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Stephen Laroque, et al. v. Eric H. Holder

December 20, 2010

STEPHEN LAROQUE, ET AL. PLAINTIFFS,
v.
ERIC H. HOLDER, JR., IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES, DEFENDANT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiffs, five private citizens and a private membership association, filed this action challenging the constitutionality of Section 5 of the Voting Rights Act ("Section 5"), see 42 U.S.C. § 1973c, both facially and as applied to the Attorney General's refusal under Section 5 to "preclear" a proposed amendment to the Kinston, North Carolina city charter. The amendment, adopted by Kinston voters in a November 2008 referendum, would have replaced the city's current electoral system -- in which candidates for mayor or city council must either be winners of party primaries or unaffiliated persons who obtain a sufficient number of signatures -- with a nonpartisan system, in which anyone may run for local political office and no candidate is affiliated with any political party on the ballot. See Compl. ¶¶ 1, 14-15. Pursuant to Section 5, Kinston submitted its proposed voting change to the Attorney General, who interposed an objection to the change on the ground that the "elimination of party affiliation on the ballot will likely reduce the ability of blacks to elect candidates of choice." See id. ¶ 19. On November 16, 2009, the Kinston City Council voted not to seek administrative reconsideration of the Attorney General's objection or a declaratory judgment from this Court authorizing the proposed electoral change. See Def.'s Mem. in Supp. of Def.'s Mot. to Dismiss ("Def.'s Mem.") [Docket Entry 11], Ex. 1, Kinston City Council Meeting Minutes, at 19. Plaintiffs filed this action on April 7, 2010, arguing that Section 5 unconstitutionally exceeds Congress's enforcement authority under the Fourteenth and Fifteenth Amendments and that Section 5, as amended in 2006, violates the nondiscrimination guarantees of the Fifth, Fourteenth and Fifteenth Amendments. See id. ¶¶ 1, 33-34, 36. Now before the Court is defendant's motion to dismiss, which argues that plaintiffs lack standing and that there is no cause of action for private persons to challenge the constitutionality of Section 5 as applied to the Attorney General's objection to a jurisdiction's proposed electoral change. See Def.'s Mem. at 1. For the reasons explained below, the Court will grant defendant's motion to dismiss.*fn1

BACKGROUND

The Voting Rights Act of 1965 "was designed by Congress to banish the blight of racial discrimination in voting." South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966). To effectuate this purpose, Section 5 prohibits certain covered jurisdictions, where voting discrimination has historically been the "most flagrant," see id. at 315, from making any changes to their voting practices or procedures unless those changes are first "submitted to and approved by a three-judge Federal District Court in Washington, D.C., or the Attorney General." See Nw. Austin Mun. Utility Dist. No. One v. Holder, 557 U.S. ----, 129 S. Ct. 2504, 2509 (2009); 42 U.S.C. §§ 1973b-1973c. So-called "preclearance" under Section 5 will only be granted if the covered jurisdiction can demonstrate that its proposed voting change "neither 'has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.'" Nw. Austin, 129 S. Ct. at 2509 (quoting 42 U.S.C. § 1973c(a)); see also Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 478 (1997) (explaining that the covered jurisdiction bears the burden of proving that its proposed voting change is nondiscriminatory). Section 5 thereby "'shift[s] the advantage of time and inertia from the perpetrators of the evil to its victim,' by 'freezing election procedures in covered areas unless the changes [to those procedures] can be shown to be nondiscriminatory.'" Beer v. United States, 425 U.S. 130, 140 (1976) (quoting H.R. REP. No. 94-196, at 57-58 (1975)). Although Section 5 "was expected to be in effect for only five years," Congress has re-authorized Section 5 on four occasions -- in 1970 (for 5 years), 1975 (for 7 years), 1982 (for 25 years), and 2006 (for 25 years). See Nw. Austin, 129 S. Ct. at 2510. The first three re-authorizations have been upheld against constitutional challenge, as the Supreme Court found in each instance that "circumstances continued to justify the provisions." See id. (citing Georgia v. United States, 411 U.S. 526 (1973); City of Rome v. United States, 446 U.S. 156 (1980); Lopez v. Monterey Cnty., 525 U.S. 266 (1999)).

