Do White Voters Have Standing to Challenge the Constitutionality of the Voting Rights Act?

Before a packed courtroom in Washington, D.C., U.S. District Judge John Bates heard oral argument on a motion to dismiss the complaint in Laroque v. Holder, a constitutional challenge to the 2006 renewal of the preclearance provision of the Voting Rights Act, which requires certain jurisdictions with a history of racial discrimination in voting to obtain federal permission before altering their voting laws or regulations.  The case arises out of a 2008 referendum to change local elections in the City of Kinston, North Carolina from partisan to nonpartisan, a change the Attorney General refused to approve.  After the City acquiesced in that decision, plaintiffs, white candidates and voters who supported the change, filed a federal lawsuit arguing that the Voting Rights Act exceeds Congress’ enforcement powers, and subjects them to racial classifications in violation of the Fifth Amendment.    Laroque is one of two cases currently pending before Judge Bates attacking the constitutionality of this critical provision of the Voting Right Act – CAC filed has filed a brief in the other case, Shelby County v. Holder, which is scheduled for oral argument on February 2, 2011.

The issue before the Court was not the merits of the constitutional challenge, but whether white candidates and voters in Kinston have standing to bring the constitutional challenge.    The preclearance provision of the Voting Rights Act has been challenged many times – the Supreme Court has rejected constitutional challenges to this critical provision of the Act four times, a fact noted by Judge Bates today – but all the previous constitutional challenges were brought by the state and local governments regulated by the Act.  Laroque, if it proceeds, would be the first constitutional challenge brought by individuals alone.

For over two hours, the parties debated the complicated question whether white voters and candidates had standing to challenge the constitutionality of the Act’s preclearance requirement, whether the analysis differed depending on whether plaintiffs were challenging the Act on its face or as-applied, and whether the suit was precluded by the City’s failure to contest the Attorney General’s denial of preclearance in the case.  Judge Bates, supremely prepared, peppered each of the attorneys with dozens of questions, and promised to rule promptly on the motion to dismiss.  If the case goes forward, Judge Bates has announced that he will consider the merits of the case on February 2, 2011, together with Shelby County.

Check back for future news as these cases proceed before Judge Bates.  Whether Laroque proceeds or not, the February 2 oral argument in Shelby County promises to be a lively and fascinating hearing on the Fifteenth Amendment’s prohibition on racial discrimination in voting, and Congress’ power to make sure the right to vote free from racial discrimination is enjoyed by all Americans.