them to step away from the polling place. The video fades as the police 

officers and the NBPP members walk over to the police car. 

 The longer cut of the video was given to the Commission as part of its document 

requests from DoJ. In the video, the cell phone camera continues recording after the police 

begin to walk the NBPP members to their police car. Mr. Morse tries to follow the police, but 

almost immediately one of the officers turns to the camera and points while saying, “You 

stay over there.” Someone off-screen, to Mr. Morse’s left, says, “I got him, I got him,” to the 

police officer. Someone then, seemingly Mr. Hill (although the audio is poor and the voice is 

coming off-screen) says, “Put it [the camera] down. You’ve got enough.” The screen begins 

to shake, and to Mr. Morse’s right, Bartle Bull is heard to shout, “Don’t you threaten him 

with your hands. You’re threatening him.” 

At this point the person to the left says, “Put the phone away.” Mr. Bull, shouting 

even louder than before, says, “Don’t you use your hands!” At this point, the person seems to 

have tried to grab Mr. Morse’s arm or phone as the image on the screen moves erratically and 

Mr. Morse excitedly or fearfully exclaims, “I’m a [expletive] professional videographer. I 

was paid [unintelligible] to come from L.A. today.” 

The person to Mr. Morse’s left seems to back away a bit and one can now see his arm 

and part of his shirt, which resemble the shirt that Mr. Hill is wearing earlier in the same 

video. The person who seems to be Mr. Hill says, “That’s enough, you’re gonna cause us 

more issues.” To which Mr. Morse replies, “No I’m not!” 

At this point, there is much cross-talk between the three of them. Also, at least two 

other voices from off-screen. Someone says, “We’re on the same team.” Mr. Morse says, “I 

work for Joe.” One or two speakers are continuing to tell Mr. Morse to stop recording. One 

of them says, “You’re [expletive] up the story. Don’t [expletive] up the story.” Shortly 

thereafter, Mr. Morse says to his interlocutors, “You guys are lawyers, I’m a videographer.” 

 

29 Id., p. 53 (“And all I heard her say was, ‘The white guys in suits are trying to stop people from voting.”). In 

the video footage that records the police arrival, the same woman can be heard saying to the police with regards 

to the NBPP members, “They’re not stopping anybody.” Available at

http://www.youtube.com/user/ElectionJournal#p/f/4/IFOKnJ0oXYY

30 4/16/10 DoJ Documents, Bates No. 0002177. For reasons never shared with us, this polling place video was 

not screened as part of the video evidence presented at the first NBPP Hearing, despite the fact that several 

witness were featured in the video. 
184 Commissioner Statements 

To which Mr. Hill responds, “And I’m the ...” at which point he plays a brief recording of a 

bugle reveille. After a few more seconds, the clip ends. 

 

Bartle Bull 

 As mentioned above, Mr. Bull’s declaration makes no mention of his seeing people 

whom he thought were voters turning away at the sight of the NBPP members. The reason 

for this omission, as with the same omission in all of the other declarations, is unspecified in 

the record and unfortunately remains unclear. 

As with Christopher Coates' testimony in this matter, much has been discussed both 

in the news media and in this Report concerning Mr. Bull’s history of association with 

liberals and liberal causes. Particular emphasis has been given to Mr. Bull’s time 

campaigning in Mississippi during the latter days of Jim Crow. In light of his experience, we 

are troubled by Mr. Bull’s characterization of the 2008 Philadelphia incident as being worse 

than anything he had ever seen in Mississippi in the 1960s.31

Even if the NBPP actions in 2008 had lived up to the claims of the DoJ trial team, 

they would still be negligible when compared to the persistent fear and intimidation that 

millions of African-Americans endured for decades in the Deep South. Even if one were to 

give a narrow reading to Mr. Bull’s claim, that is to say that he is comparing what he saw, in 

person, with his own eyes,32 in Philadelphia, Pennsylvania, to what he saw in Midnight, 

Mississippi, the comparison still falls short. As Mr. Bull noted, in Midnight, Mississippi, 

white supremacists had left nooses hanging from trees and Mr. Bull had required that the 

vote be stopped until the nooses were removed.33 

Additionally, Mr. Bull claimed that the NBPP uniforms had a clear and obvious link 

to the Fascist uniforms of the 1930s that would be readily apparent to the viewer. Leaving 

aside the fact that it is far from clear how many people in the contemporary United States 

would immediately recognize the uniform of the Italian Fascist Party (as opposed to Klan 

robes or even Nazi uniforms), in actuality, there is little in the NBPP uniform that even 

resembles the Italian Fascist outfit aside from the color of their respective shirts. A further 

irony, of course, is that Jerry Jackson and Minister King Samir Shabazz are themselves not 

even wearing exactly the same outfit.34 

Lastly, there is great irony in Mr. Bull's having crossing paths with Mr. Shabazz on 

Election Day 2008. Mr. Bull stated that his motive for visiting polling places in Philadelphia 

in 2008 was a fear that hordes of fraudulent voters under the auspices of the Association of 

Community Organizations for Reform Now35 would be trying to steal an election for a man 

 

31 4/23/2010 Hearing Transcript, p. 116. 

32 Id., p. 117. 

33 Id., p. 116. 

34 Mr. Jackson seems to be wearing a leather jacket while Mr. Shabazz appears to be wearing a jacket of a 

different cut, made of some kind of synthetic material. 

35 Id., p. 123. 
185 Commissioner Statements

whom Mr. Bull refers to as “a hustler.”36 Mr. Shabazz, on the other hand, allegedly showed 

up at the polls to ward off an equally questionable threat of Election Day disruption by 

members of the Aryan Nation. 

Stephen Robert Morse 

Although the Commission screened the first of Mr. Morse’s videos that was hosted by 

the website Election Journal, the Commission failed to screen all of footage in its possession 

that Mr. Morse had recorded. The Commission also failed to depose Mr. Morse or to invite 

him to testify at any of our multiple hearings. As Mr. Morse was obviously both present at 

the polling place and readily identifiable, this omission is worth noting as further indication 

of the majority's pre-investigation bias. Since then, much of the commentary around the 

NBPP incident has pointed to the one minute of edited video as an almost self-evident 

display of poll-worker intimidation.37 

Since this investigation—at least as initially conceived—was meant to focus upon the 

alleged incidences of intimidation at the Fairmount Street polling place, we believe that it 

might have been illuminating to ask Mr. Morse to compare the intimidation that he allegedly 

experienced from Mr. Shabazz with the alleged intimidation, apparently at the hands of Chris 

Hill, , witnessed by Bartle Bull in the video mentioned above. Such an inquiry might have 

better clarified what key witnesses considered “intimidating behavior,” as well as who was in 

fact engaging in the supposed intimidation. 

 

II. The Initial Investigation/Litigation 

As Commissioner Yaki noted at the September 24th, 2010 hearing, the NBPP litigation 

bears many signs of having been terribly rushed, especially as compared with other voting 

rights cases.38 Communications between J. Christian Adams and Republican operatives 

reveal that, less than two weeks before the creation of the J Memo, the trial could not 

establish even a basic outline of the events that took in Philadelphia. The trial team had found 

their desired defendants, but could not find any voters or poll workers who were reportedly 

intimidated by them. 

Ultimately, it seems that the account of the events that the trial team settled upon was 

provided to them by Republican political consultant Mike Roman.39 On December 11, 

2008—eleven days before the J Memo was issued--Mr. Roman offered to provide Mr. 

Adams with a “definitive chronology” and informed Mr. Adams that he planned to "make 

 

36 Civil Rights Attorney on Accusations vs. DOJ, FOX News, Jul. 1, 2010, available at

http://video.foxnews.com/v/4267253/civil-rights-attorney-on-accusations-vs-doj/ (Mr. Bull raises the specter of 

400,000 “ACORN voters” in this interview as well). 37 Despite the fact that Mr. Morse clearly fails to identify himself as a poll-watcher for the Republican Party, 

and instead claims to merely be a student and concerned citizen. The other puzzling thing about Mr. Morse’s 

situation is that although the J. Memo describes him as “scared to death,” of the Panthers, it was Mr. Morse who 

confronted Mr. Shabazz (in broad daylight surrounded by poll observers with cell phones). J. Memo, p. 6. 38 See, 9/24/2010 Hearing, p. 118-26. 

39 Mr. Roman is, among other things, the operator of the website that hosted Stephen Robert Morse’s NBPP 

videos. http://www.electionjournal.org/new-about-page/
186 Commissioner Statements 

contact with each [Republican voter in the precinct] to determine if they felt any intimidation 

at the polling location.”40 Mr. Adams described Mr. Roman’s offer to interview witnesses for 

him as “fantastic.”41

Mr. Adams concluded one of his emails to Mr. Roman with a comment noting that, if 

correctly understood, might help to explain the thinking behind the hurried NBPP litigation. 

Mr. Adams states, “A concern some have stated is that if something isn't done about the 

panther deployment in 2008, then there is nothing to stop deployment of armed hate groups 

at polls in future elections.”42 There is ambiguity in the statement’s reference to 2008—does 

it refer to the year of the incident or that “something” that needs to be done? Nonetheless, the 

general tenor of Mr. Adams’s emails with Mr. Roman and others is that of haste. Therefore, 

the latter interpretation is the more likely. 

Regardless of the statement’s minor ambiguity regarding the date, it is the conclusion of 

the statement that is most puzzling. Why is the NBPP litigation the only thing that will stop 

armed hate groups from appearing at polls? Obviously, an injunction against the entire Party 

might serve to deter NBPP members or even members of similar organizations from 

appearing at polling places with weapons. Although, since presumably §11(b) is not going to 

be repealed, it stands to reason that the choice to bring or not to bring one case does not 

preclude future cases.43

The spirit that seems to be motivating this, “Now or never!” line seems to be the theory, 

advanced by Bartle Bull to Megyn Kelly,44 that there’s a slow-motion putsch going on in the 

U.S. wherein community organizing groups, like the now-defunct ACORN, set up a 

conspiracy involving hundreds of thousands of illegal voters, primarily in minority 

neighbors. These hundreds of thousands of illegal voters carry out their conspiracy thanks to 

the assistance of a nation-wide deployment of hundreds of Mussolini-inspired NBPP 

members, this in turn earns them “friends in high places” who ignore their conspiracy and 

instead reward them with undeserved riches.45 This cycle was apparently supposed to 

 

40 DoJ Doc. Request #29, p. 143. 

41 Id., p. 141. In light of allegations—discussed at length below—that the Department would allow local police 

to have so much sway over the NBPP case, it is interesting that the Commissioners who were concerned about 

the local police’s role, did not question Mr. Adams about Mike Roman’s role in the case. 

