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1 Case: Document: Filed: 02/04/2011 Page: 1 [Oral Argument Not Yet Scheduled] No IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT STEPHEN LAROQUE, ET AL., v. Appellants, ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, ET AL., Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA (NO (JDB)) JOINT APPENDIX MICHAEL E. ROSMAN MICHELLE A. SCOTT MICHAEL A. CARVIN Lead Counsel CENTER FOR INDIVIDUAL RIGHTS NOEL J. FRANCISCO th St. N.W., Suite 300 HASHIM M. MOOPPAN Washington, DC JONES DAY Telephone: (202) Counsel for Appellants 51 Louisiana Ave. N.W. Washington, DC Telephone: (202) macarvin@jonesday.com

2 Case: Document: Filed: 02/04/2011 Page: 2 TABLE OF CONTENTS Relevant Docket Entries... JA 1 Dkt. No. 1: Complaint... JA 3 Dkt. No. 11: Defendant s Motion to Dismiss... JA 16 Dkt. No. 11-2: Kinston City Council Minutes... JA 20 Dkt. No. 23: Plaintiffs Motion for Summary Judgment... JA 39 Dkt. No. 23-6: DOJ Objection Letter... JA 41 Dkt. No : Declaration of Stephen LaRoque... JA 45 Dkt. No : Declaration of John Nix... JA 50 Dkt. No : Declaration of Klay Northrup... JA 54 Dkt. No. 25: Intervenors Motion to Dismiss... JA 58 Dkt. No. 40: Transcript of Hearing on Motions to Dismiss... JA 62 Dkt. No. 41: Order on Motions to Dismiss... JA 152 Dkt. No. 42: Memorandum Opinion on Motions to Dismiss... JA 153 Dkt. No. 43: Notice of Appeal... JA 206 Certificate of Service

3 Case: Document: Filed: 02/04/2011 Page: 3 U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:10-cv JDB LAROQUE et al v. HOLDER Assigned to: Judge John D. Bates Case in other court: USCA, Cause: 42:1973 Voting Rights Act Date Filed: 04/07/2010 Jury Demand: None Nature of Suit: 441 Voting Jurisdiction: U.S. Government Defendant Date Filed # Docket Text 04/07/ COMPLAINT against ERIC H. HOLDER, JR ( Filing fee $ 350, receipt number ) filed by KINSTON CITIZENS FOR NON- PARTISAN VOTING, KLAY NORTHRUP, STEPHEN LAROQUE, JOHN NIX, ANTHONY CUOMO, LEE RAYNOR. (Attachments: # 1 Civil Cover Sheet) (rdj) (Entered: 04/07/2010) * * * 06/14/ MOTION to Dismiss for Lack of Jurisdiction by ERIC H. HOLDER, JR (Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Text of Proposed Order)(McFarland, Ernest) (Entered: 06/14/2010) * * * 08/18/ MOTION for Summary Judgment, along with Supporting Memorandum and Statement of Material Facts, by ANTHONY CUOMO, KINSTON CITIZENS FOR NON-PARTISAN VOTING, STEPHEN LAROQUE, JOHN NIX, KLAY NORTHRUP, LEE RAYNOR (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A - Nov Lenoir Sample Ballot, # 3 Exhibit B - Nov Lenoir Official Election Results, # 4 Exhibit C - Kinston Newspaper Article, # 5 Exhibit D - Survey of N.C. Local Election Practices, # 6 Exhibit E - DOJ Objection Letter, # 7 Exhibit F - Letter to Editor by H. Greene, # 8 Exhibit G- Letter to Editor by S. LaRoque, # 9 Exhibit H - Referendum Results by Kinston Precinct, # 10 Exhibit I - Racial Composition of Kinston Precincts, # 11 Declaration of Stephen LaRoque, # 12 Declaration of Anthony Cuomo, # 13 Declaration of John Nix, # 14 Declaration of Klay Northrup, # 15 Declaration of Lee Raynor)(Carvin, Michael) (Entered: 08/18/2010) * * * 08/25/ MOTION to Dismiss by W. J. BEST, SR, A. OFFORD CARMICHAEL, JR, WILLIAM A. COOKE, GEORGE GRAHAM, NORTH CAROLINA STATE CONFERENCE OF BRANCHES OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, JULIAN PRIDGEN, JOSEPH M. TYSON (Attachments: # 1 Text of Proposed Order)(dr) (Entered: 08/26/2010) * * * 12/10/ TRANSCRIPT OF PROCEEDINGS before Judge John D. Bates held on 12/3/10; Page Numbers: Date of Issuance:12/10/10. Court Reporter/Transcriber Bryan A. Wayne, Telephone number , Court Reporter Address : bryanawayne@verizon.net.<p></p>for JA 1

