As noted in a blog post on April 7, some residents of Kinston, North Carolina, filed a federal lawsuit to overturn Section 5 of the federal Voting Rights Act. Their specific complaint is that the Justice Department won’t let the city change its city elections from partisan to non-partisan elections. This essay by Law Professor Daniel P. Tokaji says the Kinston plaintiffs will likely fail. They have never exercised their statutory right to ask a 3-judge district court in Washington, D.C. to reverse the Justice Department’s decision on the Kinston election system. Thanks to Rick Hasen for the link.
Anticipating that the DOJ would approve nonpartisan elections (which are used by 542 of 551 NC cities and towns), Earl Harper announced he was running for mayor. Kinston and Lenoir County Democrats largely backed his candidacy.
After the DOJ ruling about a month before the primary, city councilman Jimmy Cousins jumped into the race for mayor, after earlier giving assurances that he would not. He defeats lesser known candidates to secure the Democratic nomination in a an election with about 12% turnout.
Earl Harper runs as an independent.
B.J. Murphy is nominated as the Republican candidate. He had narrowly been defeated in 2005, and there were claims that nonpartisan elections were a ruse to help him get elected.
In November 2009, Murphy is elected as the first Republican mayor in over 100 years, defeating Harper by 52 votes, 37.8% to 36.4%. Democrat Cousins acts as a spoiler receiving 25.6% of the vote.
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The plaintiffs in this case are individual citizens. They don’t have a statutory right to appeal the DOJ decision to the DC Court, that right is limited to the government entity.
In this case, the interest of the elected officials may be in conflict with that of the citizens of Kinston. After all, the DOJ has determined that if voters could simply vote for the individual candidate that they favored, that they in all likelihood would not be (re)-elected.
This is not too dissimilar to the early state redistricting cases. The legislators themselves had an interest in preserving malapportionment. If you have 60% of the legislators representing 40% of the population, they are most likely to approve new maps that preserve the status quo (or not even bother with new maps). The voters can’t simply vote them out, which is the usual suggest remedy, because the system is rigged against the voters who would most be interested in a fair issue.
So in the case of the citizens of Kinston, they are denied redress at the ballot box (the citizen-approved initiative was blocked, they can’t vote out the city council because the elections are rigged). They can’t get redress in the courts, because it is not the city or the state that is denying them the right to vote, and they can’t sue the federal government because the federal government knows best.