If a jurisdiction covered by Section 5 chooses to submit its proposed voting change to the Attorney General for preclearance, and the Attorney General interposes an objection to the change, the submitting-jurisdiction "may at any time request the Attorney General to reconsider an objection," see 28 C.F.R. § 51.45(a), or it may institute a declaratory judgment action before a three-judge panel of the U.S. District Court for the District of Columbia, seeking "de novo consideration of whether the method of election violates rights protected by the Voting Rights Act or the Constitution," see Cnty. Council of Sumter Cnty. v. United States, 555 F. Supp. 694, 706-07 (D.D.C. 1983); City of Rome v. United States, 450 F. Supp. 378, 381-82 (D.D.C. 1978) (explaining that "even if . . . the Attorney General objects to certain proposed electoral changes, the applicant-jurisdiction can always seek . . . a declaratory judgment from a three-judge court in this District . . . "); 28 C.F.R. § 51.11 (noting that "[s]ubmission to the Attorney General does not affect the right of the submitting authority to bring an action in the U.S. District Court for the District of Columbia for a declaratory judgment"). If the submitting-jurisdiction does not pursue either course, the Attorney General's objection serves to nullify the jurisdiction's proposed change to its voting practice or procedure, and the change thus cannot be lawfully enforced.

See 28 C.F.R. § 51.10 (stating that "[i]t is unlawful to enforce a change affecting voting without obtaining preclearance under section 5").

The present action stems from an attempt by voters in the city of Kinston, North Carolina to alter the partisan nature of Kinston's local election system. See Compl. ¶ 1. Currently, a prospective candidate for political office in Kinston must either be the winner of a party primary or an unaffiliated candidate who obtains a sufficient number of signatures "to gain access to the ballot." See id. In November 2008, Kinston voters -- by an almost 2 to 1 margin -- passed a referendum that would have amended the Kinston city charter to allow for nonpartisan elections, under which any individual would be allowed to run for local political office and no candidate would be affiliated with any political party on the ballot. See id. ¶¶ 1, 14-15.

Kinston is a political subdivision of Lenoir County, North Carolina, which is a covered jurisdiction, and hence Kinston, too, is subject to the provisions of Section 5. See Compl. ¶ 16; 28 C.F.R. pt. 51, 30 Fed. Reg. 9897 (Aug. 7, 1965) (Section 5 coverage determination for Lenoir County, North Carolina); 28 C.F.R. § 51.6 (noting that "all political subunits within a covered jurisdiction . . . are subject to the requirement of section 5"). Rather than seek "bail out" under Section 4(a) of the Voting Rights Act,*fn2 or a declaratory judgment from a three-judge panel of this Court authorizing its proposed electoral change, Kinston submitted the proposed change to the Attorney General for preclearance. See Compl. ¶ 16. On August 17, 2009, the Attorney General issued a letter objecting to Kinston's proposed system of nonpartisan elections, on the ground that "the elimination of party affiliation on the ballot will likely reduce the ability of blacks to elect candidates of choice." See id. ¶ 19. As the Attorney General explained, "statistical analysis supports the conclusion that given a change to a nonpartisan election, black preferred candidates will receive fewer white cross over votes" because nonpartisan elections prevent "either [an] appeal to [Democratic] party loyalty or the ability to vote a straight ticket" for all Democratic candidates. See id. Because "black-preferred candidates" tend to be Democratic, and because "the city's electorate is overwhelmingly Democratic," the Attorney General concluded that Kinston's proposed voting change would negatively impact Democratic candidates, and thereby have a racially discriminatory effect. See id. On November 16, 2009, the Kinston City Council voted not to seek administrative reconsideration of the Attorney General's objection or a de novo review by this Court of Kinston's proposed change to nonpartisan elections. See Def.'s Mem., Ex. 1, Kinston City Council Meeting Minutes, at 19.

