A federal district judge late Thursday dismissed a constitutional challenge to a critical part of the nation’s landmark Voting Rights Act—one of two lawsuits aiming for the U.S. Supreme Court.
U.S. District Judge John Bates, saying an opinion would follow, issued the dismissal order in Laroque v. Holder, a suit filed in the U.S. District Court for the District of Columbia by a group of residents of Kinston, N.C., attacking Section 5 of the Voting Rights Act. A second suit—Shelby County, Ala. v. Holder—is also before Bates and a merits hearing is scheduled for Feb. 2.
“This is the first of two constitutional challenges to the Voting Rights Act, hoping to find a sympathetic audience in the United States Supreme Court,” said J. Gerald Hebert, executive director of the Campaign Legal Center and co-counsel to a group of intervenors in the case. He added the decision was “an important victory in safeguarding this historic and still very pertinent piece of legislation.”
Section 5 of the Voting Rights Act prohibits certain state and local jurisdictions—mostly in the south—from changing voting procedures without first obtaining federal preclearance that the proposed voting change does not deny or abridge the right to vote on account of race, color or membership in a language minority group.
Jones Day partner Michael Carvin, who is representing the Kinston residents on a pro bono basis, said he will appeal the dismissal to the U.S. Court of Appeals for the D.C. Circuit.
“We can’t imagine what the rationale is [for the dismissal], but whatever it is, it can’t be right,” said Carvin. The lawsuit is receiving financial support from the Center for Individual Rights, a Washington conservative public interest law firm.
The Department of Justice, which argued in favor of dismissal, said the Kinston plaintiffs lacked standing to bring the lawsuit.
Last year, Attorney General Eric Holder Jr. refused to approve a Kinston voter referendum to switch from partisan to nonpartisan voting in city council elections. The referendum had been approved by a 2-1 margin. The lawsuit noted that blacks constitute 64.6% of registered voters in the city.
The Justice Department stated in its objection letter that “elimination of party affiliation on the ballot will likely reduce the ability of blacks to elect candidates of choice.”
The Kinston suit, which focused solely on Section 5, argued that the preclearance requirement for voting changes exceeds Congress’ authority under the Fifth, 14th and 15th amendments.
Laughlin McDonald, director of the ACLU’s Voting Rights Project, applauded Bates’ decision and said that, without Section 5, “jurisdictions could implement new forms of discrimination and the burden and expense of challenging them would fall upon the victims.”
Shelby County, represented by Wiley Rein’s Bert Rein and William Consovoy, contends that Section 5 and its trigger mechanism in Section 4(b) exceed Congress’ enforcement powers under the 14th and 15th Amendments. In reauthorizing the act in 2006, the county says, Congress lacked evidence of intentional discrimination that warranted the act’s enactment in 1965 and its three subsequent extensions. Its lawsuit is being funded by The Project on Fair Representation, a Virginia-based, conservative nonprofit legal defense fund.
The two lawsuits focus on constitutional questions left unanswered by the Supreme Court’s decision last year in Northwest Austin Municipal Utility District No. One v. Holder. That case involved a direct challenge to Section 5 of the Voting Rights Act, which Congress reauthorized in 2006 and extended for another 25 years. The justices avoided answering the question of Section 5’s constitutionality by deciding the case on other grounds, but Chief Justice John Roberts Jr., in his majority opinion, voiced strong skepticism about its constitutionality, essentially warning Congress to fix it before another lawsuit reached the high court.