Nix v. Holder

Kinston citizens challenge federal voting rights law

CIR represented a group of Kinston, North Carolina voters and prospective candidates in local elections who claimed that Section 5 of the Voting Rights Act of 1964 exceeded Congress’ authority under the Fifth, Fourteenth and Fifteenth Amendments of the U.S. Constitution.

In 2009, 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.

Section 5 prohibits certain southern jurisdictions from implementing changes in voting procedures unless they first obtain federal pre-clearance that the proposed changes do not have the purpose or effect of reducing the ability of citizens to vote on the basis of their race.

Attorney General Eric Holder refused to approve a Kinston voter referendum that changed Kinston’s system of voting from partisan voting to non-partisan voting. The Kinston City Council voted not to undertake the federal lawsuit necessary to appeal the Attorney General’s decision. This decision left the super majority of Kinston citizens who voted for the referendum no other recourse than to challenge Section 5 themselves as impermissibly restricting their right to self-governance.

Door open to constitutional challenge?

The Kinston lawsuit addressed a question left open by the Supreme Court’s 2009 decision in Northwest Austin Municipal Utility District v. Holder. In that case, the Court narrowly avoided deciding the constitutionality of Section 5 by ruling that the utility district in that case was entitled to “bailout” of  Section 5’s preclearance requirements. Chief Justice Roberts wrote for the majority, however, that members of the Court had “serious misgivings” about the constitutionality of Section 5. Among the problems Roberts’ opinion mentioned was the extraordinary “intrusion in sensitive areas of state and local policy making.” And the Court noted that the condition which once justified Section 5 — widespread race discrimination by southern states against minority voters — has substantially improved and thus may no longer justify the expansive assertion of federal authority embodied in Section 5. Finally, the Court noted that Section 5 treats states unequally, covering only certain jurisdictions in the south on the basis of 40 year-old election data.

Evolution of Section 5

Originally passed in 1965, Section 5’s extraordinary authority to interfere prospectively with state and local voting procedures was supposed to expire in 1970. Instead, Congress has repeatedly re-enacted Section 5, most recently in 2006, when it extended it for another 25 years.  The 2006 re-authorization broadened Section 5’s focus beyond prohibiting voting changes that had the purpose or effect of disenfranchising minority voters.  Section 5 now also prohibits changes that have the “effect of diminishing the ability of [minority groups] to elect their preferred candidate of choice.”

The change in focus from protecting minority voters against discrimination to protecting the ability of minority voters to elect their candidate of “choice” means that a broader range of voting procedures are now subject to federal veto.

DOJ concludes black voters need the Democratic Party

There had 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, at the time, blacks comprised 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. (Read the Department’s letter.)

The Plaintiffs

CIR represented several Kinston citizens who favored the referendum and believed it should be implemented as the voters intended. The individual plaintiffs included Stephen LaRoque, who organized the referendum, and John Nix and Klay Northrup, both of whom intended to run in 2011 for election to the Kinston City Council.  Nix, a Republican, and Northrup, an unaffiliated voter, believe a nonpartisan system would level the playing field between party affiliated and non-affiliated candidates and open the political system to a broader range of views.  Other plaintiffs included Lee Raynor and Anthony Cuomo, two Kinston residents who assisted LaRoque in collecting signatures for the referendum.

Michael Carvin, a partner at Jones Day, agreed to serve as pro bono lead counsel.  Carvin has litigated a number of cases involving the Voting Rights Act, including a successful challenge against the Department of Justice’s then interpretation of Section 5 in Reno v. Bossier Parish in 2000.