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

December 22, 2011

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, four private citizens and a private membership association, bring a facial challenge to the constitutionality of Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, and the 2006 amendments to Section 5, 42 U.S.C. § 1973c(b)-(d). Section 5, as amended, prevents certain "covered" jurisdictions from implementing any change to voting practices or procedures unless and until the jurisdiction demonstrates to federal authorities that the change "neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color." 42 U.S.C. § 1973c(a).

Plaintiffs are residents of Kinston, North Carolina. In November 2008, Kinston voters adopted a referendum that would have replaced the city's current partisan electoral system with a nonpartisan system, in which anyone could run for local office and no candidate would be affiliated with any political party on the ballot. See Compl. ¶¶ 1, 14-15. Because Kinston is a covered jurisdiction under Section 5, it submitted its proposed voting change to the Attorney General for "preclearance" (i.e., approval) under Section 5. The Attorney General declined to preclear the referendum on the ground that "elimination of party affiliation on the ballot will likely reduce the ability of blacks to elect candidates of choice." Id. ¶ 19. Kinston did not seek administrative reconsideration of the Attorney General's objection, nor did it seek a declaratory judgment from this Court authorizing the proposed electoral change. In April 2010, however, plaintiffs, proponents of the nonpartisan-election referendum, filed this action. Plaintiffs argue that Section 5, as reauthorized and as amended in 2006, exceeds Congress's enforcement authority under the Fourteenth and Fifteenth Amendments (Count I) and that the 2006 amendments to Section 5 violate the nondiscrimination guarantees of the Fifth, Fourteenth and Fifteenth Amendments (Count II). See id. ¶¶ 1, 33-34, 36-37.

On December 20, 2010, this Court granted defendant's Motion to Dismiss [Docket Entry 11] on the ground that plaintiffs lacked standing to bring their claims. See LaRoque v. Holder, 755 F. Supp. 2d 156 (D.D.C. 2010) ("LaRoque I"). On July 8, 2011, the D.C. Circuit reversed, concluding that plaintiffs had standing to bring Count I and directing this Court to consider the merits of that claim. LaRoque v. Holder, 650 F.3d 777, 793, 796 (D.C. Cir. 2011) ("LaRoque II"). The D.C. Circuit also directed this Court to consider whether plaintiffs had standing to bring Count II, and, if so, to resolve the merits of that claim. Id. at 795-96. Shortly after the D.C. Circuit's decision, this Court decided another challenge to Section 5 brought by Shelby County, Alabama, in an opinion that involved some of the same issues raised here. Shelby Cnty., Ala. v. Holder, --- F. Supp. 2d ---, No. 10-651, 2011 WL 4375001 (D.D.C. Sept. 21, 2011). This Court concluded in Shelby County that Congress did not exceed its enforcement powers in reauthorizing Section 5's preclearance procedure in 2006. That decision resolves part of plaintiffs' Count I claim here.

Two of plaintiffs' remaining contentions, however, raise significant issues that have not been addressed in any other decision on Section 5 and the Voting Rights Act. These claims revolve around three amendments to Section 5 that Congress enacted in 2006. 42 U.S.C. § 1973c(b)-(d). The three amendments made two substantive changes to the standard applied in deciding whether a voting practice or procedure should be precleared under Section 5. Plaintiffs contend that the 2006 amendments exceed Congress's enforcement powers under the Fourteenth and Fifteenth Amendments -- an argument no other challenger to the reauthorization of Section 5 has raised. Plaintiffs also contend that the amendments violate the equal protection component of the Due Process Clause of the Fifth Amendment, the federal government's equivalent of the Equal Protection Clause of the Fourteenth Amendment. This appears to be the first facial challenge to a portion of Section 5 under equal protection principles. It is perhaps startling that plaintiffs claim that Section 5, a law "[p]raised by some as the centerpiece of the most effective civil rights legislation ever enacted," is actually racially discriminatory. See Shelby County, 2011 WL 4375001, at *1. Nonetheless, plaintiffs argue that Congress, in its effort to counteract years of discrimination against minority voters, has overreached and harmed the interests of white voters like plaintiffs.

These two challenges call for different analyses and implicate different sets of caselaw, but both, at bottom, ask how urgent the need for Congressional legislation was in 2006 and how well Congress crafted the challenged legislation. Guided by the abundant Congressional record and the Supreme Court's caselaw on Congress's enforcement powers and equal protection principles, this Court concludes that the 2006 amendments to Section 5 are a careful solution to a vitally important problem. It therefore holds that the amendments do not violate the Constitution and that plaintiffs' facial challenges must be denied.

BACKGROUND

I. History of the Voting Rights Act

The history of the Voting Rights Act, and of Section 5 in particular, was discussed at length in this Court's opinion in Shelby County. 2011 WL 4375001, at *2-15. That history need not be repeated in full here, but a few important points bear emphasis. The Voting Rights Act ("the Act" or "the VRA") "was designed by Congress to banish the blight of racial discrimination in voting." South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966). The Act's core prohibition against racial discrimination in voting is contained in Section 2, which provides that "[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." 42 U.S.C. § 1973. Section 2 and many other provisions of the Voting Rights Act are permanent and apply nationwide.

