On Friday I explained that it appeared likely that DOJ was going to preclear the Kinston, NC voting change from partisan to non-partisan elections, and that this likely would moot the constitutional suit against section 5 of the Voting Rights Act. (As I understand it, DOJ will be relying on new data which shows that the change in fact will not worsen the position of minority voter in Kinston.)
But the ideological backers of the law are now claiming that a decision granting preclearance would not moot the case: “‘Once a constitutional challenge is raised it pretty much has to be heard unless there is a fundamental change in the facts,’ said Terrence Pell, president of the Washington, D.C.-based Center for Individual Rights.”
I don’t think that quote quite explains the argument. It turns out that Kinston brought a facial challenge to the Voting Rights Act amendments, not one applied simply to the decision to related to the move to nonpartisan elections.
So I believe that it is technically correct that the suit would not be mooted by preclearance because Kinston would still be subject to section 5 for any other voting changes it makes. However, the actual preclearance of the move to nonpartisan elections would make this a much less attractive case for the Supreme Court to take up.