[Congressional Record (Bound Edition), Volume 156 (2010), Part 12]
[Extensions of Remarks]
[Pages 17395-17398]
[From the U.S. Government Publishing Office, www.gpo.gov]




TESTIMONY OF MR. CHRISTOPHER COATES BEFORE THE U.S. COMMISSION ON CIVIL 
            RIGHTS REGARDING UNEQUAL ENFORCEMENT OF THE LAW

                                 ______
                                 

                           HON. FRANK R. WOLF

                              of virginia

                    in the house of representatives

                     Wednesday, September 29, 2010

  Mr. WOLF. Madam Speaker, I submit certain sections of the testimony 
of Mr. Christopher Coates before the U.S. Commission on Civil Rights in 
which he discusses the unequal enforcement of federal voting laws by 
political and career officials in the Department of Justice.


THE DECISION TO DISMISS AND TO LIMIT INJUNCTIVE RELIEF IN THE NBPP CASE

       It was within this atmosphere, with these managers, and 
     with pressure being applied by an organization--NAACP LDF--
     that is close to the Obama Administration's CRD management, 
     that the decision to gut the NBPP case was made. Although 
     there have been recent reports that indicate that senior 
     political appointees at higher levels in the Department were 
     involved in the NBPP case, it was Ms. King, along with her 
     Deputy, Steve Rosenbaum, who the Justice Department has 
     claimed made the decision to dismiss three of the party-
     defendants in the

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     case and ordered the limitation on the broader injunctive 
     relief recommended by both Voting Section and Appellate 
     Section attorneys against the one remaining defendant.
       It is my opinion that this disposition of the NBPP case was 
     ordered because the people calling the shots in May 2009 were 
     angry at the filing of the Ike Brown case and angry at our 
     filing of the NBPP case. That anger was the result of their 
     deep-seated opposition to the equal enforcement of the VRA 
     against racial minorities and for the protection of whites 
     who have been discriminated against. Ms. King, Mr. Rosenbaum, 
     Mr. Kappelhoff, Ms. Clarke, a large number of the people who 
     work in the Voting Section and the CRD, and many of the 
     liberal private groups that work in the civil rights field 
     believe, incorrectly but vehemently, that enforcement of the 
     protections of the VRA should not be extended to white voters 
     but should be limited to protecting racial, ethnic and 
     language minorities.
       The final disposition of the NBPP 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 to people inside and outside the CRD. That 
     message is that the filing of voting cases like the Ike Brown 
     and the NBPP cases would not continue in the Obama 
     Administration. The disposition of the NBPP case was not 
     required by the facts developed during the case or the 
     applicable law, as has been claimed, but was because of this 
     incorrect view of civil rights enforcement that is at war 
     with the statutory language in the VRA and with racially fair 
     enforcement of federal law.


                      FAILURE TO ENFORCE SECTION 5

       If anyone doubts that CRD and the Voting Section have 
     failed to enforce the VRA in a race-neutral manner, one only 
     has to look at the enforcement of the Section 5 preclearance 
     requirements. Those requirements mandate that federal 
     preclearance for voting changes within the covered 
     jurisdictions be obtained for any covered change and that 
     preclearance not be given for changes that have a racially 
     discriminatory purpose or effect. 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 
     forty-five (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 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 the Voting Section's failure to apply Section 
     5's protections for the white minority is particularly 
     problematic. On two occasions, while I was Chief of the 
     Voting Section, I tried to persuade officials at the CRD 
     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 in both the CRD 
     and the Voting Section are opposed to race-neutral 
     enforcement of Section 5 and continue to enforce those 
     provisions in a racially selective manner.


