Uncivil Commission

It has become an article of faith in liberal circles that the election of George W. Bush to the presidency is attributable, in some ill-defined measure, to the systematic “disenfranchisement” of minority voters in Florida. In January, the Civil Rights Commission opened its hearings on the issue. The hearings have thus far failed to unearth even a scintilla of credible evidence of minority “disenfranchisement” (ordinarily defined as the intentional denial of the right to vote). But that hasn’t stopped commissioners from taking cheap shots at Florida election officials and concluding — before any report has been prepared — that the right to vote was “interfered with.”

Most Americans probably have never heard of the Civil Rights Commission. Established by Congress in 1957 as an independent fact-finding agency, the commission was charged with collecting and analyzing data regarding civil rights. In the late 1950s and early 1960s, its scholarship helped lay the groundwork for the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

But having succeeded in convincing Congress to outlaw racial discrimination and strengthen protections for the right to vote, the commission began to recede into the background. It has no enforcement power and has long since been overshadowed by agencies that do: the Equal Employment Opportunity Commission (which enforces workplace civil rights laws), the Office of Civil Rights at the Department of Education (which enforces the civil rights laws that govern our schools), and the civil rights division of the Department of Justice (which prosecutes voting rights and other civil rights violations). With no significant governmental function, the commission continues to exist largely because of inertia — and what politician is brave enough to have his name associated with the headline “Feds Kill Civil Rights Agency”? Despite its lack of obvious purpose, the commission retains the ability to subpoena documents and compel public testimony. The activists who today dominate the commission use this subpoena power as an instrument of agitation, to embarrass those who refuse to follow the politically correct line on racial issues.

Although bipartisan by law, the commission displays a decided leftward tilt. Its eight members include four Democrats, one Republican, and three “independents” — two of them appointed by Democrats, one by Republicans. In all, six of the eight were appointed by Democratic presidents or Democratic congressional leaders.

Perhaps the commission’s most leftward member is its chairman, Mary Frances Berry, a professor at the University of Pennsylvania and a well-known practitioner of racial politics. Berry is a former Democrat who conveniently became an independent after she was named to the commission in 1980 by President Carter. When President Reagan tried to replace her in 1983, Berry sued and won a preliminary injunction barring her removal from office. Shortly thereafter, Democrats in Congress reappointed Berry to the commission, and in 1993 President Clinton elevated her to the chairmanship.

Chairman Berry wears her status as a registered independent as a badge of honor, often pointing to it as evidence of her objectivity. But neutral Berry is not. According to Federal Election Commission records, she is a regular contributor to Democratic and left-wing causes, including Keep Hope Alive (Jesse Jackson’s political action committee), Ralph Neas, and the campaigns of Carol Moseley-Braun, Hillary Rodham Clinton, and Al Gore.

Another Democratic appointee, Harvard law professor Christopher Edley, is a former Clinton administration official who advised the Gore campaign. In an article published in the October 9, 2000, issue of the Nation, Edley argued that racial progress in America was “contingent” on Al Gore’s defeating George W. Bush, and he painted an alarmist picture of a Supreme Court with Bush appointees turning back the clock on civil rights.

Commission vice chairman Cruz Reynoso is a former justice of the California Supreme Court, where he was famously removed from office by the state’s electorate along with then-chief justice Rose Bird. The commission’s other Democratic appointees include Elsie Meeks, a Native American activist from South Dakota; Yvonne Lee, a San Francisco consultant; and Victoria Wilson, a registered independent and an editor at Alfred A. Knopf.

To be sure, the commission is not entirely without alternative viewpoints. The lone Republican, Abigail Thernstrom, a senior fellow at the Manhattan Institute and the author of several books on race relations, was a contributor to George W. Bush’s presidential campaign. And commissioner Russell G. Redenbaugh, a financial consultant and a registered independent appointed by Republicans, is said to have contributed to Republican candidates. But Thernstrom was appointed only last month. She and Redenbaugh are clearly outnumbered.

Equally significant is the make-up of the commission’s staff. Despite the change in administrations, four Clinton holdovers occupy important political appointments, including staff director and general counsel. Kimberly Alton, a special assistant to the staff director, took a leave of absence from the commission to work on the Gore campaign, then returned to take charge of the Florida project soon after November 7. Shortly before the change of administrations, the commission also hired Joshua Gottheimer, a Clinton White House staffer, to work on the Florida matter.

