Appeals Court: LaRoque v. Holder can proceed

Plaintiff Nix, others, have standing

Washington,DC — The U.S. Court of Appeals for the District of Columbia Circuit today ruled that LaRoque et al. v. Holder, CIR’s challenge to Section 5 of the Voting Rights Act of 1965 can proceed. Previously, U.S. District Court Judge John Bates had dismissed the case on the grounds that plaintiffs Stephen LaRoque, John Nix and other Kinston citizens and candidates involved in the case lacked legal standing to challenge a decision by the Attorney General to deny preclearance to Kinston’s proposed system of nonpartisan voting.

The appeals court panel held that John Nix, currently a candidate for the Kinston City Council, has a legally protected interest in having the nonpartisan voting system implemented according to the terms of the referendum passed by voters in November, 2008. Because the Attorney General refused to preclear the change to nonpartisan voting pursuant to his authority under Section 5, candidate Nix has legal standing to challenge the constitutionality of Section 5.

The Appeals Court declined to rule on whether the plaintiffs have standing to separately challenge the substantive standard by which the Attorney General grants preclearance, namely that proposed changes in voting procedures maximize the ability of nonminority voters to elect their candidate of choice. Whether Nix and the other plaintiffs have standing to raise that as a separate count will be remanded to the District Court for further consideration.

Today’s ruling means that LaRoque v. Holder goes back to the District Court, which now must rule on the plaintiff’s claim that requiring many Southern jurisdictions to preclear changes in voting procedures exceeds Congress’ authority.

Originally passed in 1965, Section 5’s extraordinary authority was supposed to expire in 1970. Instead, Congress has repeatedly re-enacted Section 5, most recently in 2006, when it extended it for another 25 years. The 2006 re-authorization broadened Section 5’s focus beyond prohibiting voting changes that had the purpose or effect of disenfranchising minority voters. Section 5 now also prohibits changes that have the “effect of diminishing the ability of [minority groups] to elect their preferred candidate of choice.”

There has never been a finding that Kinston engaged in discriminatory practices in voting. No voting change from Kinston or Lenoir County had previously ever been denied preclearance under Section 5. Moreover, blacks now comprise 64% of the registered voters in Kinston. The referendum passed by a wide 2-to-1 margin (64%) and passed in 5 of 7 precincts where blacks were a majority of voters.

Despite the absence of voting-related race discrimination and the overwhelming support of all voters including blacks, Department of Justice officials concluded that the switch to non-partisan voting would “likely reduce the ability of blacks to elect candidates of choice.” According to the Department, white Democratic voters would no longer vote for black candidates if those candidates were no longer affiliated with the Democratic Party.

Today’s lawsuit addresses a question left open by the Supreme Court’s 2008 decision in Northwest Austin Municipal Utility District v. Holder. In that case, the Court narrowly avoided deciding the constitutionality of Section 5 by unanimously holding that the utility district in that case was entitled to sue to “bail out” of Section 5’s preclearance requirements. Chief Justice Roberts acknowledged, however, that members of the Court had “serious misgivings” about the constitutionality of Section 5.

LaRoque v. Holder focuses squarely on the constitutional questions left unanswered by the Court’s ruling in Northwest Austin.

CIR President Terence Pell commented, “Today’s decision is welcome. Although the Voting Rights Act has accomplished many valuable goals, its ‘temporary’ Section 5 provision is now unconstitutional because it singles out certain jurisdictions for extraordinary burdens based on 46-year-old election results (from 1964). Equally important, Section 5, as amended in 2006, imposes the ‘minority maximization’ agenda of Justice Department lawyers, even on noncontroversial measures like nonpartisan voting and even when they are supported by minority voters.”

The Center for Individual Rights is a non-profit public interest firm that specializes in civil rights, free speech, and other cases affecting individual rights. For more information, contact Terry Pell at 202-833-8400 x 113, or visit CIR’s web site at