In addition to the permanent, nationwide provisions, Sections 4(b) and 5 of Act impose additional requirements on certain "covered" jurisdictions. Section 4(b) determines which jurisdictions qualify as "covered." 42 U.S.C. § 1973b(b). Section 5 provides that a covered jurisdiction cannot make any changes to its voting qualifications, standards, 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." Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2509 (2009) ("Nw. Austin II"); see 42 U.S.C. § 1973c(a). "Preclearance" under Section 5 will only be granted if a jurisdiction can show 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 II, 129 S. Ct. at 2509 (quoting 42 U.S.C. § 1973c(a)). Section 5 "shift[s] the advantage of time and inertia from the perpetrators of the evil to its victims," Katzenbach, 383 U.S. at 328, by requiring covered jurisdictions to show that changes are not discriminatory before they are enacted.

Section 5 was originally scheduled to sunset after five years, but Congress reauthorized it in 1970 (for five years), 1975 (for seven years), 1982 (for twenty-five years), and 2006 (for twenty-five years). Nw. Austin II, 129 S. Ct. at 2510. During the 2006 reauthorization, Congress enacted three amendments to Section 5 that made two substantive changes to the scope of the preclearance provision. Because of the importance of those changes to this litigation, the portion of the Shelby County opinion describing the 2006 amendments is repeated in full here.

In the amendment codified at 42 U.S.C. § 1973c(c), Congress clarified its intent with respect to the meaning of the word "purpose" in Section 5 in response to the Supreme Court's decision in Reno v. Bossier Parish School Board, 528 U.S. 320 (2000) ("Bossier II"). Section 5, by its terms, only allows a voting change to be precleared if the change "neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color." See 42 U.S.C. § 1973c(a). Prior to Bossier II, this provision was interpreted to bar preclearance of voting changes that either (1) were enacted with a discriminatory purpose; or (2) had a discriminatory, retrogressive effect -- i.e., changes that worsened the position of minority voters relative to the status quo. See Bossier II, 528 U.S. at 324 (explaining that a redistricting plan only has a prohibited discriminatory "effect" under Section 5 if it is retrogressive); Beer v. United States, 425 U.S. 130, 141 (1976) (noting that "the purpose of s[section] 5 has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise"). In Bossier II, however, the Supreme Court -- for the first time -- held that the "purpose" prong of Section 5 only prohibits electoral changes that are enacted with a discriminatory and retrogressive purpose. See 528 U.S. at 341. In other words, after Bossier II, a redistricting plan that was passed for purely discriminatory reasons (such as to purposefully avoid the creation of a new majority-minority district), but that was not intended to make minority voters any worse off than they had been under the pre-existing plan (which, say, had no majority-minority districts), would not run afoul of Section 5's "purpose" prong. See id. (holding that Section 5 "does not prohibit preclearance of a redistricting plan with a discriminatory but nonretrogressive purpose").

Bossier II thus had the effect of reading the "purpose" prong "almost entirely out of Section 5." See House Hearing, 109th Cong. 12 (Nov. 1, 2005) (prepared statement of Mark A. Posner).*fn1 As was the case prior to Bossier II, if a jurisdiction enacted an electoral change that reduced the ability of minority voters to elect candidates of their choice, the change would be denied preclearance under Section 5's "effects" prong (because it would have a retrogressive effect). Under Bossier II, then, the "purpose" prong would only serve as an independent bar to discriminatory voting changes where a jurisdiction "intend[ed] to cause retrogression, but then, somehow, messe[d] up and enact[ed] a voting change that [did] not actually cause retrogression to occur (the so-called 'incompetent retrogressor')." Id.

In 2006, the House Judiciary Committee explained that Bossier II's limitation of the "purpose" prong had been inconsistent with Congress's intent that Section 5 prevent not only purposefully retrogressive discriminatory voting changes, but also those "[v]oting changes that 'purposefully' keep minority groups 'in their place.'" See H.R. Rep. No. 109-478, at 68. Accordingly, as part of the 2006 Amendments, Congress restored the pre-Bossier II "purpose" standard by adding a provision to the statute that defined "purpose" in Section 5 to mean "any discriminatory purpose." See Pub. L. No. 109-246, § 5(c), 120 Stat. 577, 581 (2006); 42 U.S.C. § 1973c(c) (emphasis added).

In a similar vein, Congress also responded to the Supreme Court's decision in Georgia v. Ashcroft, 539 U.S. 461 (2003), which had altered the pre-existing standard for determining whether a voting change had a prohibited retrogressive effect under Section 5's "effects" prong. Prior to Georgia v. Ashcroft, the standard for assessing whether an electoral change violated the Section 5 "effects" test was "'whether the ability of minority groups to participate in the political process and to elect their choices to office is . . . diminished . . . by the change affecting voting.'" Beer, 425 U.S. at 141(quoting H.R. Rep. No. 94-196, at 60) (emphasis omitted). In Georgia v. Ashcroft, however, the Court endorsed a less rigid, "totality of the circumstances" analysis for examining retrogressive effects, explaining that "any assessment of the retrogression of a minority group's effective exercise of the electoral franchise depends on an examination of all the relevant circumstances, such as the ability of minority voters to elect their candidate of choice, the extent of the minority group's opportunity to participate in the political process, and the feasibility of creating a nonretrogressive plan." 539 U.S. at 479. In reauthorizing the Act in 2006, Congress expressed concern that the Georgia v. Ashcroft framework had introduced "substantial uncertainty" into the administration of a statute that was "specifically intended to block persistent and shifting efforts to limit the effectiveness of minority political participation." See H.R. Rep. No. 109-478, at 70 (internal quotation marks and citation omitted). Hence, in an attempt to restore the simpler, "ability to elect" analysis articulated in Beer, see id. at 71, Congress added new language to the Act, stating that all voting changes that diminish the ability of minorities "to elect their preferred candidates of choice" should be denied preclearance under Section 5. See Pub. L. No. 109-246, §§ 5(b), (d), 120 Stat. at 581; 42 U.S.C. §§ 1973c(b), (d).

