On February 10, the Voting Rights Section of the U.S. Justice Department formally withdrew its objection to the switch from partisan city elections, to non-partisan elections, in Kinston, North Carolina.
The voters of Kinston had voted to start using non-partisan city elections, but the Voting Rights Section had at first refused to approve the change. The Voting Rights Section says it changed its mind because of the increase in the black population of Kinston. The Voting Rights Section says now believes that Kinston black voters will be able to elect their preferred candidates, whether the city uses non-partisan elections or partisan elections. Thanks to TexasRedistricting blog for this news.
North Carolina permits cities to choose their election format, including (1) nonpartisan primary (Top 2); nonpartisan general, with runoff; (3) nonpartisan plurality; and (4) partisan primary and general elections.
It is pretty unusual to have partisan municipal elections, so it should have been quite routine to switch. After the voters approved the change in 2009, the city had to seek preclearance. The USDOJ turned them down, arguing that even though blacks were a majority of the electorate, they weren’t a majority of those voting, and might have been outvoted in a nonpartisan election. But they would constitute a majority in a Democratic primary, and some white voters would vote for the party in the general election. The city council (which had been elected in a partisan election) chose not to appeal the Section 5 ruling either administratively or in the DC Circuit Court.
Since then, proponents of the change had been trying to appeal. Under Section 5, it is the governmental entity that submits the proposed change to the USDOJ, and it is up to them whether they want to appeal or not, so ordinary citizens may not have standing other than intervening in a lawsuit. But if the city doesn’t sue, about all they can do is submit comments to the USDOJ.
Eventually, they ended up challenging Section 5 itself, rather than the denial of the change. The DC District Court would not take the case, but the DC Circuit Court of Appeals overturned, and in December the DC District Court upheld Section 5. That is now being appealed to the DC Circuit Court of Appeals.
A week before the hearing in the case, the USDOJ suddenly announced that they were withdrawing their objection from 2009, claiming that they had been reviewing a submission from Lenoir County, where Kinston is located, and happened to notice that blacks comprised a majority of those voting in 2011, and so they were withdrawing their objection – even though Kinston had never asked for reconsideration.
The USDOJ is claiming that the whole challenge to Section 5 is now moot.
See the paperwork in the case.
The Feds are trying to NOT have a Fed court declare parts of the 1965 VRA UN-constitutional.
Gee — what New Age Fed judges can read 15th Amdt, Sec. 1 – in connection with the definition of Elector in each States in 1776-1869 ???
A clue – how many male black adults were in the NORTHERN States in 1869 who had been in the Union Army and Navy during the horrific 1861-1865 Civil War — i.e. were black Elephants ???
How many *politically correct* SCOTUS EVIL/CORRUPT MORONS were in the 1966 VRA case ???
#1, do you think the case is moot?
One of the Lead persons on this case is State Rep. LaRoque. He is also the lead sponsor on the Electoral Freedom Act in the NC House. He seems very good on election law issues. This is good for him but they are going all the way with this to challenge section 5 of the voting rights act.
I live in Havelock which is about 50 or so miles from Kinston. Our local elections are non-partisan and we get three or two votes depending on the election year (which is the number of seats available) and the top three or two candidates win. I don’t know if this better or worse than what Kinston wants to do.
#3 The USDOJ is pursuing a very narrow claim based on the standing of the plaintiffs, in particular a would-be candidate. Were it not for Section 5, Kinston would have switched to non-partisan elections which would have made it easier for a non-partisan candidate to get on the ballot, and also to be elected.
When the US District Court had originally ruled that the would-be candidate did not have standing, they had cited Jenness v Fortson. As you know, North Carolina is particularly unfriendly to independent candidates in partisan elections. The District Court said that the candidate had not been harmed because it was the Supreme Court had ruled it was OK to use partisan elections with high barriers to ballot access. The DC Circuit Court overturned them, reasoning that the candidate is still harmed if the state is blocked from implementing less onerous barriers.
The DC District Court’s reasoning is similar to that used by the courts and the Secretary of State in misinterpreting Proposition 14 and SB 6. Just because a state may erect barriers to candidacy and party access, and has actually done so in the past, is no reason to presume that California was intending to maintain the same barriers under its Open Primary reform.
SB 6 explicitly eliminated the durational party affiliation restriction that had tripped up Storer and Fromhagen, and practically eliminated any barrier to independent candidacy that had thwarted Hall and Tyner (there are differences here, since they were seeking the Presidency and California does maintain a significant barrier to independent candidacy for presidential candidates).
The Secretary of State had issued a directive to county election officials prior to the June 2010 primary at which Proposition 14 was approved. Apparently, some county election officials were preventing voters affiliated with non-qualified parties from voting in the Democratic and Republican primaries. This clearly recognizes that a voter may affiliate with a non-qualified parties. Moreover, Proposition 14 said that party affiliations would be converted to party preferences; and the SB 6 implementing statute, while making distinction between voters who had Declined To State and those who had affiliated with a party; it made no distinction between voters affiliated with a qualified parties and those affiliated with a non-qualified party. There is no evidence in the registration statistics that election officials have made a distinction between affiliations with qualified and non-qualified parties.
Where they have gone off track is where they refuse to follow the straightforward interpretation that a party preference is that which appears upon on the voter’s affidavit of voter registration.
The SOS apparently reasons that the legislature wanted to be sure that candidate only expressed opinions about more popular parties, or that they wanted to make sure party preferences are for actual parties. While these might be rational reasons for a state to implement its election regulations, there is no reason to assume that they did so in this case; and there is no reason to make the assumption. The straightforward literal interpretation of the statute is not contradictory, and is consistent with the intent of Proposition 14 that there not be any regard or distinction made on the basis of a voter or candidate’s party preference. Treating preferences for qualified parties different from preferences for non-qualified parties is having regard for those preferences. (Note I’m not making an argument that modicum of support is equivalent to modicum of popularity, but the SOS seems to be doing so. If SB 6 had specified that candidates could only express a preference for a larger party, it would violate the 1st Amendment.)
Back to North Carolina. The USDOJ seems to be arguing that even if their action (and Section 5) was racially discriminatory, and that they would take the same action in similar circumstances, their “review” of the circumstances of their previous action had revealed that they had no need to resort to the discriminatory practice. Since the USDOJ is apparently intending to engage in the same sort of discriminatory practices in the future, I don’t see why this one instance should be used to make the case moot.
The courts are brain dead about moot stuff.
Obviously a civil case has claims about past, current and/or future civil injuries.
A case is moot ONLY if the LAW involved about any such alleged injuries is retroactively repealed — i.e. an ex post facto civil law — thus NO past injury = NO current case.