How the Civil Rights Commission came to investigate allegations of disenfranchisement in Florida remains something of a mystery. Sources close to the commission report that in the days following the election, Jesse Jackson telephoned his friend Mary Frances Berry to ask for the commission’s help. Berry responded by sending three staff attorneys to Florida. This taxpayer-funded trip was ostensibly necessary so that the commission could “monitor developments” to see if an investigation was warranted. But the sources believe that the attorneys were, in fact, helping Jackson and his staff drum up allegations of discrimination to help Al Gore.

By December, all hell had broken loose in Florida. Initial complaints that a butterfly ballot in Palm Beach County had confused elderly voters had long since morphed into allegations of more widespread “minority disenfranchisement.” Jesse Jackson took to the airwaves accusing election officials of joining in “a systematic plan to disenfranchise black voters.” In December, the commission voted to open a full-scale inquiry.

The first set of hearings, held on January 11 and 12 in Tallahassee, focused largely on three areas: problems with Florida’s voting apparatus, efforts by the state to purge convicted felons from the rolls, and allegations of voter intimidation. Using its subpoena power, the commission summoned Florida governor Jeb Bush and secretary of state Katherine Harris and demanded an explanation for the problems with Florida’s voting process. No sooner did the governor take his seat than it became clear the commission was more interested in using him as a political punching bag than in hearing what he had to say. Unlike all the other witnesses who testified before the commission in Tallahassee, Bush was not permitted to make an opening statement. Chairman Berry explained, “We don’t have time.”

In response to questioning, Governor Bush described a bipartisan task force he has appointed to identify deficiencies in Florida’s voting process and recommend reform. He also expressed concern about allegations that convicted felons had been allowed to vote in violation of Florida law, and that, conversely, some voters had been mistakenly identified as felons and purged from the rolls. This prompted Berry to ask sarcastically if Bush had mentioned the felon issue because he considered “the other allegations so insubstantial that they do not merit the same kind of attention.”

If the commissioners were disrespectful of the governor, they were positively rude to Harris. Berry berated Harris for what she deemed Harris’s failure to educate first-time voters on voting procedures and later mocked Harris’s testimony as “laughable.” Vice chairman Cruz Reynoso yelled at Harris for refusing to extend the deadline for counties to submit the results of their recounts beyond 5:00 P.M. on the date set by the Florida Supreme Court. And commissioner Victoria Wilson accused Harris of riding on “a merry-go-round of denial.” In addition to state officials, the commission heard from local election supervisors about mechanical problems in their counties. At one point, Berry pointedly asked whether such problems had affected African-American voters disproportionately. When one election supervisor responded that the predominantly black precincts in her county had been no more likely to experience problems than predominantly white precincts, an agitated Berry cut off the witness and launched into a tirade about the importance of testifying truthfully under oath.

Berry, however, believes not only that minority voters disproportionately voted in areas with faulty voting machines, but that they were the victims of a deliberate plot to keep them from the polls. On January 13, Berry told CNN’s Brian Nelson that “most of what happened [in Florida] was on the front end. Most of what happened to people was not even being able to get to the polls or being able to vote.” In other words, Berry believes that somebody prevented minorities from voting in the first instance — never mind that black voter participation in Florida rose 65 percent in this election and that blacks, who make up approximately 13 percent of Florida’s electorate, were 16 percent of the state’s voters on November 7. Unfortunately for Berry, the evidence thus far not only fails to prove her theory, it suggests the reverse — that there was no intentional disenfranchisement in Florida.

Take, for example, the three ordinary voters who testified at the Tallahassee hearings about their personal experiences on Election Day. The first, John Nelson, testified that he became “suspicious” when he saw an unmanned police cruiser parked outside two separate polling places in neighborhoods with large black populations. (At least one of the police cars, it turns out, was parked while its driver was inside voting.) Incredibly, this was Nelson’s only complaint.

Another witness, Roberta Tucker, testified that she felt intimidated when police stopped her — along with numerous other motorists — at a roadblock on her way to the polls in Leon County. Tucker, who is black, stated that the officer who stopped her asked to see her driver’s license and then sent her on her way. Tucker testified that she then proceeded to the polling place and voted.

The undisputed evidence is that the roadblock, which lasted 90 minutes, was a routine vehicle checkpoint located more than two miles away from any polling place. The officers manning the checkpoint issued 18 citations, 12 of them to white motorists — hardly persuasive evidence of a scheme to intimidate non-whites. Moreover, Florida’s Democratic attorney general, Bob Butterworth, who also testified at the Tallahassee hearing, has found no evidence that the checkpoint was established for the purpose of denying anyone’s civil rights.

