Back Channels: Holder needs to explain dismissal of Phila. case

In February, Attorney General Eric H. Holder Jr. noted that it was hard to talk about race, but cowardly not to try. In that spirit, he should answer questions being raised about the dismissal of a voter-intimidation case involving a hate group in Philadelphia.

If you missed the incident, it's understandable. It was a YouTube blip on a historic election day. On Nov. 4, two black men in paramilitary uniforms, one wielding a nightstick, were reported harassing voters at a polling place.

It had no effect on Barack Obama's landslide win in the city. He doesn't condone the hate group or its despicable agenda. So why, members of Congress and the U.S. Civil Rights Commission ask, dismiss such an egregious case? Doesn't that put out a welcome mat to hate groups? Is this about politics or justice?

The Justice Department wasn't reticent in its January complaint, which set the scene:

Samir Shabazz, head of the Philadelphia chapter of the New Black Panther Party for Self-Defense, and Jerry Jackson, a party member, were "deployed" eight to 15 feet from the entrance of a polling place at 1221 Fairmount St. in "military style uniforms."

"Shabazz brandished a deadly weapon" - a nightstick, the complaint said. "Shabazz pointed the weapon at individuals, menacingly tapped it [in] his other hand, or menacingly tapped it elsewhere."

The complaint continued, "Shabazz and Jackson made statements containing racial threats and racial insults at both black and white individuals" and "made menacing and intimidating gestures, statements and movements directed at individuals who were present to aid voters."

"That would be intimidating to anybody," says Linda A. Kerns, an attorney who was representing the GOP city committee that day. The police were called and they escorted Shabazz from the polling place. Jackson, a credentialed Democratic poll watcher, was allowed to remain - and credentialed again for last spring's primary.

The Panthers and their national chairman, Malik Zulu Shabazz, were also named in the complaint.

Bartle Bull, a former civil rights attorney and campaign aide to Robert F. Kennedy, witnessed the Panthers' actions, and called them "the most blatant form of voter intimidation" he had ever seen.

The Obama Justice Department apparently didn't agree. As none of the defendants had responded to the complaint, the case could have been won by default. But Justice dismissed the case against the Panthers, their chairman, and Jackson in May. Samir Shabazz was banned from "displaying a weapon within 100 feet of any open polling location on any election day in the City of Philadelphia."

That slap on the wrist leaves too many questions unanswered.

"Does that mean he can go to Delaware County and do it?" asked Kerns. "I'm appalled by the Obama administration's actions on this."

Michael Barley, a spokesman for the Republican State Committee, said, "You have a guy with a nightstick intimidating voters and it's on tape and played nationally and you're not going to do anything about it? That sends a message that this behavior is acceptable."

The U.S. Commission on Civil Rights questioned the "unusual" dismissal, and a Justice Department reply received in July said, "The facts and the law did not support pursuing those claims."

The commissioners tried again, writing on Aug. 10 that the reply was "non-responsive . . . To the extent it is responsive, it paints the Department [of Justice] in a poor light." The commissioners added that another Justice letter, this one to a Texas congressman, "includes what we believe to be factual errors and asserts novel and questionable legal claims."

U.S. Rep. Frank R. Wolf (R., Va.), a native of South Philly, has written to Holder four times since May. After reports in the Washington Times that career lawyers who wanted to pursue the case were overruled by political appointees, he wrote to Holder, "I can only conclude that the decision . . . was politically motivated."

Wolf's requests for more information, and to have the case refiled, have so far largely gone unanswered. But he intends to keep pushing, through Holder for now, to the president if necessary.

The congressman also worries about the message being sent to hate groups. Is it now OK for the Klan to show up at the polls, in uniform, to menace voters?

In June, in a separate letter to Justice, Abigail Thernstrom and Ashley L. Taylor Jr. of the Civil Rights Commission wrote, "We cannot understand the rationale for this case's dismissal and fear that it will confuse the public on how the Department of Justice will respond to claims of voter intimidation or voter suppression in the future."

Holder could end that confusion by either refiling the case or explaining how the decision was made. No matter how hard it is to talk about.