         REASONS GIVEN BY THE DOJ FOR ITS ACTIONS IN NBPP CASE

       As I have indicated, I am not going to testify about the 
     statements made during my meetings with Ms. King and Mr. 
     Rosenbaum, because of the DOJ's assertion of the deliberative 
     process privilege. However, the DOJ and Mr. Perez have 
     publicly articulated the reasons for the disposition of the 
     NBPP case, and I will therefore address here several of these 
     publicly stated reasons for dismissals of three of the 
     defendants and the limitation on the injunctive relief.
       The primary reason cited by the CRD 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 who 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 Party poll 
     watcher. During my thirteen and one-half (13\1/2\) years in 
     the Voting Section, I cannot remember another situation where 
     the decision not to file suit under the VRA, much less to 
     dismiss pending claims and parties, as in the NBPP 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 CRA 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 VRA violation is that a local police officer is 
     not normally trained in what constitutes a VRA violation. In 
     addition, in the Philadelphia Police Incident Report provided 
     to this Commission, 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 Mr. Jackson was certified by the Democratic 
     Party to be a poll watcher at the polling place.
       Further, as the history underlying the enactment and 
     extension of the VRA shows, local police on occasion have had 
     sympathy for persons who were involved in behavior that 
     adversely affected the right to vote and violated the 
     protections of the VRA. 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 
     Perez in his May 14, 2010 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 a 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 CRD's 
     disposition of the NBPP case.
       Another publicly stated reason by the DOJ was in a July 13, 
     2009 letter to Congressmen Frank Wolf and Lamar Smith that 
     pointed out that Panther Jackson lived at the apartment 
     building whose lower level was being used as the polling 
     place. This reason was later abandoned by the CRD, but the 
     fact that it was asserted by the DOJ as a reason for the 
     dismissals in the NBPP case strongly suggests that it was a 
     reason asserted at some point close to the time of the 
     dismissals. Regarding the location of Black Panther Jackson's 
     residence, our investigation determined that Jackson's claim 
     that his residence was at this apartment building was not 
     true. However, even if Black Panther Jackson had resided 
     there, it should be quite clear to all that such a fact would 
     not have provided him a legal basis for intimidating voters.
       To understand the irrationality of these articulated 
     reasons for gutting this case, one only has to state the 
     facts in the racial reverse. Assume that two members of the 
     KKK, one of which lived in an apartment building that was 
     being used as a polling place, showed up at the entrance in 
     KKK uniform and that one of the Klansman was carrying a billy 
     stick. Further assume that the two Klansmen were yelling 
     racial slurs at black voters who were a minority of people 
     registered to vote at this polling place, and the Klansmen 
     were blocking ingress to the polling place. Assume further 
     that a local policeman comes on the scene and determines that 
     the Klansman with the billy club must leave but that the 
     other Klansman could stay because he was certified as a poll 
     watcher for a local political party.
       In those circumstances does anyone seriously believe that 
     the Assistant Attorney General for Civil Rights would contend 
     that on the basis of the facts and law, the CRD did not have 
     a case under the VRA against this hypothetical Klansman 
     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? I certainly hope Mr. Perez would not find 
     that hypothetical case lacking in merit, and I will guarantee 
     you that Ms. King, Mr. Rosenbaum, Mr. Kappelhoff and Ms. 
     Clarke would not either. However, such reasons are a part of 
     the publicly articulated grounds for the CRD's decision to 
     instruct me to dismiss a significant portion of the NBPP 
     case.
       Based upon my own personal knowledge of the events 
     surrounding the NBPP case and the atmosphere that has existed 
     in the CRD and the Voting Section against racially fair 
     enforcement of certain federal voting laws, I do not believe 
     these publicly stated representations to this Commission and 
     other entities accurately reflect what occurred in the NBPP 
     case. They do not acknowledge the hostile atmosphere that has 
     existed within the CRD against race-neutral enforcement of 
     the VRA.


