Lawyers for a group of North Carolina residents who favor nonpartisan municipal elections in their city urged a federal appeals court in Washington today to strike down the federal law the U.S. Justice Department enforced to block a referendum to change the city's electoral scheme.
The city of Kinston, N.C., sought permission from the Justice Department to amend the city’s electoral system to a nonpartisan ballot. In August 2009, Attorney General Eric Holder Jr. said the “elimination of party affiliation on the ballot will likely reduce the ability of blacks to elect candidates of their choice.” Kinston is more than 60% black.
Kinston city officials that year declined to challenge Holder’s objection to the proposed electoral changes. The city’s decision raised questions of whether the plaintiffs have standing to pursue their own challenge of Section 5 of the Voting Rights Act.
A group of residents, including City Council hopeful John Nix, filed suit last year in U.S. District Court for the District of Columbia challenging the constitutionality of Section 5 of the Voting Rights Act. Last December, Judge John Bates sided with DOJ in granting the department’s motion to dismiss. (Bates' opinion is here.)
Jones Day associate Hashim Mooppan argued today in the U.S. Court of Appeals for the D.C. Circuit for the Kinston plaintiffs. Jones Day partner Michael Carvin, who specializes in constitutional law and appellate litigation, is lead counsel and sat with Mooppan in court today. Jones Day represents the Kinston plaintiffs on a pro bono basis. (More here about how Big Law's stepped up in challenging Section 5.)
The circuit expedited its review of the case. Nix is trying to get onto the November 2011 general-election ballot for Kinston City Council. Judges David Tatel, Judith Rogers and Thomas Griffith heard the dispute in front of a packed courtroom today.
Mooppan argued today Section 5 harms Nix in that it increases the time and money he must spent to get on the ballot in a partisan electoral scheme. Congress, Mooppan said, exceeded its authority in reauthorizing Section 5. The referendum for nonpartisan elections in Kinston, he said, was a “law passed by the people, for the people.”
Civil Rights Division appellate lawyer Linda Thome told the judges no court has allowed private parties to challenge Section 5. Tatel described the case as the first of its kind in shooting down Thome’s statement. Lawyers following the dispute said the case could be headed for the U.S. Supreme Court.
The plaintiffs, Thome said, are only indirectly affected by the Section 5 enforcement. In court papers, DOJ lawyers said the plaintiffs “have tried to run circles around the fact that they are not the parties authorized to bring this claim.”
Thome in court today said the plaintiffs have other options available to them, including a state court challenge. But Mooppan said in court that Congress never intended to have the Voting Rights Act litigated in state court. The appeals court did not immediately rule.