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Posted on 09/04/2001 12:10:25 PM PDT by xsysmgr

A noble minority on the Civil Rights Commission.

By John J. Miller, NR National Political Reporter
September 17, 2001 issue

In August, when Al Sharpton talked about why he wants to embark on a fantasy campaign for president, he made sure to mention "voter disenfranchisement" in Florida in last year's election. Just about every other Democrat can be expected to do the same between now and 2004. Reverend Al repeated the term like a mantra in a round of interviews, and nodding scribes on the Sharpton beat have buttressed his point with dutiful assertions that blacks were nine times as likely as whites to have their ballots invalidated.

That startling figure promises to be come a piece of conventional wisdom, a permanent part of the Florida story that forever questions the legitimacy of President Bush's election; but it's almost certainly false. The only reason it has any currency at all is that the U.S. Commission on Civil Rights concocted it. To ensure that it would stick, the commission even engaged in a little disenfranchisement of its own, suppressing the voices of two GOP-appointed commissioners who hold a different view.

If a group of conservatives had done to liberals what this commission's liberals have done to Abigail Thernstrom and Russell Redenbaugh, the Washington Post would be splashing the details on its front page and the New York Times would be editorializing against right-wing repression. This particular episode, however, has attracted scant attention. That's a shame, because it's a fascinating story that shows how far some so-called civil-rights activists will go in advancing a political agenda.

Fairness, of course, was too much to expect from the commission; its chairman, Mary Frances Berry, had been on an anti-Bush crusade all along (see my article "'A Threat to Our Domestic Institutions'" in the April 2 NR). Her determination to undermine the current administration was on full display in her bombastic report, which accused Florida officials of "a pattern and practice of injustice, ineptitude, and inefficiency." Despite these strong words and many others like them, the report failed to authenticate a single case of actual voter discrimination. It contained plenty of anecdotes of dubious merit, plus a statistical analysis of ballot-rejection rates by Allan J. Lichtman, an American University professor who has done consulting work for Al Gore. It was Lichtman's claim that blacks were nine times as likely as whites to have cast invalid ballots.

Before the commission can issue a report, the individual commissioners must vote to approve it. They don't actually write the report themselves; a large staff compiles it, under the direction of the chairman. Drafts are supposed to circulate before a vote, giving commissioners a chance to review the staff's product. In the case of the 200-page Florida report, however, Thernstrom and Redenbaugh didn't receive their copies until three days before the vote — and one day after it had been leaked to handpicked reporters for the purpose of creating positive spin. This stunt would be bad enough under normal circumstances, but it was particularly cruel with regard to Redenbaugh, who is blind and has an assistant read commission documents to him. (He must have grimaced when he heard the report's line about the necessity of "not discriminat[ing] against blind or visually impaired individuals.")

On June 8, the commission voted 6-2 to adopt the report. Thernstrom and Redenbaugh were the minority, and began to prepare a dissent. This is standard procedure at the commission: Members who don't agree with a report's conclusions are allowed to write dissents, which the commission then publishes as part of the official report. That's how it has worked for as long as anyone can remember, and that's how Thernstrom and Redenbaugh expected it to work this time.

They pored over the document for nearly three weeks and prepared a thorough rebuttal. The commission was uncooperative, refusing to provide them with the machine-readable data and regression tables Lichtman had used in making his calculations. It is customary for scholars to share this type of information — so that they can verify each other's work — but the commission chose to stonewall. "There is no disk, nor was there ever any disk or disks, of Professor Lichtman's data," wrote commission staff director Les Jin in a memo. This was tantamount to saying that the commission's statistical analysis was based on statistics that never existed. Thernstrom and Redenbaugh wound up spending days compiling their own data, even though they could not be sure it was the same information the elusive Lichtman had used. They received assistance from Thernstrom's husband, Stephan, a Harvard historian who pioneered the use of statistics in his own profession, and from John Lott of Yale Law School, who was conducting his own investigation into the Florida voting controversy.