42 Id. 

43 For example as is noted in the Report, the Bush Administration did not bring a voter intimidation case against 

a Minutemen militia member bearing a gun in Pima, AZ. That did not prevent the Bush Administration from 

later bringing a voter intimidation case against the NBPP. 

44 Civil Rights Attorney on Accusations vs. DOJ, FOX News, Jul. 1, 2010, available at

http://video.foxnews.com/v/4267253/civil-rights-attorney-on-accusations-vs-doj/

45 J. Christian Adams, Pigford and New Black Panthers: Friends at DOJ, 12/2/2010. 

http://biggovernment.com/jcadams/2010/12/02/pigford-and-new-black-panthers-friends-at-doj/ Since leaving 

the Department, Mr. Adams seems to have made a career out of promoting conspiracy theories about a nexus 

between community organizers, the NBPP and the Obama Administration. He has done this both as a blogger 

and as a lawyer for the King Street Patriots, see e.g., at http://www.kingstreetpatriots.org/king-street-invitesdoj-to-true-the-vote-poll-watcher-training, http://www.kingstreetpatriots.org/king-street-patriots-specialmeeting-august-9th, Tea Partiers: Minority Voting Drive Is The New Black Panther Party, Ryan J. Reilly, 

October 20, 2010, 

http://tpmmuckraker.talkingpointsmemo.com/2010/10/tea_partiers_minority_voting_drive_new_black_panth.p

hp I/ 
187 Commissioner Statements

continue on with increasing numbers of illegal voters added to the polls and increased wealth 

given to them as rewards. The recent 2010 election cycle, that featured neither armed hate 

groups at polling places nor ever- greater electoral success for Democrats and their supposed 

allies, would seem to suggest that Mr. Bull’s and Mr. Adams’s theories may not be wellfounded. 

We did not get an opportunity to question Mr. Adams about the J Memo or any other 

matter, because the Commission majority scheduled his hearing during the week of the July 

4th holiday on very short-notice. And, as was the case with so many other seeminglyimportant witnesses, Mr. Roman was also not called to testify before the Commission. 

The J Memo 

The J Memo is filled with errors and omissions which are most likely the result of its 

hasty drafting and the biases of its authors. This can be seen on its first page when it 

describes the NBPP as “a well organized and well known group.” It is true that today, thanks 

to the efforts of FOX News and the Commission's majority, the NBPP is much better known 

than it was before Election Day 2008. Presumably, the reason that the J Memo calls the 

NBPP “well known” is in order to provide a pretense for the trial team's claim that voters 

would have recognized Mr. Shabazz and Mr. Jackson as members of the NBPP (and thereby 

immediately associate the two of them with disturbing NBPP beliefs—which are also not 

terribly well-known). The truth is that most people—including the voters of Philadelphia, are 

and were likely to share Larry Counts’s surprise that the Panthers had not long ago died 

away.46 Without the immediate association of their clothing with certain ideas—as would be 

the case with people in Klan robes or Nazi uniforms—one cannot claim that the NBPP nonuniform, uniforms would be objectively intimidating. 

 As for being “well organized,” that too is a stretch. The J Memo makes much of the 

militaristic nature of the NBPP— a characterization which this Report further repeats and 

emphasizes. It is true that the NBPP fetishizes military rank and title, but that does not 

instantly confer organization and discipline onto a group. Anybody can pin four stars onto his 

collar. That does not transform him into a general.47

The best example of the lack of discipline and organization within the NBPP can be 

found in the argument used to establish liability for the Party and its Chairman. Statements 

were made by members of the NBPP, both before and after the election, of a plan to send 

 We find it both noteworthy and troubling that Mr. Adams should seek to associate himself with the 

website Big Government, which traffics in deceptively edited videos, including one that purported to show an 

Obama Administration official admitting that she discriminated against white people while carrying out her 

duties. It was quickly discovered that in the longer, unedited version of the video, the official’s remarks make it 

clear that she was speaking both of a period in time prior to her work in government and that the actions she 

took were not discriminatory against white people. Brian Stelter, When Race Is the Issue, Misleading Coverage 

Sets Off an Uproar, N.Y. TIMES, July 26, 2010, B1. Mr. Adams’s willingness to associate himself with people 

who have a history of mendacious race-baiting severely undermines the credibility of his accounts of racial bias 

at the Department. 

46 Larry Counts Deposition, p.14. 

47 Report, p. 34. 
188 Commissioner Statements 

NBPP members to polling places. The number of members who were alleged to be 

“deployed” (to use the militaristic term favored by the J Memo) was three hundred or more.48

Aside from the two NBPP members present at the Fairmount Street polling place, there is no 

record of any other NBPP members present at any polling place anywhere in the country. 

If the NBPP is a hierarchical organization, and a command was given by its chairman 

to several hundred of its members to “deploy” to polling stations around the country, and 

only two “deployed,” that means that the chairman’s deployment had a 99% failure rate. That 

does not sound “well organized.” It is interesting that the trial team and the Commission's 

majority are willing, on the one hand, to conclude from the lack of evidence of white 

supremacists at Fairmount Street that there were no white supremacists present, and yet, on 

the other hand, the lack of an NBPP presence beyond the Fairmount Street polling place is 

not grounds for concluding the NBPP did not have a national “deployment” plan. This 

inconsistency underscores the inference that the majority knew what it wanted to believe 

before it had the evidence to sustain such perceptions. 

The simpler and truer explanation is that the NBPP and its chairman are prone to 

making self-aggrandizing and self-promoting statements in order to get attention and to 

impress the easily impressionable. The reality is that they are a marginal group of blackseparatists who could not manage to meet the membership standards of the Nation of Islam. 

The disproportionate attention that has been paid to this group in the last year grossly 

exceeds their importance. To treat them as a Menace to the Republic instead of racist 

buffoons playing “army,” is to view them as they imagine themselves. 

 

In addition to all of the J Memo’s profusion of militaristic mischaracterizations of the 

NBPP members,49 50 the J Memo also badly inflates the evidence in the trial team’s 

possession. Having failed to find any voter who claimed to have been intimidated, the trial 

team resorted to the argument that all voters had in fact been intimidated—as any citizen 

would be who had to “run a gauntlet of billy clubs in order to vote.”51 Perhaps to leave room 

 

48 J. Memo, p. 7. 

49 In addition to the variations on “deploy,” (e.g. “not . . . deployed askew the entrance”) the J. Memo describes 

the Panthers as “standing athwart,” “in formation” wearing a “well-recognized military-style uniform. J. Memo, 

pp. 3, 10-11. These military characterizations of the NBPP seem to have been credulously adopted by Mr. 

Adams from statements made by Chris Hill, just as Mr. Adams relied on Mr. Hill’s attestation concerning the 

significance of Mr. Shabazz’s lanyard. J. Memo, p. 3; 4-23-2010 Hearing, p. 47. The McElderry Memo, also 

notes the Mr. Adams’s peculiar use of the word “deploy” in the injunctive relief. McElderry Memo, p. 5. 50 The J. Memo also inaccurately describes Mr. Jackson’s conversation with FOX News reporter Rick 

Leventhal. The J. Memo states that Mr. Jackson told Mr. Leventhal that “no one had ever been at the polling 

station with a baton." J. Memo, p. 4. When asked about the presence of the nightstick, Mr. Jackson says, 

“Nobody here has a nightstick.” When challenged by Mr. Leventhal that there’s was a man with a nightstick, 

Mr. Jackson makes clear that he was only speaking in the present tense, saying, “I don’t care about what ‘was.’ 

I’m talking about what ‘is.’” Although this is a minor point, the fact that the J. Memo cannot even accurately 

manage to paraphrase a simple conversation casts doubt on its thoroughness in other places. An example of this 

is the failure to distinguish the armed, epithet-spewing Mr. Shabazz from the silent, unarmed Mr. Jackson. 

Instead they are described as “armed, uniformed men . . . making racial slurs.” J. Memo, p. 12. As discussed 

further below, the failure of the trial team to consistently and accurately characterize the two men in their 

writing might be a partial explanation as to why they found it shocking that upon review other lawyers saw fit to 

distinguish Mr. Shabazz from Mr. Jackson. 

51 J. Memo, p. 11. 
189 Commissioner Statements

for the possibility that there had been voters who were harassed by Mr. Shabazz (despite the 

lack of evidence to that effect), the memo states, “Many of the threatening actions and 

statements by the NBPP members were specifically directed at poll watchers.”52 

None of the witnesses who testified before the Commission and who were in 

Philadelphia on Election Day have claimed to have witnessed the NBPP members say 

anything, threatening or not, to any voter, of any race. The only Commission witness to have 

made such a claim was the Department's former Voting Section Chief, Christopher Coates. 

Mr. Coates testified, “They were hurling racial slurs, including to white voters, ‘How do you 

think you're going to feel with a black man ruling over you?’ at the voters.”53 These 

assertions are puzzling since they are at odds with all available evidence. The fact that Mr. 

Coates believes white voters were the target of racial slurs hurled by both of the NBPP 

members—despite the absence of evidence to this effect—might help to explain his anger at 

the Department’s decision to drop its case against Jerry Jackson and his angry outburst 

against Steve Rosenbaum.54 

The Default 

 There is little to say about the default other than to note in passing that the Report 

finds it “particularly curious” that the NBPP failed to respond to the Department’s lawsuit 

 

52 Id., p. 12 (emphasis added). Note, the quoted passage attributes threatening actions and statements to both 

men. We do not dispute that Mr. Shabazz directed statements toward poll-watcher Hill, for example,, we simply 

wish to note that the evidence available only supports the claim that statement were only directed toward pollwatchers, and only by Mr. Shabazz. 

53 9/24/2010 Hearing, p. 57. 