II. Challenges to Section 5

Section 4(b)'s coverage formula and Section 5's preclearance regime have been repeatedly upheld against constitutional challenges. Katzenbach, 383 U.S. at 337 (upholding Section 5 after 1965 authorization); City of Rome v. United States, 446 U.S. 156, 183 (1980) (upholding Section 5 after 1975 reauthorization); Lopez v. Monterey Cnty., 525 U.S. 266, 282-83 (1999) (upholding Section 5 after 1982 reauthorization in narrow as-applied challenge). The 2006 reauthorization drew another set of constitutional challenges. Only days after the reauthorization, a municipal utility district in Texas brought suit seeking to bail out of the Act's requirements or to challenge Section 5 on its face as "an unconstitutional overextension of Congress's enforcement power to remedy past violations of the Fifteenth Amendment." See Nw. Mun. Util. Dist. No. One v. Holder, 573 F. Supp. 2d 221, 230 (D.D.C. 2008) ("Nw. Austin I"), rev'd and remanded, Nw. Austin II, 129 S. Ct. 2504 (2009) (internal quotation marks and citation omitted); see also LaRoque I, 755 F. Supp. 2d at 161 n.2 (describing procedure by which a jurisdiction may "bail out" of Section 5 and terminate its obligation to seek preclearance for election changes). A three-judge panel of this court found that the utility district was not eligible for bailout and that Section 5 was constitutional. Nw. Austin I, 573 F. Supp. 2d at 283. The utility district appealed, and the Supreme Court reversed. Nw. Austin II, 129 S. Ct. at 2517.

The Supreme Court avoided the constitutional question by finding that the utility district was statutorily eligible for bailout. Id. Although the Court therefore did not decide the constitutional question, it noted that "the Act imposes current burdens and must be justified by current needs." Id. at 2512. In light of the unquestioned improvement in minority voter registration and turnout since the Act's passage in 1965, the Court warned that "[t]he Act's preclearance requirements and its coverage formula raise serious constitutional questions." Id. at 2513.

Ten months after the Supreme Court's decision in Northwest Austin, Shelby County, Alabama filed a lawsuit challenging Section 5 on its face as beyond Congress's powers to enforce the Fourteenth and Fifteenth Amendments. 2011 WL 4375001, at *16-18. This Court upheld the constitutionality of Section 5, see id. at *80, and that decision is currently on appeal to the D.C. Circuit.

III. Kinston, North Carolina

The plaintiffs in this case filed their complaint on April 7, 2010, a few weeks before Shelby County was filed. See Compl. at 13. As described in this Court's previous opinion in this case, see LaRoque I, 755 F. Supp. 2d at 156, 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 have his or her name placed on 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 bailout under Section 4(a) of the Voting Rights Act, 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." Def.'s Mem. in Opp. to Plfs.' Mot. for Summ. J. ("Def.'s Opp.") [Docket Entry 55], Statement of Facts, Ex. 2, at 2 (objection letter). As the Attorney General explained, minority-preferred candidates in Kinston tend to be Democrats. Id. Statistical analysis showed that such minority-preferred candidates needed a small amount of white crossover voting to be elected, but that most white voters -- even Democrats -- would vote for a white Republican over a black Democrat. Id. Some white Democrats, however, "maintain[ed] strong party allegiance and w[ould] continue to vote along party lines, regardless of the race of the candidate," often by voting a straight Democratic ticket. Id. The Attorney General found that switching to a nonpartisan election system would eliminate minority-preferred candidates' ability to "appeal to [Democratic] party loyalty" and to benefit from straight-ticket voting. Id. Hence, "[r]emoving the partisan cue in municipal elections will, in all likelihood, eliminate the single factor that allows black candidates to be elected to office." Id. The Attorney General therefore refused to preclear the referendum. Id. at 3. 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. in Supp. of Mot. to Dismiss [Docket 11], Ex. 1, Kinston City Council Meeting Minutes, at 19.

Plaintiffs then filed this suit against the Attorney General. Plaintiffs are four*fn2 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." Compl. ¶¶ 2-7. The citizen-plaintiffs all allege that they either campaigned or voted for the November 2008 referendum. See id. ¶¶ 2-6. Two of the five claimed that they intended to run for election to the Kinston City Council in November 2011; one of those later dropped out of the race. Id. ¶¶ 3-4; Plfs.' Notice of Filing at 1 [Docket Entry 57]. The remaining candidate, John Nix, alleges that as a registered Republican voter running for office in a predominantly Democratic jurisdiction he has "a direct interest" in running "on a ballot where he is 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." Compl. ¶ 3. All plaintiffs allege that the Attorney General's "denial of Section 5 preclearance . . . completely nullified all of Plaintiffs' efforts in support of the referendum." Id. ¶ 29. Plaintiffs further allege that Congress exceeded its enforcement power in reauthorizing Section 5; that Congress exceeded its enforcement power in enacting the amendments to Section 5 in 2006; and that the 2006 amendments violate the equal protection component of the Due Process Clause of the Fifth Amendment. Id. ¶¶ 1, 33-34, 36-37. Although plaintiffs' complaint clearly raised as-applied claims, they insisted during the first motions hearing in this case that they were raising only facial challenges to the statute. See LaRoque I, 755 F. Supp. 2d at 162-63; see also LaRoque II, 650 F.3d at 783.