In Tallahassee, the commission also heard from an African-American minister known as Apostle Willie D. Whiting. Whiting testified that he felt “slingshotted back to slavery” when he learned that he had been removed from the voter rolls. As it turns out, Apostle Whiting had been mistaken for Willie J. Whiting, a convicted felon born in the same month and year as he. Ultimately, Apostle Whiting convinced poll workers that there had been a clerical error, and he testified that he was allowed to vote.

Berry was undeterred. “Well,” she said, leading the witness, “do you think an appropriate reaction to all this that happened to you was for some people — if it happened to other people — to decide that they just simply won’t try to vote again?” Berry continued, “I mean, if it’s that much of a hassle and if people are going to say you’re a felon when you’re not and you’re going to be embarrassed at the polls or asked for two IDs when you don’t need them and you don’t have them and nobody else is, maybe you should just stay home and not vote.” Chairman Berry apparently sees no distinction between mere inconvenience and “disenfranchisement.”

Berry is right, however, about one thing. Some Floridians were turned away from the polls. And for good reason: to prevent voter fraud. Florida’s constitution prohibits convicted felons from voting in the state, and a Florida statute requires each county to purge its voter lists of duplicate names, deceased voters, voters who have moved, and felons. This anti-fraud law was passed in the wake of Miami’s 1997 mayoral election, in which ballots were cast on behalf of dead people. Even with the new precautions, the Miami Herald reports that at least 2,000 illegal ballots were cast in Florida on November 7 by ineligible felons, unregistered voters, dead people, and people who had already voted. Most of these errors occurred because poll workers failed to check voter identification properly. Yet Berry believes that a mere request for proper identification constitutes an attempt to disenfranchise minority voters.

To be sure, those responsible for updating voter lists made some mistakes. And Governor Bush is right to ask his task force to recommend reforms in this area. But there is simply no evidence that any eligible voter was purged from the voting lists deliberately or that Florida’s voter purge law was purposely employed to disenfranchise eligible voters.

Lack of evidence, however, doesn’t stop Mary Frances Berry. After several state officials testified that their offices had received no complaints of discrimination, Chairman Berry announced that she viewed such testimony as proof positive that Florida officials had conspired to prevent victims of discrimination from coming forward. She explained, “Whenever an agency . . . receives no complaints when there’s a bunch of stuff happening out there and it’s all reported in the media, that means the people who are complaining either don’t know you’re somebody to complain to or they don’t believe you’ll do anything about it. And so from our standpoint, that’s not a good thing, that’s a bad thing.”

As if the Tallahassee hearings weren’t bad enough, on February 16, the commission returned to Florida to continue fishing for proof of a conspiracy to deprive voters of their civil rights. Convening in Miami for one day of testimony, the commission heard from additional voters who said they had encountered problems at the polls. Some of the witnesses complained about unusually long lines at their polling places. Others testified that their names had not been on the voter lists and that jammed telephone lines had prevented poll workers from confirming their identities.

In sum, the witnesses who testified at the Miami hearing fleshed out a picture of chaotic polling places, desperately understaffed and lacking in resources. But while the testimony provided clear evidence of governmental inefficiency, it provided no credible evidence of intentional discrimination. True to form, Chairman Berry expressed concern that voters had been “disenfranchised” by the failure of election officials to anticipate patterns of voter turnout and provide appropriate resources. Speaking with reporters during a lunch break on Friday, Berry stated her view that any minority who sought to vote and was unable to do so was a victim of discrimination, irrespective of the circumstances. Intent, Berry said, is not her touchstone, impact is.

Despite her claim that the commissioners will withhold judgment until they have examined all of the evidence, Chairman Berry already knows, as she recently told CNN, that “something very bad, awful happened during the election. . . . [The] right to vote was somehow interfered with.” Commissioner Edley, too, seems to have preconceived notions of what happened in Florida. Indeed, like the Queen of Hearts calling for “sentence first, verdict afterwards,” Edley at the January 12 hearing sought a “confession” and an apology from Florida officials for disenfranchising minorities. So obvious was the commission’s bias that even the Washington Post noted it. “Berry’s pointed remarks,” wrote reporter Sue Anne Pressley, “– and those from some of her colleagues — injected a tone of partisan rancor into the hearing’s fact finding mission.” What Pressley did not mention is that indulgence of partisan rancor has become the commission’s modus operandi.

