Big Voting Rights Act News from DC Circuit: Court Unanimously Reverses Standing Issue in Kinston (La Roque) Case

I have posted the 32-page opinion.  The unanimous opinion authored by Judge Tatel (the judge who authored the NAMUDNO opinion later reversed by the Supreme Court) begins:

The citizens of Kinston, North Carolina, approved a referendum switching city elections from partisan to nonpartisan. Because Kinston lies in a jurisdiction covered by section 5 of the Voting Rights Act of 1965, the city council had no authority to implement the referendum until precleared by federal authorities, and preclearance has not occurred. A candidate for public office claiming a state-law entitlement to run under the suspended nonpartisan system, together with other plaintiffs, filed suit seeking to enjoin the Attorney General from enforcing section 5 against Kinston. Count one of plaintiffs’ complaint contends that section 5, as reauthorized in 2006, exceeds Congress’s Fourteenth and Fifteenth Amendment enforcement powers. Count two contends that amendments made to section 5 in 2006 erect a facially unconstitutional racial-preference scheme. The district court dismissed both counts for lack of standing and a cause of action. Concluding that one of the plaintiffs—the candidate for public office—has both standing and a cause of action to pursue count one, we reverse and remand for the district court to consider the merits of that claim. Because plaintiffs’ standing with respect to count two raises complex questions unaddressed by the district court and the parties’ briefs, we vacate the district court’s dismissal of that claim and remand for further consideration consistent with this opinion.

This is a big deal.  I and other election law scholars believed that the Kinston case could well be a vehicle for the Supreme Court to finish the job in started in NAMUDNO and strike down section 5 of the VRA.  But the standing issues seemed like a big hurdle, and so other cases (like the Shelby County case) have gained more prominence.

Kinston now becomes one to watch very closely over the next few months.  As Judge Tatel notes, this case involves a November 2011 election, and so it is possible that issues will be fast-tracked in the courts.

UPDATE:  See also my follow-up post, Caving in Kinston?

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