September 29, 2009

September 29, 2009 | Commentary on Legal Issues

The Politics of (In)Justice

Section 5 of the Voting rights Act may not look like a political weapon. But in the hands of certain government lawyers, that's exactly what it has become.

It requires certain (mostly Southern) states to get "pre-clearance" of their voting-rules changes from the Justice Department. The problem, as I have written before, is that the liberal career lawyers in the Voting Section of the Civil rights Division have converted the statute over the years into a weapon designed primarily to benefit the Democratic party.

These highly partisan bureaucrats have no compunction about ignoring the actual requirements of the law. And they typically exhibit a disturbingly patronizing attitude towards African-Americans.

The latest example of this transparent political mischief has, unfortunately, gone largely unreported by the media. It's an outrageous objection by the Civil rights Division to a voting change in the small town of Kinston, N.C. The case involved a referendum by the residents of Kinston to change the elections for city council from partisan to nonpartisan. The referendum passed overwhelmingly in November 2008. But the Justice Department recently refused to pre-clear it, claiming that it discriminates against minorities.

The department's decision is as offensive as it is inexplicable. Consider that, at the time of the November 2008 election, Kinston had about 15,000 registered voters, of whom 65 percent were black. This is actually a higher registration rate than one would expect, since the 2000 census showed that the black voting-age population is just 58.8 percent of the total population. Moreover, on the town's five-member city council (elected at large), two of the councilmen are black and all five are Democrats. Although the current mayor is white, the longtime prior mayor was black.

Thus, there no evidence whatsoever that blacks face any barriers to registration and voting. And in an election in which blacks comprised the majority of registered voters and turned out in droves to support Barack Obama's candidacy, the referendum passed with a two-to-one margin (although you would never know that from reading the Justice Department's objection).

But none of these facts could dissuade the career ideologues in the Voting Section. They demonstrate a disturbing and paternalistic distrust of the capability of voters to understand the impact of the referendum vote.

The attorneys in the Voting Section also increasingly use the Voting rights Act as primarily a political bludgeon to protect and enhance the electoral successes of the Democratic party. Thus, in the Kinston objection letter, the Department stated that "it is the partisan makeup of the general electorate" that allows the winner of the Democratic primary to win in the general election. But of course, the VRA is supposed to protect voters, not majority parties. The fact that blacks are a controlling majority in the city is essentially deemed irrelevant.

Disturbingly, the Civil rights Division attorneys' action rests on the presumption that blacks simply cannot be trusted to make their own decisions as to which individual candidates to support, and will be presumed to vote against their own self-interest unless candidates on the ballot have the "right" party label. This approach to enforcement stands the Voting rights Act on its head and is anathema to all of our constitutional requirements for fair elections.

Given prior cases and the frequent partisanship demonstrated by the Civil rights Division in Section 5 proceedings, there is little doubt that if the members of the Kinston city council were Republicans, the division would not be objecting to the change to nonpartisan elections. In fact, it's more likely that the division would be suing the city under Section 2 of the Voting rights Act, either to force the change or to switch to a single-member district system rather than at-large elections.

Unless reversed -- through a federal court action brought by the city -- the precedent of the division's disturbing action in Kinston will have inflicted no mere flesh wound on the body politic. Indeed, the redistricting process that will follow the 2010 Census is just around the corner. These same ideologues in the Civil rights Division will be able to use their power under the Voting rights Act to reject any electoral boundaries in covered jurisdictions that fail to maximize Democratic political strength.

This is, after all, the same Civil rights Division that voluntarily dismissed a case of egregious voter intimidation by the New Black Panther Party and a credentialed Democratic-party poll watcher. It's also the same Civil rights Division that later objected to Georgia's verification of the citizenship status of newly registered voters because of the longstanding belief in liberal quarters that illegal aliens vote overwhelmingly for Democratic candidates.

In other words, a handful of Justice Department bureaucrats have effectively been empowered to control much of the political structure of the South and aid Democratic-party interests.

This cynical manipulation of federal power to benefit one political party over another -- an all-too-common feature of the Civil rights Division's agenda during Democratic administrations -- underscores that the only real source of refuge from these political machinations is the Supreme Court. Only the Supreme Court, by striking down Section 5 as unconstitutional, can cauterize the bleeding. It's too bad the court ducked its opportunity earlier this year; here's hoping that another case will give the Justices a second chance soon, and that the court won't avoid the issue the next time around.

The court's inaction also overlooks an emerging problem with Section 5 that the Kinston objection portends. In many parts of the country under Section 5, former racial minorities are becoming the majority. Whether in Kinston, in the Mississippi Delta, or along the Rio Grande, Hispanics and blacks have become the numerical majority. Will future Section 5 enforcement recognize this change and protect the actual minority population in a jurisdiction (which in Kinston is white voters, not blacks)? Or will it continue to be used to cement political dominance created by a law passed over four decades ago?

The Voting rights Act is designed to break down racial barriers to voting. It is intended at its core to ensure equal opportunity for all voters, regardless of race or politics. But when enforcement is left in the hands of the militant left-wing partisans who dominate the ranks of the Civil rights Division, the statute becomes simply another political tool, and one that is all too easily abused. This is the sad reality evidenced in the division's recent objection in Kinston.

Hans A. von Spakovsky is a visiting legal scholar at the Heritage Foundation. He is also a former commissioner on the Federal Election Commission and counsel to the assistant attorney general for civil rights at the Department of Justice.

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

Related Issues: Legal Issues

First Appeared in the National Review