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Nov. 18th, 2011: - johnlocke.org Manage Subscriptions

Annexation victory!
By Daren Bakst

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Municipalities in North Carolina, subject to Section 5 of the Voting Rights Act, submitted letters to the United States Department of Justice arguing that the protest petition process in the new annexation law is a vote and therefore must be approved by the Department of Justice (referred to as preclearance).

In making this argument, the municipalities ironically expressed concern for city residents and renters in unincorporated areas, arguing they have no say in the petition process. Remember, these are the same cities who annexed people without giving anyone a voice.

The John Locke Foundation sent a letter to the Department of Justice arguing that the protest petition process isn't a vote and therefore preclearance isn't required. I know of at least one other letter sent to DOJ by supporters of the petition process (Good Neighbors United of Wayne County); there may have been others.

The DOJ issued a determination letter explaining that it doesn't object to the protest petition process (i.e., it doesn't require preclearance).

The protest petition process isn't a vote, because only those who oppose the annexation sign the petition -- there's no choice made by affected property owners either to favor or oppose the annexation. The annexation is simply presumed to take place unless enough people oppose it. You can see the more detailed legal analysis in my letter. Even the League hasn't called the protest petition a vote, but has called it a "veto petition."

If the municipalities were able to convince the DOJ that the petition process was a vote and therefore required DOJ approval, they would have shot themselves in the foot. Voluntary annexations also are done through a petition process and would have required preclearance. Voluntary annexations have never required preclearance, however. As I wrote in the letter:

If petitions from property owners to become part of the city do not require preclearance, then petitions from property owners to be excluded from the city would also not require preclearance There is no logical distinction.

Whether municipalities will go to court to fight the petition process remains to be seen. The legislature should simply deny any funding to municipalities seeking to challenge the law. That's a simple fix without changing the process.

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