Son of NAMUDNO: A Case that Should Make Section 5 Supporters Nervous

As I've detailed, in the NAMUDNO case, the Supreme Court engaged in an act of convoluted statutory interpretation to avoid reaching the difficult constitutional question of the constitutionality of section 5 of the Voting Rights Act. But Chief Justice Roberts' opinion included some very strong statements suggesting that section 5 was no longer constitutional, inviting Congress to either fix the section or someone else to file suit. Congress has done nothing so far.

I had been thinking that a Georgia suit to fight the DOJ's denial of preclearance of its "voter verification" program could provide the vehicle for a constitutional challenge to section 5 of the Voting Rights Act. From the point of view of the DOJ (and those who support the constitutionality of section 5), a suit by Georgia would be a good one, because DOJ could point to a long history of discrimination in Georgia as a justification for the requirement that it submit all of its changes to its election rules for approval from the federal government. What made the NAMUDNO case so difficult to defend is that the Austin utility district had no history of discriminating against anyone on the basis of race.

Today comes news of a new lawsuit, LaRoque v. Holder. This case could be a tougher one for the DOJ to defend than the Georgia lawsuit, should the case make it to the Supreme Court.

LaRoque is backed by the Center for Individual Rights and has a major league lawyer working pro bono on the case, Mike Carvin. According to the press release

The Center for Individual Rights filed suit today on behalf of a group of Kinston, North Carolina voters and prospective candidates in local elections who claim Section 5 of the Voting Rights Act of 1964 exceeds Congress' authority under the Fifth, Fourteenth and Fifteenth Amendments of the U.S. Constitution. Last year, Attorney General Eric Holder refused to approve a Kinston voter referendum to switch to non-partisan voting and the Kinston City Council voted not to appeal that ruling. Holder blocked the change on the basis of his authority under Section 5...

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.

You can also read the complaint, DOJ objection letter, and more information from CIR and NRO.

Posted by Rick Hasen at April 7, 2010 09:48 AM