Lawsuit Challenges McKinney
Primary Defeat

by Joe Taglieri, FTW Staff

Nov. 1, 2002, 17:30 PST (FTW) -- Voters in Georgia's 4th Congressional District filed a federal lawsuit Oct. 4 that disputes Rep. Cynthia McKinney's defeat to Denise Majette in the Aug. 20 Democratic primary.

The suit's court filing contends the central issue in the case is that Republicans carried out an organized effort which resulted in "malicious crossover voting," where a disproportionate amount of Republicans from DeKalb and south Gwinnett counties voted in the Democratic primary.

Georgia uses an "open" or "blanket" primary system, where voters have a choice as to which party's race they participate in.

However, the plaintiffs' lead counsel J.M. Raffauf said, "The issue here is whether there was what we call a malicious crossover. That is, put the blanket open primary aside, can one party interfere in another party's primary? This is the first time that I've ever known there to be a planned crossover, or a crossover that was promoted by people of the opposing party."

Raffauf's complaint, filed in U.S. District Court in Atlanta, cites the Voting Rights Act of 1965, the 14th and 15th amendments to the Constitution, and a recent Supreme Court decision as the legal basis for the suit.

In 2000, the Supreme Court with a 7-2 decision stuck down a California proposition that established an open primary system. The court held the state's open primary for that election year was illegal and unconstitutional, "permitting nonparty members to hijack the party."

Defendants named in the suit are the Georgia and DeKalb Republican parties, the Georgia Democratic Party, Majette, Georgia Secretary of State Cathy Cox, and the DeKalb and Gwinnett election supervisors.

Republican strategist Mark Davis candidly admits to organizing a crossover effort for the 4th District race . But according to Georgia law, he said, there was nothing illegal about it.

"Number one, it's an open primary state, and there's absolutely nothing illegal or immoral about choosing which primary you want to cast your vote in," said Davis. "What's good for the goose is good for the gander, you really can't have it both ways."

Davis claimed Majette's victory over five term incumbent McKinney was indeed largely the result of his and other Republicans' organized effort promoting the crossover vote. According to Davis' analysis of the race, nearly 24,000 crossover votes were cast for Majette, who topped McKinney by 19,554 votes overall.

McKinney won 61 percent of Democratic votes totaling 49,058. More than 50 percent of Majette's 68,612-vote total came from Republicans or registered Democrats who tend to vote Republican.

Another key component to the lawsuit is the allegation that election results indicate a "racially polarized bloc vote." The court filing states, "The result was that the white bloc vote, of both Republicans and Democrats, in the Democratic primary greatly diluted the black Democratic vote, rendering it impotent." 

Theresa Roseboro, an attorney representing Majette, said Georgia's election system has been approved by the Justice Department, so "the system that Georgia has of inviting people to come to the polls and select the ballot of the party that they would like to vote in for purposes of that election cycle absolutely does not violate the Voting Rights Act."

Responding to the suit's charge of racial polarization, Davis said, "How can you claim that we were behaving like racists when we crossed over to vote for another black female?" According to Davis, voters chose between Majette, "a moderate who was educated at Duke and at Yale,"  and McKinney, "a whacko liberal who was educated at UC Berkeley."

But Linda Dubose, one of five black voters from the 4th District listed as a plaintiff in the suit, said McKinney's defeat had the effect of disenfranchising blacks. "The result of the primary is that our candidate will not be on the ballot," she said. "And there's something wrong with that because we, the Democratic voters of the 4th Congressional District, chose Cynthia McKinney, and yet she's not going to be on the ballot."

Dale Ranta, the DeKalb GOP chairman, echoed Davis' "what's good for the goose" comment, saying Democrats have crossed over into Republican primaries for decades. He also said the DeKalb and Georgia Republican parties never officially promoted crossover for the 4th District race.

"Our message had been throughout the time before the primary for all Republicans to vote in the Republican primary," said Ranta, "We've been on television, on radio, and in print form saying exactly that same message. Maybe if Ms. McKinney spent more time keeping all of her constituents happy, she wouldn't have had that problem," said Ranta.

In addition to Republican culpability in the alleged sabotage of the Democratic primary, Dubose also pointed a finger at the Georgia Democratic Party. "The Democratic Party didn't decide to step up to the plate and stand for itself, to stand for the fact that the party has been violated," she said. "We're not hearing any outcry from anybody except black voters from the 4th District as individuals. I don't know why there isn't a greater concern all the way up through the entire party because if the Republicans can do it once, they can do it again.

"We don't need to think that the Republicans like us. They haven't in the past, and they don't now. That's not what happened," Dubose continued. "They were shrewd. And there's something wrong with the system that allows their shrewdness to cost me my vote."

Raffauf surmised the suit will be resolved sometime next year, and depositions will likely begin in December.

The suit seeks permanent injunctions against the Aug. 20 election and its certification by Georgia's secretary of state. It also requests that the crossover votes be declared "unconstitutional and invalid and McKinney declared the winner."

The court filing also lists a request "to enjoin the Nov. 5 general election until this case is resolved," but Raffauf said he will not attempt to prevent this election from taking place.

"We want a primary vote where the Democrats of the 4th District pick their candidate," said Raffauf. "By legislation, by court order, by a new election, however we need to reach that end, that's what we want."