Six African-American Kinston residents, along with the North Carolina State Conference of Branches of the National Association for the Advancement of Colored People, joined the case in August 2010 as intervenors in support of the Attorney General. See Order Granting Tyson, et al.'s Mot. to Intervene [Docket Entry 24]. On December 16, 2010, this Court granted the government's Motion to Dismiss, and on December 20, 2010, the Court issued a memorandum order explaining that plaintiffs lacked standing to bring this challenge. [Docket Entries 41, 42.] The Court made separate findings as to the referendum proponents, prospective candidates, and voters. First, the Court found that the weight of caselaw holds that referendum proponents do not suffer a concrete injury that confers standing to sue when a later action allegedly nullifies the effect of their ballot initiative. LaRoque I, 759 F. Supp. 2d at 169-73. Second, the Court found that whether the two proposed candidates would actually run was too speculative to support standing. Id. at 173-75. It further found that the prospective candidates had no legally protected interest in a nonpartisan electoral system because they did not allege that partisan electoral systems were illegal. Id. at 175-80. Third, the Court found that the voters had alleged too general an injury to their associational rights to support standing, and that they were not prevented from supporting the candidates of their choice. Id. at 180-82. Finally, the Court found that holding Section 5 unconstitutional would not revive the Kinston referendum, and that plaintiffs' claims were therefore not redressable. Id. at 182-83.

Plaintiffs appealed and the D.C. Circuit reversed. Treating plaintiffs' claims as purely facial, the D.C. Circuit addressed only whether Nix, the prospective candidate, had standing. 650 F.3d at 783. As relevant here, the D.C. Circuit examined the record and found that it was not unduly speculative that Nix would run for office. Id. at 788-89. The D.C. Circuit further found that the passage of the referendum had granted Nix a legally protected interest in a nonpartisan election system. Id. at 786. Finally, the court explained that if Section 5 were unconstitutional, the Attorney General's actions pursuit to it would be ultra vires and void. Id. at 790-91. The Attorney General's objection to the referendum would therefore be void, and the referendum would go into effect as if the objection had never happened. Id. Hence, the D.C. Circuit concluded that Nix had standing to pursue the Count I claim that the reauthorization of Section 5 exceeded Congress's enforcement powers. Id. at 792.

The D.C. Circuit declined, however, to decide whether any plaintiff had standing to bring Count II. Id. at 793-96. The court explained that Count II raised complex standing questions that had not been fully briefed in either the district court or the court of appeals. Id. In particular, Count II challenged only the amendments to Section 5, and it was unclear whether a finding that the amendments were unconstitutional would revive the referendum. Id. at 794-95. The court of appeals further questioned whether, given that plaintiffs' equal protection challenge was only facial, plaintiffs had "met the requirement that litigants claiming injury from a racial classification establish that they 'personally [have been] denied equal treatment by the challenged discriminatory conduct.'" Id. at 795 (quoting United States v. Hays, 515 U.S. 737, 743-44 (1995)). The court stated that [w]ithout meaningful briefing on these issues, we are hesitant to decide plaintiffs' count-two standing. Of course, we could ask for additional briefing. But that would take time, and as plaintiffs' repeated requests for us to expedite this litigation so that it can be resolved before the November 2011 election indicate, time is of the essence. Given this, and given that plaintiffs themselves characterize count two as a fallback position, see Oral Arg. Tr. at 13:2-4, 15:11-15 (characterizing count two as an "alternative claim[]" that plaintiffs brought in case they lose on count one), we are reluctant to consume precious time resolving plaintiffs' standing to bring count two -- time the district court could instead devote to considering the merits of plaintiffs' principal argument, asserted in count one, that Congress's 2006 reauthorization of section 5 exceeded its Fourteenth and Fifteenth Amendment enforcement powers. 650 F.3d at 796. Accordingly, the D.C. Circuit remanded to this Court to consider the merits of Count I and whether plaintiffs had standing to pursue Count II. Id.

DISCUSSION

I. OVERVIEW

Before addressing the merits of plaintiffs' claims, the Court must address one unusual and important issue that has arisen in this case. When this Court originally granted defendant's Motion to Dismiss, the Court read plaintiffs' complaint as arguing that Congress had exceeded its enforcement powers in reauthorizing Section 5 (Count I), and that the 2006 amendments to Section 5 violated equal protection principles (Count II). That is, the Court saw Count I as identical to the facial challenge raised in Shelby County and Northwest Austin, whereas Count II raised a facial challenge to the amendments under a novel equal protection theory. The D.C. Circuit's decision indicates that the court of appeals understood plaintiffs' claims the same way. The D.C. Circuit summarized plaintiffs' claims as follows: "Count one of plaintiffs' complaint contends that section 5, as reauthorized in 2006, exceeds Congress's Fourteenth and Fifteenth Amendment enforcement powers. Count two contends that amendments made to section 5 in 2006 erect a facially unconstitutional racial-preference scheme." LaRoque II, 650 F.3d at 780.*fn3

The D.C. Circuit's discussion of redressability further suggests that it read Count I as a challenge to all of Section 5 and Count II as a challenge to the amendments. In evaluating whether plaintiffs had standing to bring Count II, the D.C. Circuit observed that it was unclear "what would happen to the Kinston referendum and the Attorney General's decision to refuse preclearance" if plaintiffs succeeded in having the amendments -- but not the general preclearance regime -- declared unconstitutional. Id. at 794. By contrast, the D.C. Circuit apparently assumed that all of Section 5 would be struck down if plaintiffs succeeded on their Count I challenge. Compare id. at 791 with id. at 794-95.

