New Black Panther member is interviewed by Fox News on Election Day 2008.

Stephen Robert Morse’s election day reporting was not going as planned. The University of Pennsylvania graduate had flown back from Los Angeles to take a short-term gig recording video of polling place chicanery. He asked both parties if they were interested in his services; the Republicans hired him first. But the first few hours produced nothing in the way of compelling video. There was no sign that he was about to stumble onto an incident that would galvanize Republicans and conservatives nearly a year later.

Image by: Matt Mahurin

At 11 a.m., Morse hit the jackpot. The local McCain-Palin campaign office got a call from a man who’d had trouble voting at the 14th ward, 4th division polling place, inside a senior citizens’ apartment complex in a heavily African-American neighborhood. The man was scared away by Samir Shabazz and Jerry Jackson, two members of the New Black Panther Party, a fringe radical group unrelated to the 1960s political organization. Shabazz and Jackson stood outside the polling place dressed in black leather, gripping nightsticks. Morse sped over to the polling place and shot video of the two men, who sniped at him for filming. He filmed the police who ushered the men away. Finally he filmed Shabazz angrily leaving the scene with a final insult: “That’s right, you’re gonna be ruled by a black man!”

Morse’s footage, uploaded immediately to YouTube, was played again and again on local and cable news, as Pennsylvania was expected to be a jump ball, a state that Sen. John McCain could take from the Democrats. But the state was called for Barack Obama the second the polls closed. Morse moved on.

“It’s crazy that this is still an issue,” Morse told TWI this week. “It’s not something I thought we’d be talking about ten months later.”

Ever since May, when the Department of Justice won an injunction against Jackson and announced it would not go further in prosecuting the other members of the NBP, conservative critics have demanded more action against the group and more answers from the agency. The most troublesome criticism for the Obama administration has come from the United States Commission on Civil Rights, created by the 1957 Civil Rights Act to “lay plans for dealing with broad civil rights problems” and “investigate and make recommendations with respect to special civil rights problems.” It has sent two letters to the Department of Justice demanding answers on the case. But the administration has also been hounded by two influential Republican members of Congress and a rising chorus of conservative media, from The Washington Times to Glenn Beck to Michelle Malkin. (Morse supports further action against the group and opposed the Justice Department’s decision not to push the case.)

“Thanks to [Attorney General] Eric Holder,” wrote Malkin last month, “these supremacist bullies are free to show up at your polling place in full regalia and nightsticks, hurling racist, anti-American epithets and blocking entrances as you attempt to exercise your right to vote.”

In an editorial, The Washington Times compared the Panthers’ disruption to a police blockade that kept black voters from the polls in Florida during the 2000 election. “Unlike the Florida incident,” wrote the editors, “this case involving the New Black Panthers screams out for tough justice.”

The Department of Justice has been firm on the matter; it opened a case in January and closed it in May. “The Department obtained an injunction prohibiting the defendant who brandished a weapon outside a Philadelphia polling place from doing so again,” spokeswoman Tracy Schmaler told TWI. “We will fully enforce the terms of that injunction.” And this came after “the top career attorneys in the Civil Rights Division determined that the facts and the law did not support pursuing the claims against three of the defendants.”

But that explanation has not satisfied most of the members of the Commission on Civil Rights. For eight years, President George W. Bush had the right to make appointments; the commission now consists of four Republican appointees, two conservative-leaning independent appointees, and two Democrats. The three African-American members of the panel, including Chairman Gerald A. Reynolds, are Republican appointees with ties to the conservative legal movement. Ashley Taylor, a Virginia lawyer, was a counsel to the McCain campaign in that state in 2008. Peter Kirsanow, who lives in Ohio, has helped lead the Center for New Black Leadership, a leading black conservative group. Chairman Reynolds served in the Department of Education and the Department of Justice under Bush. The fourth Republican appointee, Abigail Thernstrom, is a scholar who has produced some of the definitive arguments against affirmative action and racial preferences, most recently in “Voting Rights–and Wrongs: The Elusive Quest for Racially Fair Elections.” Independent commission member Gail Heroit is a conservative law professor at the University of San Diego who has argued against affirmative action and hate crimes legislation; the other independent member, Todd Gaziano, is a scholar at the Heritage Foundation.

This is the context in which the commission has sent two public letters to the Department of Justice, asking questions about the Panther investigation and drawing considerable media attention on a story that might have otherwise faded in January. “[I]t is with great confusion,” four of the conservative members wrote in a June letter, “that we learn of the Civil Rights Division’s recent decision to dismiss a lawsuit against defendants who were caught engaging in attempted voter suppression the likes of which we haven’t witnessed in decades.”

