ATLANTA -- A three-page letter from the Justice Department that has thrown elections for Macon-Bibb’s new merged government into turmoil hinges on one basic question. Federal attorneys want to know why nonpartisan summer elections should supplant a November vote with party labels, as voters approved countywide in 2012.
Until that’s sorted out, it’s not clear when Bibb County residents will choose officials for their first consolidated government.
“The ball is in DOJ’s hands,” said Jeanetta Watson, elections supervisor for the Macon-Bibb County Board of Elections. She spoke as she began canceling preparations for the scheduled July 16 nonpartisan vote for Macon-Bibb County’s commissioners, mayor and county school board.
The county election board is scheduled to meet at 9:30 a.m. Friday to formally cancel the July vote, which would also void the list of candidates who qualified. Anyone who wants to run would have to sign up again.
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Watson’s office must cancel because the Justice Department’s May 24 letter served notice that Macon-Bibb lacks approval to go forward with a GOP plan passed through a divided Legislature earlier this year: moving voting from November to July and making those key local offices nonpartisan.
All voting changes in Georgia -- like a large number of Deep South jurisdictions -- must get what’s called “preclearance,” or approval, from the Justice Department under the Voting Rights Act. That 1965 law applies in jurisdictions with a history of discriminatory voting practices.
So, after Friday’s elections board meeting, Macon-Bibb’s election calendar is in limbo, pending directions from Washington. If the Justice Department ultimately nixes July elections and tells Macon-Bibb to hold November partisan elections, it’s not clear when a primary would be held.
“I can’t answer that,” said Watson. The Justice Department would decide.
The department will specify something workable, Watson added. They know it takes months to prepare for an election.
“Concerns have been raised that these changes will result in a retrogression in the ability of minority voters to participate in the electoral process and elect candidates of their choice,” the Justice Department letter to attorneys for Macon-Bibb and the Bibb County school district said.
Bibb is a majority-black, Democratic-voting jurisdiction, but black voters have historically turned out in much lower numbers in July primaries than at November general elections. The Justice Department wants to see what homework the state or legislators did to show what impact a November-to-July shift would have on voter participation.
Augusta-Richmond made a similar request to Justice, which threw it out last year. In Augusta-Richmond, demographics, black voter turnout and racially polarized voting patterns are similar to Macon-Bibb’s. Augusta-Richmond’s legislators wanted to shift their local votes to July. The Justice Department said no on the grounds that it had a “retrogressive effect” on black voters’ ability to elect candidates of their choice.
In that case, the Justice Department also said the state had failed to prove that the move was not ill-intentioned, meant to keep black voters’ voices from being heard.
“The burden of proof is on the jurisdiction that’s making the submission to prove that a change is not discriminatory,” said Bryan Tyson, an attorney with Strickland Brockington Lewis, LLP in Atlanta, who’s worked on preclearance issues for more than 10 years. Since the 2006 Voting Rights Act renewal, he added, the Justice Department can also ask a jurisdiction to prove a voting change had no discriminatory “intent.”
DOJ wants explanation on Macon-Bibb election shift
The Justice Department letter to Macon-Bibb asks why it is in the government’s interest to shift the vote and why the state Senate bills -- 25 and 30 -- that made the shift apply only to Bibb. It also asks for documents, meeting minutes, notes or other records that explain how Bibb’s legislators came up with the new law, and whom they consulted.
“I have no idea what their process was. We (Democrats) knew nothing about it,” said state Rep. Nikki Randall, D-Macon, senior member of Bibb County’s team in the state Legislature and an opponent of the change. The first she knew of the GOP-sponsored bills, she said, was when they were filed with the state Senate clerk.
A divided state Legislature passed the bills over loud Democrat objections.
It will be hard to present their case to the Justice Department, said state Rep. Allen Peake, R-Macon, House sponsor of the Senate bills.
“The reality is, we don’t take notes at our meetings. We don’t have minutes,” he said.
On seeing the Justice Department letter, Peake said, “I was disappointed but not surprised. It appears the delay tactic is one well used by the Obama administration.”
Macon-Bibb submitted their cases in February and March and sent additional requested information in April and May.
“Now they want more information and then the 60 days starts again?” Peake asked.
That is, unless the U.S. Supreme Court pulls rank on the Justice Department in a voting rights case set to be settled in June, before the justices adjourn for the summer.
The court is considering an argument from Shelby County, Ala., that past voter discrimination does not indicate current voter discrimination. Shelby wants the court to overturn preclearance, contending that it is an outdated burden.
The Justice Department told the court that without preclearance, questionable voting changes would have to be settled in court, which would take time.
Macon-Bibb’s election schedulers will need to pay attention.
Amy Howe, a Supreme Court specialist, attorney and editor of SCOTUSblog, said it’s a “normal rule” that Supreme Court findings apply to all cases that are not yet final.
“My reaction would be that the decision in Shelby County will apply to all cases that are pending, whether in the court or on preclearance,” she said.