Federal voting rights law in question
Washington, DC.— The Center for Individual Rights and lead counsel Michael Carvin of the Jones Day law firm today filed a petition for writ of certiorari asking the Supreme Court to review Nix v. Holder, CIR’s case challenging the constitutionality of Section 5 of the Voting Rights Act, which requires federal preclearance of changes to voting practices in certain state and local jurisdictions.
The Petition argues that the aggressive way Section 5 is now being used by the Holder Justice Department — e.g., to strike down state voter ID laws — makes it imperative that the Court promptly resolve serious and persistent questions about Section 5’s constitutionality.
The Petition emphasizes that Nix v. Holder is the only Section 5 challenge that focuses on the controversial and expansive 2006 substantive amendments to Section 5, which overruled two prior Supreme Court decisions and essentially required covered jurisdictions to focus exclusively on maximizing the ability of minority voters to elect minority candidates.
For example, the 2006 amendments effectively require jurisdictions to concentrate minority voters in districts that reliably elect minority candidates. The amendments prohibit a “safe” minority district from ever being converted into several “cross-over” districts or “influence” districts where minority success would depend on forming coalitions with non-minority voters based on issues rather than skin color.
The Petition contends that the 2006 amendments raise serious constitutional questions that strike at the heart of Section 5. Indeed, as one lower court judge has explained, it is impossible to assess the constitutionality of Section 5’s preclearance procedure without considering the nature and degree of the burden imposed by the substantive preclearance standard, including the 2006 amendments.
Accordingly, the Petition submits that Nix v. Holder is both a necessary vehicle for the Supreme Court to consider Section 5’s constitutionality and a natural companion vehicle to Shelby County v. Holder, a related challenge where a covered jurisdiction has focused on the irrationality of the formula for selecting the jurisdictions that are covered by Section 5’s preclearance procedure, which relies on three-decade-old voting data rather than current political conditions.
Nix v. Holder grows out of a 2008 referendum in Kinston, North Carolina in which voters decided by a 2 to 1 margin to convert that city’s elections to a nonpartisan system used by the majority of other North Carolina jurisdictions. Using his authority under Section 5, Attorney General Holder refused to preclear the change to nonpartisan voting because he claimed minority office seekers needed the Democratic Party affiliation to attract needed votes from white Democratic voters. CIR then challenged the constitutionality of Section 5 on behalf of several aggrieved Kinston voters, including John Nix, a candidate for Kinston City Council.
After initial proceedings determined that Nix was entitled to challenge Section 5, the District Court for the District of Columbia upheld the statute’s constitutionality. Shortly before the Court of Appeals for the District of Columbia Circuit was to hold oral argument, however, the Attorney General suddenly reversed his 2009 denial of preclearance and moved to dismiss the case on grounds that it was moot. The Court of Appeals granted his motion to dismiss last spring.
Today’s Petition argues that, in addition to the merits of Section 5, the D.C. Circuit’s decision dismissing the case as moot warrants the Supreme Court’s review, because it flatly contradicts the settled standard in cases where a defendant voluntarily ceases its unconstitutional behavior so as to avoid an adjudication on the merits.
Lead Counsel Michael Carvin commented, “It is important that the Supreme Court address the constitutionality of Section 5, which the current Administration has been using in increasingly aggressive and racially divisive ways to invalidate sensible and nondiscriminatory changes in local voting procedure. We believe that Nix v. Holder is a necessary vehicle for the Court to promptly and finally settle all the constitutional problems with Section 5.”
CIR President Terence Pell added, “Whereas the Voting Rights Act has been used in the past to prevent disenfranchisement of black voters, Section 5 is now being used to set aside the votes of black voters in an actual election in favor of the federal government’s presumptions about the preferences of voters in some future election. Such an extraordinary exercise of federal authority is neither supported by the Constitution nor by common sense.”