Can a Tempest, a Tea Party Make?

The teapot is still boiling briskly in the City of Falls Church, a Northern Virginia suburb of Washington, D.C., over recent changes in the regulations governing municipal elections. By a 4-3 vote in January 2010, the then Mayor and City Council was successful in changing city elections from even-numbered years in May to odd-numbered years in November. Appropriately, the City submitted the change to the United States Department of Justice, Civil Rights Division, for review and clearance as required by the Voting Rights Act of 1965. The Department subsequently reviewed and approved the change. The result is that, during the transition years, Council-Member terms will be shortened by six months. Then, in the May 2010 election, a major shakeup in the government occurred. The new Mayor, Nader Baroukh, a former City Council member who opposed the change, along with re-elected City-Council-members who were also opponents, is making efforts to “undo” the changes and to submit the matter to the citizens of the City in a referendum. Predictably, many residents of the City are hopping mad. 

Many outside groups were opposed to the change to November elections, most notably the Falls Church League of Women Voters. The League is a non-partisan political organization encouraging informed and active participation in government. In a letter to the City Council, League-President Ellen Salisbury expressed the view that the Council was making a mistake by rushing to judgment. Other groups thought the issue should have been submitted to the public by referendum rather than have the decision made in a closed-door meeting, although it was pointed out that a referendum would itself attract a very small vote, particularly in the winter. A major reason offered for changing the month of elections was to increase voter turnout. Others argued that low voter turnout is preferable to uninformed voter turnout.

Section five of the 1965 Voting Rights Act mandates that selected Counties and States must obtain Civil Rights Division pre-clearance for any changes in their voting regulations or procedures.  Because of their histories of discrimination, mostly southern States are required to obtain such pre-clearances. This government mandate is particularly controversial. Many believe the need for such monitoring disappeared years ago and that compliance is unnecessarily costly, unfair, and a nuisance and should be eliminated. Others feel it should, in fairness, apply to all fifty States.

In a nod to recognition of progress, the Voting Rights Act does contain a “bailout” from the mandatory Section 5 pre-clearance provision. Jurisdictions which demonstrate sustained nondiscriminatory behavior over a period of ten years prior to procedural changes in the voting process and which also demonstrate affirmative actions to improve minority voting opportunities and participation can be exempted from the offensively-regarded Justice Department mandate. In the Commonwealth of Virginia, eleven Counties (Augusta, Botetourt, Essex, Frederick, Green, Middlesex, Pulaski, Roanoke, Rockingham, Shenandoah, and Warren) and four independent cities (Fairfax, Harrisonburg, Salem, and Winchester) have satisfactorily demonstrated such compliance and have successfully “bailed out” from its provisions.

Nevertheless, there is plenty of evidence that discrimination is alive and well in the Commonwealth. In 2001 and 2003, North Hampton County diluted black voters’ power to elect Supervisors by changing majority-black voting districts.  Immigrants sometimes encounter voting barriers and Vietnamese and Hispanic voters with lower English-language proficiency sometimes encounter discouraging difficulties. Virginia Governor, Bob McDonnell, faced severe criticism when he required 200 inmates to submit an essay as part of their application for voter eligibility. Civil-rights groups likened the requirement to the literacy tests of Virginia’s discriminatory past  More recently, however, McDonnell approved the voting-right applications of over 1,000 felons with just a small minority rejected.

Meanwhile, the City of Falls Church is playing with fire. The Justice Department takes election tampering very seriously. With the census now completed, jurisdictions all over the country will soon be redrawing legislative districts under the watchful eye of Justice. Since the Falls Church election-law change was justified by expected increases in voter turnout, disenfranchising voters by returning the elections to May when fewer people vote may look like political opportunism and unfair play. This could be more than a tempest in a teapot. It could call for a tea party.

Jibran Muhammad is a second-year law student at William & Mary Law School.

Permalink: http://stateofelections.pages.wm.edu/2010/11/08/can-a-tempest-a-tea-party-make/