Justice Department backs Myers in dual offices case

Published 6:09 pm Friday, April 6, 2007

A 28-page document filed in February by the U.S. attorney’s office in Jackson supports David Myers’ contention that only the Justice Department or a federal court, and not the Mississippi Supreme Court, can prevent Myers from holding both a seat in the state Legislature and on the McComb city board.

The Mississippi Supreme Court’s ruling on the case last year said it is unconstitutional to hold two elected seats at the same time, and ordered Myers to vacate his city board seat immediately. Myers, however, has remained in both jobs under an injunction from a federal court.

The document, while far from a ruling on the case, continues the trend of Myers winning points in federal courts while the city of McComb wins in Mississippi courts.

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It takes on further local interest because U.S. Attorney Dunn Lampton, the former district attorney for Pike, Walthall and Lincoln counties, is a Republican appointee. Myers is a Democrat.

The document, written by Assistant U.S. Attorney Felicia Adams, argued that the Voting Rights Act of 1965 requires the Justice Department to determine whether the law allows Myers to hold two elected offices at the same time.

Specifically, it notes that Section 5 of the Voting Rights Act forbids any changes in election practices and procedures until the Justice Department reviews the proposed changes, or until a lawsuit on the changes is heard in Washington, D.C.

The document contends that because the Mississippi Supreme Court ruling forbids Myers from holding two offices, that alone triggers Voting Rights Act questions, which in turn requires Justice Department approval.

“It is hard to imagine a clearer case of a voting change that affects the ability of one to remain the holder of elective office,” the document said.

The city argued in its lawsuit against Myers that forcing him off the city board is not discrimination because he will still hold his seat in the House of Representatives, and his 77 percent black city ward would be certain to elect a black successor.

Myers provided the U.S. attorney’s document this week in response to comments from Norman Gillis Jr., the attorney who represented the city in the successful lawsuit against Myers. Gillis said the city would ask the Justice Department to approve that ruling.

Lampton’s office filed the document at the invitation of U.S. District Judge William Barbour, who is a member of a three-judge panel that hears voting rights cases.

Myers claims the city’s efforts to restrict him to one office is illegal.

In 2005, the three-judge panel said any Mississippi Supreme Court ruling on the city’s lawsuit against Myers could not be enforced until the Justice Department approved it.

The Mississippi Supreme Court ruled against Myers last November, but there has been no action on the case since then.

Last month, attorneys for the city decided to submit a request for approval of the Supreme Court ruling directly to the Justice Department instead of waiting for the three-judge panel to hear Myers’ lawsuit.

“It’s a question of whether or not the state Supreme Court has the authority to decide whether or not there’s a violation of Section 5, and whether it can decide itself if there is a violation,” Gillis said Thursday. “We think it’s clear that the Supreme Court has that right, and we have the federal cases to prove it.”

The U.S. attorney’s document disagrees with the Supreme Court’s ruling on who has final say in the case.

The Supreme Court said the federal system empowered it to decide whether it is legal for Myers to hold both offices.

Lampton’s office said: “The limited jurisdiction allowed (state courts in prior rulings) cannot be distorted to allow a state court to exercise, in essence, appellate review over a properly convened Section 5 court.”

The document also said the proper analysis of whether dual service is legal depends on the practices of 1964, just before the Voting Rights Act took effect. No changes since then, it said, are legal unless the Justice Department approved them.

The document argued that since there was no prohibition on dual service in 1964, there can be none now without Justice Department consent.

“For six years, from 1996 to 2002, Myers served in dual roles without the city or state ever challenging his authority or prohibiting such service,” it said. “Had the dual service prohibition been in effect Myers likely would have not been able to hold both positions, and certainly not for such a long time.”

The Justice Department said that when the board amended the city charter in 2002 to prohibit dual service, there would have been no need to do that unless it was legal in the past.