Pursuant to section 5, Kinston submitted the referendum to the Attorney General, who, through the Justice Department's Civil Rights Division, objected to the referendum in an August 17, 2009, letter. Letter from Loretta King, Acting Assistant Att'y Gen., U.S. Dep't of Justice, Civil Rights Div., to James P. Cauley III, Kinston City Att'y (Aug. 17, 2009) (included at J.A. 42–44). Although not contending that the referendum was infected by a discriminatory purpose, the Division concluded that Kinston had failed to satisfy its burden of proving that the move to nonpartisan elections would have no retrogressive effect on the ability of black voters to elect their preferred candidates.
See Beer v. United States, 425 U.S. 130, 141, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976) (“[T]he purpose of [section] 5 has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.”). The Division emphasized that although approximately 65% of Kinston's registered voters are black, “[b]lack voters have had limited success in electing candidates of choice during recent municipal elections.” Letter from Loretta King to James P. Cauley III,
supra, at 1–2. According to the Division, “[t]he success that [black voters] have achieved has resulted from cohesive support for candidates during the Democratic primary (where black voters represent a larger percentage of the electorate), combined with crossover voting by whites in the general election.”
Id. at 2. The Division was concerned that moving to nonpartisan elections would cause black Democratic candidates to lose support from the small number of white voters who out of party loyalty have bucked the racially polarized voting characteristic of Kinston elections.
Id. It also noted that black candidates would likely lose campaign support and other assistance from the Democratic party if the city moved to nonpartisan elections.
Id. As a result, the Division concluded, “[r]emoving the partisan cue in municipal elections [would], in all likelihood, eliminate the single factor that allows black candidates to be elected to office.”
Id.