The Commission’s attention to the case, like the testimony of a Republican poll watcher with impeccable civil rights credentials, has lent credibility to Obama administration critics who argue that the Department of Justice went easy on a black supremacist group for political reasons. That poll watcher was Bartle Bull, an ally of the late Robert F. Kennedy who testified that the Panther stunt “would qualify as the most blatant form of voter intimidation I have encountered in my political campaigns in many states, even going back to the work I did in Mississippi in the 1960’s.” After the Justice Department decided to stop pursuing charges, Bull appeared on “The O’Reilly Factor” to go even further.

As effective as he’s been in pushing the case, Bull’s gone further than some of his allies would have liked. Before the Philadelphia incident, Bull had endorsed McCain and denounced Obama, saying his “notion of economic fairness is pure Karl Marx, plus a pocketful of Chicago-style ‘community organization.’”

“He loves the limelight more than I do,” said Morse.

Kirsanow, who has cited Bull in his public comments on the New Black Panthers, also put a little bit of distance between his charges and the commission’s concerns. “With all due respect to Bull … he saw what happened in the civil rights movement,” Kirsanow said. “But given the history of voting rights suppression in South, some of which resulted in a lot of violence, I don’t know that we can compare that to what happened in Philadelphia. It’s similar in kind, if not in degree.”

One problem with comparing the Philadelphia incident to the infamous crimes of the 1960s is that it didn’t effectively target potential McCain voters. Rather than targeting white voters, or going to a predominantly Republican district, the NBP went to a largely African-American precinct close to downtown Philadelphia. Obama carried the precinct by a landslide, with 596 votes to only 13 votes for McCain. The Republican candidate fared worse than George W. Bush in 2004, when he won 24 votes there, but better than Bush in 2000, when he won only eight votes. In a race that Obama won by 620,478 votes statewide, the New Black Panther incident was a blip.

“That’s not relevant here,” said Hans von Spakovsky, a lawyer was Counsel to the Assistant Attorney General for Civil Rights during the Bush administration. “When I worked at the [Justice Department], we would never look at election results as a way of determining whether we needed to be involved.”

Nonetheless, Kirsanow told TWI that a majority of commission members were looking at making the Panther incident the focus of their next statutory report, the potentially powerful and news-making study that the commission is empowered to conduct every year. That has frustrated Mary Frances Berry, a civil rights scholar who chaired the Civil Rights Commission from 1993 to 2004. “Some of these people were on the same committee when we did an investigation of the vote in Florida,” she told TWI, “and they chose not to participate.”

Berry suggested that the commission would be better off using its power to investigate the tenure of John Tanner, the former head of the Voting Rights Division of the Justice Department, and who was revealed in early 2009 to have joked that he liked his coffee “Mary Frances Berry style — black and bitter.”

“Under Tanner there were all kinds of cases where blacks were prosecuted for allegedly intimidating voters,” said Berry. “That’s worth a review.”

But no civil rights issue is getting as much media traction as the Panther story. Even though there is no evidence of the New Black Panther Party repeating this stunt at other polling locations, it has kept the attention of conservative media and of Republicans such as Rep. Frank Wolf (R-Va.), who has kept up demands for more information even after a meeting with the Justice Department lawyers who made the case. The story has gotten even more extreme in the re-tellings; On an August 24 episode of Glenn Beck’s Fox News show, erstwhile Democratic pollster Pat Caddell accused the attorney general of “decid[ing] that Black Panthers … who carry guns into precincts should not be prosecuted.”

“I suppose you’ve got to give them credit,” said Berry. “If they had wanted to do something that would get them traction, they did it with this. Because they totally lack credibility in the civil rights community.”

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It was clear that some members of the court, at least, were reluctant to uphold the constitutionality of the law, which a small Texas utility district had challenged. Writing for the majority in Northwest Austin Municipal Utility District v. Holder, Chief Justice John Roberts said that Section 5 of the Voting Rights Act, under review in the case, had achieved “historic accomplishments” but “now raises serious constitutional concerns.”

Rather than strike down the law, though, the majority agreed to avoid ruling on its constitutionality by interpreting it in a way that allowed the district to take advantage of the act’s bailout provisions.

Justice Clarence Thomas was the lone dissenter, writing that since passage of the Voting Rights Act in 1965, “the violence, intimidation and subterfuge” that led to its enactment “no longer remains.” He therefore would have held Section 5 of the act unconstitutional.

