CIR argues voting rights challenge before the DC Circuit

Today a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit heard oral argument in CIR’s appeal from a lower court’s dismissal of our lawsuit challenging the Voting Rights Act’s Section 5, which requires states to maximize the voting strength of some racial groups but not others.  The lower court had dismissed the suit on standing grounds, holding that only governmental entities, and not the voters and nonpartisan candidates CIR represents, could challenge the constitutionality of Section 5.

The issue most discussed was the crucial one of whether CIR’s clients suffered injury because of Section 5.  CIR co-counsel Hashim (“Hash”) Mooppan of the law firm Jones Day argued that when the referendum the voters of Kinston, North Carolina, had passed to take party politics out of their elections was suspended by Section 5, that created hardships for CIR client John Nix.  Nix is a candidate who is unaffiliated with any party and who would have preferred to run in the nonpartisan system the referendum established, because it had much less onerous signature requirements for unaffiliated candidates than the party system does.  In the same vein, Judge David S. Tatel made the point from the bench that when Section 5 annulled the referendum, it deprived candidates like Nix of a state-created right.

When the lawyer for the Justice Department seemed to argue that Nix could have avoided his injury simply by running as a Democrat or a Republican, Judge Tatel seemed unimpressed.  He suggested that there might be “constitutional problems” with forcing people give up their state-created right not to affiliate with a political party they do not want to belong to.

If the appellate court reverses the lower court’s dismissal, next to be considered will be CIR’s central contentions that Congress exceeded its authority in reauthorizing Section 5 in 2006 and that Section 5 violates the Constitution by preferring some voters over others based on race.