After the remand, however, plaintiffs emphasized that their Count I claim actually had two subparts. See Mot. Hr'g Tr. [Docket Entry 66] 5:7-20, Oct. 26, 2011. The first part --which, for the moment, the Court will refer to as Count I-A -- claims that the reauthorization of Section 5's preclearance regime exceeded Congress's enforcement authority under the Fourteenth and Fifteenth Amendments. Compl. ¶¶ 33-34. Count I-A is therefore similar to the claim raised in Northwest Austin and Shelby County. But a second part, or Count I-B, claims that the enactment of the 2006 amendments exceeded Congress's enforcement authority even if the general preclearance regime is constitutional. Compl. ¶ 34. This claim was not raised in either Northwest Austin or Shelby County, and was not identified by either this Court or the D.C. Circuit in the prior decisions in this case. Finally, Count II claims that the 2006 amendments to Section 5 violate the equal protection component of the Due Process Clause of the Fifth Amendment, the federal government's equivalent of the Equal Protection Clause. Compl. ¶¶ 36-37.

The Court has reviewed plaintiffs' complaint, summary judgment motion, and opposition to the government's summary judgment motion. [Docket Entries 1, 23, 59]. The Court concludes that plaintiffs have in fact raised their two-part claim in Count I throughout this litigation (although they have not always been particularly clear about the nature of the claim), despite the fact that this Court and the D.C. Circuit did not focus on Count I-B. The existence of Count I-B, however, leaves this Court in an odd position in two ways.

First, this Court, along with the three-judge court that decided Northwest Austin, has already spent hundreds of pages opining that the reauthorization of the amended Section 5 was within Congress's enforcement powers. Although neither the Northwest Austin opinion nor the Shelby County opinion focused on the amendments to Section 5, both of those opinions implicitly found that the amendments -- an integral part of Section 5 as enacted in 2006 --represented a congruent and proportional, or rational, response to the problem of discrimination in voting. This Court will not revisit its conclusion in Shelby County that long-standing, state-sponsored, intentional discrimination in voting justified the reauthorization of Section 5's general preclearance procedure. Count I-A is therefore denied for the same reasons given in Shelby County. But the Court will not rely on its past implicit finding that the 2006 amendments represent a congruent and proportional response to the problem of voting discrimination.

This Court therefore must decide whether specific evidence in the record before Congress justified the enactment of the 2006 amendments.

The second odd effect of this revised understanding of plaintiffs' claims is that the Court must reconsider the issue of Count I standing. Count I-B raises distinct standing issues from Count I-A; indeed, for standing purposes, Count I-B is more like Count II than Count I-A. Although the D.C. Circuit's opinion directed this Court to address the merits of Count I, the D.C. Circuit apparently did not envision a Count I decision addressing the constitutionality of only the amendments. And finding only the amendments unconstitutional under Count I would raise quite different standing issues from finding all of Section 5 unconstitutional, as the D.C. Circuit pointed out in its discussion of Count II. See LaRoque II, 650 F.3d at 794-95. Hence, although the D.C. Circuit's mandate directs this Court to consider the merits of Count I, the opinion as a whole leads this Court to believe that it must first address whether plaintiffs have standing on the aspect of their Count I claim that challenges only the amendments.

This opinion will therefore proceed as follows. The Court will begin by discussing whether plaintiffs have standing to bring Count I-B, their claim that the enactment of the amendments to Section 5 in 2006 exceeded Congress's enforcement powers. The Court will also consider whether Count I-B is unripe or moot. The Court will then address the merits of Count I-B, determining whether the amendments are proper enforcement legislation under the three-part test laid out in City of Boerne v. Flores, 521 U.S. 507, 520 (1997). Finally, the Court will turn to Count II, plaintiffs' claim that the amendments violate the equal protection principles of the Fifth Amendment. The Court will first consider whether plaintiffs have standing to bring the claim, then whether the claim succeeds on the merits.

II. COUNT I

A. Standing

Article III of the U.S. Constitution "limits the 'judicial power' of the United States to the resolution of 'cases' and 'controversies,'" Valley Forge Christian Coll. v. Am. United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982), and the doctrine of standing serves to identify those "'Cases' and 'Controversies' that are of the justiciable sort referred to in Article III," Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). "As an aspect of justiciability, the standing question is whether the plaintiff has 'alleged such a personal stake in the outcome of the controversy' as to warrant invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf." Warth v. Seldin, 422 U.S. 490, 498-99 (1975) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)); see also Sierra Club v. Morton, 405 U.S. 727, 731-32 (1972).

