Laroque v. Holder

• Decision Date: 20 December 2010
• Docket Number: Civil Action No. 10–0561(JDB).
• Citation: 755 F.Supp.2d 156
• Parties: Stephen LAROQUE, et al., Plaintiffs,v.Eric H. HOLDER, Jr., in his official capacity as Attorney General of the United States, Defendant.
• Court: U.S. District Court — District of Columbia

755 F.Supp.2d 156

Stephen LAROQUE, et al., Plaintiffs,

v.Eric H. HOLDER, Jr., in his official capacity as Attorney General of the United States, Defendant.

Civil Action No. 10–0561(JDB).

United States District Court, District of Columbia.

Dec. 20, 2010.

Michael A. Carvin, David J. Strandness, Noel John Francisco, Jonesday, Hashim M. Mooppan, Michael E. Rosman, Michelle Ann Scott, Washington, DC, for Plaintiffs.Richard Alan Dellheim, Ernest Alan McFarland, Jared Michael Slade, Justin S. Weinstein–Tull, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

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. ¹

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, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). To effectuate this purpose, Section 5 prohibits certain covered jurisdictions, where voting discrimination has historically been the “most flagrant,” see id. at 315, 86 S.Ct. 803, 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, 174 L.Ed.2d 140 (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, 117 S.Ct. 1491, 137 L.Ed.2d 730 (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, 96 S.Ct. 1357, 47 L.Ed.2d 629 (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, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973); City of Rome v. United States, 446 U.S. 156, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980); Lopez v. Monterey Cnty., 525 U.S. 266, 119 S.Ct. 693, 142 L.Ed.2d 728 (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,² 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...