April 20, 2010
DOJ to Defend VRA Section 5 "Vigorously"
AAG Tom Perez told the Senate Judiciary Committee this morning that the Civil Rights Division is gearing up for the increased Voting Rights Act workload after the Census and is prepared to defend Section 5, the preclearance provision, "vigorously" against a suit filed earlier this month.
That case grows out of DOJ's denial of preclearance to the City of Kinston, North Carolina, to its requested change from partisan to non-partisan elections for mayor and city council. Kinston is comprised of about 60% black residents, but black persons constituted a minority of voters in three recent city elections and a bare majority in a fourth recent election. Sixty-four percent of Kinston voters approved the change from partisan to non-partisan voting; the referendum passed in 5 of the 7 precincts where blacks are a majority.
The DOJ denied preclearance, and the City declined to appeal. The case was filed by the Center for Individual Rights on behalf of several voters and local politicians.
DOJ denied preclearance because of the likely impact on black persons' ability to elect candidates of their choice:
Black voters have had limited success in electing candidates of choice during recent municipal elections. The success that they have achieved has resulted from cohesive support for candidates during the Democratic primary (where black voters represent a larger percentage of the electorate), combined with crossover voting by whites in the general election. It is the partisan makeup of the general electorate that results in enough white cross-over to allow the black community to elect a candidate of choice.
This small, but critical, amount of white crossover votes results from the party affiliation of black-preferred candidates, most if not all of whom have been black. Numerous elected municipal and county officials confirm the results of our statistical analyses that a majority of white Democrats support white Republicans over black Democrats in Kinston city elections. At the same time, they also acknowledged that a small group of white Democrats maintain strong party allegiance and will continue to vote along party lines, regardless of the race of the candidate. Many of these white crossover voters are simply using straight-ticket voting. As a result, while the racial identity of the candidate greatly diminishes the supportive effect of the partisan cue, it does not totally eliminate it.
It follows, therefore, that the elimination of party affiliation on the ballot will likely reduce the ability of blacks to elect candidates of choice. . . .
The change to nonpartisan elections would also likely eliminate the party's campaign support and other assistance that is provided to black candidates because it eliminates the party's role in the election. . . .
Plaintiffs in the case argue that Section 5 is unconstitutional and that it violates equal protection principles. From the complaint:
21. In July 2006, Congress reauthorized Section 5, extending it for twenty-five years (until 2031). It relied on generalized findings which do not specifically identify evidence of continuing intentional discrimination in covered jurisdictions. Nor did it have evidence that adequately distinguished conditions in covered jurisdictions from those in non-covered jurisdictions in a way that would justify the continuing difference in treatment for another 25 years.
22. The conditions of 1964 that caused Lenoir County [the home of Kinston] to be covered by Section 5 have long been remedied. . . .
The case puts the constitutionality of Section 5 squarely before the court. It avoids Section 5 bailout, which allowed the Supreme Court last term in Northwest Austin to dodge the constitutional question and rule on statutory grounds that the municipal utility district qualified for bailout. The complaint also draws on dicta from Northwest Austin critical of Section 5, anticipating the arguments should the case reach the high court.
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