He only dissented in part, however, and he agreed with the outcome of the case, which was to reverse the district court’s ruling that the utility district was ineligible for an exemption from the law’s requirements.

As Rick Hasen of Election Law Blog writes: “Though the letter is directed to Judge Sotomayor, it takes a not-so-subtle shot at Chief Justice Roberts’ views of congressional power, first as expressed at his Supreme Court confirmation hearings, and then as expressed at the oral argument in NAMUDNO” — or Northwest Austin Municipal Utility District v. Holder, a challenge to the Voting Rights Act that the Supreme Court is getting ready to rule on soon.

The letter, also discussed in Constitutional Law Prof Blog, essentially accuses Roberts of lying by saying he believes one thing at his confirmation hearing, and then doing another on the bench.

Specifically, Specter accuses Roberts of saying in his confirmation hearing that he will defer to the findings of Congress when legislation is challenged in court, and then during oral argument in the recent Voting Rights Act, suggesting that he doesn’t accept Congress’s findings when it comes to the need for reauthorization of the Voting Rights Act.

Specter wrote in his letter to Sotomayor:

While too much cannot be read into comments by justices at oral argument, Chief Justice Roberts’s statements suggested a very different attitude on deference to Congressional fact finding than he expressed at his confirmation hearing.

How straight an answer Specter will get on his questions about deference to Congressional fact-finding may depend on whether (and how) the Supreme Court has ruled in the voting rights case by the time of Sotomayor’s confirmation hearing, notes Steven Schwinn, contributor to Constitutional Law Prof Blog and a professor at John Marshall Law School.

Sotomayor’s confirmation hearings are scheduled to begin July 13.

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Here’s the authoritative blog’s take on Sotomayor’s opinions on key cases involving abortion, the First and Second Amendments, voting rights, civil rights and international law.

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The procedural step all but ensures that the bill will become law. (President Obama supported the bill as a senator.)

But it won’t happen without a ton of grumbling from constitutional literalists, who argue that the document grants voting representation only to states. George Will, among the loudest of these voices, made the case in his Washington Post column earlier this month:

The problem is, or should be, that although the Constitution has provisions that allow various interpretations, the following is not one of those provisions: The House shall be composed of members chosen “by the people of the several states.”

But the District is not a state. It is (as the Constitution says in Article I, Section 8 ) “the seat of the government of the United States.” […]

Under the bill, Utah would gain another member of the House, eliminating the criticism that the measure is designed simply to lend advantage to the Democrats.

Well, almost.

Will, among other conservatives, fears that giving D.C. a voice in the House will eventually lead to the installation of two voting senators as well. “Which probably is the main objective of the Democrats who are most of the supporters of this end run around the Constitution,” Will wrote.

It’s an elegant case, but so is the counterargument. Here’s former Rep. Tom Davis, a Virginia Republican who sponsored the bill as a congressman, explaining to House lawmakers last month why the “not-a-state” theory shouldn’t fly:

Those opposing this bill ignore 200 years of case law and clear instruction from the court that this is a congressional matter requiring a congressional solution. Under opponents’ reading of the Constitution:

• The federal government would not be allowed to impose federal taxes on District residents – the Constitution says direct taxes shall be apportioned among the several states;
• District residents would have no right to a jury trial – you have to be from a state to have that right;
• D.C. residents would have no right to sue people from outside D.C. in the federal courts – only people from states have that right;
• The Full Faith and Credit clause would not apply to D.C. – that applies only between the states; and,
• The District would be able to pass laws which interfere with interstate commerce – the Commerce Clause only allows Congress to regulate commerce among the several states.

But in each of those cases the Supreme Court has held that Congress can consider the District a “state” for purposes of applying these fundamental provisions.  If Congress has the authority to do so regarding those constitutionally granted rights and duties, there should be no question it has the same authority to protect the most sacred right of every American – to live and participate in a representative republic.

The House Judiciary Committee will mark up the upper chamber’s version of the bill Wednesday, with a floor vote likely to follow next week.

When the Assn. of Community Organizations for Reform Now, or ACORN, announced yesterday that it had registered more than 1.3 million new voters nationwide so far this year, it was a cause either for celebration or dismay — depending on where you stand.

In theory, of course, voter registration is supposed to be a good thing, and ACORN has long been commended for its ability to effectively appeal to young, poor, working class, elderly and minority voters around the country.

But this set of community organizers is also a favorite target of the Republican Party and, most recently, of Fox News. As the Huffington Post recently reported, Fox has been hammering Obama’s alleged connections with the community-organizing group -– much as if it were charging that he’s consorting with terrorists. (Leave it to Gov. Sarah Palin to make Fox look restrained.)

