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Fri August 5, 2011
Kinston non-partisan voting issue may end up in U-S Supreme Court
By George Olsen
New Bern, NC – INTRO - A 2008 ballot initiative in Kinston could eventually find its way to the Supreme Court. George Olsen has more.
When then-Lenoir County resident and current Lenoir County state Representative Stephen LaRoque got a ballot initiative on the 2008 general election ballot requesting the city of Kinston move from partisan to non-partisan municipal elections he says his goal at the time was very simple.
"Towards the end of 2007 I looked across North Carolina and there were 6 cities out of 541 at the time that still had partisan municipal elections. Kinston was the only city east of Winston-Salem that had partisan municipal elections so you've got towns like Raleigh, Wilmington, Greenville, Greensboro all these other towns are non-partisan, so why is Kinston. In fact we've got two other towns in Lenoir County that are both non-partisan."
The initiative was successful with Kinston voters approving the measure by an approximately 2-to-1 margin, meaning in 2009 Kinston would have non-partisan municipal elections pending approval by the U-S Department of Justice. But Kinston falls under pre-clearance rules in section 5 of the Voting Rights Act, which requires those areas to get approval from the Department of Justice or the District of Columbia U-S District Court to ensure minority voting rights are protected. In August 2009 DOJ said it would not approve the change, saying that 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." That prompted a lawsuit filed against the Justice Department by five citizens including Laroque that was initially rejected by a U-S District Court which ruled the citizens didn't have standing to file and that decision was overturned last month by a Court of Appeals which said they did, sending the case back to the District Court. The court case is now seen as a vehicle to have section 5 of the Voting Rights Act deemed unconstitutional.
"That was not even on the radar. We were just trying to get non-partisan voting in Kinston so we could be like the other 535 towns in North Carolina. No, it was just a series of events that led us to this point and fortunately the U-S Court of Appeals ruled in our favor earlier this month and we're on our way to the Supreme Court."
No matter what the initial aims of the referendum were the issue now has constitutional questions and the original issue seems separate from the bigger picture. The website for the Center for Individual Rights representing the plaintiffs in the case notes "serious misgivings" expressed about the constitutionality of section 5 by members of the U-S Supreme Court. And those supporting the continuation of section 5 tend to view it separately from the non-partisan voting issue. Courtney Patterson is district director for district 15 of the NAACP state conference which includes Lenoir County. He was asked if the state NAACP had an opinion on the issue of non-partisan voting in Kinston.
"I guess the answer to that is no. The Department of Justice objected to the change proposed by referenda presented to the city of Kinston. The North Carolina NAACP and the NAACP respects the expertise and research of the Department of Justice and we honor the conclusion they reached on the issue. We support and vigorously defend the constitutionality of section 5 of the Voting Rights Act, so that's basically where we were."
And lawyers for his side concur. The Southern Coalition for Social Justice in Durham is representing the state NAACP and six interveners who support the Department of Justice decision. Alysson Riggs is a staff attorney with the Southern Coalition for Social Justice. She says the case "is not about partisan voting at all" and whatever original intentions isn't for the plaintiffs in the case either.
"Now plaintiffs have framed this case solely as a facial challenge to the constitutionality of section 5, so they're the ones who would not be happy with, they have not framed this as an as applied challenge. They don't want the court to say we'll overrule DOJ in Kinston but Section 5 is still o-k. That's not what they're after. They only want section 5 invalidated."
And bringing it back to the local issue, Riggs says invalidating section 5 would have an injurious effect on the minority voting population of Kinston, even though blacks are the majority in the city.
"Kinston is a city where racial tensions still run very high. The city is still very segregated and there are still racial appeals in voting, and DOJ's analysis showed that black voters only had success in getting black candidates elected in at-large city elections because of a small number of white crossover voters who were voting straight ticket, so without that partisan cue black voters in the city of Kinston were worse off."
If racial tensions are still high, Rep. Laroque hasn't been shy about making comments that could bring those tensions to the forefront, making strong comments about at least one of the interveners that the Southern Coalition for Social Justice is representing, Kinston City Councilman Joe Tyson.
"He has been against this from the get-go. I think the man is a racist, that's my own personal opinion, based on comments he's made to me, based on his participation in this, based on his vote, and based on his participation as an intervener in the lawsuit. Basically he's against our lawsuit. He is a member of the NAACP, he supports the NAACP which is a racist organization and I just think that's what is driving him more so than anything else."
Whatever is driving the case both for plaintiffs and interveners the case will move at a judicious pace. It's possible there could be a decision before the end of the month the Southern Coalition for Social Justice and the DOJ have submitted cross motions for summary judgment to the federal District Court for the District of Columbia with a reply from the plaintiffs due August 15. Interveners then get 10 days to reply, followed or not followed by oral arguments. When a decision is made, then a process of appeals could start potentially fulfilling Rep. Laroque's belief the case will ultimately be decided by the U- S Supreme Court. I'm George Olsen.