4 Case: Document: Filed: 02/04/2011 Page: 4 the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.<p>notice RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.<p></p> Redaction Request due 12/31/2010. Redacted Transcript Deadline set for 1/10/2011. Release of Transcript Restriction set for 3/10/2011.(Wayne, Bryan) (Entered: 12/10/2010) 12/16/ ORDER granting 11, 25 the motions to dismiss filed by defendant and defendant-intervenors. A separate Memorandum Opinion accompanying this Order shall be issued shortly. Signed by Judge John D. Bates on 12/16/10. (lcjdb1) (Entered: 12/16/2010) 12/20/ MEMORANDUM OPINION. Signed by Judge John D. Bates on 12/20/10. (lcjdb1) (Entered: 12/20/2010) 12/21/ NOTICE OF APPEAL as to 41 Order on Motion to Dismiss/Lack of Jurisdiction, 42 Memorandum & Opinion by STEPHEN LAROQUE. Filing fee $ 455, receipt number Fee Status: Fee Paid. Parties have District of Columbia live database Page 6 of 7 L_452_0-1 1/21/2011 been notified. (Scott, Michelle) (Entered: 12/21/2010) * * * JA 2

5 Case: Document: Filed: 02/04/2011 Page: 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STEPHEN LAROQUE ) 2312 Hodges Road ) Kinston, N.C , ) ) ANTHONY CUOMO ) 802 Westminster Lane ) Kinston, N.C , ) ) JOHN NIX ) 3003 Hillman Road ) Kinston, N.C , ) ) KLAY NORTHRUP ) 3016 Johnson Street ) Kinston, N.C , ) ) LEE RAYNOR ) 710 Rountree ) Kinston, N.C , ) ) and ) ) KINSTON CITIZENS FOR ) NON-PARTISAN VOTING ) 2312 Hodges Road ) Kinston, N.C , ) ) Plaintiffs, ) Civ. No.: ) v. ) COMPLAINT ) ERIC H. HOLDER, JR. ) ATTORNEY GENERAL OF THE ) UNITED STATES ) U.S. Department of Justice ) 950 Pennsylvania Avenue, N.W. ) Washington, D.C , ) ) Defendant. ) ) JA 3

6 Case: Document: Filed: 02/04/2011 Page: 6 I. INTRODUCTION 1. This is an action challenging the constitutionality of Section 5 of the Voting Rights Act of 1965, as amended in 2006 (hereinafter Section 5 ). Plaintiffs are voters, prospective candidates, and proponents of citizen referenda in the city of Kinston, North Carolina, which has been covered by Section 5 pursuant to election data from November Plaintiffs successfully sponsored and voted for a referendum that would have amended the Kinston city charter to change from partisan to nonpartisan local elections specifically, to replace the current system where the only candidates for election are the winners of party primaries and eligible unaffiliated candidates able to gather sufficient signatures to gain access to the ballot, with a new system where any candidate can run for election and the candidates are unaffiliated on the ballot with any party. But Plaintiffs efforts, as well as the benefits they would have derived from nonpartisan elections as voters and candidates, have been completely nullified because the Attorney General denied preclearance under Section 5. They seek a declaration that Section 5 is unconstitutional and an injunction against any application of that statute to Kinston s nonpartisan-elections referendum and other future voting changes. II. THE PARTIES 2. Plaintiff Stephen LaRoque is a registered voter and resident of Kinston, North Carolina. He is a former state legislator and is involved in local politics. LaRoque organized a successful petition drive (the "Petition Drive") to place a referendum on the ballot for the November 2008 election that would change the method of local elections from partisan to nonpartisan. The referendum won by a 64% margin and garnered a 2 JA 4

7 Case: Document: Filed: 02/04/2011 Page: 7 majority of votes in 5 of 7 of Kinston s majority-black precincts. LaRoque intends to offer additional positive changes to Kinston s electoral system in the future. 3. Plaintiff John Nix is a registered Republican voter and resident of Kinston who voted for the referendum. Nix intends to run for election to the Kinston City Council in November of He has a direct interest in doing so on a ballot where he is unaffiliated with any party, against opponents similarly unaffiliated, and without the preliminary need to either run in a party primary or obtain sufficient signatures to obtain access to the ballot as a candidate. 4. Plaintiff Klay Northrup is a registered unaffiliated voter and resident of Kinston who voted for the referendum. Northrup intends to run for election to the Kinston City Council in November of He has a direct interest in doing so on a ballot where he is unaffiliated with any party, against opponents similarly unaffiliated, and without the preliminary need to either run in a party primary or obtain sufficient signatures to obtain access to the ballot as a candidate. 5. Plaintiff Lee Raynor is a registered voter and resident of Kinston. She is involved in local politics, helped organize and run the Petition Drive, and voted for the referendum. 6. Plaintiff Anthony Cuomo is a registered voter and resident of Kinston. He is involved in local politics, helped collect signatures for the Petition Drive, and voted for the referendum. 7. Plaintiff Kinston Citizens for Non-Partisan Voting ( KCNV ) is an 3 JA 5

