LaRoque’s voter suppression Hail Mary

Former state representative Stephen LaRoque appeared in federal court in Raleigh last week to face charges of theft and money laundering. Pending trial in Greenville at a later date LaRoque was released on an unsecured bond and restricted to travel within the 44 counties of the Eastern District of North Carolina. That has not stopped another case involving LaRoque from making it all the way to the Supreme Court in Washington DC. The spotlight will be on voter suppression, namely the constitutionality of the Voting Rights Act, not LaRoque, though LaRoque’s name and statements appear in documents submitted to the court, including statements referring to his status as a state legislator.

The case of LaRoque v. Holder was a challenge to the implementation of the Voting Rights Act (VRA), as amended in 2006, brought on behalf of LaRoque and several Kinston residents in 2011 by the Center for Individual Rights, a conservative organization specializing in legal challenges to affirmative action. Contributors to the Center for Individual Rights include the foundations of right-wing funders Koch brothers, Richard Mellon Scaife and, the F M Kirby Foundation.

Lenoir County, in which Kinston is located, is covered by the VRA. Changes related to elections required pre-approval from the US Department of Justice. The Justice Dept had objected to Kinston’s proposed change from partisan to nonpartisan elections following a 2008 referendum. The challenge filed by LaRoque, focused on Section 5 of the VRA, was initially dismissed in by the DC District Court on the basis that the plaintiffs lacked standing and a cause of action.

On appeal, one plaintiff, John Nix, an independent candidate for Kinston City council, was reinstated and one claim “that Section 5, as amended in 2006 violates the nondiscrimination requirements of the Fifth, Fourteenth, and Fifteenth Amendments” was allowed to proceed. However in December 2011 the District Court granted summary judgment for the government, holding Section 5 constitutional and rejecting LaRoque’s challenge. That’s where most people understood the case to rest, but LaRoque immediately appealed.

While all this was happening Lenoir County separately had submitted a proposal to change the method of school board election from partisan to nonpartisan. In the course of examining this request, new information came to light including analysis of the 2011 Kinston municipal election. In February 2012 the Justice Dept not only approved the school board preclearance request but withdrew its objection to the city council change to nonpartisan elections, rendering the LaRoque case moot, and filed a motion to dismiss.

Not content with victory Nix and LaRoque challenged the withdrawal, essentially seeking to invalidate Section 5 of the VRA. In May 2012 the Court of Appeals ruled in “Stephen LaRoque, et al., Appellants v. Eric H. Holder, Jr., Attorney General of the United States, et al., Appellees” that:

After considering the supplemental briefing from both parties, we agree with the government and therefore vacate the judgment and remand the case to the district court with instructions to dismiss for lack of jurisdiction

Three claims were made and soundly rejected by the Appeals Court: 1) That the Justice Dept had no authority to withdraw. 2) That Section 5 might injure the plaintiffs at a later if LaRoque as a state legislator filed legislation to change voting practices in Lenoir County at a later date requiring preclearance.

One of the appellants, Stephen LaRoque, informs us that as a state legislator, he intends to propose two “local bills” that would change voting practices in Lenoir County, and that these proposals will soon require preclearance. See Appellants’ Response 9; id., Attach. A. Of course they would require preclearance only if they are passed into law and implemented.

And that’s a big “if.” LaRoque tells us that “[b]y custom and practice,” other members of the North Carolina General Assembly “defer to the members whose districts are affected by a local bill.” Id., Attach. A. LaRoque acknowledges that he represents only “parts” of Lenoir County and the City of Kinston. Id. Indeed, according to the North Carolina General Assembly’s website, the other part of Lenoir County is represented by an African-American Democrat named William Wainwright. See Lenoir County Representation, North Carolina General Assembly, http://www.ncleg.net/gascripts/counties/counties.pl?county=Lenoir (last visited May 9, 2012). LaRoque does not even claim that Mr. Wainwright agrees with his proposal, or that in the event of a split between Lenoir County’s representatives the other members of the Assembly would still “defer” to him.

Even assuming those gaps were filled, appellants offer us no evidence that the Department would object to either of the proposed changes, or, apart from a conclusory assertion, that the failure to implement either change would cause them any cognizable injury. We thus agree with the government that such hypothetical legislation is far too speculative to constitute a continuing “personal stake” in the validity of § 5

The third claim was equally spurious: 3) That the NC State Board of Elections (NCSBE) should order new elections if Section 5 were invalidated. The court found that, based on NC court rulings, the NCSBE had no statutory power to revoke a certificate of election and the prospect of a new election was too speculative to give the appellants standing.

We hold that appellants have “obtained everything that [they] could recover” from this lawsuit and that the case is thus moot.

We vacate the judgment of the district court and remand the case with instructions to dismiss for lack of jurisdiction.

And there it might lie except that the CIR has pushed forward with case and submitted it to the Supreme Court, Docket No. 12-81, claiming that the dismissal was erroneous and challenging the constitutionality of pre-clearance under Section 5. The filing was a “Petition for a writ of certiorari”, “John Nix, et al., Petitioners v. Eric H. Holder, Jr., Attorney General, et al.”, asking the Supreme Court to review the Appeals Court decision.

On its own the case might have little traction in the Supreme Court, which only accepts a small fraction of such cases. However CIR the Project on Fair Representation has also filed a related case, Shelby County, Alabama v. Holder, Docket No. 12-96, and CIR is asking the Supreme Court to use these cases combined to review the constitutionality of Section 5 as renewed and amended by Congress in 2006. One of the contentions of CIR is that the Justice Dept dropped its objection to the Kinston election change only to avoid defending the 2006 amendments to Section 5. The Shelby County case, also rejected in May 2012, essentially challenges the renewal while the Kinston case challenges the amendments.

It will be impossible to argue LaRoque’s particularly dubious claim given his resignation from the legislature. While both cases present little hope of success, the Supreme Court made rumblings in a 2009 case about the constitutionality of the 2006 VRA renewal and may be predisposed to reviewing them, invalidating the Voting Rights Act and, opening the door to more voter suppression.

Cross posted from BlueNC

Updated to reflected the fact that while CIR is asking for consideration by the Supreme Court of both Nix and Shelby cases, support for Shelby is provided by the Project on Fair Representation. PFR is funded by DonorsTrust an organization that anonymizes large donations from donors like the Kochs and distributes them to mainly right-wing causes, including $7.6 million to Americans for Prosperity in 2010 alone.

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LaRoque’s voter suppression Hail Mary