To establish the "irreducible constitutional minimum of standing," a plaintiff must allege (1) an "injury in fact," defined as "an invasion of a legally protected interest which is (a) concrete and particularized," and (b) "actual or imminent, not conjectural or hypothetical"; (2) "a causal connection between the injury and the conduct complained of"; and (3) a likelihood "that the injury will be redressed by a favorable decision." Lujan, 504 U.S. at 560-61 (internal quotation marks and citations omitted). In order for an injury to be "concrete and particularized," it must "affect the plaintiff in a personal and individual way," so a plaintiff must do more than raise "a generally available grievance about government -- claiming only harm to his and every citizen's interest in proper application of the Constitution and laws." Id. at 561 n.1, 573.

The injury, causation, and redressability requirements will be discussed in turn. Following the lead of the court of appeals, this Court will primarily address whether candidate John Nix has standing to bring this claim. LaRoque II, 650 F.3d at 792.

1. Injury

The D.C. Circuit found that Nix was injured by the operation of Section 5's general preclearance procedure -- and the resultant suspension of the nonpartisan-election referendum --in two ways. First, in a system of nonpartisan elections, Nix "could get his name on the general-election ballot more cheaply and easily." LaRoque II, 650 F.3d at 783. Under Kinston's current regime, he must either win a partisan primary or collect signatures from 4% of qualified voters to be placed on the ballot; under a nonpartisan regime, he would only need to file a candidacy notice and pay a filing fee. Id. at 783-84. Second, Nix's chances of winning the election would "substantially improve" if the referendum were precleared and nonpartisan elections went into effect, because "Democratic candidates would lose the benefit of party-line straight-ticket voting and other strategic advantages stemming from their overwhelming registered-voter advantage." Id. at 784 (internal quotation marks and citation omitted). As the D.C. Circuit explained, Nix has a legally protected interest in such competitive advantages because the nonpartisan election regime would have been enacted in Kinston but for Section 5, "which he claims is unconstitutional and thus void." Id. at 786.

The Court finds that Nix's injury is identical whether the challenge is to the amendments or to the preclearance procedure in general. In either case, Nix alleges that the suspension of the referendum denied him competitive advantages to which he had a legally protected right. The questions of causation and redressability are more complex in a challenge to only the amendments, but the question of injury is not.

2. Causation

The causation question is more difficult. In plaintiffs' general challenge to Section 5, it was clear that the operation of the preclearance regime had caused the suspension of the referendum, and hence had caused Nix's injury. In the challenge to the amendments, however, defendant makes several arguments as to why the amendments did not cause the suspension of the referendum, and hence did not cause Nix's competitive injuries.

Defendant argues first that the Department of Justice did not rely at all on subsection (c) -- the subsection that provides that "[t]he term 'purpose' in subsections (a) and (b) of this section shall include any discriminatory purpose" -- in refusing to preclear the referendum. Def.'s Opp. at 24. The Attorney General's objection letter, which focuses entirely on retrogressive effect and never mentions discriminatory purpose, supports defendant's arguments. See Def.'s Opp., Statement of Facts, Ex. 2 (objection letter). There is no indication in the record that the Department of Justice has ever claimed that a racially discriminatory purpose motivated the referendum; indeed, the objection letter concedes that "the motivating factor for this change may be partisan." Id. Nor have plaintiffs offered any reason to believe that the Attorney General relied on subsection (c) in denying preclearance to the referendum. Accordingly, the Court agrees with the government that subsection (c) did not cause plaintiffs' injuries, and plaintiffs therefore do not have standing to challenge that provision.

Subsections (b) and (d), however, govern the "effects" prong of Section 5, and the Attorney General denied preclearance because of the referendum's retrogressive effects. See Def.'s Opp., Statement of Facts, Ex. 2 (objection letter). The government nonetheless contends that subsections (b) and (d) did not cause plaintiffs' injuries because their application is limited to the districting context. Def.'s Opp. at 24-25. Based on the text of the statute, the Court disagrees. Subsection (b) provides that: "Any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting that has the purpose of or will have the effect of diminishing the ability of any citizens of the United States on account of race or color . . . to elect their preferred candidates of choice denies or abridges the right to vote within the meaning of subsection (a) of this section." 42 U.S.C. § 1973c(b). Subsection (d) explains that "[t]he purpose of subsection (b) of this section is to protect the ability of such citizens to elect their preferred candidates of choice." 42 U.S.C. § 1973c(d). Hence, by their terms, both subsections apply to "[a]ny voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting," and nothing in the text limits their application to districting.

The fact that subsections (b) and (d) were meant to overrule Ashcroft, a case about a districting plan, does not mean that their application is limited to districting. Indeed, although the specific considerations outlined in Ashcroft apply most naturally in the districting context, its broader holding -- that a totality of the circumstances test rather than a singular focus on minorities' ability to elect governs preclearance of voting changes -- could be and was applied to other types of voting procedure changes, including one quite similar to the referendum at issue here. In 2004, the Charleston County Legislative Delegation to the South Carolina General Assembly attempted to change the nonpartisan elections for the Board of Trustees of the Charleston County School District to partisan elections. See Letter from R. Alexander Acosta, Assistant Attorney General, to C. Havird Jones, Jr., Senior Assistant Attorney General (Feb. 26, 2004). The Attorney General denied preclearance, finding that the change would diminish minorities' ability to elect their candidates of choice. Id. at 2. In doing so, he specifically noted that he was applying a "totality of the circumstances" test under Ashcroft, and he considered, among other things, whether minority-preferred elected officials supported the change. Id. at 1-2. Hence, Ashcroft's broad holding did apply to changes like those at issue here, and the amendments partially overruling it do as well. Indeed, a comparison of the objection letter in this case and the objection letter in the Charleston County School District case strongly suggests that the Attorney General applied a different standard here than he did there. Compare id. with Def.'s Opp., Statement of Facts, Ex. 2 (objection letter).

