Challenging the racism of at-large elections

In recent years North Carolina has faced lawsuits charging that congressional and legislative district maps drawn by its Republican-controlled General Assembly represent illegal racial gerrymanders by packing voters of color into a small number of districts and weakening their overall political power.

In 2011, voting rights advocacy groups sued over the state's new congressional maps, arguing that the oddly-shaped districts captured large numbers of Democratic-leaning black voters while benefiting the overwhelmingly white Republican Party, which holds 10 of the state's 13 congressional seats even though 47 percent of voters cast ballots for Democratic candidates in 2016. A federal court ruled last year that two of those districts were illegal racial gerrymanders and had to be redrawn before the primary. The case is now awaiting a final ruling by the U.S. Supreme Court, which heard arguments in December.

Meanwhile, another lawsuit filed in 2015 by North Carolina residents alleges that GOP lawmakers illegally packed African-American voters into nine state Senate and 19 state House districts. Last November a federal court ordered North Carolina lawmakers to draw new legislative maps by this coming March 15 and hold special elections later this year. But the state asked the U.S. Supreme Court to stay the decision, and the high court issued an order last month halting the special elections pending appeals.

But drawing voting districts to its advantage is not the only way white power maintains its supremacy: Sometimes it achieves that by not drawing any districts at all.

That's the problem now being addressed in Eastern North Carolina's Jones County, a rural community of about 10,000 people near the coast. This week the Lawyers' Committee for Civil Rights Under Law filed a federal lawsuit alleging that the county's at-large system for electing its five-member board of commissioners violates Section 2 of the Voting Rights Act, which not only prohibits excluding minority voters from the polls but outlaws the use of election systems that make a racial group's votes less effective than those of other groups.

Because voting in Jones County remains racially polarized, with whites historically voting as a bloc to defeat candidates supported by the black community, no African American has been elected to the board of commissioners since 1994, even though African Americans make up nearly a third of the county's voting-age population. This lack of representation has led to the "systemic neglect" of African-American residents of Jones County, the complaint states:

The Board of Commissioners is responsible for making decisions about a variety of issues that significantly impact Jones County residents, including public spending, quality of life, healthcare, education, and safety. Residents of Jones County who live in the predominantly African-American unincorporated areas just outside the town limits of Trenton are not represented on the Town Council of Trenton, as these residents are barred from voting in local Trenton elections. These residents depend solely on the Board of Commissioners to address important issues such as sewage access, street lights, flooding concerns, and paving of roads.

The Board of Commissioners' meeting minutes reflect that it has repeatedly ignored or failed to address issues important to Jones County's African-American community.

That black residents are concentrated in unincorporated areas outside the county seat of Trenton is no accident: A town ordinance passed in 1949 and not repealed until the 1970s barred "persons of color and/or persons of undesirable character and reputation" from owning land there, as USA Today reports.

In 2014, African-American residents petitioned the Jones County commission to consider changing the at-large system for electing representatives to a district-based plan to provide "a better opportunity for minorities to win elections," but the commissioners did not act on the request. Hence the Lawyers' Committee lawsuit, which seeks to change the county's election system to one made up of single-member districts.

"While some politicians circulate baseless allegations of vote fraud, this case makes clear the real barriers to democracy that we continue to face today," said Kristen Clarke, the group's president and executive director.

Diluting the minority vote

That at-large voting districts can be racially discriminatory has been well established.

After the Voting Rights Act (VRA) became law in 1965, states with a history of voter discrimination required to obtain Department of Justice (DOJ) preclearance for elections changes — most of them in the South — began to use at-large voting as a less-blatant attempt to weaken the black vote. In testimony about the VRA delivered to the Senate Judiciary Committee back in 2013, Michael Carvin, an attorney at the Jones Day law firm in Washington, D.C., pointed out that at-large voting systems are viewed as the most significant cause of minority vote dilution.

There have been numerous cases in which the DOJ and the federal courts have found at-large voting districts to be racially discriminatory under the VRA:

• In 2000, the DOJ announced that the at-large method of electing city council members in Morgan City, Louisiana, violated Section 2 of the VRA by diluting the strength of black voters. Under a consent decree, the city's elections were changed from at-large to five single-member districts, one of which provided black voters with an opportunity to elect a representative of their choice.
• In 2002, the DOJ blocked plans by Freeport, Texas, to stop electing city council members by single-member districts and move to all at-large seats.
• In 2004, Charleston County, South Carolina, changed the way it elected its council following a DOJ complaint that the old at-large system diluted minority voting power.
• In 2007, Fayetteville, North Carolina, proposed changing the method of city council elections from nine to six single-member districts, with the three other positions to be filled by the top vote-getters in at-large elections. The DOJ objected, noting that the change would disadvantage black voters. The city continues to elect its nine council members via single-member districts today.
• In 2008, after the DOJ filed a complaint stating that the at-large method of electing school board members in Georgetown County, South Carolina, diluted the voting strength of black citizens, the county agreed to adopt an election system with seven single-member and two at-large seats.
• In 2009, the DOJ filed a complaint against the town of Lake Park in Florida's Palm Beach County, over its at-large system of electing commissioners. That same year, the town adopted a fairer system known as a limited voting plan, in which all four commission seats are up for election at the same time and voters are limited to casting ballots for only one candidate, with the person receiving the highest number of votes elected to the town commission for a three-year term.
• In 2013, a federal court struck down the at-large system for electing the boards of commissioners and education in Fayette County, Georgia. While black residents make up 20 percent of the county and consistently vote together, no black candidate had ever been elected to either of the boards at that point in the county's 191 years of existence. The court ordered the county to adopt a district voting plan instead.

In some of these cases the DOJ was able to block problematic changes to voting systems before they went into effect under the VRA's preclearance provision. While the DOJ lost preclearance powers with the U.S. Supreme Court's 2013 ruling in the Alabama case Shelby County v. Holder, Section 2 of the VRA that bans such discrimination remains in force — though there are questions about how vigorously new Attorney General Jeff Sessions of Alabama will pursue such cases given his history of hostility to voting rights.

In the meantime, though, civil rights advocates are stepping up to fill the void.

"It is critical for us to defend our democracy by ensuring that elections are free and fair and that all voters have an equal opportunity to elect candidates of their choice," said Jonathan I.  Blackman, partner at Cleary Gottlieb Steen & Hamilton, which is assisting the Lawyers' Committee with the case along with Patterson Harkavy and support from the University of North Carolina Center for Civil Rights. "Vote dilution is just as unacceptable to a healthy democracy as voter suppression and gerrymandering."