Plaintiffs filed this suit against the Attorney General on April 7, 2010, arguing that the Attorney General's "denial of Section 5 preclearance . . . completely nullified all of Plaintiffs' efforts in support of the referendum" and "infringed their right under North Carolina law to participate in the electoral, political, and law-making process through citizen-referenda." Compl.

¶ 29. Plaintiffs further allege that Section 5 "particularly as implemented by the Attorney General, denies Plaintiffs equal, race-neutral treatment, and an equal opportunity to political and electoral participation, by subjecting them to a racial classification and by intentionally providing minority voters and their preferred candidates a preferential advantage in elections." Id. ¶ 30.

Plaintiffs are five Kinston residents who are registered voters there, as well as a private membership association, the Kinston Citizens for Non-Partisan Voting ("KCNV"), which is "dedicated to eliminating the use of partisan affiliation in Kinston municipal elections." Id. ¶¶ 2-7. The five citizen-plaintiffs all allege that they either campaigned or voted for the November 2008 referendum. See id. ¶¶ 2-6. Two of the five also maintain that they intend to run for election to the Kinston City Council in November 2011. Id. ¶¶ 3-4. As a registered Republican voter and a registered unaffiliated voter, respectively, these two prospective candidates for office in a predominantly Democratic jurisdiction allege that they have "a direct interest" in running "on a ballot where [they] [are] unaffiliated with any party, against opponents similarly unaffiliated, and without the preliminary need to either run in a party primary or obtain sufficient signatures to obtain access to the ballot as a candidate." Id. ¶¶ 3-4, 19.

In their complaint, plaintiffs seek both declaratory and injunctive relief. First, they request declarations that Section 5 unconstitutionally exceeds Congress's enforcement authority under the Fourteenth and Fifteenth Amendments, see id. ¶¶ 31-34; id. at p. 12, Request for Relief (1), and that Section 5, as amended in 2006, violates the Fifth, Fourteenth and Fifteenth Amendments both generally and "particularly as applied by the Attorney General . . . in his specific refusal to permit Kinston's change to nonpartisan elections," id. ¶¶ 35-36; id. at p. 12, Request for Relief (2). Second, plaintiffs request injunctions prohibiting all future enforcement of Section 5 against Kinston, id. at p. 12, Request for Relief (4), and preventing the Attorney General from enforcing Section 5 against Kinston's proposed change to nonpartisan elections, id. at p. 12, Request for Relief (3).

Presently before the Court is defendant's motion to dismiss plaintiffs' complaint on the dual grounds that plaintiffs lack standing and that there is no right of action for private persons to challenge the constitutionality of Section 5 as applied to the Attorney General's decision to object to a covered jurisdiction's proposed voting change. See Def.'s Mem. at 1, 6. On December 3, 2010, this Court held a hearing on defendant's motion to dismiss, and heard more than two hours of argument from counsel for the parties.*fn3 At that hearing, plaintiffs' counsel retreated from the position taken in their pleadings -- that plaintiffs are challenging Section 5 both facially and as applied to the Attorney General's decision to object to Kinston's proposed voting change -- and instead stated that their suit presents "a facial and only a facial challenge" to Section 5. See Mot. Hr'g Tr. [Docket Entry 40] 97:10-11, Dec. 3, 2010. Plaintiffs' counsel represented to the Court that plaintiffs do not seek (and have never sought) to bring an "as applied" challenge to Section 5 based on the Attorney General's specific refusal to preclear Kinston's proposed change to nonpartisan elections. See id. 45:25-46:1 ("we are not asserting that there is anything uniquely unconstitutional about the application [of Section 5] to Kinston"); id. 68:19-21 ("we are not challenging the Attorney General's objection" to Kinston's proposed electoral change); but see Compl. ¶ 30 ("Section 5, particularly as implemented by the Attorney General, denies plaintiffs equal, race-neutral treatment"); id. ¶ 36 ("Section 5 . . . violates the nondiscrimination requirements of the Fifth, Fourteenth, and Fifteenth Amendments, particularly as enforced by the Attorney General"); id. at p. 12, Request for Relief (2) (asking for a declaration that "Section 5 . . . violates the Fifth, Fourteenth and Fifteenth Amendments . . . particularly as applied by the Attorney General . . . in his specific refusal to permit Kinston's change to nonpartisan elections") (emphasis added). Rather, plaintiffs' counsel explained, the complaint only references the Attorney General's application of Section 5 to Kinston as "a particularly good illustrative example of the unconstitutionality" of Section 5 -- a statute which, plaintiffs contend, is "unconstitutional in all its applications." See Mot. Hr'g Tr. 45:18-24.

