In my first posting on voter intimidation, I set forth the legal standard for bringing cases under Section 11(b) of the Voting Rights Act and set forth references to legislative history that make it clear that proof of intent is not required to establish a violation. Voter intimidation remains a problem facing voters across the country and Section 11(b) of the Voting Rights Act could become an important enforcement tool this fall.
I have found only one case that references the legal standard under Section 11(b), Olaques v. Russinello, 797 F. 2d 1511 (9th Cir. 1986) (en banc), vacated on grounds of mootness 484 U.S. 806 (1987). Of course, a decision that has been vacated has no precedential value. See Countyof Los Angeles v. Davis, , 440 U.S. 625, 634 n. 6 (1979) (“Of necessity our decision ‘vacating the judgment of the Court of Appeals deprives that court's opinion of precedential effect….’”).[1]
In this piece, I want to detail how DOJ has interpreted and applied Section 11(b). To my knowledge, the Department has only brought two Section 11(b) cases in its history. The first was in 1992 when the Department filed suit against the Jesse Helms for Senate Committee. United States v. Helms for Senate Committee, Civil Action No. 92-161-CIO-5F (E.D.N.C. Feb. 27, 1992). The other was in 2005, when the Justice Department filed suit in Mississippi alleging for the first time in the Department’s history that the actions of a defendant violated the Voting Rights Act because the conduct discriminated against white voters. U.S. v. Ike Brown, No. 4:05CV33TSL-LRA. It is disappointing, to say the least, that while vote caging and voter intimidation has been on the rise in recent years, the Department’s only Section 11(b) suit in the last 18 years has been on behalf of white voters.
In the U.S. v. Jesse Helms for Senate Committee case, with which I am far more familiar, the Justice Department brought suit under both 42 U.S.C. 1971(b) (from the Civil Rights Act of 1957) and 1973i(b) against a number of entities and individuals for intimidating and threatening black voters throughout North Carolina in an effort to discourage them from participating in the 1990 general election. In that election, Republican U.S. Senator Jesse Helms was locked in a tight race with former Charlotte mayor Harvey Gantt, an African-American. The facts are critical to understanding DOJ’s position in the case. I went back and reviewed the complaint, as well as the consent judgment and decree from the case. Here are the facts.
Just prior to the 1990 general election, postcards were sent to over 100,000 black voters in the state. The sending of these postcards was financed directly by the North Carolina Republican Party and indirectly by Senator Helms’ reelection campaign. As I recall several thousand white voters were sent postcards as well. Information gathered by DOJ during its investigation showed that the voting precincts targeted to receive the postcard mailing were 94% black, overall.
The postcard contained inaccurate information telling voters that they could not vote on Election Day if they did not reside at the address at which they were registered for the 30 days prior to the election. The postcard also suggested that any voter who did attempt to vote would be subject to federal prosecution.
The postcard was inaccurate because under North Carolina law at the time, voters who moved within a county more than 30 days before the election could vote a transfer ballot” based on their new address. Voters who moved within the state fewer than 30 days prior to the election could vote a regular ballot based on their old address. Thus, only voters who had moved from one county to another more than 30 days before the election had to reregister in order to vote.
Both the NC Republican Party and the Helms for Senate Committee undertook the postcard mailing as one part of a so-called ballot security program. These two entities had actually contracted with consultants to implement the ballot security program. I recall that when the DOJ investigation was completed, the persons who drafted the inaccurate postcard knew the language in the postcard was both inaccurate and misleading. In fact, the postcard had been designed in such a way as to frighten and intimidate those voters who received it. It was hoped that the mailer would induce fear and apprehension that such voters would stay away from the polls.
The postcard mailing also had a vote caging element to it. Return of undeliverable postcards was used by the NC Republican Party to compile lists of voters who would then be challenged at the polls. This vote caging effort, however, was terminated shortly before the election and subsequent to the Republican Party and Helms for Senate Committee learning that the Department of Justice was conducting an investigation into the ballot security program.
DOJ had responded quickly to the postcard mailing in advance of the 1990 election. By conducting an investigation using the FBI, along with the extensive press coverage of the mailing and investigation that ensued, DOJ was able to reduce the more serious damage that the postcard might have caused: keeping black voters from voting. Nevertheless, the facts that formed the basis for DOJ to file suit showed that the postcard clearly had an intimidating and threatening impact on black voters. Some voters who received the post card expressed concern that they would face arrest or other problems if they went to the polls to vote.