This does not end the causation inquiry, however, because the question remains whether the Attorney General would have come to the same ultimate conclusion under the Ashcroft standard. If so, the amendments did not cause plaintiffs' injury. Neither party has made any serious effort to answer or analyze that question. Under the Supreme Court's decision in Federal Election Commission v. Akins, 524 U.S. 11 (1998), however, the Court believes that plaintiffs succeed on the causation prong. In Akins, plaintiffs challenged the Federal Election Commission's ("FEC") determination that the American Israel Public Affairs Committee ("AIPAC") did not have to follow certain registration and disclosure rules under the Federal Election Campaign Act ("FECA") because AIPAC's "major purpose" was not nominating or electing political candidates. Id. at 14-18. Plaintiffs sued the FEC, arguing that the "major purpose" test misinterpreted FECA. The Supreme Court agreed that plaintiffs' inability to obtain information that would otherwise have been disclosed was a concrete, particularized injury. Id. at 20-21. The FEC argued, however, that plaintiffs did not have standing because FEC's alleged misinterpretation of FECA might not have caused their injury, given that the FEC could have and, under the evidence in the record, likely would have -- exercised its discretion to exempt AIPAC from the FECA's requirements. See id. at 25. The Supreme Court nonetheless held that plaintiffs had standing. It explained:

[W]e cannot know that the FEC would have exercised its prosecutorial discretion in this way. Agencies often have discretion about whether or not to take a particular action. Yet those adversely affected by a discretionary agency decision generally have standing to complain that the agency based its decision upon an improper legal ground. If a reviewing court agrees that the agency misinterpreted the law, it will set aside the agency's action and remand the case -- even though the agency (like a new jury after a mistrial) might later, in the exercise of its lawful discretion, reach the same result for a different reason. Thus respondents' "injury in fact" is "fairly traceable" to the FEC's decision not to issue its complaint, even though the FEC might reach the same result exercising its discretionary powers lawfully.

Id. at 25 (internal citations omitted).

Here, too, plaintiffs claim that the Attorney General employed the wrong legal standard -- namely, the allegedly unconstitutional preclearance standard in subsections (b) and (d) rather than the test laid out in Ashcroft. The fact that the Attorney General could have reached the same result under the correct standard, as the FEC could have "reach[ed] the same result exercising its discretionary powers lawfully," does not negate causation under Akins. This case is not exactly like Akins -- among other things, the Attorney General's "discretion" to make preclearance decisions is not as broad as the FEC's authority was under FECA -- but the Court sees no reason that those differences dictate a different result here. Accordingly, under Akins, the Court holds that plaintiffs have established that subsections (b) and (d) caused their injury.

3. Redressability

Plaintiffs offer various arguments for why their injury -- the postponement of the referendum -- will be redressed if this Court finds the 2006 amendments unconstitutional. Their primary argument is that subsections (b), (c), and (d) cannot be severed from subsection (a), which contains the core preclearance provision. Consol. Reply Mem. in Supp. of Plfs.' Mot. for Summ. J. & in Opp. to Def.'s and Intervenors' Mot. for Summ. J. & Intervenors' Renewed Mot. to Dismiss ("Plfs.' Opp.") [Docket Entry 59] at 39-44. Hence, according to plaintiffs' theory, finding that the amendments are unconstitutional would mean that all of Section 5 must be struck as unconstitutional. Id. And, as the D.C. Circuit explained, striking Section 5 as unconstitutional would revive the referendum. This is so because if "Section 5 is unconstitutional, the Attorney General's actions pursuant to that unconstitutional statute would be void." LaRoque II, 650 F.3d at 791.

Contrary to plaintiffs' argument, the Court agrees with the government that the amendments are severable from subsection (a)'s general preclearance provision. When possible, courts sever unconstitutional portions of a statute rather than striking the whole statute. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3161 (2010). Severance is possible when the remaining portion of the statue is "(1) constitutionally valid, (2) capable of functioning independently, and (3) 'consistent with Congress' basic objectives in enacting the statute.'" Def.'s Opp. at 26 (quoting United States v. Booker, 543 U.S. 220, 258-259 (2005)). "The presence of a severability clause, which expressly sets forth congressional intent that a statute stand in the event one of its provisions is struck down, makes it extremely difficult for a party to demonstrate inseverability." Consumer Energy Council v. Fed. Energy Regulatory Comm'n, 673 F.2d 425, 441 (D.C. Cir. 1982).

All three conditions are met here. Subsection (a) is constitutionally valid and capable of functioning without the 2006 amendments. Other than one purely stylistic change, subsection (a) is the version of Section 5 that was in effect before the 2006 amendments, and that version was upheld against numerous constitutional challenges. See Katzenbach, 383 U.S. at 337; City of Rome, 446 U.S. at 183; Lopez, 525 U.S. at 282-83; see generally Shelby County, 2011 WL 4375001.

