ENC Regional News
11:48 am
Tue January 8, 2013

Section 5 of the Voting Acts Bill

NEW BERN, NC (pre) - The Voting Rights Act of 1965 was signed into law to prevent states or counties from engaging in practices designed to stop minorities from voting. Techniques, such as literacy tests, were used to impede the ability of minorities to vote, and was particularly bad in Southern States, North Carolina among them. Section 5 of the Voting Rights Act is a provision that requires certain Southern states and counties from making voting regulation changes without approval from the Justice Department or the United States district court in Washington. Plantiff, John Nix.

"The case is about reversal of section 5 which affects the whole nation, 16 states anyway, and it's just kinda an outdated thing, there's not the kind of conditions there were in 1965, and the case is outdated, and it's time to move on with the way we're living currently. So Kinston does have nonpartisan voting now, and we will vote nonpartisan for the upcoming elections in 2013 for city council and the mayoral race."

Voters in the city of Kinston petitioned in 2008 to change the voting system from partisan to a non-partisan one. A non-partisan system would eliminate the presence of party affiliation in the municipal elections. The voters got the signatures required and the change was presented on that year's ballot. 64 percent of the people that voted in municipal elections that year were in favor. They now had to work through the procedure, required by Section 5, before the change could be enacted. The city of Kinston had to show the Department of Justice that non-partisan voting would not block the ability of minorities to vote.

"Along comes the Department of Justice and says no,no,no, we don't think nonpartisan voting is particularly beneficial for minority voters."

Terrence Pell is President of the Public Interest Group, The Center for Individual Rights. In 2006, Section 5 of the Voting Rights Act was amended to include a provision that says not only does the law protect minority's ability to vote but it also requires that changes will not block the voter from electing the candidate of his or her choice.

In The Department of Justice's letter of denial they said the argument made by Kinston did not prove to either keep intact the ability for minorities to vote or improve those abilities.

The Kinston city council decided not to appeal the decision, so a group of Kinston voters gathered -petitions so they could get some help. Pell and another lawyer worked with the group of Kinston voters. The Justice Department also felt that a ballot devoid of party affiliations would hurt a population that was predominately in favor of a certain party.

"It's perfectly appropriate for the federal government to make sure that there is no racial discrimination, that minority voters are not unfairly prevented from exercising their right to vote, but it's quite a different thing when the federal government requires local officials to favor the interests of minority voters at the expense of other voters, or for that matter to favor the interests of any voters based on race, whether they're minority or non -minority, race should not play this kind of a preferential role in monitoring local voting changes."

The lead council on the case was Michael Carvin, of the Jones Day Law Firm. He specializes in legislation, and has been involved in cases challenging Section 5. Carvin points out that Section 2 of the Voting Rights Act already guarantees protection from discriminatory practices.

"In other words they just have a disproportionate result in minority voters, you don't have to show that it was intentionally discriminatory, and that prophylactic broad prohibition against racial discrimination does all that needs to be done in terms of protecting minority voters."

Carvin thinks the Federal government; specifically the Justice Department, uses Section 5 to control smaller jurisdictions. Carvin, Pell, and Nix think that the law is outdated, and therefore no longer necessary. Although in 2006 the voting rights act was extended until 2031, there is a way to opt out of the Section 5 pre-clearance requirement.

"But there are two problems with that, first of all it's very tough to accomplish, even if your town has not done anything wrong, if you're in a county or state that has, then that will negatively affect your ability to opt out, but more importantly, its dependent wholly on the local government to do it for you, my clients in the Kinston case, were voters in Kinston who had sponsored the initiative that was struck down and they didn't really see eye to eye with the local enacted government, so even though they wanted to get out from under Section 5, the voters, if the government didn't do it for them, then they would have a tough time, they would not be allowed."

After almost three years making its way through D.C. courts Pell and Carvin brought the case before the Supreme Court. To the counselors surprise the Justice Department reversed their denial. They told the city of Kinston, you can have nonpartisan voting, so the rest of your argument is now, what they call, a moot point, an inarguable one, because the city of Kinston now had what they wanted.

At the same time that the case was denied a hearing, a case in Alabama was approved for a hearing at the Supreme Court. The Counselors will be filing an Amicus Brief on behalf of the case Shelby County Alabama v. Holder. There are several Amicus Briefs being filed on behalf of the case. This allows other people with interests in the case to present evidence they think is not being covered.
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