54 7/6/2010 Hearing, p. 30. There seems to be a pattern of Mr. Coates' projection and supposed recollection of 

instances of white victimization. Mr. Coates claims that Robert Kengle said to him, “Can you believe we are 

being sent down to Mississippi to help a bunch of white people?" Id., p. 105. Mr. Kengle, in an sworn 

declaration sent to the Commission, denies that he said, “to help a bunch of white people.” Kengle Declaration, 

p. 1. Mr. Kengle provides context for his comment to Mr. Coates, namely that there were many other potential 

cases which Mr. Schlozman and Mr. von Spakovsky were ignoring which Mr. Kengle believed were of 

relatively greater significance than the Ike Brown case. The race of the people involved was not what was of 

issue. Apparently Mr. Coates, like Mr. Adams, believes that race is always at issue in these decisions and any 

facially-justified explanations are mere pretense. Report, p.76 (“Adams testified: ‘There was outrage that was 

pervasive that the laws would be used against the original beneficiaries of the civil rights laws. Some people 

said ‘we don’t have the resources to do this. We should be spending our money elsewhere.’ And that was how 

they would cloak some of these arguments.’”) 

Unlike Mr. Adams however, Mr. Coates seems to believe he hears what Mr. Adams believes is only 

implied. For instance, concerning Julie Fernandes’s alleged comment concerning “traditional civil rights,” Mr. 

Adams describes her statement this way: “we were in the business of doing traditional civil rights work, and, of 

course, everybody knows what that means.” 7/6/2010 Hearing, p. 62. In Mr. Adams' recollection, there was a 

meaning to Ms. Fernandes’s statement which everyone understood (even if, like Mr. Adams, they disagreed 

with the implication), but it was subtext. In Mr. Coates’s recollection, however, Ms. Fernandes explicitly told 

the audience what Mr. Adams said she only implied: “My recollection is that she used the term ‘traditional 

types’ of Section 2 cases and that she used the term ‘political equality for racial and language minority 

groups.’” 9/24/2010 Hearing, p. 146. 

It strikes us as unusual that Mr. Adams would say, “everyone knows what that means” in a case where 

Ms. Fernandes explicitly said what he thinks she implied. Had she explicitly proved Mr. Adams conjecture, no 

doubt he would have quoted her as having done so. Of course, the Commission was given the opportunity to ask 

Ms. Fernandes what she said. 11-12-10 Letter to Blackwood. However, the majority declined the Department's 

offer to allow Ms. Fernandes and others to come before the Commission. 11-15-10 Letter to Hunt. 
190 Commissioner Statements 

despite the fact that Jerry Jackson and King Samir Shabazz were represented by a lawyer and 

Malik Zulu Shabazz is himself an attorney.55 Based on the Commission’s own unfortunate 

legal experience with Malik Zulu Shabazz and the ultimate non-responsiveness of the person 

purporting to have been representing the other two NBPP members, “disappointingly 

consistent” would seem to be a more accurate description of the phenomenon. 

III. The Decision to Review 

 Members of the trial team and others claim that the Department's decision to review 

and reverse course in the NBPP litigation was unjustifiable and therefore based on 

impermissible motives and biases. Obviously, even if the review and reversal were 

completely justified—and we believe they were—it is impossible to prove conclusively that 

facially-justified actions were not taken for hidden impermissible motives. Because the stated 

justification for the Commission’s investigation of the NBPP litigation was allegedly to look 

for an explanation for the review and reversal in the NBPP litigation (since the Commission’s 

majority apparently found it inexplicable), it seems to us that offering a plausible account of 

the review and reversal is sufficient to satisfy what the Commission claimed it was interested 

in investigating. 

The Obligation in Cases of Default 

 Critics of the Obama Administration inaccurately, yet loudly, claim that the 

Department had already “won” the case against the NBPP because the latter failed to respond 

to the suit, and that all that was left was to move for a default judgment against them. As 

made clear by the Assistant United States Attorney General (“AAG”) Tom Perez however, 

the Department was under a greater and a continuing obligation: 

Although none of the defendants responded to the complaint, that did not 

absolve the Department of its legal and ethical obligations to ensure that any 

relief sought was consistent with the law and supported by the evidence. The 

entry of a default judgment is not automatic, and the Pennsylvania Bar Rules 

impart a clear duty of candor and honesty in any legal proceeding; those 

duties are only heightened in the type of ex parte hearing that occurred in this 

matter. See Pa. RPC 3.3(d). At the remedial stage, as with the liability stage, 

the Department remains obliged to ensure that the request for relief is 

supported by the evidence and the law. In discharging its obligations in that 

regard, the Department considered not only the allegations in the complaint, 

but also the evidence collected by the Department both before and after the 

filing of the complaint.56 

 

55 Report, p.22, 40. Malik Zulu Shabazz seems to have an idiosyncratic view of his legal profession. He styles 

himself an “Attorney at War,” Id., p. 129, and he also claims the title “Doctor” on account of possessing a 

“doctorate in jurisprudence” (i.e. a J.D.). See, The Strategy Room (Fox News Internet broadcast Nov. 7, 2009), 

available at http://video.foxnews.com/v/3917372/dr-malik-shabazz. 56 Perez Statement, 5/14/2010. p. 5. 
191 Commissioner Statements

 As we will discuss at greater length below, the Report contains many 

omissions and mischaracterizations of AAG Perez’s statements to the Commission. 

The Report portrays the Department’s internally initiated objections, review and 

subsequent handling of the NBPP default as mysterious.57 AAG Perez’s written 

statement provides many answers to questions regarding the objections, review and 

subsequent handling of the NBPP litigation. Despite the fact that AAG Perez provides 

answers to questions the Report purports an interest in, the Report does not cite AAG 

Perez’s explanation. These omissions are telling. So long as the Commission’s 

majority is willing to pretend that no answers have been offered, it can continue 

asserting that the Department is refusing to answer its questions. 

Concerns about the Case 

As has been noted above in our dissent and at the September hearing by 

Commissioner Yaki, the investigation and litigation concerning the Philadelphia incident 

proceeded much more rapidly than was typical of the Department’s voting rights cases. This 

produced reasonable grounds for concern, as the development and analysis of fact and law 

might well have been cursory.58 Added to that, as AAG Perez noted, the litigation was ex 

parte due to the NBPP non-responsiveness. Without active defense counsel examining the 

government’s case, errors or omissions concerning fact or law—which might be more 

common than is typical due to the relative hastiness of the investigation and litigation—

might go undiscovered. Lastly, due to the extraordinary politicization of the Civil Rights 

Division during the Bush Administration,59 the long-time veteran career staff who were the 

acting-heads of the Division were properly suspicious of those hired or promoted during that 

period of politicization.60 This is especially true of Christopher Coates, who was considered a 

 

57 Report. p. 17. 

58 The best example of the legal inadequacy of the J Memo is that it makes no mention of possible First 

Amendment concerns. The McElderry Memo supports our contention that the J. Memo inadequately addressed 

serious questions concerning Party/Chairman liability and defenses arising from the First Amendment. We 

differ from the McElderry analysis only in that we believe it takes certain presumptions of the trial team for 

granted and as a result, draw the wrong conclusions. We shall discuss this further below. 

59 See generally; An Investigation of Allegations of Politicized Hiring in the Department of Justice Honors 

Program and Summer Law Intern Program, June 24, 2008, available at

http://www.justice.gov/oig/special/s0806/final.pdf. An Investigation of Allegations of Politicized Hiring by 

Monica Goodling and Other Staff in the Office of the Attorney General, July 28, 2008, available at

http://www.justice.gov/oig/special/s0807/final.pdf; An Investigation into the Removal of Nine U.S. Attorneys 

in 2006, Sept. 2008, available at http://www.justice.gov/oig/special/s0809a/final.pdf 60 The Report’s section discussing the Vacancies Reform Act serves no useful purpose in the Report—other 

than to provide a legal patina for the obviously, intentionally ambiguous references to “actions of DoJ political 

appointees.” Report, p. 37-38. See e.g. Jennifer Rubin, Friends in High Places, WEEKLY STANDARD, June 

12, 2010, available at 

https://www.weeklystandard.com/articles/friends-high-places. Rhetorically, “political appointees” is meant to 

connote high-ranking officials and perhaps suggest a political influence, while not having to commit to 

providing evidence regarding any particular official or level in the Department hierarchy. 

Similarly, there was a bizarre focus in this investigation on whether there was an exercise of executive 

privilege and if so, who invoked the privilege. See, Report, p. 73-75. Since the invocation of executive privilege 

is a rare thing, there should not be a presumption that the privilege has been invoked and a burden on the 

Executive to affirmatively note when it is not invoking the privilege. This investigation—presumably since it 

aimed to “bring Eric Holder down” was strangely focused on this privilege that would require involvement from 

high-ranking officials or the President himself. Since the investigation presumed these officials involvement, 
192 Commissioner Statements 

“true member of the team” by one of the people most closely associated with the 

politicization of that period.61

 The Report attempts to portray and explain away the objections raised against the 

NBPP. Since we do not believe the Report’s treatment of these objections are adequate to 

satisfy them, we shall explain how the Report—and the Department memoranda it relies 

upon—are flawed. 

First Amendment 

Where the remedial memo errs in its treatment of First Amendment issues is in its 

presumption that the attire worn by the two NBPP members was the “recognizable uniform 

of a hate group.”62 As discussed above, neither the NBPP itself nor its varied garb was 

common knowledge during the 2008 election. As a result, the mere fact that either NBPP 

member was dressed the way he was did not amount to an objective case of intimidation (and 

thereby avoid falling under the protection of the First Amendment). 

 Steve Rosenbaum seems to be of this opinion because (as noted in the McElderry 

Memo, the Front Office, "does 'not seek to enjoin the wearing of the NBPP uniform at the 

polls.'"63 This is an important point that the Report omits. The Report merely states that the 

Remedial and McElderry memos argue, “First Amendment concerns could be successfully 

addressed and would not preclude a default judgment.” The McElderry Memo is operating on 

the assumption that the injunctive relief is no longer going to look like it originally did, that 

is to say, the Department is no longer going to ask to enjoin members of the NBPP from 

merely appearing at a polling place in uniform.64

 

The analysis that Ms. McElderry then pursues concerning First Amendment issues 

related to enjoining the wearing of uniforms is premised on there being a weapon present in 

addition to the uniform. She concludes that the question needs further study, but that an 

 there seems to have been a presumption that they would have invoked the privilege that only they could have 

invoked. This seems entirely backward. See supra note 2. 61 9/24/2010 Hearing, p. 143-44. (Commissioner Yaki, quoting Bradley Schlozman). Mr. Coates, in turn, said 

that he considers Mr. Schlozman a friend. Id, p. 145. 

