- The Washington Times - Thursday, April 8, 2010

A feud involving local elections in a small North Carolina city is now a battleground over the future of one of the landmark 1965 Voting Rights Act’s most critical and contentious elements.

Several residents of Kinston, N.C., filed a lawsuit Wednesday challenging an Obama administration decision that the town must keep political parties in local elections because equal rights for black voters cannot be achieved without the Democratic Party.

Kinston voters decided overwhelmingly in a 2008 referendum to eliminate partisan elections, but the Justice Department stopped the change because the city is among 12,000 almost exclusively Southern voting districts that require department approval before making any changes to voting procedures.

The lawsuit argues that Section 5 of the Voting Rights Act, which gives the federal government this power, is unconstitutional. It was filed on behalf of local residents by the Center for Individual Rights, a conservative group that learned about the situation from a report in The Washington Times.

“Although the Voting Rights Act has accomplished many valuable goals, its ‘temporary’ Section 5 provision is now unconstitutional because it singles out certain jurisdictions for extraordinary burdens based on 46-year-old election results,” Michael Carvin, a Washington lawyer who is handling the case pro bono, said in a statement.

The Justice Department declined to comment on the lawsuit.

The department’s decision in Kinston, which affects races for city council and mayor, went so far as to say partisan elections are needed so black voters can elect their “candidates of choice” - identified by the department as those who are Democrats and almost exclusively black.

“Removing the partisan cue in municipal elections will, in all likelihood, eliminate the single factor that allows black candidates to be elected to office,” Loretta King, who at the time was the acting head of the Justice Department’s civil rights division, wrote in a letter to the city.

Ms. King said that white voters in Kinston will vote for blacks only if they are Democrats and the city cannot get rid of party affiliations for local elections because that would violate black voters’ right to elect the candidates they want.

Critics of the law giving the Justice Department the power to make and enforce such a ruling argued that the law has changed little since its 1965 inception and that the same places it covered then no longer need the department’s oversight. Proponents, including Attorney General Eric H. Holder Jr., said the law is still necessary to ensure equal voting rights for all Americans.

The Kinston lawsuit was filed in the wake of a key Voting Rights Act case that the Supreme Court heard last year. In that case, a small voting district in Texas challenged the constitutionality of Section 5, but the Supreme Court avoided ruling on the constitutional issue and opted instead to allow the Texas district an exemption from the law’s requirements.

The court, in its 8-1 decision, did express concerns about the law. Justice Clarence Thomas issued a dissenting opinion saying Section 5 was unconstitutional.

“The historic accomplishments of the Voting Rights Act are undeniable, but the act now raises serious constitutional concerns,” Chief Justice John G. Roberts Jr. wrote in the majority opinion. But he also said that the “importance of the question does not justify our rushing to decide it. Quite the contrary: Our usual practice is to avoid the unnecessary resolution of constitutional questions.”

Analysts said at the time that the ruling would open the door to more constitutional challenges.

The Kinston lawsuit could face difficulty because it is brought by residents and not by the city itself, which opted not to challenge the Justice Department’s decision. Cases challenging Section 5 decisions typically are brought by the impacted municipality of a voting district.

“It’s a bit unusual, but there shouldn’t be a real barrier,” said Mr. Carvin. “We have candidates who will be dramatically and directly affected by the failure to switch to nonpartisan.”

The plaintiffs include Stephen LaRoque, who organized the referendum on the nonpartisan issue, and John Nix and Klay Northrup, who intend to run for the Kinston City Council next year and think it will be difficult for them to win without nonpartisan elections. Although the city elected a Republican mayor for the first time in memory last fall, Kinston is very much a one-party town with Democrats holding virtually every office.

In the November 2008 elections, the city had uncommonly high voter turnout, with more than 11,000 of the 15,000 registered voters casting ballots. In that election, residents voted by a margin of 2-to-1 to eliminate partisan elections in the city.

The measure appeared to have broad support among both white and black voters, as it won a majority in seven of the city’s nine black-majority voting precincts and both of its white-majority precincts. About two-thirds of Kinston’s 23,000 residents are black.

But before nonpartisan elections could be implemented, the city had to get approval from the Justice Department. In an Aug. 17 letter by Ms. King, the city received the department’s answer: Elections must remain partisan because the change’s “effect will be strictly racial.”

Ms. King is the same official who put a stop to the New Black Panther Party case, in which the department filed a civil complaint in Philadelphia after two members of the black revolutionary group dressed in quasi-military garb stood outside a polling place on Election Day 2008 and purportedly intimidated voters with racial insults, slurs and a nightstick.

After a judge ordered default judgments against the Panthers, who refused to answer the charges or appear in court, the Justice Department dropped the charges against all but one of the defendants, saying, “The facts and the law did not support pursuing” them.

• Ben Conery can be reached at bconery@washingtontimes.com.

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