REVIEW & OUTLOOK
Suppressing Dissent
Shut up, Mary Frances Berry explained.
The United States Civil Rights Commission is apparently preparing to send to the printer its report on the Presidential election in Florida, and one thing seems certain: If the Commission chairman, Mary Frances Berry, has her way, the report--which charges that African-Americans were discriminated against in the Florida voting--will not include the dissent that has been filed by two of the Commission's own members, Abigail Thernstrom and Russell G. Redenbaugh.
It seems that Ms. Berry and staff have been going out of their way to suppress the dissent, which is not a minor document. It is a 56-page review that charges the Commission's report on the voting in Florida is based on statistical analysis that is flawed and on anecdotal evidence that has not been properly verified. Their dissent is backed up by an analysis from a Yale University scholar, John Lott.
The dissenters take particular aim at the statistical work done for the Commission by Dr. Allan Lichtman. He found that black voters in the Florida election in 2000 were nine times as likely as other residents of the state to have cast ballots that did not count in the Presidential contest. The Commission's majority report spoke of black voters being "more likely to have their ballots spoiled," but the report, using the passive voice, fails to address the problem of voter error.
The dissenters believe the "nine times" figure is erroneous, and they say the Commission has denied them access to Mr. Lichtman's analysis. The dissenters argue, in any event, that disenfranchisement is not the same as voter error. They charge myriad other faults in the commission majority report, from a failure to distinguish between bureaucratic problems and actual discrimination to a flawed interpretation of the Voting Rights Act.
To suppress the Thernstrom-Redenbaugh dissent, Ms. Berry and her allies have been using tactics reminiscent of a junior high school food fight. Prof. Thernstrom says they have tried to trap her with false deadlines, claimed a meeting took place when it didn't, and failed to respond to her queries. She has also been told that her dissent is illegal, because the Commission didn't pay Mr. Lott for his analysis.
Ms. Berry's camp insists this is a statutory matter, but there has been a long history of unpaid consultants to the Commission. The dissenting commissioners would have been happy to have the Commission pay Mr. Lott. Fat chance. It seems that the Berry regime feels minority members of the Commission should not have access to expert scholarship.
It strikes us that Ms. Berry's behavior would be like Chief Justice William Rehnquist voting with the majority in the case of Bush v. Gore and then maneuvering to prohibit Justice Ruth Bader Ginsburg from issuing her famously scathing dissent. We've little doubt that such a maneuver would strike most Americans as outrageous. It's amazing that such shenanigans at the Civil Rights Commission have drawn nary a peep of protest from the New York Times, the Washington Post or the other watchdogs of open government.
All the more so because neither of the dissenters is suggesting that the questions about racial discrimination raised about the Florida vote are unimportant or unworthy of serious review. "Nothing," the dissenters write, "is more fundamental to American democracy than the right to vote and to have valid votes properly counted." Allegations of disenfranchisement, they point out, "are the fertile ground in which a dangerous distrust of American political institutions thrives."
What the dissenters are pressing is the importance of rigor in the use of the statistical and analytical tools being brought to bear on these questions. This clearly ought to be in the interests of all parties, even the Democrats. It is a symptom of the state of things inside the Beltway that issues of rigor and accuracy are brushed aside in a scramble for political advantage.
There are those who suggest that the Civil Rights Commission is a holdover from the 1950s that has outlived its usefulness. Of that we're not so sure, but it's ever more clear that Mary Frances Berry's chairmanship of the Commission has become a national scandal. President Bush will be able to dodge only so long his responsibility to nominate an individual capable of keeping the Commission focused fairly on the important issues it was intended to review.
