New challenge to Sec. 5
on Apr 7, 2010 at 5:02 pm
Picking up where the Supreme Court left off last June, and beginning an effort that could end up again before the Court, a group of voters and political activists in a small North Carolina town on Wednesday opened a new constitutional challenge to Section 5 of the Voting Rights Act — one of history’s most significant civil rights laws. In a complaint filed in U.S. District Court, the Carolinians argued that Section 5 discriminates on the basis of race. The challengers also sought to have the case — LaRoque, et al., v. Holder (District Court docket 10-561) — decided by a three-judge Court. A news release describing the lawsuit is here. The motion for a hree-judge Court is here.
Section 5 narrowly escaped a constitutional ruling in the Supreme Court at the end of last Term, when the Court, by an 8-1 vote, sharply re-cast its interpretation of the scope of Section 5 to avoid confronting what it called “serious” constitutional questions.  The Court ruled that any local political unit had to have the option of “bailing out” from Section 5’s coverage, if that unit did not have a history of discriminating in voting on the basis of race. (The Justices ruled in Northwest Austin Municipal Utilty District v. Holder.) The very issue the Court avoided is the only one raised in the LaRoque lawsuit filed Wednesday.
The new lawsuit grows out of a decision by Attorney General Eric Holder last summer blocking the City Council of Kinston, North Carolina, from changing the way local voters elect their mayor and city council members. Voters in the town of about 23,000 people had approved a ballot measure that would end city elections based on party candidates, and switch to non-partisan elections. The measure could not go into effect, however, because Kinston is a part of Lenoir County, North Carolina, and that county is covered by Section 5.  Under Section 5, a state or local government unit that is covered must get clearance in Washington before it may carry out any change in election procedures. (Congress in 2006 extended Section 5’s life for another 25 years.)
The Justice Department found that black voters in Kinston, who make up more than 62 percent of the city’s total voters, depend heavily upon having partisan elections in order to be able to have a chance to get their chosen candidates elected. On election days in Kinston, black turnout usually has been small, making them a voter minority, according to Department data. Blacks, the Department said, are mainly Democratic voters, but they can elect the candidates they want only with “cross-over” votes cast by some white Democrats who are willing to vote a party ticket and thus to support the blacks’ choices. “It is the partisan makeup of the general electorate that results in enough white cross-over to allow the black community to elect a candidate of choice,” the Justice Department’s rejection letter concluded.
Under last Term’s decision in the Northwest Austin case, the City Council of Kinston, without a history of race discrimination in voting, might have the option of seeking to “bail out” from Section 5’s coverage. However, lawyers involved in the new lawsuit said that the City Council has made no effort to “bail out,” and has not moved to challenge the Attorney General’s rejection in a lawsuit of its own. The local voters and activists, however, have no way to seek to avoid Section 5’s coverage, so they chose to bring a direct constitutional challenge, contending that Section 5 uses race-based formulas to discriminate against other voters in Kinston.
If the case is decided by a three-judge District Court, an appeal would go directly to the Supreme Court, as the Northwest Austin case did last Term.
(Thanks to Rick Hasen of Election Law blog for links to some of the documents linked above.)