The Thernstrom-Redenbaugh dissent was ready at the end of June. It ran about 60 pages and didn't mince words: The majority report's central claims had "little basis in fact," and the report itself was "a dangerous and divisive document." The dissent was an almost point-by-point refutation of the commission's work. Along the way, Thernstrom and Redenbaugh made fresh contributions to our common understanding of what happened in Florida: They showed, for example, that the incidence of ballot spoilage increased in counties whose election supervisors were Democrats, and rose even further in counties where that Democratic official was black. This datum ought to make the paranoid notion of Jeb Bush's masterminding a racist conspiracy look preposterous, even to those predisposed to believe it. Thernstrom and Redenbaugh also showed that while some predominantly black precincts saw high rates of ballot spoilage, factors such as literacy and voting experience were more useful in explaining the disparity — to the point where race qua race may not have played any role at all.

Berry had not even read the dissent when she issued a verdict. "It is a lie," she said during Senate testimony on June 27. At the commission's next meeting, on July 13, vice chairman Cruz Reynoso broadened the analysis: "I find this dissent insulting to me personally. . . . I find it unprofessional in tone and replete with falsehoods." Neither Berry nor Reynoso ever explained where, exactly, these lies and falsehoods were to be found. Instead, they sought to quash the dissent in its entirety. First Reynoso suggested that the commission simply vote not to attach the dissent to the final report. Berry, however, understood the hazard of a full frontal assault. "They will characterize it as suppressing their freedom of expression," she said, "even if it were a lie." So the commission swerved in a different direction. "This report is illegal," declared Reynoso, because it relied on the uncompensated assistance of Stephan Thernstrom and John Lott. The commission ordered Thernstrom and Redenbaugh to work with the panel's general counsel, Edward A. Hailes, to hash out the issues.

A law prevents the commission from accepting work it doesn't pay for, except in limited circumstances. Berry, Hailes, and their allies insisted that this rule blocks individual commissioners from collaborating with scholars who volunteer their time. This had not always been their view: In 1988, Berry wrote a dissent citing "materials prepared by Professor Amado Cabezas of the University of California at Berkeley." There is no evidence that Cabezas was paid for his efforts. But that was then and this is now the imperative of now, from the perspective of the commission's liberals, was to silence Thernstrom and Redenbaugh.

On July 20 — it was a Friday, and nearly 7:00 p.m. — Thernstrom was stunned to receive a fax from the commission's offices: "You did not participate in the meeting General Counsel Hailes had yesterday with Commissioner Redenbaugh. . . . The deadline has passed." Thernstrom had not heard about any meeting, and nobody had ever said anything about a deadline. She called Redenbaugh. He confirmed that there had been no "meeting." Rather, there had been a phone conversation lasting a few minutes, in which he and Hailes ex changed views in preparation (Redenbaugh thought) for a fuller discussion later. The business about the "deadline" was simply made up — it had not been discussed at the commission meeting. (Berry herself had said, "We would like these discussions to go forward some time in the next week, if possible, to at least begin the discussion.")

Thernstrom and Redenbaugh were told to resubmit a dissent stripped of all the contributions made by others, but they refused to bowdlerize their text. The commission then posted the whole Florida report on its webpage, including a section entitled "Dissenting Statement." Yet no words written by Thernstrom and Redenbaugh appeared in that space — just an anonymous explanation of why there was no dissent. The document the minority had submitted was an "illegality." Moreover, the dissenting commissioners "did not avail themselves of the opportunity" to turn their illegal opinions into legal ones.

The good news is that the Thernstrom-Redenbaugh dissent has seen the light of day: Both National Review and the Manhattan Institute posted it on their websites as the controversy unfolded. The American Enterprise Institute also plans to publish the dissent this fall. Yet it's amazing how this whole story — a gift-wrapped package for reporters sniffing around for little scandals — received nary a word elsewhere. But there's still time: Berry's top objective for the commission's September meeting is to rewrite the rules governing dissents, no doubt to bestow a retroactive blessing on what can only be described as censorship.

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