Change In Election Becomes Black-And-White Controversy

By Anthony Tsontakis, WorldNetDaily

WASHINGTON - The U.S. Justice Department has demanded - and a federal judge has agreed - that residents of a North Carolina city cannot make their municipal elections nonpartisan because the Obama administration representatives don't like the possible outcomes that could result.

The result comes in a recent case involving Kinston, where voters overwhelmingly - the victory margin was about 2-1 - decided they wanted to leave the political affiliations off of candidates' names in their city elections.

Not so fast, said Barack Obama's Justice Department. If the affiliations are left off, a few white voters might not know who was the Democrat, and they might vote for a member of another party, the federal officials warned, and that can't be allowed.

After city officials waffled before the demand, several citizens challenged the order in court, and now a judge has turned them back without ruling on the issue itself. The judge said the citizens - taxpayers and voters in the city - had no "standing" to challenge how their own elections are run.

Kinston's plan was simple: make the elections nonpartisan so that voters would choose a name, not a political party.

However, the U.S. attorney general ordered the election results voided because "removing the partisan cue in municipal elections will, in all likelihood, eliminate the single factor that allows black candidates to be elected to office."

The federal government argued that "a majority of white Democrats support white Republicans over black Democrats in Kinston city elections," except for "a small group of white Democrats [who] maintain strong party allegiance and [who] will continue to vote along party lines, regardless of the race of the candidate."

"This small, but critical, amount of white crossover votes," the federal government said, "results from the party affiliation of black-preferred candidates, most if not all of whom have been black."

It was in 2008 when a citizens' initiative in Kinston to make the elections nonpartisan passed with a near supermajority of 2-1.

But the Justice Department immediately intervened, explaining the election had to be voided because it would have altered the elections and the federal department's own statistical analysis revealed the change could "diminish" the ability of black voters in the city to elect their preferred candidates.

The decision prompted a legal challenge to the interference by the federal government in how a local municipality wants to run itself, and just days ago a federal judge dismissed the complaint, affirming the policy of intervention.

The plaintiffs argued the Obama administration's rationale would establish a baseline of minority success in any election, not a baseline for equal opportunity for minorities.

The case, "LaRoque v. Holder," challenged the constitutionality of Section 5 of the Voting Rights Act, the law the federal government relied on to void the election. The lead plaintiff, Rep.-elect Stephen LaRoque, has confirmed the fight will continue following the ruling from U.S. District Court Judge John D. Bates, and in fact, a notice of appeal was filed with the Washington, D.C., Circuit Court of Appeals just as 2010 closed.

The arguments focused on the 1965 Voting Rights Act and the lawsuit challenged that its provision that allows the federal government to overrule citizen votes as it wishes is unconstitutional.

It argued that preventing some 12,000 Southern voting districts from changing voting procedures without approval from Attorney General Eric Holder violates the law of the land.

The challenged Section 5 requires the attorney general to determine whether any changes to election laws in certain jurisdictions around the country, mostly in the South, have the purpose or effect of denying or abridging the right to vote on account of race or membership in a language minority group.

If the attorney general finds that new election laws do have such discriminatory purposes or effects, the federal government can void the changed election laws before they take effect.

The Obama administration has interpreted the provision to ban changes that have the effect of diminishing the ability of minorities to elect their preferred candidates of choice - even if those minorities actually are a majority in their district, as in Kinston.

Supporters of the law say it is necessary to remedy institutionalized discrimination in the voting process. Critics say it allows Washington to intervene in local issues where it has no business controlling.

The citizens' amendment in Kinston would have replaced the city's current, partisan-form of elections, in which the party affiliations of candidates for mayor or city council would appear on the ballot, with a nonpartisan-form of elections, in which no candidate's party affiliation would appear on the ballot.

But the Justice Department vetoed the voters' decision because it claims nonpartisan elections would diminish the ability of black voters in Kinston to elect their preferred candidates.

Critics of the law say the Obama administration position holds "regardless of whether minorities in those jurisdictions have an equal opportunity to elect their preferred candidates or to participate in the political process under the voting change, and regardless of whether there are compelling reasons supporting the voting change."

The plaintiffs argued that black voters in the city have a better than equal opportunity to elect their preferred candidates and participate in the political process because of their majority. Blacks make up about 65 percent of Kinston's population.

The plaintiffs in the lawsuit said the Obama administration decision deprived the city of the "essential attributes of self governance" because the referendum was "apparently supported by a majority of minority voters" and so did not justify federal intrusion into the local election.

Should the merits of the arguments be argued at the appeals court level, there are grounds for the plaintiffs. In "Northwest Austin v. Holder," an eight-to-one Supreme Court opinion written by Chief Justice John Roberts in 2009, the high court suggested in passing - though did not affirmatively decide - that Section 5 could be vulnerable to a constitutional challenge.

The majority opinion, joined by every liberal justice then sitting on the Supreme Court, expressed concern that Section 5 imposes substantial "federalism costs" by permitting "federal intrusion into sensitive areas of state and local policymaking."

The court also pointed out that, because Section 5 differentiates between states for unequal treatment, such a departure from equal sovereignty needed to be "sufficiently related to the problem that it targets."

This could be problematic for the Obama administration because Section 5's coverage formula, which determines which states' election systems are subject to federal oversight, retains 1972 voter turnout and registration data for deciding which jurisdictions are covered.

"The statute's coverage formula is based on data that is now more than 35 years old," Chief Justice Roberts said. And "there is considerable evidence that it fails to account for current political conditions."

When the Voting Rights Act was first passed, "unconstitutional discrimination was rampant and the registration of voting-age whites ran roughly 50 percentage points or more ahead of black registration in many covered states," the Supreme Court noted. "Today, the registration gap between white and black voters is in single digits in the covered States; in some of those States, blacks now register and vote at higher rates than whites."

Justice Clarence Thomas, the only dissenter in the case, went further than the majority and outright concluded that Section 5 exceeds Congress' power to enforce the Fifteenth Amendment of the Constitution.

Thomas reasoned that institutionalized racial discrimination may have justified intrusion into state sovereignty in the past, but said the lack of current evidence of intentional discrimination makes Section 5's erosion of federalism more difficult to excuse.

Section 5 "can no longer be justified as an appropriate mechanism for enforcement of the Fifteenth Amendment," Thomas stated. "The extensive pattern of discrimination that led the [Supreme] Court to previously uphold [Section] 5 as enforcing the Fifteenth Amendment no longer exists."

Admitting that a law as broad as [Section] 5 is no longer constitutionally justified based on current evidence of discrimination is not a sign of defeat. It is an acknowledgment of victory, he said.

It's far from the only time the people's apparent will through the ballot box has been overturned. It was a state official whose election was supported by George Soros in Minnesota in 2008 who supervised a recount that gave the U.S. Senate seat to ex-comedian Al Franken.

Of course in California a team of intense progressive activists has fought in the court system - both state and federal - for a decade now to require state approval of same-sex "marriage."

That dispute, over the 2008 Proposition 8 election where voters defined in their own constitution marriage as being between one man and one woman, now is pending before the 9th U.S. Circuit Court of Appeals.

In Oklahoma, where voters approved a plan requiring the use of U.S. law and banning Shariah religious law from their state courts, a federal judge repudiated their decision.

And in Arizona, where elected lawmakers adopted a law providing for state enforcement of federal immigration limits, Obama's Justice Department demanded in court that they back off and not provide that law enforcement.