8 Case: Document: Filed: 02/04/2011 Page: 8 unincorporated membership association dedicated to eliminating the use of partisan affiliation in Kinston municipal elections. Its members consist of Kinston registered voters who have joined the association because they agree with its objectives and its means for achieving them. These members include Kinston voters who supported and voted for the nonpartisan-elections referendum and prospective candidates for Kinston municipal elections who have a direct interest in running in nonpartisan elections. Plaintiffs LaRoque, Nix, Northrup, Raynor, and Cuomo are all members of Plaintiff KCNV. 8. Defendant Eric Holder is sued in his official capacity as the Attorney General of the United States. The Attorney General heads the United States Department of Justice, which is the department in the executive branch of the United States that enforces the Voting Rights Act generally, and Section 5 of the Voting Rights Act in particular. III. JURISDICTION AND VENUE 9. This court has jurisdiction and venue pursuant to 28 U.S.C. 1331, 1343 and 42 U.S.C. 1973l(b). IV. THREE-JUDGE PANEL 10. Pursuant to 28 U.S.C. 291(b), 2284 and 42 U.S.C. 1973c(a), Plaintiffs request appointment of a three-judge panel to hear and resolve this Complaint. V. BACKGROUND 11. Kinston is a municipality located in Lenoir County, North Carolina. Lenoir 4 JA 6

9 Case: Document: Filed: 02/04/2011 Page: 9 County is covered by Section Kinston conducts periodic elections for mayor and city council, and these elections are conducted in compliance with the Voting Rights Act, including the preclearance provisions of Section 5. elections. 13. Currently, only 8 of 551 localities in North Carolina hold partisan local 14. In March 2008, Plaintiff LaRoque began to collect signatures on petitions to call for a referendum to amend the charter of the city of Kinston to provide for nonpartisan elections of the mayor and city council. By July 2008, he and Plaintiffs Raynor and Cuomo had collected more than the 1424 signatures required to place the issue on the November 2008 ballot. In August, Plaintiff LaRoque submitted the petition signatures to the Lenoir County Board of Elections and, subsequently, to the Kinston City Council. As required by North Carolina General Statutes 160A-104, the City Council voted to place the referendum on the ballot for the November, 2008 election. 15. Kinston voters approved the referendum by almost a 2 to 1 margin (64%), and the referendum passed in 5 of the 7 precincts where blacks were a majority of voters. 16. Since Kinston is a political subdivision of Lenoir County, which is covered by Section 5, Kinston submitted the change to nonpartisan elections to Defendant Holder, the Attorney General, for preclearance. 17. No voting change from Kinston or Lenoir County had previously ever been 5 JA 7

10 Case: Document: Filed: 02/04/2011 Page: 10 denied preclearance under Section 5. There has also never been a finding that Kinston engaged in discriminatory practices in voting. 18. The Acting Assistant Attorney General for the Civil Rights Division, Loretta King, exercising delegated authority from the Attorney General, objected to the change in a letter dated August 17, The stated reason for the objection was that the elimination of party affiliation on the ballot will likely reduce the ability of blacks to elect candidates of choice, in a city where, according to the objection letter, blacks constitute a least 62.6% of the total population (66.6% based on current estimates), 58.8% of the voting age population and 64.6% of registered voters. Objection Letter, pp The objection letter contended that the change had a discriminatory racial effect because, while the motivating factor for this change may be partisan, statistical analysis supports the conclusion that given a change to a nonpartisan election, black preferred candidates will receive fewer white cross-over votes because nonpartisan elections will not allow either [an] appeal to [Democratic] party loyalty or the ability to vote a straight ticket for all Democratic candidates. Id. at 2. Accordingly, since all black-preferred candidates were Democratic and given that the city s electorate is overwhelmingly Democratic, Section 5 prohibited any change which would likely diminish cohesive support for Democratic candidates of any race. Id. 20. The Justice Department does not seek and has not sought to apply Section 5 s protections to nonminority voters, and has never denied preclearance to a voting change in any jurisdiction on the ground that it diminishes the electoral power or 6 8

11 Case: Document: Filed: 02/04/2011 Page: 11 chances of success of nonminority voters on the basis of their race. 21. In July 2006, Congress reauthorized Section 5, extending it for twenty-five years (until 2031). It relied on generalized findings which do not specifically identify evidence of continuing intentional discrimination in covered jurisdictions. Nor did it have evidence that adequately distinguished conditions in covered jurisdictions from those in non-covered jurisdictions in a way that would justify the continuing difference in treatment for another twenty-five years. 22. The conditions of 1964 that caused Lenoir County to be covered by Section 5 have long been remedied. Lenoir County had 72% voter turnout for the November 2008 election, and 67% of its population is registered to vote. Nonetheless, under the 2006 reenactment coverage formula, Lenoir County is a covered jurisdiction and will continue to be covered until Congress determination that Lenoir County should continue to be covered was based upon data that is more than 45 years old and fails to account for current political conditions. There has never been any analysis of the conditions in the City of Kinston, where black citizens constitute a super-majority of the population and registered voters. 23. Section 5 requires covered jurisdictions and any political subdivisions contained therein to seek preclearance for any changes in voting practices or procedures. The preclearance process is costly and burdensome and requires unnecessary and disruptive delays. It also deprives local jurisdictions of essential attributes of self-governance, including jurisdictions, like Kinston, where minority citizens predominate, and even with respect to measures, like the nonpartisan election 7 JA 9

