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.
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.”