But ACORN? When did grass-roots organizers trying to increase political participation through voter registration become something political candidates had to distance themselves from?

It all started with the GOP’s accusations that ACORN promotes voter fraud — a charge it’s been making for years but which it’s stepped up this campaign season with a vengeance.

Readers even cited the charges in commenting on my last story, which was about how actual voter fraud -– the kind that affects elections -– doesn’t really exist.

What the voter fraud fear-mongers neglect to mention, however, is that in most cases, the charges against ACORN have not been substantiated. Which means there’s no reason to believe they were ever true.

As we know from the U.S. attorney firing scandal under Atty. Gen. Alberto Gonzales, chief prosecutors are not above pressuring their underlings to go after voter fraud that doesn’t exist.

But the most important reason why the unsubstantiated charges against ACORN are misleading is that even in the few cases where it turned out that people were wrongly registered, there is no evidence that anyone actually turned up on Election Day to vote on their behalf.

A voter registration may be invalid because someone signing up accidentally provided a wrong address or phone number; or because a worker provided false information.

But in the cases cited as evidence of voter fraud by ACORN -– most notably one cited as the worst case of voter fraud in the state of Washington, where seven people were convicted last year –- the prosecutor himself noted that it was a scheme by a few individuals to make money. No one was actually trying to influence the outcome of the election.

It turned out that workers who were paid to register voters had copied names out of phone books rather than going out and doing their jobs of signing up real voters. Of course, none of those people showed up to vote.

Seeking to prevent any more such scandals, ACORN officials told me the organization now has workers personally call each newly-registered voter to double-check that the registration is genuine. That’s a big workload for a non-profit organization run on a shoestring, but it became a necessary effort to fend off the relentless Republican attacks.

Still, it hasn’t stopped them. An announcer on “Fox and Friends” recently described ACORN as having “a long and storied past involving voter fraud across the country, widespread” and noted “Obama’s long-term relationship with the radical group.”

In fact, Obama was one of several lawyers representing a large group of organizations—all siding with the U.S. Dept. of Justice -– who sued the governor of Illinois for failing to follow the federal motor-voter law.

Not surprisingly, Fox, like the GOP operatives attacking ACORN, neglected to tell its audience the rest of the story.

Because of an overlap between the beginning of absentee voting 35 days before Election Day, which started yesterday, and the Oct. 6 end of voter registration, Ohio allows one week of same-day voting and registration.

Republicans had fought hard against that rule, designed to make voting easier, by bringing several lawsuits, charging that early votes and same-day registration lend themselves to attempts at voter fraud. These are just some of several GOP lawsuits to end related attempts to challenge Democratic votes in key swing states.

In general, Republican lawsuits around the country have been urging states to restrict voting rights — claiming the threat of massive voter fraud.

Democrats respond that Republicans are just trying to prevent voting by the poor, young, elderly and minorities. All these demographics are more likely to vote Democrat, and are the target of major Democratic Party get-out-the-vote efforts.

In Ohio yesterday, both state and federal courts upheld Ohio’s right to allow early voting and same-day registration. It was a big victory for Ohio’s Democratic secretary of state, Jennifer Brunner.

Still, the federal court yesterday ruled that counties must allow party poll observers during early voting, leaving Republicans a window of opportunity to suppress the Democratic vote.

Last night, Republicans assured their ranks that they would not let early voting proceed without a fight — or at least, a large number of voter challenges.

“This is a win for Jennifer Brunner’s partisan efforts to aide the Democrat turnout strategy,” said Ohio Republican Party chairman Bob Bennett. “Fortunately, the federal court overturned her attempts to shut out observers and conduct the absentee voting process without public scrutiny. We will continue to fight the secretary of state’s partisan maneuvering in this election, and we will win in spite of it.”

Meanwhile, the Ohio GOP Web site yesterday was instructing Republican voters to take advantage of the secretary of state’s early voting and same-day registration rules — noting this was an important opportunity for Republicans to express support for the party by voting early for Sen. John McCain and Alaska Gov. Sarah Palin.

From Brayton:

Caging is a technique of challenging voters where they take lists of addresses, mail to them with a “do not forward” marking and if for whatever reason those mailings are returned, they use this as a basis for claiming that the voter no longer lives at the address at which they are registered.

A former Karl Rove aide, Tim Griffin, has long been accused of using the voter suppression tactic to keep turnout among black voters in Duval County, Florida low in the 2004 presidential election. No smoking gun has ever confirmed Griffin’s use of caging, but some serious evidence suggests he did.