Together with lead counsel Michael Carvin, CIR today filed a brief challenging a last ditch effort by the Department of Justice to prevent the Court of Appeals from ruling on the merits of CIR’s facial challenge to the constitutionality of Section 5 of the Voting Rights Act. Earlier this month, the Attorney General purported to withdraw his 2009 objection to Kinston’s proposed non-partisan voting system. Shortly thereafter, the Attorney General moved to dismiss LaRoque v. Holder on grounds that it now was moot.
CIR’s brief notes that the Attorney General’s letter, filed after two years of litigation and just days before oral argument before the Court of Appeals, is a pretext: although it emphasizes that blacks “were a majority of the electorate in 2011,” the 2011 data is virtually indistinguishable from the 2009 data. More important, the Attorney General must prove that judicial relief is not needed to prevent recurrence of the violation.
However, absent judicial relief, there are three ways Nix, LaRoque and Cuomo are likely to continue to suffer injury from the unconstitutional application of Section 5 to Kinston voting: First, the Attorney General’s withdrawal of his previous objection is not authorized by Section 5 and likely is ineffectual; second, it is likely that other voting changes already being contemplated will force Kinston to seek preclearance again before 2013; and third, unless Section 5 is struck down, Nix cannot move to have a new election to remedy his injury from the 2011 election.
The court has scheduled oral argument on February 27 to consider both the Attorney General’s late claim that the case is moot as well as the merits of CIR’s appeal.
UPDATE No. 1: On February 24, the Court of Appeals cancelled the oral argument scheduled for the following Monday, which would have considered both the question of mootness and the substantive appeal.
UPDATE No. 2: On February 27, CIR co-counsel Michael Carvin filed a letter with the Court of Appeals advising it that the Lenoir County Board of Elections voted on February 15 to change current election procedures by adopting a practice known as “Sunday Voting” for the upcoming primary. This change must be precleared by the Attorney General pursuant to Section 5, a circumstance that makes clear why the legal dispute concerning the constitutionality of Section 5 is very much alive notwithstanding the Attorney General’s sudden and late effort to make it seem moot: John Nix and other Kinston candidates and citizens will in the near future again be subjected to Section 5’s unconstitutional preclearance procedures.