In deciding to bring the suit, DOJ had to grapple with whether Section 11b required a showing of intent or merely effect. The Department concluded that to establish a violation of Section 11(b), it was not necessary to prove intent. Thus, the DOJ’s complaint alleged in three separate paragraphs of the complaint that the purpose of the postcard mailing was to intimidate and/or threaten black voters (¶43), that the effect of the postcard was to intimidate and/or threaten voters (¶44), and that irrespective of the defendants’ intent, the postcard “had a reasonably tendency” to intimidate and/or threaten black voters (¶45).
The third allegation was the Department’s effort to set forth an objective test to determine unlawful interference with the right to vote. In crafting this test, the Department of Justice relied on principles of labor law to formulate a legal standard that best met Congressional intent underlying Section 11(b). My recollection is that the Department’s view in 1991 (and to my knowledge continuing today) was that the cases adjudicated under the National Labor Relations Act (NLRA) were instructive. By this I mean that that while the NLRA makes it an unfair labor practice for corporations or unions to” interfere with, restrain, or coerce employees in the exercise” of their rights under the Act, the standard for adjudicating an unfair labor practice are determined by reference to an objective test. Under NLRA cases, to establish a violation, it is not necessary to establish anti-union animus; rather to establish a violation of an unfair labor practice what must be shown is that an employers’ actions would tend to coerce a reasonable person. See, e.g., Mississippi Transp. v. NLRB, 33 F.3d 972, 978 (8th Cir. 1994), Black Grievance Committee v. NLRB, 749 F.2d 1072, 1075 (3d Cir. 1984), Wyman-Gordon Co. v. NLRB, 654 F.2d 134, 145 (1st Cir. 1981),NLRB v. Intertherm, Inc., 596 F.2d 267, 271 (8th Cir. 1979).
Ultimately, a settlement was reached in the Helms for Senate Committee case in the form of a consent decree. The agreement not only enjoined the defendants from undertaking further action either designed to intimidate, threaten or coerce voters, or which interfered with or discouraged voters from lawfully exercising the franchise.
Thus, the Justice Department’s view of Section 11b has been that Congress enacted Section 11(b) to broaden the protections of federal voter intimidation laws, that the legislative history to Section 11(b) supports the view that neither proof of a purpose to intimidate not actual effect need be shown to prove a violation of Section 11(b), and that plaintiff need only show that in the particular circumstances the conduct at issue had a tendency to intimidate threaten or coerce the reasonable voter.
Section 11(b) has been utilized successfully in the past but has been grossly underutilized in the years since the Helms case. There have been even more overt acts of voter intimidation in the ensuing years, but sadly DOJ has not pursued them. In 2006, for example, an anonymous flyer was targeted to black precincts in Dallas, Texas, which informed voters that they could be arrested if they went to the polls to vote. A complaint was promptly lodged with the FBI with a request to take action. Approximately one month later, however, the FBI declined to take any action and failed to investigate the matter. The complaint was refiled with DOJ’s Civil Rights Division a few months ago and is currently under review by the Department .
The 2008 primaries saw a record voter turnout. With the presidential race now less than 90 days away, voter intimidation programs may again reemerge. In the coming weeks it is time for DOJ to be particularly vigilant in stopping these vote suppression schemes and bringing suits under Section 11(b) when the situation warrants it. Although voter intimidation schemes have been the subject of lawsuits in several prior elections, DOJ failed to take action in any of them. The Justice Department needs to dust off Section 11(b) of the Voting Rights Act and use it when necessary. If it does, it will be a big step forward for a Department whose law enforcement efforts in recent years have been marred by partisan politics rather than focused on protecting the voting rights of our citizens.
[1] In Olaques, supra, the Ninth Circuit had upheld a dismissal of claims of voter intimidation directed against state officials and, in a very cursory manner, asserted that both Section 1971(b) and Section 11b require a showing of subjective intent to intimidate. It is also worth noting that the court of appeals, gave little attention to the voter intimidation claims in its decision, as they were not the central issues in the appeal.