62 Remedial Memo, p. 3. As noted by the Southern Poverty Law Center’s report on the NBPP, members of the 

original Black Panther Party are upset with the NBPP’s appropriation of their Black Panther name and symbol. 

See, http://www.splcenter.org/get-informed/intelligence-files/new-black-panther-party In wearing Black Panther 

symbols, as they did, Mr. Jackson and Mr. Shabazz were not making clear to observers that they belonged to a 

racist-separatist group, but were rather (intentionally or not) sending the message that they might have been 

affiliated with (or sympathetic toward) the original (non-racist, non-separatist) Black Panther Party. 63 McElderry Memo, p.5. 

64 See, Report, p. 17. (“deploying athwart the entrance to polling locations either with weapons or in the 

uniform of the Defendant New Black Panther Party, or both). Interestingly, Ms. McElderry seems to think that 

Mr. Adams’s use of “deploy” is puzzling. Mr. Adams seems to use deploy in its proper way, as an action that a 

commander (in his imagining, Malik Zulu Shabazz) performs on their troops. But at other times the J Memo 

used “deploy” to mean ‘standing in a military fashion’ or as something that troops can do to themselves (e.g. 

"They were not milling about or deployed askew to the entrance." J. Memo p. 3). Some of Ms. McElderry’s 

confusion may be the result of the fact that the original injunctive relief applied to low-ranking Mr. Shabazz and 

Mr. Jackson as well as to the Party and its Chairman, the latter two being presumed to be in a capacity to 

“deploy” their minions. 
193 Commissioner Statements

argument could be made that a weapon in the hands of someone in a uniform could be more 

intimidating than a weapon brandished by a person in street clothes. Her grounds for this 

conclusion are that a uniform may convey, “some kind of authority to take action,” and so 

make observers more fearful because the observers would be lead to believe that the weapon 

is more likely to be used.65 

We think the McElderry Memo errs slightly in its characterization of the NBPP 

uniforms. It is not clear (and based on her description, it seems unlikely) that Ms. McElderry 

had seen what the NBPP outfits look like. She takes as a given the trial team’s assertion that 

they are “military-style.” She then goes on to suggest that, being a military sort of uniform, it 

would strike the observer as conveying that “authority to take action.” It is hard to believe 

that anyone looking at Mr. Shabazz at the Fairmount Street polling station would draw the 

conclusion that he was carrying the night-stick because he possessed some special (or in fact, 

any) authority to do so. 

 

We strongly object to the gratuitous and poorly aimed charges of hypocrisy that the 

Report levels at Mr. Rosenbaum concerning the First Amendment. On the one hand, in the 

Jesse Helms case, the post cards were not merely “misleading,”66 but implicitly threatened 

their recipients with criminal prosecution.67 On the other hand, Mr. Rosenbaum, as is clear 

from the McElderry Memo—and even more clear from the injunction which he supported 

against Mr. Shabazz—does not think “wielding a nightstick at a polling site” is a form of 

conduct protected by the First Amendment. We would like to note that is bizarre comparison 

has been made elsewhere and we believe that its author, Hans von Spakovsky, should receive 

the recognition that he deserves.68 Since we object to the insinuation of hypocrisy that is in 

the Report, we are relieved that the Report does not make the additional insinuation of racism 

found in Mr. von Spakovsky’s blog post.69 

Jerry Jackson 

The Report fails to recognize a number of important distinctions regarding the 

treatment of Mr. Jackson in the J Memo, the Remedial Memo and the McElderry Memo. The 

Report describes the situation thusly: 

 

65 McElderry Memo, p. 6. 

66 Report, p.25. 

67 The postcards which were largely directed to African Americans made false claims concerning voter 

residency requirements and warned recipients that it was a “federal crime to knowingly give false information 

about your name, residence or period of residence to an election official,” See, Democratic National Committee 

v. Republican National Committee, 671 F.Supp.2d 575, 581 (DNJ 2009). The case cited makes reference to the 

earlier case that is under discussion. We would have preferred to cite the original case, but it seems not to be 

electronically available to the Commission at the time of drafting this dissent. 

68 Hans von Spakovsky, With Due Apologies to Abigail Thernstrom . . ., July 28, 2010, 

http://www.nationalreview.com/corner/233685/due-apologies-abigail-thernstrom-hans-von-spakovsky 69 Id. (Was it because they were white? We don’t know, but the contrast between how these two cases were 

handled by Rosenbaum is quite stark.”) 
194 Commissioner Statements 

The nature of their joint liability is reflected in the fact that at no point in the 

internal memoranda of the Department was a distinction drawn between the 

potential liability of King Samir Shabazz and that of Mr. Jackson. The J 

Memo and the Remedial Memo prepared by the trial team, as well as the 

review prepared by the Appellate Section, did not even raise, let alone 

address, the issue.70 

 

Instead of a source of reassurance, the non-existent treatment of the issue of joint 

liability is in fact a sign of the haste and sloppiness of the trial team’s legal work. As 

mentioned above,71 the J Memo does not bother to establish whether Mr. Jackson spoke to 

anyone other than Mr. Shabazz at the polling station prior to the arrival of the police. Since 

the McElderry Memo takes the facts as presented by the trial team, Ms. McElderry may have 

presumed that Mr. Jackson hurled racial slurs at voters or poll-workers. Since the two NBPP 

members are sometimes described as “armed, uniformed men,” it is possible that she 

incorrectly assumed that both were carrying weapons. This would be consistent with her 

reading a presumed modifier of “with weapons” into the injunction’s prohibition on both 

“deploying and appearing.”72

 The Report tries to strengthen its case for joint liability by repeating variations of 

“moving” or “acting” “in concert”73 to describe the two NBPP members' behavior. This 

construction seems to have been derived from Chris Hill’s description of the two men. At his 

hearing, Mr. Hill said of the two: 

Mr. Jackson took direction from Mr. Shabazz constantly. When he moved, 

Mr. Jackson moved, and it was a definite pattern. I don't know if they worked 

it out ahead of time, but they were definitely moving in concert. 74

It is unclear what these synchronized moves were that made such an impression upon 

Mr. Hill. It is also unclear why the discipline and order on display for Mr. Hill 

vanished by the time Mr. Morse arrived with his cell phone camera. Even before Mr. 

Morse confronts Mr. Shabazz, it is apparent that the two NBPP are neither standing 

shoulder to shoulder, nor in any sort of military posture or formation. At Mr. Morse’s 

approach, the two men do not “form ranks.” Instead, Mr. Jackson remains standing in 

place while Mr. Shabazz walks around him. 

 If Mr. Hill either did explain or could explain the discrepancy between the 

NBPP members’ video-recorded behavior and his eye-witness account, or if some of 

Mr. Morse’s omitted footage contained images of the Panthers “moving in concert,” 

 

70 Report, p. 25. 

71 Supra note 39. 

72 McElderry Memo, p. 5. 

73 Report, pp. 5, 6 (twice), 25. 

74 4/23/2010 Hearing, p. 129. As we mentioned above and will discuss further below, it is interesting that those 

on the Commission who have expressed concern that Department dismissed its case against Mr. Jackson based 

on conclusions drawn by the local police, did not express equal concern that the trial team seems to have relied 

on Mr. Hill’s conclusions about Mr. Jackson’s relationship with Mr. Shabazz to have established the former’s 

liability. 
195 Commissioner Statements

that would certainly be helpful to establish joint liability. It is also possible that the 

“acting in concert” that is found in the original injunction was meant as a work of 

catch-all in order to ensure that merely staying quiet and standing near a objectively 

intimidating person like the weapon-brandishing Mr. Shabazz is sufficient to trigger 

the injunction's issuance. Since the eventual injunction dropped that aspect, it remains 

unclear whether such a potentially broad and vague provision would have passed 

muster. 

We are disappointed that the Report badly misconstrued AAG Perez’s 

statement concerning the role the police report played in the decision to drop the case 

against Mr. Jackson. During AAG Perez’s hearing,75 he was repeatedly as he tried to 

explain why the local police report mattered to the Department. It was insinuated that 

the Department concluded that §11(b) did not apply to poll-workers because the local 

police officer, having seen Mr. Jackson’s poll-watcher’s credentials concluded that 

Mr. Jackson was not violating any voting rights laws. 

AAG Perez, when he is finally allowed to speak without being interrupted, 

makes clear the obvious point that neither he nor the Department defer to local first 

responders to interpret federal law, but rather—as is obvious—local police can 

provide eye-witness accounts of what they themselves see and what witnesses on the 

scene tell them. We do not share the incredulity of some of our colleagues over the 

fact that the AAG and others at the Department would consider the contemporaneous 

reporting of a neutral third-party to be more credible that a series of contradictory 

accounts , made by a Partisan operative and recorded well after the events.76 

 

As we have explained above, none of the poll-watchers alleged that Mr. 

Jackson said anything to them, much less anything threatening. This was probably 

heard by the police as well. The closest thing to a threatening action that has been 

alleged against Mr. Jackson (other than that fact that he was wearing his NBPP outfit) 

was that Mr. Jackson either formed or attempted to form “ranks” with Mr. Shabazz, 

leading Mr. Hill to either walk around the two or walk between the two.77

 Despite the fact that AAG clearly told the Commission that the Department 

does not and did not rely on the VRA-expertise of local police officers, this canard 

was repeated during the Adams hearing.78 It is unclear why this was done other than it 

 

75 5/14/2010 Hearing, p. 69-72. 

76 The fact that Mr. Adams and Mr. Coates also seemed to think Mr. Hill—despite his contradictory stories—

was more credible that the police officers is also telling. The greater irony of Commissioner Heriot wishing that 

the Department favor the testimony of Mr. Hill over that of local police, is that Mr. Hill, in his on-scene 

interview with FOX News reporter Rick Leventhal was—like the local police—happy to distinguish between 

Mr. Shabazz and Mr. Jackson. In the interview, both Mr. Hill and Mr. Leventhal concur that Mr. Jackson is a 

poll-watcher, after which Mr. Hill says, while nodding, “And he lives here.” Mr. Leventhal then says, “And he 

has every right to be here,” to which Mr. Hill nods in agreement and adds, “And he can wear whatever he 

wants,” which Mr. Levenahal repeats in agreement. Video available at 

http://www.youtube.com/watch?v=JwNDMdrqKcc. 77 See, supra notes 23, 24, 25. 78 7/6/2010 Hearing, p. 89-90. 
196 Commissioner Statements 

seems to have been a talking-point of sorts.. We find it especially hard to believe and 

more than a little disconcerting that Mr. Coates would devote a page79 of his prepared 

remarks to suggest that AAG Perez said that the Department allowed the local police 

to make litigation decisions for the Department. 