            MS. FERNANDEZ'S STATEMENTS TO THE VOTING SECTION

       In the summer of 2009, Julie Fernandez was appointed as the 
     Deputy Assistant Attorney General for Civil Rights by the 
     Obama Administration. One of her responsibilities is to 
     oversee the Voting Section. Ms. Fernandez and I had worked 
     together in the Voting Section during the Clinton 
     Administration. She had spent years working for civil rights 
     groups since our Clinton Administration days, mainly with the 
     Leadership Conference for Civil Rights, but I hoped that she 
     might have an enforcement approach different than Ms. King's 
     and Mr. Rosenbaum's. I was to be disappointed.
       Mr. Fernandez began scheduling lunches in the conference 
     room of the Voting Section at which times the various 
     statutes the Voting Section has the responsibility for 
     enforcing were discussed as well as other enforcement 
     activities. In September 2009, Ms. Fernandez held such a 
     meeting to discuss enforcement of the anti-discrimination 
     provisions of Section 2 of the VRA. At this meeting one of 
     the Voting Section trial attorneys asked Ms.

[[Page 17397]]

     Fernandez what criteria would be used to determine what type 
     of Section 2 cases the CRD Front Office would be interested 
     in pursuing.
       Ms. Fernandez 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 is what we are all about, or 
     words to that effect. When Ms. Fernandez made that statement, 
     everyone in the room understood exactly what she meant--no 
     more cases like the Ike Brown or NBPP cases. Ms. Fernandez 
     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 minority language.
       In November 2009, a similar lunch meeting was held by Ms. 
     Fernandez on the subject of the National Voter Registration 
     Act (NVRA). The NVRA has three provisions that have led to 
     enforcement activity by the Voting Section. The first is 
     Section 7 which requires that certain government offices, 
     such as the local office that provides public assistance, 
     also provide their clients the opportunity to register to 
     vote. The other two provisions of the NVRA are found in 
     Section 8 of that Act. They require states to ensure that 
     voter registration list maintenance be conducted so that 
     registration lists do not have the names of persons who are 
     no longer eligible to vote in the jurisdiction. Further, 
     Section 8 also provides that certain notice procedures are to 
     be followed in order to legally remove persons from a voter 
     registration list.
       In discussions specifically addressing the list maintenance 
     provision of Section 8 of the NVRA, Ms. Fernandez stated that 
     list maintenance had to do with the administration of 
     elections. She went on to 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 provision of Section 8 to 
     compel states and local registration officials to remove 
     ineligible voters. These suits were very unpopular with a 
     number of the groups that work in the area of voting rights. 
     When Ms. Fernandez told the Voting Section that the Obama 
     Administration was not interested in Section 8 list 
     maintenance enforcement activity, everyone in the room 
     understood exactly what she meant. We understood that she was 
     not talking about Section 8 cases in which there is a claim 
     that the removal procedures of Section 8 were not being 
     complied with; instead, she was talking about the types of 
     cases that the Voting Section filed during the Bush 
     Administration whose purpose was to compel the states to 
     comply with the Section 8 directive that they do list 
     maintenance by removing ineligibles from the list.
       In June 2009, the Election Assistance Commission (EAC) 
     issued its bi-annual report concerning which states appeared 
     not to be complying with Section 8's list maintenance 
     requirements. The report identified eight states that 
     appeared to be the worst in terms of their non-compliance 
     with the list maintenance requirements of Section 8. These 
     were states that reported that no voters had been removed 
     from any of their voters' list in the last two years. 
     Obviously, this is a good indication that something is not 
     right with the list maintenance practices in that state. As 
     Chief of the Voting Section, I assigned attorneys to work on 
     this matter, and in September 2009, I forwarded a memorandum 
     to the CRD Front Office asking for approval to go forward 
     with 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 the 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. From these circumstances I believe that Ms. 
     Fernandez's statement to the Voting Section in November 2009 
     not to, in effect, initiate Section 8 list maintenance 
     enforcement activities has been complied with.
       In Mr. Perez's letter to this Commission of August 11, 
     2010, he stated that the CRD currently has active matters 
     under the NVRA, ``including investigations under Section 8.'' 
     In making this statement, I do not believe Mr. Perez was 
     referring to Section 8 list maintenance cases, the kind of 
     cases Ms. Fernandez was referring to when she talked about no 
     interest in enforcing Section 8, because I do not believe 
     that the Voting Section has recently been involved in any 
     list maintenance enforcement during the Obama Administration.
       I believe that federal prosecutors, criminal and civil, 
     have prosecutorial discretion in deciding how we are going to 
     use our resources, but I do not think that discretion goes so 
     far as to allow us to decide not to do any enforcement of a 
     law enacted by Congress, because political appointees 
     determine that they are not interested in enforcing that law. 
     That is an abuse of prosecutorial discretion.
       Further, not to enforce the list maintenance provisions of 
     Section 8 are likely to have partisan consequences as well. A 
     number of the jurisdictions that have bloated voter 
     registration lists are where there are sizable minority 
     populations and are Democratic strongholds. For example, at 
     the time of the trial in the Ike Brown case, the Noxubee 
     County Election Commission had not purged its list, as 
     required by Mississippi law and Section 8 of the NVRA, so 
     that the number of persons on the voter registration list was 
     approximately 130 percent of the number of people in that 
     county who were eighteen (18) years or older. As Congress 
     recognized in enacting the list maintenance provisions of 
     Section 8, bloated voter registration lists increase the risk 
     of voter fraud.