Plaintiffs' counsel further argued -- again, despite several statements in the complaint to the contrary -- that plaintiffs' injuries do not flow from the Attorney General's objection to Kinston's proposed electoral change, but only "from the fact that Congress reauthorized Section 5" in 2006. Id. 46:4-12; see also id. 46:22-24 ("our injury does not flow from the Attorney General, it flows from Congress's decision to re-authorize the statute"); id. 68:19-21 ("What the Attorney General said, what the Attorney General did are irrelevant to our case."); but see Compl. ¶ 1 (noting that plaintiffs' efforts in support of the referendum "have been completely nullified because the Attorney General denied preclearance"); id. ¶ 29 (arguing that "[t]he denial of Section 5 preclearance has completely nullified all of Plaintiffs' efforts in support of the referendum"). According to plaintiffs, then, their suit could have been brought irrespective of the Attorney General's decision to object to Kinston's proposed electoral change, because plaintiffs' harm derives not from the Attorney General's objection, but from the operation of the Section 5 statutory scheme as a whole. See Mot. Hr'g Tr. 69:10-13 ("We are challenging Section 5, and it's Section 5 that causes our injury . . . we don't think you need to review the Attorney General['s] [objection] in any way, shape, or form"). Indeed, plaintiffs argue, "[w]e would be bringing the same exact claim if Kinston had never sought preclearance in the first place." Id. 46:10-12; see also id. 48:4-5 ("We could have sued [the] day . . . Kinston voters enact[ed] the referendum."); id. 68:21-23 ("we would be bringing this case if Kinston never went to the Attorney General in the first place"); id. 86:8-11 ("Again, even if there had been no request for preclearance from the Attorney General, we would be making the same facial challenge, that Congress exceeded its authority and violated the equal protection clause by enacting Section 5.").

During the motions hearing, defendant's counsel aptly described plaintiffs' attempt to reformulate their challenges to Section 5, remarking that "the target moves." See id. 73:16. This Court will not endeavor to assess the merits of such a "moving target." Plaintiffs may, of course, abandon their previously-articulated as-applied challenge to Section 5. But plaintiffs may not base their claims on hypothetical factual scenarios, nor may they set forth novel bases for their alleged harms, absent the filing of an amended complaint. And absent amendment, the complaint filed on April 7, 2010 continues to frame plaintiffs' claims. This Court will therefore only address the re-characterizations expressed by plaintiffs' counsel at the motions hearing insofar as those arguments seek to clarify -- rather than to fundamentally alter -- the claims set forth in plaintiffs' complaint.

STANDARD OF REVIEW

Defendant's first basis for dismissal -- that plaintiffs lack standing -- must be evaluated under Rule 12(b)(1) of the Federal Rules of Civil Procedure, whereas defendant's second basis for dismissal -- that plaintiffs lack a cause of action -- comes under Rule 12(b)(6). See Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987) (stating that "the defect of standing is a defect in subject matter jurisdiction"); Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 92 (1998) (explaining that the absence of a valid cause of action "does not implicate subject-matter jurisdiction" and that any analysis of a plaintiff's alleged cause of action must be conducted after "resolving a dispute concerning the existence of an Article III case or controversy"). "[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Leatherman v. Tarrant Cnty. Narcotics and Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979). In other words, the factual allegations in the complaint must be presumed true, and the plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer, 416 U.S. at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). At the same time, however, the Court need not accept as true "a legal conclusion couched as a factual allegation," nor need it accept inferences unsupported by the facts set forth in the complaint. Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