AAG Perez made it crystal clear: the Department interprets what the law 

requires. In the case of §11(b) the Department comes up with an interpretation about 

what conditions would need to exist for someone to be committing voter/poll-watcher 

intimidation. Hypothetically, the Department might interpret §11(b) to, among other 

things, apply to people displaying weapons or shouting racial slurs. They also might 

interpret §11(b) not to apply to people standing quietly, without weapons and who are 

wearing clothing that is not readily associated with a hate group. 

Where the police (and any other credible witness) come into the process is by 

relating the facts as they saw them. In the case of the Philadelphia police, they saw 

some things, and they interviewed some people and questioned those people about 

what they saw. In the case of the NBPP, witnesses obviously told the police that one 

of the men was creating a disturbance by yelling slurs and waving a weapon while the 

other man just stood there. In addition to the ruckus that he was causing, the first man 

was standing near a polling place and was neither a voter nor a credentialed pollwatcher. The quiet man was also standing near a polling place but was a poll–watcher 

and was not causing a disturbance, so the police allowed him to stay. There is no 

indication that if Mr. Shabazz was credentialed but was also carrying on as he did, the 

police would have allowed him to stay at the polling place (nor that the Department 

would not have brought suit against him80). There is also no indication that had Mr. 

Jackson lacked poll-watching credentials, the police would have allowed him to loiter 

near the polling place. 

 

The basic point is this: the police supplied an account of the facts which some 

in the Department found more credible than the account of the facts presented by Mr. 

Hill and the other Republican poll-workers. The Department lawyers then applied the 

law to the facts that they found most credible. This is not an inappropriate delegation 

of decision-making authority. This is elementary legal practice. We find it 

unbelievable that -experienced lawyers such as Mr. Coates and those on the 

Commission do not understand the distinction between “fact” and “law.” 

Not wishing to believe that any of them never learned this distinction or 

somehow forgot it, we must conclude that they are willfully mischaracterizing AAG 

 

79 Coates Statement, p. 11. 

80 AAG Perez suggests as much in his statement, “A report of the local police officer who responded to the 

scene, which is included in the Department’s production to the Commission, indicates that the officer 

interviewed Mr. Jackson, confirmed that he in fact was a certified poll watcher, and concluded that his actions 

did not warrant his removal from the premises.” Perez Statement, p. 8. It is clear from this passage that Perez is 

saying that the police officer allowed Mr. Jackson to remain not simply because of his poll-watcher certificate, 

but also because the latter’s actions “did not warrant his removal from the premises” (i.e. that if Mr. Jackson 

had behaved like Mr. Shabazz, the police would not have allowed him to remain and the Department would 

have treated him differently too.) 
197 Commissioner Statements

Perez. Evidence for this conclusion can be seen in the selective editing that Mr. 

Coates performed when reiterating what AAG Perez said at the latter’s hearing. Mr. 

Coates says: 

In this case, however, the fact that one Philadelphia police officer did not 

require Black Panther Jackson to leave the area became such a compelling 

piece of evidence that it was cited by the Assistant Attorney General in his 

May 14, 2010 written statement to this Commission. There Mr. Perez stated 

that, "The Department placed significant weight on the responses of the law 

enforcement first responder to the Philadelphia polling place" in allowing 

Black Panther Jackson to escape default judgment and escape the entry of 

injunctive relief against his future actions. Based upon my experience, this 

reasoning is extraordinarily strange and an unpersuasive basis to support the 

Division's disposition of the Panther case.81

 

In so paraphrasing AAG Perez’s statement, Mr. Coates removes the pertinent 

passage we quote in the previous footnote. The Report fails to point out Mr. Coates’s 

misleading deletion from AAG Perez’s statement. Mr. Coates claims that, like Mr. 

Adams before him, he was driven to testify before the Commission by the 

inaccuracies in AAG Perez’s testimony and a need to set the record straight 

concerning the Department's actions. As a result, we find their distorted quotations of 

AAG Perez’s written statement to be “extraordinarily strange and an unpersuasive 

basis to support” their claims of being honest and courageous whistle-blowers, as 

opposed to being simply “true members” of the von Spakovsky/Schlozman Team. 

 The Department’s decision to not pursue the default judgments against Malik 

Zulu Shabazz and the Party itself are as easily explicable as the decision not to pursue 

a default judgment against Jerry Jackson. In fact, the argument is even easier, for as 

Diana Flynn notes in her email, "The most difficult case to make at this stage is 

against the national party and Malik Shabazz." Ultimately Flynn (and McElderry) 

side with pursuing the case even though they think it is weak and problematic. Their 

grounds for doing so focus less on the law, however, and more on the assurances 

from the trial team that the latter have strong evidence.82

 The Report rests its argument for Party/Chairman complicity on the 

contradictory statements that members of the Party made before and after the 

election. The thinking seems to be, “Why would they say there’s going to be a 

massive deployment if there wasn’t going to be one?” As we mentioned above, the 

simplest answer is that the NBPP Chairman says whatever he thinks is most 

expedient at any given time and to any given audience, all in order to gain attention 

and followers. The more skeptical approach is simply to look at the claims: 300+ 

NBPP members deployed to polls in 15+ cities. Then look at the reality: two NBPP 

members, both at the same location in the same city. As was mentioned above, this is 

a less than 1% compliance rate. There need not be perfect and absolute control to 

 

81 Coates statement, p. 11-12. 

82 “Voting does seem to have evidence in support of the allegations.” Flynn email. 
198 Commissioner Statements 

create a principal-agent situation, but at only two-thirds of one-per-cent, there’s 

probably a better chance that more members of the NBPP will accidentally run into 

each other at a particular polling station than showed up to either allegedly provide 

security on Fairmount Street, or any of the other nonsensical argument that have been 

presented in the course of this investigation. 

Lastly, the allegations that the relief in the NBPP case was greatly reduced 

need to be addressed and explained. In brief, and as AAG Perez explained in the 

frequently ignored statement that he provided to the Commission, the original 

injunctive relief sought was problematic partly because it was “one-size fits all.” 

Instead of tailoring the relief to the individual defendants, the injunction aimed at an 

organization that has chapters in multiple cities was the same one for a single 

individual residing in a single city. The fact that the relief was shrunk down from 

nation-wide to city-wide is the product of the decision that the NBPP could not be 

held liable for what Mr. Shabazz did in Philadelphia. 

As for the reduction in duration: a permanent injunction with no enforcement 

limits is at odds with the relief received in voting rights cases such as the Ike Brown83

case and the US v. North Carolina case.84 In both cases, the injunctions were set to 

last for roughly two election cycles. The same is true of the NBPP relief. If one wants 

to describe the injunction Mr. Rosenbaum approved for Mr. Shabazz as a “slap on the 

wrist,” one needs to do the same for the injunction Mr. Coates approved for Ike 

Brown. 

 

IV. USCCR Investigation 

We believe that this investigation was, from the very beginning, an effort to direct the 

resources of the Commission toward the illegitimate and contemptible purpose of harassing 

the new Administration. There was a time when the Commission devoted itself to bipartisan 

investigations of serious instances of voting rights violations. In stark contrast to our 

admirable past, the present Commission spent this last year devoting most of its attention to a 

voter intimidation case in which no actual voters were intimidated85, and to providing an 

avenue by which disgraced and disgruntled remnants of the previous Administration could 

attempt to settle personal and political scores. 

 

83 Contrary to Mr. Adams's definite- and dire-sounding prediction during his testimony before the Commission, 

the Department did, in fact, ask the Court on July 13, 2010 to extend the injunction in Ike Brown. (See United 

States' Motion for Additional Relief Against Defendants Ike Brown and the Noxubee County Democratic 

Executive Committee, U.S. v. Ike Brown, et al., Civil Action no. 4:05-cv-33). We find it noteworthy that, as 

with other statements made by AAG Perez, the Report completely fails to mention the fact that the relief was 

extended. Rather, the Report claims that AAG Perez's statements about this highly-relevant topic were merely 

generalized and often non-responsive. This assertion is pure fallacy. 

84 Report, p. 84. 

85 We understand that §11(b) applies to both voters and those who assist them. Even with this caveat, it is still 

telling that the evidence regarding the intimidation of poll-workers is either thin or contradictory enough that 

the trial team and members of the Commission have had to exaggerate the notoriety of the fringe NBPP in order 

to claim they are the equivalent of the KKK and their mere presence is objectively intimidating. 
199 Commissioner Statements

Though we did not and do not support this investigation, we do believe that for sake 

of the integrity of the Commission, once it was embarked upon, the investigation should have 

been rigorous. Of course since the aims of the investigation were at their inception 

illegitimate, it is perhaps inevitable that the investigation and subsequent report would have 

to lack rigor—otherwise the illegitimacy of the whole project would be revealed. 

As we have mentioned above, many witnesses, including many who were present in 

Philadelphia on Election Day, were not called to testify before the Commission. When 

witnesses were invited to speak, the Majority abused its powers and limited our ability to 

question witnesses. In the case of Mr. Adams, the Majority made little effort to schedule the 

hearing for a date when all Commissioners could be available. In the case of Mr. Coates, the 

Chairman abruptly called a break in the hearing86 the majority left the room with Mr. Coates, 

and when they returned, the Chairman announced that he was going to “wind this matter 

down” and not allow any additional questions of Mr. Coates.87 Considering the tremendous 

importance that the majority had placed on Mr. Coates’s appearance and the substantial 

amount of the hearing that was consumed by Mr. Coates reading his lengthy statement, the 

abbreviated amount of time permitted for questions showed a lack of interest in true inquiry. 

Instead, the hearing seemed much more like a mere opportunity to allow Mr. Coates to 

personally get his opinions into the record as opposed to having them communicated by way 

of Mr. Adams or “anonymous sources” to the Washington Times or the Weekly Standard. 

