Published: Monday, October 31st, 2011 @ 4:44 am
By: Beaufort Observer Editorial Team   ( More Entries )

    Publisher's Note: This article originally appeared in the Beaufort Observer.

    Kinston case was argued last week in Washington

    If a school board once discriminated against blacks in electing the board, does it still have to use race-based criteria even after there is no longer any discrimination? That's the question presented by a Voting Rights Act case from Eastern North Carolina.

    Essentially starting back at square one, a Federal District Court judge in Washington, D. C. heard arguments last week in the Kinston voting rights case. The case, should it work its way to the Supreme Court, could dramatically alter the Voting Rights Act, and thus could be significant to the current redistricting process of the Beaufort County Board of Education.

    The Kinston case has some significant similarities to a case the U. S. Supreme Court has already ruled on from Texas in which it found that a local jurisdiction was not required to continue to obtain preclearance from the U. S. Justice Department when it had not been shown that the jurisdiction had ever discriminated against minority voters.

    The Kinston case is a little different in that in that case the plaintiffs argue that even though Kinston may have at some point in the past discriminated against minority voters (blacks) it no longer does, if for no other reason than blacks are in the majority in both residents and actual voters now. The plaintiffs argue not only that Section 5 of the Voting Rights Act should no longer be applicable to Kinston but they also argue that Section 5 is unconstitutional in light of the fact that racial discrimination is no longer causing blacks to not be able to elect candidates of their choice and Kinston has no compelling reason to continue to craft electoral systems using race-based criteria (to eliminate discrimination that does not exist).

    An interesting fact in the Kinston case is that the change the Justice Department would not pre-clear passed with a majority of the black voters voting for it (to make city council election partisan rather than non-partisan).

    It is interesting to note that when the Beaufort school board attorney responded to a comment from a citizen at the recent public hearing on the redistricting process that she justified race-based criteria being used in Beaufort as being necessary because Section 5 applies to Beaufort County. That is a curious argument, for this reason. Beaufort County is one of the counties in North Carolina that had less than a majority of its eligible black residents registered to vote in 1965 when the law was adopted. That triggered the application of Section 5 to Beaufort County in that the presumption was that low black registration was symptomatic of prior racial discrimination. If the court accepts the Kinston argument that even though a jurisdiction may have once discriminated and was properly covered by Section 5 that current circumstances do not support a conclusion that there is an existing compelling reason to continue using race-based criteria even though there is no showing that there is current racial discrimination in the voting procedures. In plain language, the issue becomes: When is enough, enough? When has racial discrimination ceased to exist and for how long is a race-based remedy required?

    So the Beaufort board's attorney did not justify race-based criteria as being a compelling reason to prevent existing discrimination, but rather she justified using such criteria because there may have been discrimination forty years ago. She did not offer any justification that it is even necessary to use race as a criteria to solve a problem that she did not even contend still exists. So what makes her reasoning curious is that she is essentially saying that a remedy that was previously applied to solve a problem must continue to be used, even though there is no evidence that the problem still exists.

    Our school board's attorney did not brief the board on these issues and the current trends in Voting Rights litigation so they did not consider the implications of these recent cases. But if the plaintiff in the Kinston case prevail in having Section 5 thrown out, or ruled applicable only if current circumstances show the necessity for race-based criteria, then such a ruling will have direct and significant impact on Beaufort County Schools.

   Click here to read the Kinston Free Press story about this week's events.