The one time I've attended a Supreme Court oral argument came in 2002; with a student group from Brooklyn, I saw the arguments for Republican Party of Minnesota vs. White. The case involved a Minnesota law that forbade candidates for the state's elected judiciary from announcing their positions on issues that might come before the bench. Writing for the majority, Justice Scalia declared the law unconstitutional, holding that while opposition to judicial elections might be reasonable, "the First Amendment does not permit it to achieve its goal by leaving the principle of elections in place while preventing candidates from discussing what the elections are about."
Republican Party of Minnesota dealt with the obvious tension between the legal and political arenas—a tension that, in a different way, has played a key role in the Duke case. While both of Mike Nifong's vanquished opponents, as well as opposing counsel, have claimed that political motives influenced the district attorney's actions, Nifong's motives for his peculiar behavior remain unclear, and, indeed, unfathomable. But election data suggests that his handling of the allegations probably ensured Nifong's renomination—though only because of North Carolina's unique election law and the peculiarities of a three-way contest in a racially divided electorate.
Two aspects of North Carolina election law contributed to the outcome. First, although party primaries require runoffs in all 11 states of the Old Confederacy, North Carolina alone allows the winning candidate in the initial primary to receive only 40 percent, rather than a majority, to avoid a runoff. Second, unlike states such as North Dakota or Rhode Island, which allow all voters, regardless of registration, to cast ballots in either party's primary, North Carolina law restricts primaries to registered members of the party and unaffiliated voters.
Though his last election contest had been in student government, Nifong had some strength before the case broke. He had the intense backing of the state party leadership (Democratic governor Mike Easley had appointed him). And his two opponents, Freda Black and Keith Bishop, had significant weaknesses. Black seems to possess a reputation as ethically challenged and being overly chummy with one of Durham's largest law firms. Bishop, a defense attorney, had never been a prosecutor, and had almost no money.
But racial politics threatened to squeeze Nifong. Bishop, the sole African-American running, secured the endorsement of the Durham Committee on the Affairs of Black People—which, as Ralph Luker has pointed out, traditionally has carried enormous weight with Durham's black voters. Black, meanwhile, enjoyed much higher name recognition than the appointed incumbent, and also raised more money. In short, if Black received a majority of the white vote and Bishop garnered a majority of the African-American vote—plausible outcomes before March 13—there was almost no way that Nifong could win.
Of course, he did prevail, by the slim margin of 45%-42%, or 883 votes. If North Carolina had the same electoral code as the South's 10 other states, this outcome would not have avoided a runoff. And while it's possible that Bishop's voters simply would have shifted to Nifong, the context of the case has changed dramatically since Primary Day. (This year's runoff election in North Carolina will occur on May 30.) First, the extraordinary nature of Nifong's procedural abuses have become more apparent, most notably with regard to revelations about the photo ID array and the refusal to consider Reade Seligmann's exculpatory evidence before the decision to indict. Second, a few prominent African-Americans have come out against the district attorney's tactics, most powerfully Jason Whitlock, who cautioned that the civil rights movement didn't occur "so that the poor, black and oppressed could surrender the moral high ground and attempt to inflict injustice on the privileged." Finally, the substance of Nifong's case has, if anything, grown shakier—as in his extraordinary admission yesterday that, eight weeks after the incident, authorities still hadn't examined the accuser's cell phone, which was taken from the scene, for any calls she might have made during the time of the alleged rape.
But since Nifong didn't need 50%, no runoff occurred. Both anecdotal and statistical evidence suggests that Nifong's pre-primary decision to bring two indictments (against Seligmann and Collin Finnerty) aided him with African-American voters. County Commissioner Philip Cousin, a local minister and member of the Durham Committee on the Affairs of Black People, stated after the primary, "The Duke lacrosse case was the overwhelming issue . . . When Nifong came through with the indictments, that indicated to the black community he would be fair." Meanwhile, Bishop's weak polling numbers shook the allegiance of some of his supporters; as one African-American woman conceded, "I wanted to vote for Bishop, but I knew he didn't have a chance, so I voted for Nifong." And then, of course, there were voters like North Carolina Central student Chan Hall, who told Newsweek that he wanted to see the Duke students prosecuted "whether it happened or not. It would be justice for things that happened in the past."
