Lawyers in the North Carolina Attorney General’s office have asked a federal court to dismiss a lawsuit that challenges the state’s constitutional amendment to allow local tax-increment financing, in part because they say they sought approval for the change from the Civil Rights Division of the U.S. Department of Justice.

But Secretary of State Elaine Marshall did not pursue “preclearance” for voting changes made with 2004’s Amendment One ballot initiative, as required under the U.S. Voting Rights Act, until three weeks ago.

“They’re trying to get it precleared after the fact,” said former state Supreme Court Justice Robert Orr, who heads the North Carolina Institute for Constitutional Law, which is litigating the case against the state in order to get the Amendment One provisions ruled unconstitutional.

Amendment One, approved by voters in November 2004 by a 51 percent to 49 percent margin, allowed local governments to create special bond financing districts to develop projects, in which the increased tax revenues from improved property values would pay off the bonds. Under North Carolina’s constitution voters must approve any new debts incurred by government. Amendment One’s provisions enabled local governments to bypass that requirement.

The 1965 Voting Rights Act, in Section 5, requires any voting changes made in certain jurisdictions to be approved, or “precleared,” by the U.S. Department of Justice. The process is designed to prevent any discrimination against certain voters because of their race. Forty of North Carolina’s 100 counties are subject to that provision.

In her request to U.S. Civil Rights Division Chief John Tanner, Marshall sought “expedited consideration” to preclear Amendment One’s voting changes, in part because of the lawsuit filed by NCICL. But she also admitted the state may have made a mistake, explaining it was “a lack of communication among state officials resulted in the potential need for preclearance of the substantive provisions being overlooked.” Marshall and the Attorney General’s lawyers argued that it’s not clear that preclearance is necessary, but if it is, that there is no reason the Civil Rights Division shouldn’t approve the changes.

“Clearly, the ratification of Amendment One and the statutes that implement that constitutional amendment lack discriminatory purpose or effect on the rights of minority voters and will have no retrogressive effect with regard to those voters,” the lawyers wrote in their motion to dismiss the lawsuit.

The crux of NCICL’s lawsuit is that the ballot language in November 2004 failed adequately and clearly to explain the changes voters were being asked to approve. Orr says that many voters did not understand from the ballot text that they would be giving up their constitutional rights in the future to approve government borrowing.

“They should have informed the Civil Rights Division that the proposed constitutional amendment would affect the rights of minorities to vote in certain situations,” Orr said.

But the Attorney General’s lawyers say that point in the case is irrelevant now that Marshall has sought approval.

“Because North Carolina has complied with the requirements of [Section 5] and has submitted for preclearance the changes in voting procedure in question, plaintiffs’ claim is moot, or will be moot once preclearance is obtained,” the lawyers argued in their motion to dismiss.

Paul Chesser ([email protected]) is associate editor of Carolina Journal.