“The case fell apart, and Sessions bluntly told me he ‘failed to make the case.'”

— article in the Weekly Standard, Nov. 18, 2016

Sen. Jeff Sessions (R-Ala.) last faced the Senate Judiciary Committee for a confirmation hearing in 1986, when he was President Ronald Reagan’s nominee for federal judge. Senators grilled Sessions over charges of racial insensitivity and prejudice, and heard testimony from 21 witnesses over 19 hours.

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The Republican-controlled committee blocked Sessions’s nomination on a 10-to-8 vote; he was the second federal judicial nominee to be rejected by the Senate in 48 years.

Now, Sessions is President-elect Donald Trump’s nominee for attorney general and sits on the committee that rejected his judgeship. He faces another confirmation hearing — and, as Schumer indicated, senators are expected to rehash some of the allegations of racism lodged against Sessions 30 years ago.

Among the issues that are likely to resurface is Sessions’s role in prosecuting a 1985 voter fraud case brought against black civil rights activists in Perry County, Ala. This case was a central focus of the confirmation hearing, but allegations about Sessions’s role have been repeated in the media in recent weeks without much scrutiny. So we read through the entire hearing transcript and contemporaneous local and national news coverage to produce a comprehensive account of what actually happened.

The Facts

‘The Marion Three’

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The Perry County case in Marion, Ala., was among several “Black Belt” county voting-irregularity investigations by the federal government in 1985. The government alleged that three voter-registration activists had tampered with absentee ballots in the 1984 primary election in favor of candidates endorsed by the Perry County Civic League. They charged the defendants, dubbed the “Marion Three,” with violations of federal mail fraud statutes.

One defendant was Albert Turner, a former aide to Martin Luther King Jr., who helped lead and was beaten on the march from Selma to Montgomery on Bloody Sunday. The defendants argued that they were being attacked in an effort to suppress black voting rights and said they changed absentee ballots only with consent from elderly and illiterate voters who needed help.

Many in the community were outraged, questioning why similar investigations weren’t being conducted in mostly white counties. There were daily demonstrations during the trial in support of the Marion Three.

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The jury acquitted all three after just three hours of deliberation. Civil rights leaders, including the Rev. Jesse Jackson and then-Atlanta Mayor Andrew Young, praised the jury’s decision as a rebuke of a racially and politically motivated attack by the Reagan administration, via prosecutors under Sessions, who was U.S. attorney at the time.

Sessions’s role

This case was a key issue in Sessions’s 1986 confirmation hearing. The major players from the case testified for or against Sessions, including attorneys on both sides and witnesses. Lawmakers on the Judiciary Committee asked Sessions repeatedly why he had brought the case, despite not pursuing similar allegations over the 1982 election in Perry County.

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In 1982, then-District Attorney Roy L. Johnson wrote to Sessions about complaints of voting irregularities and said the most serious allegations involved interference with absentee ballots. (Johnson is now deceased.) Absentee ballots were a tool to turn out rural black voters without fear of intimidation at the polls, but legitimate questions were raised about fraud.

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In 1983, a majority-black state grand jury weighed these voter fraud allegations and found serious problems — primarily with the tampering of the right of black Perry County citizens to vote — and asked the federal government to intervene.

But Sessions did not investigate.

“My feeling was that the problem would not continue; that the people would straighten up, clean up, after their act. And I saw no reason to prosecute after the county had not prosecuted, and we did not,” Sessions said, adding that irregularities that year involved only a few ballots.

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Then, in 1984, black officeholders complained of voter fraud and filed an election contest, Sessions said. Perry County, one of the smallest Alabama counties with a population of 15,000, had more absentee ballots filed than Jefferson County, population 700,000, according to a local news article.

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Investigators interviewed witnesses who said their ballots were changed and observed a post office where Turner and other activists dropped off ballots. They tracked the ballots and found about 75 out of 700 had been changed, Sessions said — a larger scale than was alleged in 1982.

Sen. Strom Thurmond, who was the Senate Judiciary Committee chairman at the time, asked Sessions: “As district attorney, was it your obligation then, when the FBI found this fraud, to go forward and prosecute?”

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Sessions answered: “It certainly was. It was something we had been requested to do by an official grand jury in that county, too, two years before.”

A weak case

The prosecution brought a weak case and was understaffed and underprepared compared with the defense. Prosecutors unsuccessfully argued that even legal ballot changes — in the form of voter assistance for the elderly and the illiterate — constituted voter fraud.

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Sessions was not personally involved in the case until the end, when it became clear that the prosecutors would fail. He acknowledged that “one of the things I think I failed in doing — we only have eight lawyers in the office. I only had two lawyers assigned to the case” against a 10-person defense team comprising experienced civil rights lawyers.

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Some black voters testified that they didn’t authorize any changes to their ballots. But others, who had told the FBI that their ballots were changed without approval, changed their testimony during the trial. Some could not identify ballots as their own because they couldn’t read or write. Other government witnesses spoke positively about Turner and the other defendants before the jury.

Lani Guinier, one of the defense attorneys, wrote in her 1998 book, “Lift Every Voice,” that the FBI investigators failed to truly listen to and understand their witnesses: “They projected their own views onto their rural, community-oriented witnesses.”

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“I thought that the prosecution was unwarranted and had no merit,” Robert Turner, brother of Albert Turner, who is deceased, told USA Today. Robert Turner did not respond to our requests for an interview.

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[Update: In a Jan. 3, 2017, letter to Senate Judiciary Committee leaders, Deval Patrick, former Massachusetts governor and a defense attorney in the Perry County case, criticized Sessions’s role: “For 30 years I have viewed the prosecution of the Perry County Three as a cautionary tale. I believe it demonstrates what can happen when prosecutorial discretion is unchecked, when regard for facts is secondary to political objectives. What can happen is that the rule of law is imperiled. In a republic based on law, this is not the kind of risk any of us should accept in our attorney general."]

There were many layers of friction within the community. Some people were frustrated with Turner and his political tactics; others heartily endorsed him. There were people who were skeptical as to why, after decades of inaction over black voter disenfranchisement, the federal government decided that 1984 was the time to do something about it.

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Wayne Flynt, historian and editor in chief of the online Encyclopedia of Alabama, said there were legitimate concerns about Turner’s role in the 1984 election and what was being done to keep certain black leaders in power. But Flynt also noted that Sessions didn’t have a history of advocating for black voter rights before 1984.

“It’s not so much what he did in the ’80s, as he did with his silence in the ’50s, ’60s and ’70s,” said Flynt, who supports neither Sessions nor Turner.

Sessions’s staff did not respond to our requests for comment. Many involved in the case declined to comment on the record because of Sessions’s pending confirmation as attorney general, or because they didn’t recall enough details about the case.

The Bottom Line

This is a complicated case with a lot of history. We explored it in depth here, but there are many theories and analyses of this case that we have not covered. For example, some have theorized that Johnson wrote to Sessions after the 1982 case only to lay the ground for an extensive, federally backed investigation in 1984. Questions have been raised about the treatment of witnesses by both the FBI and the defendants — and how the treatment may have affected the outcome of the case.

In the new round of hearings, Sessions may face some lingering questions: Why did his prosecutors view voter assistance as a form of voter fraud? What would he have done differently had he been more directly involved in the case? At what point does he believe the Justice Department should invest its resources to aid local and state governments to investigate potential civil rights violations?

We will leave it up to readers to draw their own conclusions about this case and Sessions’s role, which we expect to be further scrutinized in the coming weeks and months.

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