Writing for National Review Online’s blog “The Corner,” Hans von Spakovsky of the Heritage Foundation offers an update on the lawsuit involving Kinston’s attempt to convert partisan municipal elections into nonpartisan contests.
DOJ won the lawsuit at the federal district court, with a judge ruling that Section 5 was still constitutional more than 45 years after the “temporary” provision was passed in 1965. The suit is now before the U.S. Court of Appeals for the District of Columbia Circuit. But last week, DOJ notified the court and the attorney for the town of Kinston that it is “reconsidering” its 2009 objection because there may “have been a substantial change in operative fact.”
This is a very unusual and rare occurrence, especially because there has been no substantial change in the facts. DOJ regulations provide that a town like Kinston that has received an objection from DOJ can ask for reconsideration. However, DOJ almost never instigates a reconsideration on its own. The DOJ notice letter makes various excuses for its reconsideration, such as the black share of the registered vote rising to 65.4 percent. But the black share of the registered vote was already 65 percent when the referendum was passed in 2008.
So what’s really going on here? The most logical explanation is that the politicals in charge of the Division are petrified that if this case reaches the Supreme Court, the justices will find that the 2006 renewal of Section 5 was unjustified given the absence of the widespread discrimination that existed in 1965. Section 5’s extraordinary (and unjustified) intrusion into the sovereignty of local governments makes it unconstitutional.
The facts in Kinston are so bad for the Department, and such a sign of obvious abuse of Section 5 by its lawyers, that DOJ no doubt wants to try to get rid of its objection so it can argue that the case has been mooted and should be dismissed.
