In Defense Of Sen. Jeff Sessions

Elliot Berke President, Republican National Lawyers Association
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Senator Jeff Sessions is not a racist.  If you listen to only certain Senate Democrats and others on the left, that’s exactly what they want you to think and why they are objecting to his nomination as our next Attorney General.  But ironically, these Senators and their allies are labeling Senator Sessions as a racist for actually fighting for the voting rights of African Americans.

The allegations of racism stem from a 1985 voter fraud prosecution that then-U.S. Attorney Sessions brought at the behest of African Americans who feared other African Americans’ votes were being stolen to elect one set of African-American candidates over another. Several African Americans, including Albert Turner who was an aide to Dr. Martin Luther King, Jr., were the defendants.

There wasn’t much dispute on the facts of the case:  Albert Turner forged, voted for, requested and/or redelivered absentee ballots for almost 500 voters – almost entirely African Americans –against his African-American political opponents.  There are two interpretations of what happened here:  was the conduct proxy voting or voter assistance?

According Lani Guinier, one of the defense lawyers, this case was about proxy voting.  Yet when Guinier describes proxy voting in her 1998 book, she is really describing voter assistance — and voter assistance is legal.  For example, it is not proxy voting if a voter is blind or illiterate and has someone read and mark the ballot for the voter, as long as the voter indicates for whom to vote.  That’s voter assistance.  Further, it is not proxy voting to have no knowledge of the candidates and bring a voter guide to refer to while voting (although Turner and his committee made the “strategic decision” not to, instead opting for more “direct” methods). Voter assistance is legal and encouraged to ensure that no one is disenfranchised through a disability, illiteracy, or another similar reason.

On the other hand, it is proxy voting for one person to vote twice, or in this case, multiple times, through other people’s ballots.  Proxy voting is designating someone else to cast your ballot while not exercising any choice over the matter. Statutes prohibit proxy voting and therefore a voter cannot legally authorize or direct another to vote in place of her/him. In the more extreme examples alleged, Turner and/or his co-defendants erased his opponent’s name on the ballot and marked his choices. Turner claimed the voters asked him to do this; voters testified that they had not.  If proven, that would be voter fraud and that would be illegal.  And that’s why Sessions brought the case.

So why did Sessions’ side lose?  There are a number of possible reasons to consider.  The jury may have simply believed Turner and not the government.  Witnesses in the case did give conflicting testimony.  They told the FBI one thing and said something different in the witness box.

Intimidation is also a distinct possibility as this trial was one of the biggest cases in this part of Alabama in years. As a result, the jury was sequestered and there was even a firebombing of Turner’s home. The defense was warned about bringing up race and was even held in contempt by the judge for doing so.  This naturally could have had an effect on the jury.

The defense tried to make this a case about civil rights and past elections in the Jim Crow Democratic Party of the 1960s South, and not about voter fraud and criminal activity in a Democratic Party primary of the 1980s.  Civil rights legend Andrew Young provided powerful testimony on behalf of Turner and all that had been done for voting rights in the 1960s.

All can agree and salute leaders like Andrew Young for what they did for voting rights in the 1960s.  This does not mean voter fraud does not and cannot happen.  Indeed, Young himself made this very point: “I’m against voter fraud in any form…”  Young is also a supporter of voter ID to combat voter fraud, stating “I call upon both Republicans and Democrats to work with us to have a national ID card that is free and accessible. President Lyndon Johnson and Martin Luther King recognized [that] the greatest step for society was that short step into the voting booth.”

Yet his support for voter ID is another reason why Senator Sessions is being labeled a racist – importantly, not by the African Americans in Alabama who know him best.  African-American Alabama Democratic Senate Minority Leader Quinton Ross, who said of his long relationship with Sessions, “We’ve spoken about everything from civil rights to race relations and we agree that as Christian men our hearts and minds are focused on doing right by all people. We both acknowledge that there are no perfect men, but we continue to work daily to do the right thing for all people.”

The reality is Senator Sessions prosecuting a sixties civil rights activist for eighties voter fraud perpetrated against African American voters is not racist.  It’s standing up for the rule of law.  It’s standing up for the Voting Rights Act. Having served as the lead House staffer on the Voting Rights Act Reauthorization in 2006, I know something about the law.  Senator Sessions supported the law’s renewal then, as he did twenty years earlier – calling it “intrusive” but “necessary.”

It is clear that there were credible allegations of wrongdoing that justified Sessions’ decision to bring the case.  Even the defense lawyer later admitted that there were “technical violations” of the law and wanted to plea bargain to a lesser charge.  Furthermore, Turner’s own son stated: “[Sessions] is not a racist. . . . He was a prosecutor at the Federal level with a job to do. He was presented with evidence by a local District Attorney that he relied on, and his office presented the case. That’s what a prosecutor does.”

Voter intimidation is a crime, but so is voter fraud. Neither should be tolerated.  The reality is Sessions, who refused to move forward with a similar case in 1982 until more evidence could be gathered, did so in 1985 only after multiple layers of the Department of Justice, both political and career, agreed and a grand jury indicted.  Senator Sessions is exactly the kind of prosecutor that we should support as our next attorney general:  a man who will do what is right and conform to the rule of law, to protect the rights of all citizens.

Elliot S. Berke is the President of the Republican National Lawyers Association. He serves as Managing Partner of Berke Farah LLP, a political law boutique law firm in Washington, DC.  He was Counsel to the Speaker of the House in 2006, where he also served as the Speaker’s principal policy advisor on the Voting Rights Act Reauthorization.