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.
I would submit that Justice Black’s dissent in Allen v State Board of Elections, and his opinion in South Carolina v. Katzenbach regarding the constitutionality of Section 5 would have a great deal to do with presenting this to the Supreme Court again – especially given that the Court seems to have been swinging more for states’ rights in recent cases.
The country has changed so much since 1965, and the Supreme Court should hopefully take this into account, and at least sunset section 5.
A law that requires a state’s laws to be submitted for approval by federal bureaucrats is bad enough. A law that requires only certain states’ laws be submitted for approval by federal bureaucrats should have been thrown out as unconstitutional as soon as it was enacted.
“A law that requires only certain states’ laws be submitted for approval by federal bureaucrats should have been thrown out as unconstitutional as soon as it was enacted.”
Why? (As an aside – I’m confused if you mean “the laws of certain states” or “certain laws of a state”.)
If you’re speaking about the second – in other words, not all of a state’s laws, but only, say, election procedural laws – wouldn’t this be proper of it was only those laws which protected rights guaranteed to all people in the U.S. Constitution? The feds could care less about Iowa’s speeding laws, but be properly concerned about its voting eligibility laws.
If you meant the first choice – say, the feds want to pre-approve Minnesota’s laws and Wisconsin’s laws, but no laws from other states – and this supervision resulted from a situation in which Minnesota and Wisconsin, but no other states, were regularly depriving some of their people of their U.S. Constitution-guaranteed rights – wouldn’t this also be proper?
If those state laws are wrong in Alabama, wouldn’t they also be wrong in Minnesota? Why does the law single out certain states?
That’s no less discriminatory than the activity the law purports to address.
The PROPER response is to pass a law that places election laws in ALL states under scrutiny, if scrutiny is warranted.
Those that aren’t engaging in the wrongdoing will have to comply, thus ensuring that when the problem has been resolved even in the states that were doing wrong, there will be a national imperative to revoke the law, or at least let it lapse.
Part of the problem is that the DOJ does not enforce the law in a non-discriminatory manner. Counties in Mississippi, for example, that discriminate against white votes get a pass. Cities and counties in North Carolina that want to free African-American voters from the shackles of the Democratic Party get hit by DOJ. Of course, for additional evidence on the evenhandedness of the DOJ, see their treatment of ACORN and the New Black Panthers.
Sometimes the Democrats are STOOOOPID. If the city is largely black, and it goes to non-partisan elections, it probably will evolve into a situation like we have here in Los Angeles, where you get an election with 2 Democrats running against one another for the mayor’s mansion. How is that bad for them? I guess the problem *might* be that they feel they can more easily control a primary, and therefore who gets the Democratic nomination…and then of course call the Republican a racist and win easily. With the non-partisan thing, there’s no primary, so I guess they’re afraid of unapproved Democrats winning the election.
Oh, and #3. bobby b: The states that have to get approval to change their election laws are all former Jim Crow states who back half a century ago had laws written specificallly to keep blacks from voting. This of course is not the case any more, and I’m mystified how they thought it reasonable to renew the law for another 25 years, but that’s which states have to get approval. It’s the deep south, mostly.