In a victory for common-sense and a serious set-back for the Holder Justice Department, a three-judge panel of the federal Court of Appeals for the District of Columbia unanimously reversed a decision by the district court. Today’s reversal reinstates the challenge by residents of Kinston, North Carolina, that Section 5 of the Voting Rights Act is unconstitutional. The residents sued after the Justice Department objected to a referendum passed by the majority-black town of Kinston (65% of the registered voters are black) that changed its city council and mayoral elections from partisan to nonpartisan.
DOJ claimed the referendum that was approved by a two to one margin discriminated against black voters (even though a majority of black residents voted for the change) in violation of Section 5, which prohibits any change in voting laws that has the purpose or the effect of discriminating on the basis of race or ethnic background. Under Section 5, a small number of states have to get preapproval from DOJ or a federal court in Washington before any election change is effective. Section 5 was passed in 1965 as a temporary, five-year measure, since it was an extraordinary intrusion into state sovereignty that in essence places certain states under federal receivership. But it has been consistently renewed by Congress despite the lack of evidence of continued discrimination, the last time in 2006 for another 25 years.
DOJ’s nonsensical objection was apparently based on the patronizing premise that Kinston voters didn’t understand what they were approving and that black voters would not know who they should vote for unless there is a Democratic Party label next to the candidates’ names on the ballot. The district court had dismissed the lawsuit, agreeing with DOJ’s claim that neither the voters nor the candidates who had sued had any standing to contest DOJ’s decision or could assert a cause of action claiming Section 5 is unconstitutional. But the Court of Appeals held that the candidate who sued has both standing and a cause of action and that the district court did not properly address the issue of the standing of the Kinston voters to sue or their equal protection claims. Therefore, the case was remanded to the district court for further proceedings.
One of the most interesting aspects of the opinion is the way in which Holder’s Justice Department got caught by its own legal shenanigans. One of the candidates claimed that he would be substantially injured by a partisan election system since, as a Republican, he would lose Democratic votes. Justice argued that the lawsuit should be dismissed because that injury claim was “speculative.” However, as the Court of Appeals pointed out, this was directly contrary to the Justice Department’s original objection to the referendum, which was based on DOJ’s claim that “black Democratic candidates would suffer from the loss of the electoral benefits associated with party loyalty and straight-ticket voting.” In other words, Justice tried to dismiss as “speculative” the very argument it had used to stop Kinston from moving to nonpartisan elections!
Justice also tried to argue that because Kinston’s city council had refused to appeal DOJ’s original objection, residents of the town had no right to contest the objection. Of course, the Kinston city council had not appealed because as Democrats, they were happy that DOJ had stopped the voter-initiated referendum. But the Court of Appeals concluded that private parties are not prevented from challenging “federal preemption of state actions even if state officials have abandoned their legal challenges.”
With this reversal, the question of whether the renewal of Section 5 in 2006 was constitutional remains open. There is a second case also pending in the federal district court in Washington filed by Shelby County, Alabama, that raises the same issue. These decisions could ultimately have a crucial effect on the ongoing redistricting process and the implementation of many other reasonable election reforms like voter ID.