We also wish to highlight the fact that the Report operates on the bizarre evidentiary 

principle that unsworn statements and blog posts should be allowed to rebut sworn 

statements. Joseph Rich submitted a sworn affidavit88 challenging statements made in Mr. 

von Spakovsky’s earlier sworn statement. In response, Mr. von Spakovsky did not submit 

another sworn statement (as Mr. Rich would do again to rebut claims by Mr. von Spakovsky 

and Mr. Adam89). Instead, Mr. von Spakovsky resorted to a blog post.90 Later, Mr. von 

Spakovsky went on to submit an unsworn statement91 in the attempt to challenge the sworn 

statement made by Robert Kengle.92 Since Mr. von Spakovsky was willing and able to 

submit a sworn declaration originally, we believe that his failure to do so in his purported 

rebuttals to Mr. Rich and Mr. Kengle was both deliberate and suggests that neither the 

Report, nor anyone else, ought to be confident in their veracity. 

For all of these reasons, we dissent from this report and the investigation which 

preceded it. 

***

 

86 9/24/2010 Hearing, p. 134 (“We're out of time. At this point we are going to take a break.”). 87 Id. Vice-Chair Thernstrom was subsequently able to persuade the Chairman to provide a small amount of 

time for additional questions. 

88 Rich Declaration 9/23/10. 

89 Rich Declaration 10/20/10. 

90 Hans von Spakovsky, Enough Is Enough, Joe Rich: An Uncivil Man from the Civil Rights Division, 

PAJAMASMEDIA,Sept. 20, 2010, http://pajamasmedia.com/blog/enough-is-enough-joe-rich-an-uncivil-manfrom-the-civil-rightsdivision; Report, p. 78, fn197. 

91 von Spakovsky Letter 10/28/10. 

92 Kengle Declaration; Report p. 75, fn188. 
200 Commissioner Statements

C. REBUTTALS  

Joint Rebuttal Statement of Commissioners Peter Kirsanow, Gail Heriot and Todd

Gaziano in Response to the Vice Chair

We would give almost anything not to have to write this statement. All of us have 

long been admirers of the Vice Chair’s work in civil rights, which stretches back several 

decades.1 Some of those who made up the Commission’s majority in adopting this report 

have regarded her in the past not just as a friend, but as a mentor.2 Sadly, circumstances have 

made continued silence impossible. The Vice Chair has publicly accused the five 

commissioners who supported this investigation of having the “wild notion” that we could 

topple Attorney General Holder and damage President Obama.3

 Her accusation is 

imaginative, but untrue. 

Her accompanying Statement is just four short paragraphs long—less than 150 

words.4

 In it, she asserts that this investigation “lacked political and intellectual integrity 

from the outset.” We are accused of having “contemptuously ignored” her views. But she 

offers no specifics. That is because the Vice Chair’s accusations are inspired not by a concern 

for the investigation's political or intellectual integrity, but from personal pique. One by one, 

she has become alienated from her former allies on the Commission. In no case has this 

alienation had anything to do with a substantive issue. It is wholly personal. 

The Vice Chair strongly supported this investigation until the day she changed her 

mind and stormed out of a Commission meeting over what she evidently perceived as a 

personal slight, and the personal slight didn’t even have anything to do with the New Black 

Panther Party (NBPP) investigation.5 After that she opposed the Commission’s majority on 

almost every subject6 and called the NBPP matter we were investigating “very small 

potatoes” which did not merit the time the Commission was devoting to it.7

 Her attendance at 

meetings dwindled as she participated in less than 45% of the official meetings and events of 

the Commission in 2010.8

 On those occasions she did attend, she strongly criticized the 

NBPP investigation: 

VICE CHAIR THERNSTROM: Well, a couple things. It seems to me 

it's strange. It is simply impossible to believe that [Deputy Assistant 

Attorney General Julie Fernandes] said anything remotely like “We 

are not going to enforce civil rights laws when blacks are defendants.” 

I mean, she cannot have said that. Maybe she said something that some 

people interpreted as saying that. But she surely didn't announce that. I 

mean, unless she is some sort of moron -- and she certainly could not 

have been speaking for the Department if she was a moron. 

CHAIRPERSON REYNOLDS: How do we go about settling this 

factual dispute over this allegation? 
Joint Rebuttal of Commissioners Kirsanow, Heriot & Gaziano to the Vice Chair 201

VICE CHAIR THERNSTROM: I think we should assume that the 

Justice Department does not have a racial double standard? I mean, 

give them a break.9

In her Statement she reverses course yet again—something that has become 

characteristic of the Vice Chair—and purports to applaud further investigation into the 

incident, so long as that investigation is by the Department itself or by Congress and not this 

Commission. “The majority charges that racial double standards govern the enforcement of 

the Voting Rights Act in the Holder Justice Department,” she now writes. “If that can be 

convincingly demonstrated, it will be a grave indictment of this administration.” 

We agree with part of that statement: If a racial double standard in the Voting Section 

has been demonstrated (or is demonstrated in the future), it is and will continue to be a very 

serious matter. The Commission and its staff tried in good faith to collect all available 

evidence that will tend to prove or disprove it. Indeed, given the Department’s refusal (1) to 

disclose the documents that relate specifically to deliberations over the NBPP case or (2) to 

allow any of the witnesses to testify as to those deliberations, we believe the Commission and 

its staff have done an impressive job.10 Two career attorneys have testified at length under 

oath as to this racial double standard.11 Two more attorneys have submitted affidavits 

supporting that testimony. 

Significantly, no one at the Department has denied the sworn testimony of Christian 

Adams and Christopher Coates that Deputy Assistant Attorney General Fernandes has 

repeatedly directed career Voting Section attorneys to apply a racial double standard in its 

decisions to bring lawsuits.12 And the actions of the Division—in connection with New Black 

Panther Party as well as with other cases—have been consistent with those allegations and 

not with the other attempted explanations that have been offered. 

We are baffled by the Vice Chair’s repeated assertions that the investigation has 

uncovered no evidence of wrongdoing.13 The sworn testimony of Adams and Coates and the 

affidavits of Bowers and von Spakovsky are exactly that. The only interpretation of the Vice 

Chair’s statements that we have been able to come up with is that she is looking for specific 

testimony in connection with the New Black Panther Party case itself. If so, Coates testified 

unequivocally that the case was dismissed because his superiors harbored hostility to the 

race-neutral application of the law, but perhaps she wants written proof from one of the 

decision makers. Yet, that is exactly the kind of evidence the Department has denied the 

Commission access to. 

There may well be a smoking gun out there somewhere. But there is no way to know 

if it exists given that much evidence, including the direct evidence relating to the 

deliberations to dismiss the voter intimidation claims, is being deliberately withheld. All of 

this has been explained to the Vice Chair on more than one occasion. But while she currently 

professes interest in obtaining evidence, her statements are belied by her past conduct, when 

she has either refused to help or attempted to prevent the Commission’s efforts to obtain it.14 
202 Commissioner Statements 

 In the meantime, the sworn allegations that have been uncovered—of an announced 

racial double standard policy—are more troubling than the original allegations of 

wrongdoing in connection with the New Black Panther Party case specifically. Unlike the 

accusations pertaining to the New Black Panther Party, these allegations will continue to be 

highly significant in the future. We cannot understand her assertion that the Commission 

should not even try to pursue them.15

Contrary to the Vice Chair's assertion, the Commission has not yet “charged” and 

may well never charge the Department with wrongful conduct in connection with the New 

Black Panther Party case. This is an Interim Report. It was the unanimous position of those 

who voted in favor of the report that it should not draw final conclusions about the facts of 

the case until all the evidence is in. Instead, this report draws Congress’s attention to the 

evidence that has been produced thus far and what we regard as a possible flaw in the statute 

that chartered this Commission. (Only the Department is specifically authorized to represent 

the Commission in court to enforce our duly authorized subpoenas—a procedure that has 

proven unworkable when the subpoena is directed to the Department itself and the 

Department refuses to comply with it.) To call such a report “tendentious,” as the Vice Chair 

does, is itself tendentious. We have difficulty imagining a more restrained report given the 

explosive nature of the subject matter. 

 

1

 See, e.g., Abigail Thernstrom, America in Black and White: One Nation, Indivisible (1997) (co-authored with 

her husband, Harvard University Professor Emeritus Stephan Thernstrom). 

2

 The five commissioners who supported this investigation throughout were Chairman Gerald Reynolds, Peter 

Kirsanow, Ashley Taylor, Jr., Gail Heriot and Todd Gaziano. Shortly after the Interim Report was approved, the 

terms of Chairman Reynolds and Commissioner Taylor expired. They therefore are not entitled to file 

statements to this report or to join in this Joint Rebuttal Statement. 

3

 Ben Smith, “A Conservative Dismisses Right-Wing Black Panther ‘Fantasies,’” Politico (July 19, 2010) 

(quoting the Vice Chair as accusing the Commission’s majority as having “had this wild notion they could bring 

Eric Holder down and really damage the President”). 4

 Statement of Vice Chair Abigail Thernstrom. 

5

 Business Meeting Transcript, United States Commission on Civil Rights, 56 (September 11, 2009). The Vice 

Chair and Commissioner Ashley Taylor, Jr. were not present at the June 12, 2009 business meeting at which the 

Commission decided to send its June 16, 2009 letter to Acting Assistant Attorney General Loretta King 

inquiring about the Division’s disposition of the New Black Panther Party case. They nevertheless followed up 

with their own joint letter to King dated June 22, 2009 in which they concurred in the Commission’s letter. 

Their letter was in some ways stronger than the Commission’s original letter. In it, the Vice Chair and 

Commissioner Taylor wrote, “We are gravely concerned about the Civil Rights Division’s actions in this case 

and feel strongly that the dismissal of this case weakens the agency’s moral obligation to prevent voting rights 

violations, including acts of voter intimidation or voter suppression.” “We cannot understand the rationale for 

this case’s dismissal,” they continued, “and fear that it will confuse the public on how the Department of Justice 

will respond to claims of voter intimidation or voter suppression in the future.” 