Under Rule 12(b)(1), those seeking to invoke the jurisdiction of a federal court --plaintiffs in this case -- bear the burden of establishing that the court has jurisdiction to hear their claims. See U.S. Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (explaining that a court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority"); Pitney Bowes, Inc. v. U.S. Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). Since the elements necessary to establish jurisdiction are "not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof; i.e., with the manner and degree of evidence required at successive stages of the litigation." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Although courts examining a Rule 12(b)(1) motion to dismiss -- such as for lack of standing -- will "construe the complaint in favor of the complaining party," see Warth v. Seldin, 422 U.S. 490, 501 (1975), the "'plaintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim," Grand Lodge, 185 F. Supp. 2d at 13-14 (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987)). Thus, a court may consider material other than the allegations of the complaint in determining whether it has jurisdiction to hear the case, so long as the court accepts the factual allegations in the complaint as true. See Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005); EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997); Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).

To survive a motion to dismiss under Rule 12(b)(6), a complaint need only contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,'" such that the defendant has "'fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action" in order to provide the "grounds" of "entitle[ment] to relief." Twombly, 550 U.S. at 555-56; see also Papasan, 478 U.S. at 286. Instead, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570); Atherton v. Dist. of Columbia Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009). A complaint is considered plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. This amounts to a "two-pronged approach," under which a court first identifies the factual allegations that are entitled to an assumption of truth and then determines "whether they plausibly give rise to an entitlement to relief." Id. at 1950-51.

DISCUSSION

Before turning to defendant's two grounds for dismissal, it is necessary to understand the relationship between them. "Both the question of standing and the question of the legal sufficiency of the action focus on the nature of the plaintiff's injury and the nature of the invasion of his alleged right." Dohaish v. Tooley, 670 F.2d 934, 936 (10th Cir. 1982). The two concepts, however, are fundamentally distinct. Whereas "standing is a question of whether a plaintiff is sufficiently adversary to a defendant to create an Art. III case or controversy . . . cause of action is a question of whether a particular plaintiff is a member of the class of litigants that may, as a matter of law, appropriately invoke the power of the court." Davis v. Passman, 442 U.S. 228, 239 n.18 (1979) (emphasis in original). To have Article III standing, a plaintiff must have "'personally . . . suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant'"; on the other hand, whether a plaintiff "has asserted a cause of action . . . depends not on the quality or extent of her injury, but on whether the class of litigants of which [plaintiff] is a member may use the courts to enforce the right at issue." Id. (quoting Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979)).

Here, plaintiffs -- five private persons and a private membership association -- maintain that they are proper members of the class of litigants that may invoke the power of the Court to challenge the constitutionality of Section 5, a statute that does not regulate the conduct of private persons, but only of covered states and their political subdivisions. See 42 U.S.C. § 1973c. Plaintiffs concede -- as they must -- that "the text of Section 5 does not create a statutory cause of action for private individuals to seek review of the Attorney General's statutory decisions applying the Section 5 preclearance standard." See Pls.' Opp. to Def.'s Mot. to Dismiss ("Pls.' Opp.") [Docket Entry 12], at 37 (emphasis in original); see also 42 U.S.C. § 1973c. Nor does Section 5 create an implied cause of action for private persons to challenge its constitutionality. See City of Rome v. United States, 472 F. Supp. 221, 236 (D.D.C. 1979) (expressing "doubt[s]" that a three-judge court convened under Section 5 has statutory jurisdiction to hear constitutional challenges to Section 5 raised by private parties), aff'd on other grounds, 446 U.S. 156 (1980). Rather, as this Court has already observed, there are only three causes of action that have been held to "arise under" Section 5. See LaRoque v. Holder, 2010 WL 3719928, at *1 (D.D.C. May 12, 2010). Namely, (1) a covered jurisdiction may seek a declaratory judgment under Section 5 authorizing a proposed change to its voting practices or procedures; (2) the Attorney General may seek an injunction under Section 5 to prohibit a covered jurisdiction from enforcing a new voting practice or procedure if that jurisdiction has failed to obtain the required federal preclearance for its proposed change; and (3) a private citizen may seek declaratory and injunctive relief under Section 5 if "a state requirement is covered by § 5, but has not been subjected to the required federal scrutiny." Id. (quoting Allen v. State Bd. of Elections, 393 U.S. 544, 561 (1969)).*fn4 Recognizing that their claims do not fall within any of these three categories, plaintiffs assert that they have an implied cause of action to challenge the constitutionality of Section 5, which derives not from the text of the statute but directly from the U.S. Constitution. See Pls.' Opp. at 36-37.

