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The PJ Tatler

by
Hans A. von Spakovsky

Bio

July 8, 2011 - 2:49 pm

A three-judge panel of the federal Court of Appeals for the District of Columbia today unanimously reinstated a challenge by residents of Kinston, N.C., claiming that Section 5 of the Voting Rights Act is unconstitutional. They sued after the Justice Department objected to a referendum that changed its city council and mayoral elections from partisan to nonpartisan. In 2008, Kinston voters approved the referendum by a two to one margin, including a majority of the town’s black voters, who constitute 65% of the registered electorate.

DOJ claimed the referendum was racially discriminatory and violated Section 5, which requires a small number of states to get all election changes approved by the Justice Department or a District of Columbia federal court. Passed as a temporary, five-year measure in 1965, Section 5 has been subsequently renewed by Congress, most recently in 2006 for another 25 years.

DOJ’s bizarre objection was that Kinston’s black voters would not know who to vote for without party labels on the ballot. Somehow, that made the referendum racially discriminatory, never mind that a majority of black voters approved the change.

The district court had dismissed the lawsuit, claiming that neither voters nor any candidates had standing to challenge DOJ’s objection. But the Court of Appeals held that they did have standing and sent the case back to the district court. This was a loss for the Justice Department, which was hoping to avoid having to argue the substantive merits of the constitutionality of the renewal of Section 5 by Congress at a time when the systematic, widespread discrimination that led to its passage in 1965 has long disappeared.

A second case–one filed by Shelby County, Ala.–pending in the federal district court raises the same constitutional question. Both cases are bound to end up in the Supreme Court, perhaps as soon as the next term.

Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation and a former counsel to the assistant attorney general for civil rights at the Justice Department. He is the coauthor of the book “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk”.
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