The Corner

Reconsidering Section 5 of the Voting Rights Act

There’s an interesting development in the voting-rights lawsuit arising out of Kinston, N.C.

Readers will recall that the Justice Department’s Civil Rights Division entered an outrageous objection (under Section 5 of the Voting Rights Act) to a referendum that changed the town’s city council elections from partisan to nonpartisan. The referendum passed overwhelmingly in November 2008, among an electorate where 65 percent of the registered voters are black. Yet the Division objected, claiming the new system was discriminatory because black voters would not know who to vote for without a party label next to a candidate’s name on the ballot.

Several Kinston voters and a potential candidate filed a lawsuit contesting the constitutionality of Section 5’s renewal in 2006. Section 5 requires a small number of states to get preapproval of any change to their voting laws from DOJ or a federal court in Washington. The city council and mayor of Kinston, who at the time of the objection were all Democrats, had no interest in contesting the objection — they were happy with DOJ’s decision that overturned the voters’ choice.

DOJ won the lawsuit at the federal district court, with a judge ruling that Section 5 was still constitutional more than 45 years after the “temporary” provision was passed in 1965. The suit is now before the U.S. Court of Appeals for the District of Columbia Circuit. But last week, DOJ notified the court and the attorney for the town of Kinston that it is “reconsidering” its 2009 objection because there may “have been a substantial change in operative fact.”

This is a very unusual and rare occurrence, especially because there has been no substantial change in the facts. DOJ regulations provide that a town like Kinston that has received an objection from DOJ can ask for reconsideration. However, DOJ almost never instigates a reconsideration on its own. The DOJ notice letter makes various excuses for its reconsideration, such as the black share of the registered vote rising to 65.4 percent. But the black share of the registered vote was already 65 percent when the referendum was passed in 2008.

So what’s really going on here? The most logical explanation is that the politicals in charge of the Division are petrified that if this case reaches the Supreme Court, the justices will find that the 2006 renewal of Section 5 was unjustified given the absence of the widespread discrimination that existed in 1965. Section 5’s extraordinary (and unjustified) intrusion into the sovereignty of local governments makes it unconstitutional.

The facts in Kinston are so bad for the Department, and such a sign of obvious abuse of Section 5 by its lawyers, that DOJ no doubt wants to try to get rid of its objection so it can argue that the case has been mooted and should be dismissed.

DOJ may have a difficult time with that. The Kinston voters are challenging the constitutionality of Section 5 on its face. The fact that the Justice Department is trying to remove the unconstitutional application of Section 5 to the referendum approved by black voters in Kinston does not change the fact that Kinston will continue to be subject to Section 5 and the abusive behavior of the Justice Department could occur again in the future at any time.

There is good case law that Kinston voters can use to argue that their claim has not been mooted by DOJ’s withdrawal of its objection. Even the liberal, pro–Section 5 law professor Rick Hasen seems to agree that the withdrawal of the objection would not moot the case.

In fact, the Kinston voters may be able to use DOJ’s withdrawal to point out the arbitrary and capricious nature of DOJ’s objection and its administration of Section 5. DOJ’s original objection took the very patronizing view that the black voters who voted to change to nonpartisan town elections really didn’t understand what they were doing, and had to be protected from themselves by the superior intellects in the Civil Rights Division.

More to come.


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