by Justin Hill
Kinston Free Press
Five weeks after a federal judge rejected a constitutional challenge presented by local advocates of a nonpartisan voting system in Kinston, the U.S. Department of Justice has softened the hard-line opposition that has kept the issue in federal court for more than a year.
In a letter received by city officials this week, U.S. Assistant Attorney General Thomas Perez wrote, “It appears that there may ‘have been a substantial change in operative fact’ such that it is appropriate to reconsider the … objection concerning the City of Kinston.”
The Justice Department in 2009 halted an effort by the city to change its current partisan voting system, where candidates are identified by party labels. As part of its review of election changes required under Section 5 of the Voting Rights Act, the Justice Department maintained that a nonpartisan system would limit the ability of black voters to elect “candidates of choice.”
That decision rejected the results of a 2008 referendum in which Kinston voters sided 2-to-1 with a nonpartisan system; but the Kinston City Council did not appeal the Justice Department’s decision. Instead, a group of Kinston residents took the issue to federal court in a suit designed not only to change the voting system here but to challenge the constitutionality of Section 5.
Since December 2010, the plaintiffs, assisted by the Center for Individual Rights in Washington, have locked horns with the Justice Department in three hearings.
The department’s apparent changed position — which “does not constitute a final decision,” Perez wrote — apparently stems from the Lenoir County Board of Education’s proposal to hold non-partisan elections. In September, the board of education was given the opportunity to change its selection method under legislation sponsored by state Rep. Stephen LaRoque, R-Lenoir, a plaintiff in the federal lawsuit.
In researching election data as part of the pre-clearance procedure for the school board change, the DOJ contends information surfaced then, along with 2011 general election data, caused officials to rethink the position on city elections.
In November, for the first time in “modern” times, “black voters … elected their candidates of choice to a majority of the seats on the Kinston Council,” Perez wrote. Three Democrats, including two minority candidates, won seats. The percentage of black voters in Kinston has increased from 58.8 to 65 percent during the last 10 years.
However, LaRoque doesn’t believe 2011 election results spurred the change.
“The attorney general’s sudden and late change of heart has little to do with any changes in voting patterns in Kinston,” he said. “Rather it is a pretext to avoid having to address the constitutional issues raised by our case. We are confident the courts will see through the attorney general’s ploy.”
Kinston Mayor B.J. Murphy, a Republican, calls the letter “a marginal victory,” but believes the posturing is an effort to “save face.”
“The USDOJ has failed to prove that anyone in these modern times has ever been denied the right to vote based on the color of their skin or the party they choose to affiliate with,” he wrote in a letter to Perez on Thursday. “Whether someone decides to cast a vote or not, it is their decision and not the responsibility of the federal government to impose unconstitutional and subjective credentials for an election.”
Murphy contends the Justice Department could have reached the same conclusion three years ago and added November’s general election should have been nonpartisan.
“It appears the Department of Justice is manipulating the Voting Rights Act to fit whatever is convenient to them,” he said, adding he believes it is an attempt to halt a potential Supreme Court case, which could rule Section 5 unconstitutional.
City Council Chairman Joe Tyson, a Democrat, did not have a response about the letter. The current board is made up exclusively of Democrats and the mayor is the lone Republican, although he votes only in case of a tie.
“I really have no comment on it at this time,” he told The Free Press on Thursday. “(I believe) we need to let the process go through the system.”
George Graham, the chairman of the Lenoir County Board of Commissioners, has worked to prevent nonpartisan voting in Kinston and Lenoir County. He said he had not read the letter and could not comment Thursday.
The DOJ states it expects to issue a determination for both the LCPS Board of Education and Kinston City Council on Feb. 10.
Justin Hill can be reached at 252-559-1078 or firstname.lastname@example.org. Follow him on Twitter @mjhill.