WASHINGTON — A failed voting-fraud prosecution from more than 30 years ago is likely to re-emerge as a contentious issue during Sen. Jeff Sessions’ confirmation hearing for attorney general.
Sessions was dogged by his handling of the case as U.S. attorney during his 1986 confirmation hearing for a federal judgeship, when he tried to fend off complaints of a wrongful prosecution. He devoted more space to that case than any other in a questionnaire he submitted this month to the Senate Judiciary Committee for the attorney general post, suggesting the matter is likely to come up again during his Jan. 10-11 confirmation hearing before the panel.
The 1985 prosecution involved three black civil rights activists, including a former adviser to Martin Luther King Jr., who were accused of illegally tampering with large numbers of absentee ballots in rural Perry County, Alabama. The defendants argued that they were assisting voters who were poor, uneducated and in many cases illiterate, and marked the ballots with the voters’ permission.
A jury acquitted the three after just a few hours of deliberation. Sessions since then has defended the decision to bring the case and suggested in his questionnaire that there was ample evidence for a conviction.
Howard Moore Jr., a member of the defense team, said he didn’t think it was a legitimate prosecution. “That’s why we defended the case so vigorously,” he said in an interview. “We felt that it would have had a chilling effect, if they had been convicted, throughout the south.”
The case matters because as attorney general Sessions would be the federal government’s top lawyer in voting-rights disputes, with the authority to challenge — or support — state laws dictating access to the polls. And he could turn the Justice Department’s focus to voting fraud, an issue he’s repeatedly sounded the alarm about but that current leaders consider virtually non-existent.
“There’s nothing in Sen. Session’s record that would give me confidence that protecting voting rights from states intent on restricting them is something that would be a priority,” said Dale Ho, director of the American Civil Liberties Union’s Voting Rights Project.
Sessions, in his questionnaire, wrote that he agreed to investigate the matter after the county district attorney told him that “extremely large numbers” of absentee ballots were being collected and stored in a central headquarters, where they were being altered to ensure they were marked for particular candidates endorsed by the activists. An FBI agent tasked with conducting surveillance outside a post office said he saw the defendants depositing more than 500 absentee ballots to be delivered for counting.
Testifying about the matter at his 1986 hearing, Sessions said “it is horrible to change somebody’s vote.”
“If I come and pick up your ballot, and you voted for one person, and I walk over and change it and cast it in, that is horrible,” he said. “That is not just a petty crime. To do that 25 times is a systematic crime of great magnitude.”
The jury wasn’t convinced. Nor were Democratic senators. Joe Biden pressed Sessions in the hearing on why a different vote-fraud allegation involving white Alabamians was not prosecuted; Sessions said the evidence was weak. Ted Kennedy of Massachusetts called the Perry County case “infamous,” and said that without the help of the three prosecuted activists, “these black citizens would not have been allowed to vote.”