Black voters across the land should be offended by the Obama Justice Department. In a decision last month, the department effectively told black voters in the town of Kinston, N.C., that they are too stupid to choose their own elected officials unless the candidates are identified by party label. In doing so, the department overruled Kinston's black voters themselves, who helped vote overwhelmingly to join most other North Carolina towns in holding nonpartisan local elections.
The arrogance of the Justice Department is staggering. Its violation of constitutional norms is astonishing. And its paternalism toward Kinston's blacks is almost antebellum.
The issue at hand was a proposal last November to switch Kinston to a nonpartisan voting system for local elections. About 65 percent of Kinston's 15,000 registered voters are black, meaning that blacks are registered at a higher proportion than their voting-age population of 59 percent. In last November's elections, more than 11,000 of those 15,000 voted, with blacks voting in greater numbers than whites. By a nearly 2 to 1 margin, Kinston voted to eliminate party affiliations from local candidates' names on election ballots. The switch to nonpartisanship won a majority in seven of the city's nine black-majority voting precincts. In sum, nothing could be clearer than that Kinston's black voters themselves want nonpartisan elections.
Yet the Justice Department ruled that nonpartisan elections somehow violate black voting rights because apparently black voters don't know their own minds. The department ruled that unless black and white voters specifically know who the Democrat in any particular race is, the would-be Democrat might not win - and unless the would-be Democrat wins, blacks will be disenfranchised.
"Removing the partisan cue in municipal elections will, in all likelihood, eliminate the single factor that allows black candidates to be elected to office," wrote Loretta King, who at the time was acting head of the Justice Department's Civil Rights Division.
More blatantly, department spokesman Alejandro Miyar said only a Justice Department analysis could make "the determination of who is a 'candidate of choice' for any group of voters." That's odd. We thought voters chose their candidates by, yes, voting. They vote, and then they count. Since when did a Washington bureaucrat get to tell the voters that they voted wrong? Since when did that bureaucrat get to tell a majority of black voters in a majority black city with a disproportionately high black voting registration that those selfsame black voters can't make their own choice unless the choice has a D by his name?
The Justice Department is pushing beyond all reasonable limits a constitutionally suspect provision known as Section 5 of the Voting Rights Act. That section requires any jurisdiction in parts of 16 states to attain the department's permission before making any change in voting procedures, even changes as small as moving voting machines from a school cafeteria to the school's auditorium. Last spring, the Supreme Court stopped just short of ruling that Section 5 is unconstitutional. The high court wrote that "the Act's preclearance requirements and its coverage formula raise serious constitutional questions," but then decided that the case at hand did not require the justices to decide those questions.
In other recent cases, Chief Justice John G. Roberts Jr. has written that "it is a sordid business, this divvying us up by race" and that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
Back in the still-valid 1970 case of Oregon v. Mitchell, Justice Hugo Black wisely wrote that "no function is more essential to the separate and independent existence of the States and their governments than the power to determine ... the nature of their own machinery for filling local public offices."
Here the Justice Department is clearly in the sordid business of discriminating by both race and political party to overturn a black-majority town's right to determine how it fills local offices. This decision should not stand. The city of Kinston should challenge it in court, and legal foundations ought to be eagerly offering to guide that challenge at no cost to the city.