On July 24, 2009, the Commission received what a majority of its members considered an inadequate response 

from Portia L. Roberson of the Department’s Office of Intergovernmental and Public Liaison. This time, the 

Vice Chair was present at the meeting that considered the response. She had every opportunity to influence how 

that letter would be phrased. She signed the letter, dated August 10, 2009. In it, she and her Commission 

colleagues declared: 
Joint Rebuttal of Commissioners Kirsanow, Heriot & Gaziano to the Vice Chair 203

 The Commission has a keen interest in this case because of its special statutory 

responsibility to study the enforcement of federal voting rights laws. We believe the 

Department’s defense of its actions thus far undermines respect for the rule of law and 

raises other serious questions about the Department’s law enforcement decisions. The 

fundamental right that the Commission is investigating—the right to vote free of raciallymotivated intimidation—has been called the cornerstone of other civil rights in our 

democracy. Until it is completed, this investigation will remain one of the Commission’s 

top priorities. 

All of these letters are available on the Commission’s web site. 

6

 On January 15, 2010, the Vice Chair voted against the decision to send a letter to the Securities and Exchange 

Commission asking for information about a new regulation concerning corporate board diversity that was 

widely criticized by opponents of racial preferences. See U.S. Commission on Civil Rights, Transcript of 

Business Meeting, 62 (January 15, 2010). 

At two business meetings held in June and July of 2010, the Commission voted on a report, Encouraging 

Minority Students in Science Careers, that examined how racial preferences have led minority students to be 

disproportionately concentrated near the bottom of their college classes and thus explains their 

disproportionately low numbers in science and engineering. The report called on universities not to admit 

students with large credential deficits relative to the median student and to disclose voluntarily to admitted 

students information about how students with similar credentials performed academically once enrolled. Yet the 

Vice Chair abstained or voted against all the findings and recommendations associated with the report, save one 

finding about the importance of science and technology to the national economy and another about using pay 

incentives to recruit qualified K-12 math and science teachers. Notably, she even voted against a finding that 

reads: “In addition to providing other appropriate support and advice to students interested in STEM majors and 

careers, high school guidance counselors should advise these students about the significant impact of large 

deficits in academic credentials on college performance.” See U.S. Commission on Civil Rights, Transcript of 

Business Meeting, 10-52 (June 11, 2010); U.S. Commission on Civil Rights, Transcript of Business Meeting, 

107-138 (July 16, 2010). 

The Vice Chair's votes on this topic are particularly curious given that she voted for every single one of the 

findings and recommendations that accompanied the Commission’s briefing report Affirmative Action Report in 

American Law Schools (2007). U.S. Commission on Civil Rights, Transcript of Business Meeting, 107-196 

(April 13, 2007). Like its science-focused successor, this report examined the mismatch problem in the law 

school context. Also like its successor, its recommendations called for law schools to stop admitting students 

with large credentials deficits relative to the mean and for voluntary disclosure of information about how 

students with certain credentials perform once admitted. 

The Vice Chair also declined to support Commissioner Kirsanow’s proposal for a briefing on the civil rights 

implications of eminent domain takings. U.S. Commission on Civil Rights, Transcript of Business Meeting, 41 

(Dec. 3, 2010) (calling eminent domain abuse a “non-issue” at 9 and a “topic whose time has come and gone” at 

25.)

7

 See Abigail Thernstrom, “The New Black Panther Case: A Conservative Dissent,” National Review Online 

(July 6, 2010) (urging the reader to “Forget about the New Black Panther Case” and calling it “very small 

potatoes”). 

8

 See various meeting, briefing, telephonic meeting, and national conference transcripts available at the 

Commission’s website. 

9

 Business Meeting Transcript, United States Commission on Civil Rights, 24-25 (August 13, 2010). 

10 For a discussion of the wrongfulness of the Department’s assertions of privilege and decision to withhold that 

evidence, see the accompanying Statement of Commissioner Todd Gaziano at notes 27-48 and accompanying 

text. 

11 Christian Adams and Christopher Coates had been ordered by the Department not to testify as to the actual 

deliberations surrounding the New Black Panther Party case, and they obeyed that order. Their testimony 

instead centered on policy directives made by political appointees and the general climate of opinion at the 

Division, neither of which would be covered by any asserted privilege of the Department. It is likely that Adams 
204 Commissioner Statements 

 and Coates would have had much to say about the deliberations surrounding the New Black Panther Party case 

if they had been permitted to testify. Adams quit his job in connection with the Department’s actions with the 

New Black Panther Party case, but he still honored the Department’s privilege claims regarding actual case 

deliberations. Coates said he would return to testify about the deliberations if permitted to do so. 

12 For a discussion of the evidence of the Division’s general climate of hostility toward the race-neutral 

application of the law, see Statement of Commissioner Gail Heriot at 128-145, Statement of Commissioner 

Peter Kirsanow,at 165-169 and Statement of Commissioner Todd Gaziano at 111-115. 

13 On July 16, 2010, ten days after the hearing at which Christian Adams testified, the Vice Chair stated, “As I 

keep saying to members of the media who ask me about this, look, I’m an evidence girl. All I want is evidence, 

and so, you know, fine. At the point at which we have it, I am going to be really happy.” Business Meeting 

Transcript, United States Commission on Civil Rights, 33 (July 16, 2010). 

14 The Vice Chair’s professed interest in obtaining evidence to support or refute what she now concedes is a 

grave accusation is inconsistent with her actual conduct. She generally opposed the Commission’s efforts to 

obtain evidence the Department was withholding, and she declined to develop the evidence from the two most 

important witnesses who appeared before the Commission. For example, Christian Adams resigned as a 

Department trial attorney to give testimony on the reason for the dismissal of the New Black Panther Party 

claims. The Vice Chair did not attend the hearing, but instead she announced to the world a few hours before 

the hearing began in an online op-ed that the matter the Commission was investigating was “small potatoes” 

unworthy of the time the Commission was devoting to it. See note 7. After Adams’s testimony, she also refused 

to join a letter to the Department requesting that Christopher Coates—someone she previously said she “would 

love to hear firsthand from,” see note 7—be permitted to testify. Business Meeting Transcript, United States 

Commission on Civil Rights, 27 (July 16, 2010). And when Christopher Coates chose to testify two months 

later against the advice of the Department, the Vice Chair acted out of character again. Although the Vice Chair 

is normally a loquacious and active questioner who yields her time to no one during Commission hearings, she 

didn’t ask a single question of Coates. Instead, she yielded all her allotted time to Commissioner Michael Yaki. 

Moreover, she declined an opportunity after Adams and Coates testified to support two letters to Attorney 

General Holder and to the Department requesting that they allow Coates, Adams, and other DOJ witnesses to 

testify to the deliberations over the New Black Panther Party case and to furnish the Commission with specific 

memos written by Coates and Adams and other documents on that topic. Business Meeting Transcript, United 

States Commission on Civil Rights (October 8, 2010) (Although the Vice Chair and Commissioner Melendez 

were not in attendance, the vote was officially left open for them. Commissioner Melendez took advantage of 

this opportunity. The Vice Chair did not.) And the Vice Chair simply ignores Adams’s and Coates’s testimony 

when she asserts there was “no evidence” of a racial double standard in the Civil Rights Division. 15 See supra at pages 199-200 of this Joint Rebuttal Statement. Although the Vice Chair says in her Statement 

that she is interested in any results from investigations by Congress or the Department itself on these matters, at 

the December 3, 2010 Commission meeting she declined to support a motion for the Commission to continue to 

receive information relating to this topic.

***
APPENDIX A:  Background

on the New Black Panther

Party for Self Defense
206 Appendix A: Background on the New Black Panther Party for Self Defense

The Election Day 2008 incident in Philadelphia raises questions as to the power the New 

Black Panther Party for Self Defense (NBPP) exercises over its members, as well as the 

extent of such control over the activities of King Samir Shabazz and Jerry Jackson on 

Election Day. While the Commission has attempted to depose King Samir Shabazz, Jerry 

Jackson, and Malik Zulu Shabazz, the first two have refused to testify, asserting their Fifth 

Amendment rights against self-incrimination,1

 while the Chairman of the Party, Malik Zulu 

Shabazz, has contested the Commission’s subpoena in court. Accordingly, the following 

section examines the publicly available information on this issue. 

The NBPP is a recognized hate group that is explicitly anti-Semitic and anti-white.2

 The 

NBPP is based on hierarchical principles with a military structure. Party members often 

appear in public wearing paramilitary uniforms and carrying weapons. According to Party 

rules, all panthers must learn to operate and service weapons correctly.3

 In addition, officials 

are given military titles and the Party advocates armed struggle and violence against its 

enemies.4

 Even its membership application form reflects a military-style orientation, seeking 

information about an applicant’s military training, martial arts skills and whether one has 

served as a Navy Seal, Army Ranger or in other special forces.5

The Party openly acknowledges its hostility to police and governmental authorities. Its tenpoint platform contains the following representative statements: 

We believe the Black People should not be forced to fight in the 

military service to defend the racist government that holds us captive 

and does not protect us. We will not fight and kill other people of color 

in the world who, like black people, are being victimized by the white 

racist government of America. We will protect ourselves from the 

force and violence of the racist police and the racist military, by any 

means necessary. (emphasis added)6

 * * * 

 

1 See Deposition of King Samir Shabazz at 4-6, U.S. Comm’n on Civil Rights, Phila., Pa., Jan. 11, 2010, 

available at http://www.usccr.gov/NBPH/KingSamirShabazzDepositionTranscript_01-11-10.pdf; Deposition of 

Jerry Jackson at 6-8, U.S. Comm’n on Civil Rights, Phila., Pa., Jan. 11, 2010, available at

http://www.usccr.gov/NBPH/JerryJacksonDepositionTranscript_01-11-10.pdf. 2

 The Anti-Defamation League called the NBPP “the largest organized anti-Semitic and racist black militant 

group in America.” Anti-Defamation League, New Black Panther Party for Self Defense: Introduction, 

http://www.adl.org/main_Extremism/new_black_panther_party.htm (last visited Oct. 21, 2010). 3 See MySpace Groups, New Black Panther Party for Self Defense, Rules of the New Black Panther Party, Rule 

No. 16, http://groups.myspace.com/index.cfm?fuseaction=groups.groupprofile&groupID=103327617 (last 

visited Oct. 21, 2010). 