Plaintiffs are correct insofar as alleged infringements of "substantive constitutional rights generate [implied] causes of action for injunctive relief." See Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 HARV. L. REV. 1321, 1362 n.212 (2000).

But "[i]n order to raise a constitutional objection to a statute, a litigant must always assert that the statute's application to her case violates the Constitution." Id. at 1327 (emphasis added). In other words, any judicial determinations as to whether "statutes are facially invalid properly occur only as logical outgrowths of rulings on whether statutes may be applied to particular litigants on particular facts." Id. at 1328. It is undoubtedly for this reason that plaintiffs initially raised both a facial and an as-applied challenge to Section 5, based on the Attorney General's specific refusal to preclear Kinston's proposed change to nonpartisan elections. See Compl. ¶¶ 35-36; id. at p. 12, Request for Relief (2). By arguing that Section 5 "cannot be applied to [plaintiffs] because its application would violate [their] personal constitutional rights," plaintiffs were also able to challenge Section 5 on its face, as unconstitutional in all its applications.

See Fallon, 113 HARV. L. REV. at 1321.

At the motions hearing, however, plaintiffs abandoned their as-applied challenge to Section 5, arguing that this Court need not engage in any review of the Attorney General's objection to Kinston's proposed electoral change because plaintiffs' injuries derive solely from the operation of the Section 5 statutory scheme as a whole. See, e.g., Mot. Hr'g Tr. 69:10-13 ("We are challenging Section 5, and it's Section 5 that causes our injury . . . we don't think you need to review the Attorney General['s] [objection] in any way, shape, or form"). Plaintiffs, in all likelihood, chose to forego their as-applied challenge because of its perceived futility, in light of the Supreme Court's unequivocal statement that "Congress intended to preclude all judicial review of the Attorney General's exercise of discretion" under Section 5. Morris v. Gresette, 432 U.S. 491, 507 n.24 (1977). After Morris, it is clear that private parties have no cause of action to challenge the Attorney General's application of Section 5 to a particular jurisdiction's proposed voting change. See, e.g., Reaves v. Dep't of Justice, 355 F. Supp. 2d 510, 514 (D.D.C. 2005) (explaining that "the Attorney General's decision whether or not to object to a proposed voting change under Section 5 . . . [is] discretionary and unreviewable"). But plaintiffs' abandonment of their as-applied challenge also raises serious doubts as to whether their facial challenge may proceed.

This Court lacks "jurisdiction to pronounce any statute, either of a state or of the United States, void, because irreconcilable with the constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies." United States v. Raines, 362 U.S. 17, 21 (1960) (internal quotation marks and citations omitted). Rather than have this Court assess the merits of an "actual controversy," plaintiffs now ask the Court to (1) declare Section 5 facially invalid in all its applications but (2) refrain from any assessment of the Attorney General's particular application of Section 5 to Kinston, since such an inquiry is impermissible under Morris and its progeny. See Mot. Hr'g Tr. 68:19-21, 69:13-14 ("What the Attorney General said, what the Attorney General did, are irrelevant to our case . . . [s]o the whole Morris line of cases is pretty much irrelevant"). In so doing, plaintiffs fail to recognize that they lack standing to challenge the constitutionality of Section 5 unless they themselves have been directly harmed by application of the statute. See Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 797 (1984) (noting "the general rule that constitutional adjudication requires a review of the application of a statute to the conduct of the party before the Court"); Clements v. Fashing, 457 U.S. 957, 966 n.3 ...


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