In the end, according to a study by Vanderbilt political scientist Christian Grose, Nifong carried the black vote, with 44% to Bishop's 31%. Freda Black, who had actively courted African-American voters on a platform of reducing gang violence, obtained the other 25%. It seems highly likely that more than 883 African-American voters shifted to Nifong as a result of district attorney's behavior. Nifong himself conceded as much: "It was obvious to me early on that we did really well in the predominantly black precincts. As I would go through the black community before the election, people would stop me and say, 'Keep your head up. We're with you.'"
Nonetheless, Nifong claimed, "If this issue had never come up we would have ended up with the same outcome," on the grounds that his actions "hurt me among conservative white voters." No doubt his behavior did, and has, hurt him with conservative whites. But in North Carolina, as in other Southern states, conservative white voters have increasingly drifted out of the Democratic Party. According to the latest voter registration figures, Durham County has 27,070 registered Republicans, 24,566 of whom are white. The county has 86,621 registered Democrats, 46,586 of whom are black. So the demographic bloc supportive of Nifong's behavior formed a majority of the Democratic electorate, while those most likely to be alienated by his tactics couldn't vote in the primary. As the director of the Durham County Board of Elections noted the day after the primary, "We had a lot of irate, irate Republicans who couldn't vote for district attorney."
One other most unusual demographic item in the Durham County electorate probably helped Nifong. Rape is a crime. But, as feminist theorists have contended and most defense lawyers understand, it's also a crime that men and women interpret somewhat differently. In normal circumstances, the fact that, in the abstract, women are more likely than men to sympathize with the accuser in a rape case is of no political consequence. But Durham County isn't normal in this regard. Stunningly (to me, anyway), the county has 79,546 female voters, as opposed to 60,087 males. (That's a female-to-male ratio of roughly 4:3.) As a local race, this contest had no exit polls, and perhaps the final vote contained no gender distinction. But it's doubtful that this gender breakdown hurt Nifong.
In short, if the accuser had never leveled her allegations, it seems reasonable to conclude that Nifong either would have lost to Freda Black, or a runoff would have occurred between Black and either Nifong or Bishop.
But if the case helped Nifong politically, does that imply that he operated from political motives? Something other than standard prosecutorial practice surely is required to explain Nifong's conduct: on Wednesday, even the News and Observer continued its drift away from viewing Nifong as acting in good faiith. In the second editorial in as many weeks expressing skepticism with the district attorney's tactics, the N&O reminded Nifong that "standards of fairness" require "a willingness by prosecutors to consider evidence that may tend to clear people who have come under suspicion," since a good prosecutor must keep "an open mind to all the evidence, which may prevent someone from being wrongly accused."
While Nifong is newly appointed to his office, he has worked as a prosecutor for nearly three decades. So it seems unlikely he could claim that he didn't know that state ethics guidelines prohibit prosecutors from making inflammatory statements during an investigation; or that he was unaware of state recommendations that photo ID arrays contain seven "fillers" for each suspect to minimize the chance of a flawed identification; or that he had never heard of the prohibition on prosecutors intentionally avoiding "pursuit of evidence merely because he or she believes it will damage the prosecutor's case or aid the accused"; or that he didn't understand that prosecutors are supposed to give truthful affirmations to the court, not change their minds on how they will use DNA evidence if the test results contradict their preconceived notions.
There are, moreover, two decisions by Nifong that could not be explained as anything but politically motivated. First, after the first round of DNA tests—tests that he had promised would "immediately rule out any innocent persons"—came back negative, he publicly announced at predominantly African-American NCCU that he would bring charges anyway. Second, he sought indictments against Seligmann and Finnerty before the second round of DNA tests were complete—fully aware that if a rape had actually occurred, these DNA tests could implicate players other than the ones he had charged.
Despite such evidence, Ralph Luker has presented what seems to me the most compelling argument against political motives explaining Nifong's actions. In a recent comment about Nifong's inexplicable refusal to meet with the attorney for the third indicted player, Dave Evans, to discuss exculpatory evidence the defense possessed, Ralph noted, "Since Nifong has been re-nominated and faces no opposition in a general election, you cannot attribute his conduct of the case to his current political ambitions." In short, the district attorney seems just as intent on disregarding procedural regularity after the primary as he had been before the vote.
Chan Hall, at least, would be pleased.
[Originally posted in Cliopatria.]