        THE IMPORTANCE OF RACIAL-NEUTRAL ENFORCEMENT OF THE VRA

       Equal enforcement of the VRA is absolutely essential for a 
     number of reasons. First, it is required by the statutory 
     language of the VRA. Congress did not use statutory language 
     that speaks in terms of discrimination against racial or 
     language minorities, but in terms of discrimination on the 
     basis of race or color. In extending and amending Section 5 
     of the Act in 2006, the Congress used the term ``any voter'', 
     not racial or ethnic minority voters. Further, the statutory 
     construction given the VRA by the courts supports that the 
     Act is written in race-neutral terms and is intended for the 
     protection of all.
       When we go to work with the DOJ, we all take an oath 
     faithfully to enforce the laws of the United States. 
     Enforcing the VRA in a racially selectively manner or 
     choosing not to enforce certain provisions of federal voting 
     law is not in compliance with the oaths that we have taken.
       Second, when the VRA was originally enacted in 1965, it 
     probably did not make a great deal of difference, as a 
     practical matter, whether its prohibitions against race 
     discrimination and intimidation were enforced against 
     minority wrongdoers as well as white wrongdoers. During that 
     time period, there were very few minority election officials 
     in the overwhelming majority of jurisdictions, and in a 
     number of jurisdictions there were no minority election 
     officials. However, during the last forty-five (45) years, 
     the United States has changed for the better. Large numbers 
     of minority persons now serve as election and poll officials 
     in hundreds of jurisdictions throughout America. In such a 
     multi-racial and multi-cultural country, not the one of Bull 
     Connor or Ross Barnett, but the country in which an African 
     American serves as the President and as the Attorney General 
     of the United States, and it is absolutely essential that the 
     VRA be enforced equally against all racial and ethnic groups.
       During my years in the Voting Section, and particularly 
     during the time I served in a management capacity, I became 
     acutely aware based on complaints and conducting 
     investigations that a sizable number of voting illegalities 
     are committed by members of racial and ethnic minorities. 
     Noxubee County, Mississippi is a prime example. Noxubee was 
     not, as some critics have claimed, a mere aberration. Let me 
     give you two other examples.
       During the time I was Chief of the Voting Section, we 
     conducted a prolonged investigation in Wilkinson County, 
     Mississippi, a majority-black county in the southwestern part 
     of the State. A long battle between an all-black faction and 
     a racially integrated faction had been going on for a 
     substantial period of time in that county. Relations between 
     the two factions had reached the point where the all-black 
     faction would not allow members of the racially-integrated 
     faction to play any role in the conduct of the local 
     elections, including the counts of absentee ballots or the 
     choosing of persons to work at the polls. After a local 
     election in Wilkinson County in 2007, the home of a white 
     candidate for local office was burned. No one was ever 
     prosecuted for this burning, and the burning of this 
     candidate's home never received any national attention. The 
     Voting Section in the end did not file a VRA lawsuit in 
     Wilkinson County for a number of reasons, including the 
     pendency of multiple election contests in state courts during 
     the time of our investigation and the fear that the filing of 
     suit by the DOJ would suggest we were taking sides in 
     election disputes. We did send federal observers to elections 
     there, including the 2008 election. I came away from the 
     Wilkinson County investigation with the clear impression that 
     African American officials there were involved in voting-
     related acts of racial discrimination against whites.
       In addition in 2005, I conducted an investigation in Hale 
     and Perry Counties, Alabama, two other majority-black 
     counties. Again, there were political factions in these 
     counties with one faction all-black and the other a racially 
     integrated faction. There were multiple claims by the 
     racially integrated faction of absentee ballot and other 
     types of voter fraud being perpetrated by the all-black 
     factions in these counties. While