12 Case: Document: Filed: 02/04/2011 Page: 12 referendum, that are apparently supported by a majority of minority voters. 24. In 2006, Congress did not simply extend Section 5 s substantive mandate on covered jurisdictions. It significantly expanded the substantive standards to coerce jurisdictions to maintain and adopt race-based electoral schemes that prefer certain groups. 25. First, Congress expanded the prohibition against voting changes with the purpose or effect of denying or abridging the right to vote, 42 U.S.C. 1973c(a) (emphasis added), to also prohibit changes with the purpose or effect of diminishing the ability of any citizens... to elect their preferred candidates of choice, id. 1973c(b) (emphasis added). The Justice Department and the 2006 Congress interpret Section 5 to protect only members of a racial or language minority group. See 28 C.F.R (a); see also Pub. L. No , 2(b)(9) ( racial and language minority citizens ). This 2006 amendment thus established a floor for minority electoral success in all covered jurisdictions until 2031, regardless of whether minorities in those jurisdictions have an equal opportunity to elect their preferred candidates or to participate in the political process under the voting change, and regardless of whether there are compelling reasons supporting the voting change. 26. Second, Congress authorized the Attorney General to require enhancement of minority-preferred candidates electoral success by authorizing Section 5 objections not only to changes with a retrogressive purpose, but also to those which the Attorney General deems to have been motivated by any discriminatory purpose. 42 U.S.C. 1973c(c) (emphasis added). Particularly given the Justice Department s 8 JA 10

13 Case: Document: Filed: 02/04/2011 Page: 13 Section 5 enforcement record concerning changes that do not increase minoritypreferred candidates success to the maximum practicable extent, this expansion of Section 5 s scope constitutes at least an implicit command for covered jurisdictions to engage in race-based voting practices and procedures. 27. But for Section 5 s presumptive invalidation of the change to nonpartisan elections and the Attorney General s refusal to eliminate that barrier by preclearing the change, Kinston would now have such nonpartisan elections. 28. Section 5 s perpetuation of the partisan election scheme fundamentally alters the competitive environment in which Plaintiffs Nix and Northrup will run. It directly increases the burdens and costs for candidates like Nix and Northrup to be placed on the ballot. Compare, e.g., N.C. Gen. Stat , (allowing any putative candidate to run in a nonpartisan election), with, e.g., id , , , , (requiring putative candidates in a partisan election to obtain either 40% of the vote in a party primary or signatures from 4% of all registered voters). Moreover, Section 5 s perpetuation of the partisan election scheme forces candidates like Nix and Northrup to associate with a political party or disassociate from all of them, thus burdening their freedom of political association. It also forces them to anticipate and respond to a broader range of competitive tactics and issues than otherwise would be necessary. In addition, it substantially harms their chances for election by, among other things, making party affiliation a factor in voter s choices. 29. The denial of Section 5 preclearance has completely nullified all of Plaintiffs efforts in support of the referendum. It has also nullified and infringed their 9 JA 11

14 Case: Document: Filed: 02/04/2011 Page: 14 right under North Carolina law to participate in the electoral, political and law-making process through citizen referenda. Moreover, the partisan election scheme perpetuated by Section 5 will, relative to nonpartisan elections, impose additional burdens and costs on candidates they support in running for, and being elected to, the relevant local offices. Partisan primaries and general elections also burden their right to politically associate, or refrain from associating, with others. 30. Section 5, particularly as implemented by the Attorney General, denies Plaintiffs equal, race-neutral treatment, and an equal opportunity to political and electoral participation, by subjecting them to a racial classification and by intentionally providing minority voters and their preferred candidates a preferential advantage in elections. 31. Section 5 poses immediate or threatened injury to members of Plaintiff KCNV who would have standing to challenge Section 5 in their own right, including Plaintiffs LaRoque, Nix, Northrup, Raynor, and Cuomo. And Plaintiff KCNV s purpose of eliminating partisan municipal elections in Kinston is germane to those interests that give its members standing to sue. Neither the claim asserted by Plaintiff KCNV nor the relief requested require the participation of KCNV s members. VI. CLAIMS Claim I 32. Plaintiffs incorporate paragraphs 1-31 of this complaint. 33. Section 5 exceeds Congress powers because it is not appropriate 10 JA 12

