- The Washington Times - Thursday, April 8, 2010

ANALYSIS/OPINION:

From the department of silver linings: A bad ruling based on a bad law may lead to the bad law being overturned.

The bad ruling occurred after the black-majority town of Kinston, N.C., chose by a two-thirds vote - including a majority in black precincts - to switch to a nonpartisan voting system. Bizarrely, hard-left Justice Department official Loretta King last year outlawed the nonpartisan elections. She ruled that those same black voters would be unable to elect “candidates of choice” unless Democrat party affiliation was identified explicitly on the ballots. In short, Ms. King said those black voters didn’t have enough sense to understand their own interests when they chose to hold elections without party labels.

On its face, Ms. King’s ruling insulted Kinston’s voters. It also was a misreading of the Voting Rights Act, which is meant only to mandate equal opportunity, not particular electoral outcomes.

Ms. King claimed authority for her decision under Section 5 of the act. The VRA is a valuable law, but Section 5 is controversial. It says certain, mostly Southern, jurisdictions - and only those jurisdictions - must secure “pre-clearance” from the Justice Department before adopting any procedural voting changes, including ones as simple as moving voting booths from a school’s gym to the school’s cafeteria. Critics argue that this provision unfairly discriminates against those jurisdictions. It also allows a heavily politicized Justice Department effectively to choose electoral winners and losers.

In the 2009 case Northwest Austin Municipal Utility District No. 1 v. Holder, the Supreme Court expressed “serious misgivings” about Section 5’s constitutionality but chose to avoid the constitutional question by ruling on narrower grounds. On April 7, several Kinston residents, represented by the Center for Individual Rights, a public-interest law firm, filed suit to overturn Section 5 and reinstate Kinston’s nonpartisan elections. If the suit succeeds, the rest of the Voting Rights Act would rightly remain in force, but Section 5 would no longer let Washington bureaucrats run roughshod over some voters just because of where they live.

For the sake of all voters subject to arbitrary dictates from Justice Department ideologues, federal courts ought to side with Kinston’s voters against Ms. King and Section 5.

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