Monday, October 11, 1999

Elections case goes to U.S.'s top court

The Cincinnati Enquirer

        The U.S. Supreme Court this week is to consider whether to hear an appeal by black voters unhappy with at-large elections for Hamilton County judges.

        Lower courts rebuffed their arguments, and former state Rep. William Mallory Sr., a Cincinnati Democrat, asked the high court to intervene.

        Justices are to take up the question Friday and announce their decision Oct. 18 on whether to take the case, according to the court clerk's office.

        If they accept the black voters' petition for a rehearing, oral arguments still will be months away.

        Mr. Mallory and the other 11 plaintiffs say white countywide majorities swamp black voters' choices for common pleas and appellate courts — and that violates the federal Voting Rights Act.

        They say African-Americans lose even when black voters overwhelmingly support a black candidate.

        The voters sued in 1995, challenging Hamilton County and other Ohio urban county judicial elections where at-large ballots are used.

        In 1997, U.S. District Judge George C. Smith in Columbus said they failed to prove their case. This year, the U.S. Court of Appeals for the 6th Circuit in Cincinnati affirmed that verdict.

        Even if white bloc voting violated African-Americans' rights, the lower courts said, federal judges were powerless “to impose a remedy because all potential remedies would impermissibly alter the structure of Ohio's judicial system.”

        When black voters petitioned the Supreme Court for a rehearing, their Columbus lawyer, Richard Cordray, attacked the lower courts' application of the three-part test used for challenges in legislative races.

        “We're against it because we didn't do well under it,” Mr. Cordray said in an interview. Whether that test is appropriate for judicial contests is a question the Supreme Court never has resolved, he said, but he didn't offer an alternative for defining Voting Rights Act violations.

        The defendants — Ohio, the governor and the secretary of state — asked the justices to reject the petition and to leave the decision — and at-large ballots — intact.

        In the lower courts, Victor Goodman, lead attorney for Ohio, argued that absence of black judges does not prove countywide ballots deny African-Americans an equal opportunity to elect their choices.

        Rather, he said, race is one of the least significant factors in judicial elections; party affiliation, experience, name recognition and endorsements are more important. When black judicial candidates are supported by the majority party in any county, they routinely win, Mr. Goodman said.

        Supreme Court rejection would mean defeat because he has no hope for help from the General Assembly, Mr. Mallory said.


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