15 Case: Document: Filed: 02/04/2011 Page: 15 legislation to enforce either the Fourteenth Amendment or the Fifteenth Amendment. 34. Section 5, as amended and extended in 2006, is not a rational, congruent or proportional means to enforce the Fourteenth and Fifteenth Amendment s nondiscrimination requirements and, in fact, undermines and violates those nondiscrimination guarantees. This is so because, among other reasons, there is no continuing justification for Section 5 s extraordinary burdens on and denials of local selfgovernance; there is no persuasive or even rational reason for selectively visiting those burdens on certain jurisdictions based on electoral results from many decades ago; there is no rational or sufficient reason for imposing on covered jurisdictions alone raceconscious requirements in tension with the Constitution and Section 2 of the Voting Rights Act; a continuation of Section 5 until today and 2031 is completely out of proportion to any legitimate, remedial or preventive objective; making Section 5 s substantive requirements more onerous in 2006 than they were in 1965 is irrational and not congruent or proportional; and the more onerous 2006 standards do not broadly enforce the nondiscrimination guarantees of the Fourteenth and Fifteenth Amendments, but instead require actions that undermine and violate those Amendments. Claim II 35. Plaintiffs incorporate paragraphs 1-34 of this complaint. 36. Section 5, as amended in 2006, which authorizes denial of preclearance to changes which improve (or do not diminish) minority voting strength and which also affirmatively prohibits all changes which diminish the ability of select minority groups to elect their preferred candidates, violates the nondiscrimination requirements of the Fifth, 11 JA 13

16 Case: Document: Filed: 02/04/2011 Page: 16 Fourteenth and Fifteenth Amendments, particularly as enforced by the Attorney General. 37. At a minimum, Section 5, as amended in 2006, is presumptively unconstitutional and requires the most searching judicial scrutiny, which it cannot survive. VII. REQUEST FOR RELIEF the Plaintiffs WHEREFORE, Plaintiffs respectfully request that this Court enter a judgment for (1) declaring that Section 5 unconstitutionally exceeds Congressional authority; (2) declaring that the Section 5, as amended in 2006, violates the Fifth, Fourteenth and Fifteenth Amendments to the U.S. Constitution, particularly as applied by the Attorney General, both generally and in his specific refusal to permit Kinston s change to nonpartisan elections; (3) enjoining the Attorney General from enforcing Section 5 against Kinston s change to nonpartisan elections; (4) enjoining any enforcement of Section 5 against Kinston in the future; and (5) any other relief the Court deems just and proper. 12 JA 14

17 Case: Document: Filed: 02/04/2011 Page: 17 April 7, 2010 Respectfully submitted, /s/ Michael A. Carvin Michael A. Carvin D.C. Bar No Noel J. Francisco D.C. Bar No Hashim M. Mooppan D.C. Bar No David J. Strandness D.C. Bar No JONES DAY 51 Louisiana Ave., NW Washington, DC (202) /s/ Michael E. Rosman Michael E. Rosman D.C. Bar No Michelle A. Scott D.C. Bar No CENTER FOR INDIVIDUAL RIGHTS th St. NW, Suite 300 Washington, DC (202) Attorneys for Plaintiffs 13 JA 15

18 Case: Document: Filed: 02/04/2011 Page: 18 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STEPHEN LAROQUE, ANTHONY CUOMO, JOHN NIX, KLAY NORTHRUP, LEE RAYNOR, and KINSTON CITIZENS FOR NON- PARTISAN VOTING, v. Plaintiffs, ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 1: (JDB) DEFENDANT S MOTION TO DISMISS In this action, five private citizens and a private association seek to invoke this Court s jurisdiction for a determination that, among other things, Section 5 of the Voting Rights Act, 42 U.S.C. 1973c, is unconstitutional; that Congress exceeded its authority when it reauthorized Section 5 in 2006; that application of Section 5 to the City of Kinston, North Carolina is unconstitutional, and that the Attorney General of the United States violated their constitutional rights by interposing an objection to a voting change the City of Kinston had submitted for administrative review under Section 5. Because Plaintiffs lack standing to bring their claims and, moreover, because Plaintiffs' claims are not authorized by Section 5, this Court lacks subject matter jurisdiction. JA 16

19 Case: Document: Filed: 02/04/2011 Page: 19 Accordingly, the Complaint should be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Defendant prays that this Court grant this motion to dismiss, and that this Court dismiss this action. Attached is a memorandum of points and authorities, pursuant to Local Rule 7.1(a), and a proposed order pursuant to Local Rule 7.1(c) 2 JA 17

20 Case: Document: Filed: 02/04/2011 Page: 20 Date: June 14, 2010 Respectfully submitted, RONALD C. MACHEN, JR. United States Attorney District of Columbia THOMAS E. PEREZ Assistant Attorney General Civil Rights Division /s/ Richard Dellheim T. CHRISTIAN HERREN, JR. RICHARD DELLHEIM (lead counsel) ERNEST A. MCFARLAND JARED M. SLADE Attorneys, Voting Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C Telephone: (202) Facsimile: (202) JA 18

21 Case: Document: Filed: 02/04/2011 Page: 21 CERTIFICATE OF SERVICE I hereby certify that on June 14, 2010, I served a true and correct copy of the Defendant's Motion to Dismiss, Memorandum in Support of Defendant's Motion to Dismiss, and Proposed Order via the Court s ECF filing system to the following counsel of record: Michael A. Carvin D.C. Bar No Noel J. Francisco D.C. Bar No Hashim M. Mooppan D.C. Bar No David J. Strandness D.C. Bar No Jones Day 51 Louisiana Avenue, N.W. Washington, D.C Michael E. Rosman D.C. Bar No Michelle A. Scott D.C. Bar No Center for Individual Rights th Street, N.W., Suite 300 Washington, D.C /s/ Richard Dellheim Richard Dellheim Voting Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D, C, (202) JA 19