The presence of a severability clause demonstrates that severing the amendments would be "consistent with Congress' basic objectives in enacting the statute." The Voting Rights Act's severability clause provides that [i]f any provision of [the Voting Rights Act] or the application thereof to any person or circumstances is held invalid, the remainder of [the Voting Rights Act] and the application of the provision to other persons not similarly situated or to other circumstances shall not be affected thereby.

42 U.S.C. § 1973p. Accordingly, it was Congress's considered judgment that Section 5 without the Bossier II and Ashcroft "fixes" was better than no Section 5 at all. Plaintiffs argue that the severability clause has been part of the Voting Rights Act since 1965, and thus cannot speak to the 2006 Congress's intent. But this Court must presume that Congress was aware of the clause when it reauthorized and amended Section 5, and that it affirmatively intended the severability clause to apply to the amendments. See Koog v. United States, 79 F.3d 452, 463 n.12 (5th Cir. 1996); see also Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 n.8 (1987) (noting that severability clause applies to later provisions that amend a law). Moreover, nothing in the legislative history suggests a reason to question this presumption. Certainly, several members of Congress made clear that they thought the BossierII and Ashcroft fixes were important, but there was no serious discussion of whether failing to reauthorize Section 5 at all was preferable to reauthorizing Section 5 as construed by those cases. See Leavitt v. Jane L., 518 U.S. 137, 143-144 (1996) (statements indicating that Congress preferred complete statute do not undermine case for severability because "[t]his mode of analysis, if carried out in every case, would operate to defeat every claim of severability").

The Court therefore concludes that each of the amendments is severable from subsection (a), the general preclearance procedure. Hence, the Court rejects plaintiffs' primary redressability argument. The question then is whether there is any other reason that finding subsections (b) and (d) unconstitutional would redress plaintiffs' injury. The Court finds that there is such a reason.

First, the D.C. Circuit's opinion makes clear that the Attorney General's objection would be nullified if the amendments were struck down as unconstitutional. The D.C. Circuit explained that if all of Section 5 is unconstitutional, the Attorney General's actions pursuant to it would be void. LaRoque II, 650 F.3d at 791. Similarly, if the amendments are unconstitutional, the Attorney General's actions pursuant to them would be void. Although subsection (a) contains the actual preclearance procedure, the Attorney General's actions were indeed made "pursuant to" subsections (b) and (d) in addition to subsection (a), because subsections (b) and (d) now define the key terms in subsection (a).

The question then is what would happen to the Kinston referendum if the Attorney General's original objection were nullified, but Section 5's general preclearance procedure remained in place. Because the D.C. Circuit considered only the situation where Section 5 was struck down in its entirety, it did not provide guidance on this issue. Moreover, because this is a novel situation, neither party has identified any case on point. As a matter of logic, however, it would seem that the referendum would have to be precleared under the pre-2006 version of Section 5 before it could go into effect. Cf. Ashcroft, 539 U.S. at 490 (remanding to district court to reconsider whether districting plan could be precleared in light of standard laid out by Supreme Court). Any other course of action would lead to the anomalous result that the Kinston referendum -- unlike every other election law -- could go into effect without ever being precleared. Moreover, contrary to the government's view, the Court does not believe that Kinston would be able to make a discretionary decision not to seek such reconsideration of the referendum. See United States' Resp. to Plfs.' Br. Regarding Suggestion of Mootness at 3-4 [Docket Entry 69]. Preclearance of the Kinston referendum under the pre-2006 version of Section 5 would not be "reconsideration" as that term is usually used in this context. Rather, it would be a routine action to seek preclearance of an election change that had not yet been through the (proper) process.

Assuming that the referendum would have to be precleared under the pre-2006 standard, the final question is whether it would, in fact, be precleared under that standard. If it is clear that the referendum would not be precleared under any standard, plaintiffs' claims are not redressable and they have no standing to challenge the 2006 amendments. As with the causation prong, neither party has analyzed this issue in any detail. But, again as with the causation prong, the Court finds this question governed by Akins. After explaining that causation was not defeated simply because an agency that "based its decision upon an improper legal ground" could reach the same decision on a proper legal ground, the Supreme Court disposed of the "redressability" prong in a single sentence: "For similar reasons, the courts in this case can redress respondents' injury in fact." 524 U.S. at 25 (internal quotation marks omitted). Here, as in Akins, the injury is redressable because the Attorney General will have to reconsider preclearance of the referendum under the Ashcroft standard if plaintiffs succeed, even though the Attorney General "might later, in the exercise of [his] lawful discretion, reach the same result for a different reason." Id.; see also Townes v. Jarvis, 577 F.3d 543, 546-48 (4th Cir. 2009) (relying on Akins to find that habeas petitioner could challenge Parole Board's decision that allegedly violated Due Process and Equal Protection Clauses, even though Board might deny parole even applying proper standard).

The Court therefore finds that Nix has standing to challenge subsections (b) and (d), but not subsection (c).*fn4 For the same reasons given in its first opinion in this case, see LaRoque I, 755 F. Supp. 2d at 168-73, 180-82, the Court concludes that referendum proponents do not have standing; that the voters' allegation that their associational rights are burdened is too generalized to support standing; and that the voters are not precluded from supporting their candidates of choice. KCNV, however, does have standing to challenge subsections (b) and (d), because it has established that one of its "members would otherwise have standing to sue in [his] own ...


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