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     investigating in Hale County, I learned that there had been a 
     recent highly contentious election, and on the night of that 
     election, election materials, including absentee ballots, 
     were placed for safe keeping in a local bank vault so that 
     those materials could be reviewed the next morning by 
     election officials. Overnight that bank was set on fire. No 
     one was ever prosecuted for that burning. Again, the Voting 
     Section did not end up filing a VRA lawsuit in either of 
     these Alabama counties for a number of reasons, including on-
     going voting fraud investigations by the state Attorney 
     General's office in those counties. I have recently learned 
     that several African American political officials have been 
     convicted for absentee ballot fraud in Hale County. Again, I 
     came away from the Hale and Perry County investigations with 
     the clear impression that some individual African Americans 
     in those counties were involved in acts of racial 
     discrimination against whites.
       In pointing these examples out, I am not suggesting that 
     minority election and poll officials or minority political 
     activists are more likely to commit voting law violations 
     than are their white counterparts. What I am pointing out is 
     that I believe that some minorities are just as likely to 
     resort to lawlessness in the voting area as are some whites. 
     For the CRD and Voting Section to pursue enforcement 
     practices that ignore VRA violations by members of minority 
     groups will encourage lawlessness in the voting area by those 
     who will have no fear that the Federal Government will 
     enforce the federal law against them. In our increasingly 
     multiethnic society, that is a clear recipe to undermine the 
     public's confidence in the legitimacy of our electoral 
     process.
       I have heard some argue that prosecutors, both criminal and 
     civil, have prosecutorial discretion that gives attorneys in 
     the CRD and the Voting Section the authority not to bring VRA 
     lawsuits against minority wrongdoers. It is certainly true 
     that prosecutors have discretion to decide what cases to 
     bring based upon resource issues and other legal 
     considerations. But we do not have the discretion to decide 
     not to enforce the law based upon the race of the 
     perpetrators or the race of the victims of the wrongdoing. 
     Those discretionary decisions cannot constitutionally be 
     based upon race.
       In conclusion, I thank you for the time you have given me 
     to testify on these important enforcement issues. I commend 
     the Civil Rights Commission for making inquiries into these 
     areas. Individuals of good will, regardless of their race, 
     ethnicity or language-minority status, should be concerned 
     about the CRD not enforcing laws in a race-neutral manner. As 
     important as the mandate in the VRA is to protect minority 
     voters, white voters also have an interest in being able to 
     go to the polls without having race-haters such as Black 
     Panther King Samir Shabazz whose public rhetoric includes 
     such statements as ``kill cracker babies'' standing at the 
     entrance of the polling place with a billy club in his hand 
     hurling racial slurs. Given this outrageous conduct, it was a 
     travesty on justice for the DIN not to allow attorneys in the 
     Voting Section to obtain nation-wide injunctive relief 
     against all four of the defendants.

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