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41 Case: Document: Filed: 02/04/2011 Page: 41 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STEPHEN LAROQUE, ANTHONY CUOMO, ) JOHN NIX, KLAY NORTHRUP, LEE ) RAYNOR, and KINSTON CITIZENS FOR ) NON-PARTISAN VOTING, ) ) Plaintiffs, ) ) v. ) Civ. No.: 1:10-CV JDB ) ERIC H. HOLDER, JR. ) ATTORNEY GENERAL OF THE ) UNITED STATES ) ) Defendant. ) PLAINTIFFS MOTION FOR SUMMARY JUDGMENT [ORAL ARGUMENT REQUESTED] Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 7, Plaintiffs Stephen LaRoque, Anthony Cuomo, John Nix, Klay Northrup, Lee Raynor, and Kinston Citizens for Non-Partisan Voting ( Plaintiffs ) respectfully move this Court for entry of an Order granting summary judgment to Plaintiffs on the entirety of the claims in their complaint. Specifically, Plaintiffs move for summary judgment on: (1) their claim that Section 5 of the Voting Rights Act of 1965, as reauthorized and amended in 2006, see 42 U.S.C. 1973c ( Section 5 ), unconstitutionally exceeds Congress authority to enforce the Reconstruction Amendments to the Constitution; and (2) their claim that Section 5 violates the equal protection guarantees of the Fifth and Fourteenth Amendments to the Constitution. In support of this Motion, Plaintiffs are filing herewith a Memorandum of Points and Authorities and a Statement of Material Facts, as well as attaching nine supporting Exhibits, five Declarations by the individual plaintiffs, and a Proposed Order. Plaintiff also request oral argument on this Motion. For the reasons provided in the supporting Memorandum, Plaintiffs contend that there is no genuine disputed issue as to any material fact and that they are entitled to judgment as a matter of law on both constitutional claims. Consequently, Plaintiffs respectfully pray that this Court grant summary 1 JA 39

42 Case: Document: Filed: 02/04/2011 Page: 42 judgment to Plaintiffs, declare that the 2006 extension and expansion of Section 5 was unconstitutional, and enjoin the Attorney General from enforcing Section 5. August 18, 2010 Respectfully submitted, /s/ Michael A. Carvin Michael A. Carvin (D.C. Bar No ) Noel J. Francisco (D.C. Bar No ) Hashim M. Mooppan (D.C. Bar No ) David J. Strandness (D.C. Bar No ) JONES DAY 51 Louisiana Ave. NW Washington D.C (202) Michael E. Rosman (D.C. Bar No ) Michelle A. Scott (D.C. Bar No ) CENTER FOR INDIVIDUAL RIGHTS th St. NW, Suite 300 Washington D.C (202) Attorneys for Plaintiffs 2 JA 40

43 Case: Document: Filed: 02/04/2011 Page: 43 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STEPHEN LAROQUE, ANTHONY CUOMO, ) JOHN NIX, KLAY NORTHRUP, LEE ) RAYNOR, and KINSTON CITIZENS FOR ) NON-PARTISAN VOTING, ) ) Plaintiffs, ) ) v. ) Civ. No.: 1:10-CV JDB ) ERIC H. HOLDER, JR. ) ATTORNEY GENERAL OF THE ) UNITED STATES ) ) Defendant. ) EXHIBIT E: LETTER FROM LORETTA KING, ACTING ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S. DEP T OF JUSTICE, TO JAMES P. CAULEY III, KINSTON CITY ATTORNEY (AUG. 17, 2009) JA 41

44 Case: Document: Filed: D 02/04/2011 Page: 44 Civil Rights Division Office ofthe Assistant Attorney General Washington. D.C AUG James P. Cauley III, Esq. Rose Rand Wallace P.O. Drawer 2367 Wilson, North Carolina Dear Mr. Cauley: This refers to the change to nonpartisan elections, with a plurality-vote requirement, for the City ofkinston in Lenoir County, North Carolina, submitted to the Attorney General pursuant to Section 5 ofthe Voting Rights Act of 1965,42 U.S.C. 1973c. We received your response to our June 10,2009, request for additional information on June 16,2009; additional information was received on August 4, We have carefully considered the information you have provided, as well as information from other interested parties. Under Section 5, the Attorney General must determine whether the submitting authority has met its burden ofshowing that the proposed change "neither has the purpose nor will have the effect" ofdenying or abridging the right to vote on account ofrace, color or membership in a language minority group. As discussed further below, I cannot conclude that the city has sustained its burden ofshowing that the proposed changes do not have a retrogressive effect. Therefore, based on the information available to us, I object to the voting changes on behalfofthe Attorney General. According to the 2000 Census, the City ofkinston has a total population of23,688 people, ofwhom 14,837 (62.6%) are African-American. The total voting age population is 17,906, ofwhom 10,525 (58.8%) are African-American. The American Community Survey for estimates the total population to be 22,649, ofwhom 14,967 (66.6%) are African American. As ofoctober 31, 2008, the city has 14,799 registered voters, ofwhom 9,556 (64.6%) are African-American. Although black persons comprise a majority ofthe city's registered voters, in three ofthe past four general municipal elections, African Americans comprised a minority ofthe electorate on election day; in the fourth, they may have been a slight majority. For that reason, they are viewed as a minority for analytical purposes. Minority turnout is relevantto determining whether a change under Section 5 is retrogressive. Hale County v. United States, 496 F.Supp 1206 (D.D.C.). JA 42