4 See Markon & Thompson, supra note 82, Mike Roman, New Information Raises More Questions About DOJ 

and the Black Panthers, BIGGOVERNMENT.COM, http://biggovernment.com/mroman/2010/09/22/newinformation-raises-more-questions-about-doj-and- the-black-panthers/ (last visted Dec. 28, 2010). 5

 New Black Panther Party, Membership Application, 

http://www.newblackpanther.org/newsite/membership2.html (last visited Oct. 21, 2010). 6

 New Black Panther Party, 10 Point Platform, http://www.newblackpanther.org/newsite/102.html (last visited 

Oct. 21, 2010). 
Race Neutral Enforcement of the Law? 207

We believe we can end police brutality in our community by 

organizing black self-defense groups (Black People’s Militias/Black 

Liberation Armies) that are dedicated to defending our Black 

Community from racist, fascist, police/military oppression and 

brutality. The Second Amendment of white America’s Constitution 

gives a right to bear arms. We therefore believe that all Black People 

should unite and form an African United Front and arm ourselves for 

self defense.7

The Party even has a requirement that “If we ever have to take captives do not ill-treat 

them.”8

All members must submit to the authority of officers within the Party. The Party reserves the 

right to impose discipline or suspend its members. As noted in its Rules: 

Every member of the New Black Panther Party throughout this country 

of racist America must abide by these rules as functional members of 

this party. Central Committee members, Central Staffs and Local 

Staffs, including all captains subordinated to either national, state, and 

local leadership of the Black Panther Party will enforce these rules. 

Length of suspension or other disciplinary action necessary for 

violation of these rules will depend on national decisions by national, 

state or state area, and local committees and staffs where said rule or 

rules of the New Black Panther Party were violated. Every member of 

the party must know these verbatim by heart. And apply them daily. 

Each member must report any violation of these rules to their 

leadership or they are counter-revolutionary and are also subjected to 

suspension by the Black Panther Party.9

The head of the New Black Panther Party is Malik Zulu Shabazz, designated as its chairman 

and “attorney at war.” He often appears in the media making statements on the goals and 

actions of the Party. In these appearances, he often wears elaborate uniforms marked with 

stripes, insignia and symbols of his rank, including four stars on his lapel.10

The Philadelphia Chapter is recognized as a key unit within the Party. As noted by Malik 

Zulu Shabazz: 

 

7 Id.

8

 MySpace Groups, New Black Panther Party for Self Defense, 8 Points of Attention, Point No. 8, 

http://groups.myspace.com/index.cfm?fuseaction=groups.groupprofile&groupID=103327617 (last visited Oct. 

21, 2010). 

9

 MySpace Groups, New Black Panther Party for Self Defense, 

http://groups.myspace.com/index.cfm?fuseaction=groups.groupprofile&groupID=103327617 (last visited Oct. 

21, 2010).

10 See, e.g., David Holthouse, Southern Poverty Law Center, New Black Panther Party Holds Strategy Summit, 

HATEWATCH, Oct. 17, 2007, http://www.splcenter.org/blog/2007/10/17/new-black-panther-party-holdsstrategy-summit/ (last visited Oct. 21, 2010). 
208 Appendix A: Background on the New Black Panther Party for Self Defense

“We’re going to be very active in Philadelphia,” says Malik. “We’re 

going to work on the minds and hearts of black people to eliminate the 

negative habits that keep us in a raggedy condition in Philadelphia. 

Philadelphia is a key city. I see it as being one of our best cities.”11

This assertion was made in the same magazine article in which the head of the Philadelphia 

Chapter, King Samir Shabazz, is quoted as making virulent statements advocating violence 

against whites. In the article, King Samir Shabazz is described as “readying for war,” 

wearing “battle dress” and acting as a “soldier.”12 He is quoted as describing the white man 

as “our open enemy.” Other statements include the following: 

He’s [Whitey] never going to let us live inside the Constitution,” he 

says. “Until we realize that, we’re going to remain dumb, deaf and 

blind. I can’t wait for the day that they’re all dead. I won’t be 

completely happy until I see our people free and Whitey dead.” 

By “dead,” King means socially, economically, politically – and, if 

necessary, yes, physically. 

* * * 

“I’m proud to be a Panther,” says King. “We won’t ease up. We’re 

going to keep putting our foot up the white man’s ass until they 

understand completely. We want freedom, justice and muthafuckin’ 

equality. Period. If you ain’t gonna give it to us, muthafucka, we’re 

gonna take it, in the name of freedom.”13

The article goes on to describe that weapons training is part of King Samir Shabazz’s Party 

duties. 

Thursday is military training night for the New Black Panthers. King 

goes over how to pat someone down for weapons and how to enforce 

security for high-ranking officials at public events. Arms training, 

CPR and guerilla warfare are reviewed.14

Although Malik Zulu Shabazz, the chairman of the Party, is also quoted in the article, and 

presumably was aware of these statements, there is no public indication that Malik Zulu 

Shabazz or the Party used its authority to discipline King Samir Shabazz in any way for the 

above statements. 

 

11 Kia Gregory, F*** Whitey’s Christmas, PHILA. WEEKLY, Dec. 17, 2003, available at

http://www.philadelphiaweekly.com/news-and-opinion/cover-story/the_cats_came_back-38373074.html (last 

visited Oct. 21, 2010). 

12 Id. 13 Id. 14 Id.
Race Neutral Enforcement of the Law? 209

In July 2008, the NBPP generally, and the Philadelphia Chapter in particular, were featured 

in a broadcast by National Geographic.15 In the broadcast, Party members are shown 

marching on, and burning an American flag. Other members are shown posing with weapons. 

In perhaps the most searing moments of the broadcast, King Samir Shabazz is filmed bluntly 

denouncing and advocating direct violence against whites. His statements include: 

I hate white people. All of them. Every last iota of a cracker, I hate 

him. 

* * * 

There’s too much serious business going on in the black community to 

be out here sliding through South Street with white, dirty, cracker, 

whores [bleep] on our arm. And we call ourself black men with 

African garb on. What the hell is wrong with you, black man? . . . We 

keep beggin’ white people for freedom. No wonder we not free. Your 

enemy cannot make you free, fool. You want freedom, you going to 

have to kill some crackers. You’re going to have to kill some of their 

babies.16

Although much of the broadcast focused on King Samir Shabazz, two members who were 

later named in the NBPP litigation were also shown. The first of these was Jerry Jackson, 

who later appeared with King Samir Shabazz at the polling location on Fairmount Street. In 

the National Geographic broadcast, Mr. Jackson is shown playing a subordinate role to King 

Samir Shabazz, following his lead, working in tandem, and always appearing in his 

paramilitary uniform. He is described as Mr. Shabazz’s chief of staff. In several scenes, Mr. 

Jackson poses with King Samir Shabazz with firearms. He also is shown handing out 

pamphlets as King Samir Shabazz made the above statement, urging the killing of “crackers” 

and their babies. 

Also appearing in the broadcast is the Party’s Chairman, Malik Zulu Shabazz. His 

appearance would seem to indicate that he approved of the broadcast and did not object to its 

contents.17 As with the Philadelphia Weekly article, there is no public record that Malik Zulu 

 

15 See Inside the New Black Panthers (National Geographic television broadcast 2009). 16 Id. (beginning at the 13:34 mark). The statements of King Samir Shabazz mirror reported statements made by 

Malik Zulu Shabazz several years earlier: 

At an April 2002 protest outside B’nai B’rith headquarters in Washington, DC, he 

[Malik Zulu Shabazz] said, “Kill every goddamn Zionist in Israel! Goddamn little 

babies, goddamn old ladies! Blow up Zionist supermarkets!” 

Richard J. Rosenthal, The New Black Panther Mouthpiece, FRONTPAGEMAGAZINE.COM, 

February 9, 2004, http://archive.frontpagemag.com/readArticle.aspx?ARTID=14294 (last 

visited Oct. 21, 2010). 

17 See Inside the New Black Panthers (National Geographic television broadcast 2009) 

Mr. Shabazz was asked about King Samir Shabazz’s statement about killing “crackers” in an interview with 

Fox News reporter Megyn Kelly. This interview occurred on July 9, 2010 while Malik Zulu Shabazz was under 
210 Appendix A: Background on the New Black Panther Party for Self Defense

Shabazz or the Party in any way repudiated or denounced the statements or actions of King 

Samir Shabazz in the National Geographic video, including advocating violence and posing 

before the camera with firearms. Given the Party’s avowed powers of discipline, the lack of 

any such action following the inflammatory statements of King Samir Shabazz is relevant to 

the events that occurred on Fairmount Street and afterwards. 

In sum, the publicly available evidence suggests that at no point did Malik Zulu Shabazz, or 

the NBPP as an organization, exert any discipline or rebuke to either King Samir Shabazz or 

Jerry Jackson prior to the filing of the lawsuit arising out of the events on Election Day 2008. 

To the contrary, Malik Zulu Shabazz and the NBPP appear to have approved and supported 

the arms training, threats of violence, and openly racist statements of King Samir Shabazz 

and his subordinate, Jerry Jackson. 

*** 

 subpoena by the Commission and after J. Christian Adams had testified. The reluctance of Malik Zulu Shabazz 

to criticize the statements of King Samir Shabazz is captured in the following colloquy: 

MEGYN KELLY: I mean, that’s disgusting, isn’t it, sir? 

SHABAZZ: I would say that he should be careful in how he speaks, but I would still say that his words are 

being manipulated by a right-wing conspiracy here, and the Republicans are manipulating his words into, again, 

an attack on blacks and to drum up racial fears . . . 

[Two voices simultaneously] 

MEGYN KELLY: What part—Let me ask you, do you agree that white people . . . 

SHABAZZ: . . . and to increase voter turnout. 

MEGYN KELLY: Do you agree that white people should be killed, and their babies should be killed? 

SHABAZZ: That is not the position of our organization, that is not the position of myself. We have an official 

platform and a position. That is not our position. 

[Two voices simultaneously] 

MEGYN KELLY: So you say that’s not the position, I’m just asking you as a human being, sir. That is a 

disgusting comment he made, and do you agree with it, or don’t you? 

SHABAZZ: No, I do not agree that he should have said that, no I do not. 

MEGYN KELLY: No, no, I’m not asking about whether he should have said it. I’m asking about whether you 

agree with the sentiment. 

SHABAZZ: No, ma’am, I don’t. 

America Live (Fox News television broadcast July 9, 2010), available at

http://video.foxnews.com/v/4277314/new-black-panther-party-head-responds-to-allegations (last visited Oct. 

20, 2010).