By Leland Ware
LaRoque v. Holder involves a constitutional challenge to Section 5 of the Voting Rights Act.
The voters in Kinston, North Carolina, approved a referendum that changed city elections from a partisan to a nonpartisan system. As Kinston is a jurisdiction covered by section 5 of the Voting Rights Act (VRA), the city cannot implement the referendum until it is precleared by federal authorities. A candidate for public office and other plaintiffs filed a suit contending that section 5 exceeds Congress’ enforcement powers under the Fourteenth and Fifteenth Amendments. The plaintiffs also claim that the 2006 amendments to section 5 are an unconstitutional racial-preference scheme.
The district court ruled that the plaintiffs lacked standing to assert their claims and dismissed the case. On July 8, 2011, the Court of Appeals for the District of Columbia Circuit reversed the trial court's decision and remanded the case for a consideration of the merits. The 32- page opinion is devoted almost entirely to standing. The stakes are much higher for the Constitutional issues that the trial court has been directed to resolve.
Under section 5 of the VRA, changes in voting procedures in a “covered” jurisdiction cannot be made without preclearance by the federal court in the District of Columbia or the United States Attorney General. Legislative hearings showed that the federal government’s efforts to eliminate discriminatory election practices with court cases were thwarted. As soon as one discriminatory practice was proven to be unconstitutional, a new one would be substituted requiring another round of lengthy and time consuming litigation.
To stop this, the 1965 Act included special preclearance provisions targeted at states where the potential for discrimination was the greatest. Six southern states are covered, as are a number of counties in other states. Section 5 was extended for 25 years in 1982. In 2006 the Fannie Lou Hamer, Rosa Parks and Coretta Scott King Voting Rights Act Reauthorization and Amendments were enacted which extended section 5 for 25 more years. After extensive hearings, Congress found that race-based voting abuses continued at very high levels.
In June of 2009, the Supreme Court ruled in Northwest Austin Municipal Utility District No. 1 v. Holder (NAMUDNO) that all individual jurisdictions should have the opportunity to "bail out" of the provisions requiring federal preclearance for changes in election procedures. To obtain a bail out, a covered jurisdiction must show that it has not used any forbidden voting test or device, not been the subject of a section 5 objection and has eliminated procedures that inhibit equal access to the electoral process. A bail out applicant must also show that it has made constructive efforts to eliminate voter intimidation and harassment and undertaken other constructive efforts to promote equal access to the electoral process. 
Chief Justice John Roberts' opinion in NAMUDNO expressed a considerable amount of skepticism about the constitutionality of Section 5. Roberts stated that section 5 is substantial departure from the fundamental principles of the nation's federal system and a significant encroachment on state sovereignty. Roberts questioned the continuing need for section 5. He noted that black and white voter turnout and registration rates in covered jurisdictions are approaching parity. Discriminatory evasions of federal decrees are rare. Minority candidates hold office at high levels. The VRA's coverage formula is based on data that was more than 35 years old.
Roberts said the exceptional conditions in southern states in 1965 justified the law, but the violence, intimidation, and subterfuges that justified section 5 no longer exist. However, since the Court ruled in NAMUDNO's favor on statutory grounds (that it was eligible to pursue the VRA's bail out provisions) it did not decide "difficult constitutional question" of whether current conditions justify section 5.
Justice Clarence Tho
mas wrote a separate opinion in NAMUDNO arguing section 5 is unconstitutional. He claimed that the patterns of discrimination that justified section 5 in 1965 have been eliminated. Covered jurisdictions are not engaging in efforts to deny black citizens' voting rights using intimidation and violence. Grandfather clauses, property qualifications, character tests, and requirements to understand or interpret state constitutions are relics of the past. Thomas believes that current conditions do not justify a continuation of section 5.
The plaintiffs in LaRoque claim that section 5 is no longer needed and the 2006 amendments to the VRA discriminate against white voters. To prevail on the first claim the plaintiffs will have difficult job of proving that Congress enacted the 2006 amendments with a discriminatory intent. As to the continuing need for section 5, in 2006 Congress conducted over 20 hearings, listened to more than 50 expert witnesses, and collected over 17,000 pages of testimony documenting the VRA violations and other voting abuses. A decision overturning section 5 on this ground will require an explanation as to why evidence of this magnitude is insufficient or erroneous. LaRoque or a case like it, will probably reach the Supreme Court. Roberts and Thomas have already made their views clear.
The plaintiffs in LaRoque claim that section 5 is no longer needed and the 2006 amendments to the VRA discriminate against white voters. To prevail on the first claim the plaintiffs will have the difficult job of proving that Congress enacted the 2006 amendments with a discriminatory intent. As to the continuing need for section 5, in 2006 Congress conducted over 20 hearings, listened to more than 50 expert witnesses, and collected over 17, 000 pages of testimony documenting the VRA violations and other voting abuses. A decision overturning section 5 on this ground will require an explanation as to why evidence of this magnitude is insufficient or erroneous. LaRoque or a case like it, will probably reach the Supreme Court. Roberts and Thomas have already made their views clear.
Lela
nd Ware, a member of the Board of the Southern Regional Council, is Louis B. Redding Chair and Professor for the Study of Law and Public Policy at the University of Delaware.He is the author of numerous publications, and he served as co-editor of the recently-published volume, Choosing Equality: Essays and Narratives on the Desegregation Experience.