45 Case: Document: Filed: 02/04/2011 Page: Black voters have had limited success in electing candidates ofchoice during recent municipal elections. The success that they have achieved has resulted from cohesive support for cartdidatesduring the Democratic primary (where black voters represent a larger percentage of the electorate), combined with crossover voting by whites in the general election. It is the partisan makeup ofthe general electorate that results.in enough white cross-over to allow the black community to elect a candidate ofchoice. This small, but critical, amount ofwhite crossover votes results from the party affiliation ofblack-preferred candidates, most ifnot all ofwhom have been black. NUmerous elected municipal and county officials confirm the results ofour statistical analyses that a majority of white Democrats support white Republicans over black Democrats in Kinston city elections. At the same time, they also acknowledged that a small group ofwhite Democrats maintain strong party allegiance and will continue to vote along party lines, regardless ofthe race ofthe candidate. Many ofthese white crossover voters are simply using straight-ticket voting. As a result, while the racial identity ofthe candidate greatly diminishes the supportive effect ofthe partisan cue, it does not totally eliminate it. It follows, therefore, that the elimination ofparty affiliation on the ballot will likely reduce the ability ofblacks to elect candidates ofchoice. Blaok candidates will likely lose a significant amount ofcrossover votes due to the high degree ofracial polarization present in city / elections. Without party loyalty available to counter-balance the consistent trend ofracial bloc voting, blacks will face greater difficulty winning general elections. Our analysis ofelection returns indicates that cross-over voting is greater in partisan general elections than in the closed primaries. Thus, statistical analysis supports the conclusion that given a change to a non-partisan elections, black preferred candidates will receive fewer white cross-over votes. The change to nonpartisan elections would also likely eliminate the party's campaign support and other assistance that is provided to black candidates because iteliminates the party's role in the election. The party provides forums for black candidates to meet with voters who may otherwise be unreachable without the party's assistance. In addition, the party provides campaign funds to candidates, without which minority candidates may lag behind their white counterparts in campaign spending. Removing the partisan cue in municipal elections will, in all likelihood, eliminate the single factor that allows black candidates to be elected to office. In Kinston elections, voters base their choice more on the race ofa candidate rather than his or her political affiliation, and without either the appeal to party loyalty or the ability to vote a straight ticket, the limited remaining support from white voters for a black Democratic candidate will diminish even more. And given that the city's electorate is overwhelmingly Democratic, while the motivating factor for this change may be partisan, the effect will be strictly racial. JA 43

46 Case: Document: Filed: 02/04/2011 Page: Under Section 5 ofthe Voting Rights Act, the submitting authority has the burden of showing that a submitted change has neither a discriminatory purpose nor a discriminatory effect. Georgia v. United States, 411 U.S. 526 (1973); Procedures for the Administrationof Section 5 of the Voting Rights Act of 1965,28 C.F.R In light ofthe considerations discussed above, I cannot conclude that your burden has been sustained in this instance. Therefore, on behalfofthe Attorney General, I must object to the change to nonpartisan elections, with a plurality vote requirement. \ Under Section 5 you have the right to seek a declaratoryjudgment from the United States District Court for the District ofcolumbia that the proposed change neither has the purpose nor will have the effect ofdenying or abridging the rightto vote on account ofrace, color, or membership in a language minority group. 28 C.F.R In addition, you may request that the Attorney General reconsider the objection. 28 C.F.R However, unless and until the objection is withdrawn or ajudgment from the District ofcolumbia court is obtained, the change to nonpartisan elections, with a plurality vote requirement, continues to belegally unenforceable. Clarkv. Roemer, 500 U.S.646 (1991); 28 C.F.R To enable us to meet our responsibilityto enforce the Voting Rights Act, please inform us ofthe action the city plans to take concerning this matter. Ifyou have any questions, please call Mr. J. Eric Rich ( ), an attorney in the Voting Section. Sincerely, ~)(»<y/jp Loretta King Acti!1g Assistant Attorney General JA 44

