Sept. 17 (Bloomberg) -- In 2008 the majority-black town of Kinston, North Carolina, voted almost 2-to-1 to make its local elections nonpartisan. Nine months later, as the measure was set to kick in, the U.S. Justice Department blocked it.
The department’s reason: The plan would reduce the power of black voters.
The dispute in the town of 22,000 spawned a lawsuit that is now before the U.S. Supreme Court as a potential test case for the 1965 Voting Rights Act. The landmark law was enacted to combat the discrimination that had kept blacks away from Southern polling booths for generations and has been used in this year’s elections to challenge Republican-backed voter-identification laws.
The suit takes aim at one of the 1965 law’s core provisions: the power it gives the federal government to block changes in local election rules, like the one in Kinston, in 16 states.
“The people wanted it, and we got one bureaucrat in D.C. that says, ‘No, you can’t have it,’” B.J. Murphy, Kinston’s white Republican mayor, said over the clinking of coffee cups at Christopher’s cafe on Queen Street, the town’s main road and unofficial dividing line separating its mostly black east side from its largely white west side.
The Justice Department has since taken the unusual step of withdrawing its objection, clearing the way for nonpartisan elections this year while complicating the legal case. The Washington-based Center for Individual Rights, which works to limit governmental power, is pressing ahead with its suit against the department and asking the high court to invalidate part of the Voting Rights Act.
The court may decide next month whether to take up the Kinston case or a similar one from Shelby County, Alabama. The cases are separate from the legal fights over voter-ID laws, which have drawn most of the public’s attention, and wouldn’t be decided until after the November election. Even so, the Voting Rights Act challenges may have greater long-term significance, potentially undercutting federal power to block such measures in the future and wiping out a pillar of U.S. election law.
The voting law was a seminal achievement of the Civil Rights movement, outlawing the literacy tests that had been used to disenfranchise Southern blacks while giving federal officials new power to stop discriminatory election practices.
A Supreme Court fight would threaten the law’s requirement that eight mostly Southern states, and parts of eight others, get federal “preclearance” before changing their election rules. The Justice Department has used that provision, known as Section 5, to object to more than 2,400 state and local voting changes since 1982 -- including new ID laws in Texas and South Carolina.
Supporters say the preclearance requirement is necessary to ensure that minorities don’t lose the gains of the past half-century. Joseph Tyson, a black Kinston councilmember, pointed to the ID laws as evidence the battle for voting rights isn’t over.
“What’s the purpose of the voter ID? To keep people from voting,” Tyson said in an interview at St. Augustus AME Zion Church, a predominantly black congregation two blocks east of Queen Street. “They’re trying to take us back beyond 1965.”
The Supreme Court hinted in a 2009 case that a majority of justices may view Section 5 as no longer necessary. Saying the provision raised “serious constitutional questions” because it applied only to some parts of the country, Chief Justice John Roberts wrote that “we are now a very different nation” than in 1965.
The Kinston dispute takes place against the backdrop of a local economy that has suffered from the loss of textile and tobacco jobs over the past several decades. The unemployment rate in Kinston’s Lenoir County stood at 10.7 percent in July.
Along Queen Street, empty storefronts and a shuttered theater attest to a more vibrant past. A few blocks away, a vacant baseball park stands as a reminder that the town’s minor-league team, the Kinston Indians, moved to the neighboring town of Zebulon after the 2011 season.
Kinston is at once integrated and racially divided. Even as blacks and whites greet one another cheerfully in Christopher’s and the Queen Street Deli, they tend to head in different directions afterward. While the richer west side of town is multiracial, the poorer east side is almost entirely black. Kinston High School is 91 percent minority.
The city has long been Democratic-controlled. Until Murphy’s election in 2009, no Republican had captured either the mayor’s office or a seat on the city council since at least Reconstruction.
In 2008, a group of Republicans sought to break the Democratic stranglehold. Activists gathered enough signatures to put an initiative on the ballot to eliminate party primaries and the straight-ticket option for general elections. Mayoral and council candidates instead would run in a single, nonpartisan election.
“The people would be more apt to find out who they’re voting for and what their principles are and what they stand for,” said John Nix, a supporter of the measure who ran unsuccessfully for the city council in 2011.
The initiative won 64 percent approval, with voters in five of the town’s seven majority-black precincts backing it. Tyson says the black support stemmed from the way the proposal was packaged.
“It was presented to them as, ‘If you go nonpartisan, the city is 62 percent black, you should be able to win most if not all of the seats,’” he said. At the time of the vote Kinston residents had never elected a majority-black city council.
The city was poised to use the nonpartisan system in 2009 - - joining the vast majority of North Carolina cities -- when the Justice Department denied preclearance, blocking the change.
In an August 2009 letter, acting Assistant Attorney General Loretta King said the new rules would cause black candidates to lose a “small but critical” source of support: white voters driven by party loyalty to support any Democrat, regardless of race.
King said those white voters were crucial even though blacks constituted 64.6 percent of the city’s 14,799 registered voters. She said blacks comprised a minority of the electorate in three of the four most recent general elections.
The move prompted a lawsuit by Nix and other Kinston Republicans seeking the invalidation of Section 5.
“It was an extraordinary act of the Justice Department to tell a two-thirds-black majority town that it could not shift to the same form of local government election that is overwhelmingly used throughout the state of North Carolina,” said Richard Pildes, an election-law expert who teaches at the New York University School of Law.
Two and a half years later, the Justice Department withdrew the objection. In a February 2012 letter, Assistant Attorney General Thomas Perez pointed to “a shift in the electoral patterns in Kinston elections,” including the 2011 vote that for the first time produced a majority-black city council.
Perez also cited Kinston’s rising black population, though the black share of registered voters had increased less than 1 percentage point, to 65.4 percent. The department’s shift cleared the city to hold its first nonpartisan election this November.
The move also may have undermined the legal case. A federal appeals court in Washington threw out the lawsuit as moot, saying the challengers had “obtained everything that they could recover from this lawsuit.”
In their appeal, the challengers say the Justice Department withdrew its objection to avoid having to defend Section 5 in court. The new evidence cited by Perez was a “transparent pretext,” the group argued.
Justice Department spokeswoman Tracy Schmaler declined to comment.
Even if the high court rejects the Kinston and Shelby County appeals, the preclearance requirement’s days are probably numbered, says Nathaniel Persily, a professor at Columbia Law School in New York.
“Assuming the composition of the court remains the same, the question is not whether the court will strike down Section 5 but how and when,” said Persily, who specializes in voting rights and election law. “Will Section 5 die a death of 1,000 cuts or one swift blow?”
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