Less than a year ago, the commission came under fire for playing politics with its investigation of alleged discrimination by the New York City Police Department — an investigation launched just as mayor Rudy Giuliani was exploring a run for the U.S. Senate against Hillary Rodham Clinton. During public hearings on the NYPD in May 1999, Berry repeatedly interrupted the mayor’s testimony and failed to silence hecklers. As Heather Mac Donald reported in the summer 1999 issue of City Journal, Berry refused to reprimand audience members who attempted to shout down witnesses with catcalls such as “P.U. I smell Blue.” And when Giuliani attempted to present data showing the NYPD’s low use of force in comparison to police in other major cities, Berry interrupted, demanding to know whether the NYPD “fairly represents the population of New York City.” In contrast to her treatment of the mayor, Berry showed great deference to New York’s leading race-baiter, the Reverend Al Sharpton, whose “work” on the issue of police brutality she praised.

To add insult to injury, Berry — who in September 1999 made the first of several financial contributions to Mrs. Clinton’s campaign — threatened to release the commission’s report early, without allowing the city an opportunity to comment privately on the draft, as required by law. Only after the mayor complained that the timing of the report’s release smacked of politics did the commission agree to give the city a chance to comment. Yet less than a week later, a copy of the report was leaked to the New York Times.

The final report, released in June 2000, was a partisan document filled with inaccuracies and distortions. For example, it lambasted the NYPD for “racial profiling” on the basis of raw comparisons of the percentage of minorities in the population with the percentage of minorities among people stopped. And it virtually ignored the dramatic drop in the use of deadly force by New York cops since Giuliani became mayor (down 73 percent between 1990 and 1999).

In a statement dissenting from the NYPD report, two members of the commission reprimanded the majority for “manipulating the data” and politicizing their investigation. The final report, they said, was “a one-sided portrayal of the NYPD . . . based not on evidence, but on conjecture, opinion, and ‘perception as reality.'” Amazingly, Berry’s allies at the commission had refused to provide the dissenting commissioners with a copy of the hearing transcript, forcing them to file a Freedom of Information Act request in order to obtain copies.

Then, as now, Berry and her collaborators were interested not in uncovering the truth but in eliciting selective testimony to support their preconceived thesis: that Mayor Giuliani presides over a virtual army of racist oppression.

The commission had similar political motives for investigating the use of “percentage plans” in higher education in Florida, Texas, and California. All three states have attempted to eliminate racial quotas while increasing diversity through the use of plans guaranteeing that the top graduates of all state high schools are admitted to the public university system.

The commission rejected Jeb Bush’s invitation to meet with members of his administration to discuss his “One Florida” plan. Nevertheless, when the commission issued its report last April, Chairman Berry personally attacked Governor Bush, referring to him as “Scrooge.” The report disparaged the Florida plan as a “stealth acknowledgment” of “existing segregation,” and warned that the reform would cause minority college enrollment to fall dramatically in Florida. (In fact, there are now more minority students in Florida’s state university system than ever before.) The commission also took a swipe at Texas governor George W. Bush, already a candidate for president, referring to the “devastating impact” of the Texas percentage plan on black and Hispanic enrollment in graduate programs.

The percentage plan report was pushed through the commission on a rarely used “poll vote” without the standard time for deliberation and discussion by the commissioners. This tactic sparked a letter of protest from representative Charles Canady (now Jeb Bush’s legal counsel), who accused the commission of “launching a partisan attack” against the Bushes during the 2000 presidential campaign. And it prompted criticism from the conservative Center for New Black Leadership, which called the commission “neither Civil nor Right.”

The Civil Rights Commission’s percentage plan report, its report on the NYPD, and its investigation of the voting in Florida reveal a pattern and practice of hatchet jobs against Republicans. Fortunately, the Department of Justice and the Florida attorney general’s office are also investigating claims of minority “disenfranchisement” in the 2000 presidential election in Florida, and a bipartisan state commission is exploring ways to improve voting procedures.

With those more credible efforts under way, it is difficult to see the Civil Rights Commission’s inquiry as anything other than an attempt to rewrite the history of election 2000 under the seal of a federal agency for the purpose of undermining the presidency of George W. Bush. On the other hand, the commission’s report on Florida will serve a good purpose if it finally strips any remaining veneer of impartiality from the commission and provides Congress the impetus to eliminate a discredited body that long ago outlived its usefulness.

Jennifer C. Braceras is an attorney and research fellow at Harvard Law School.