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64 Case: Document: Filed: 02/04/2011 Page: 64 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STEPHEN LAROQUE, et al., v. Plaintiffs, ERIC H. HOLDER, JR., et al., Defendants CA No (JDB) Washington, D.C. Friday, December 3, :08 a.m. TRANSCRIPT OF MOTIONS HEARING BEFORE THE HONORABLE JOHN D. BATES UNITED STATES DISTRICT JUDGE APPEARANCES: For the Plaintiffs: HASHIM MOOPPAN, ESQ. MICHAEL CARVIN, ESQ. MICHAEL ROSMAN, ESQ. Jones Day 51 Louisiana Avenue, NW Washington, DC MICHELLE A. SCOTT, ESQ. Center For Individual Rights th Street, NW Suite 300 Washington, DC For the Defendants: RICHARD DELLHEIM, ESQ. ERNEST MCFARLAND, ESQ. JARED SLADE, ESQ. U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, DC Bryan A. Wayne, RPR, CRR Official Court Reporter JA 62

65 Case: Document: Filed: 02/04/2011 Page: 65 2 For Intervenor Defendants: ANITA EARLS, ESQ. ALLISON RIGGS, ESQ. Southern Coalition For Social Justice 115 Market Street Suite 470 Durham, NC JOSEPH G. HEBERT, ESQ. 191 Somervelle Street, #405 Alexandria, VA Court Reporter: BRYAN A. WAYNE, RPR, CRR Official Court Reporter U.S. Courthouse, Room Constitution Avenue, NW Washington, DC Proceedings reported by machine shorthand, transcript produced by computer-aided transcription. Bryan A. Wayne, RPR, CRR Official Court Reporter JA 63

66 Case: Document: Filed: 02/04/2011 Page: P R O C E E D I N G S THE DEPUTY CLERK: Your Honor, we have civil action , Stephen LaRoque et al. versus Eric Holder, Jr., et al. And starting with plaintiff's counsel table, going counterclockwise, Your Honor, we have Mr. Hashim Mooppan, we have Mr. Michael Carvin, we have Mr. Michael Rosman, and we have Ms. Michelle Scott. And with the defense table we have Mr. Jay Hebert, we have Ms. Allison Riggs, Ms. Anita Earls, Mr. Jared Slade, Mr. Ernest McFarland and Mr. Richard Dellheim. THE COURT: All right. I've got all those names straight. (Laughter) Who will be presenting argument today? MR. MOOPPAN: I'll be presenting for the plaintiffs, Your Honor. MR. DELLHEIM: And I will be presenting on behalf of the United States, Your Honor. MR. HEBERT: And Your Honor, for the defendant intervenors, Anita Earls, who has been admitted pro hac vice. THE COURT: My anticipation is about 40 minutes to each side, and I leave it to those on the defense side to decide how to split that. I'm not keeping a clock, and usually when I say X minutes, it winds up being X plus something, but I would think that 40 minutes should be what you should be planning on. And I'm going to hear, since this is a motion to dismiss, I'm Bryan A. Wayne, RPR, CRR Official Court Reporter JA 64

67 Case: Document: Filed: 02/04/2011 Page: going to hear first from the United States. MR. DELLHEIM: Thank you, Your Honor. And good morning. My name is Richard Dellheim and I represent the Attorney General, Eric Holder, in this action. Your Honor, we begin with a very simple premise. Federal courts are courts of limited jurisdiction, open to those with valid causes of action and standing to bring them. Yet here, private citizens, who are themselves not regulated by Section 5 of the Voting Rights Act, ask this court to strike Section 5 down as unconstitutional. They attack Section 5 on its face and as it has been applied, not by the Attorney General -- not to them personally, but to a covered jurisdiction -- THE COURT: Are you arguing that no private person could ever have standing to challenge the constitutionality of Section 5? MR. DELLHEIM: Your Honor, we would not go that far to say that there's no possible circumstance, but we would argue that given the -- THE COURT: Could there be candidates, for example, who could be in a situation where they could challenge the constitutionality of Section 5? MR. DELLHEIM: It is possible, Your Honor, under the right circumstances, if of course they have standing, and depending of course on how the case is brought. In this case -- Bryan A. Wayne, RPR, CRR Official Court Reporter JA 65

68 Case: Document: Filed: 02/04/2011 Page: THE COURT: What about the equal protection challenge here? No private citizen can bring that? MR. DELLHEIM: Again, they can bring it if -- it is potential, possible they could bring it if they allege claims that are personal, that inflict personal harm to them. The problem in this case, of course, is -- THE COURT: Well, an equal protection challenge -- is it your position that that harm goes to the covered jurisdiction? MR. DELLHEIM: No, Your Honor, but to have standing in this or any other federal court, a plaintiff, even alleging an equal protection claim, has to allege some particularized personalized harm. Absent that, there is simply no ability to bring an equal protection case challenging Section 5, or frankly any other statute. What is happening here is that private citizens, who have no connection to the statute per se, are attacking Section 5 again as applied to Kinston, North Carolina, which is not a party to this suit, and it's not a party because it elected not to challenge the Attorney General's objection that triggered this case. And the plaintiffs' two claims arise and flow from the Attorney General's interposition of an objection to the voting change submitted by Kinston. That's the plaintiffs' hook here. THE COURT: And I understand that the cause of action Bryan A. Wayne, RPR, CRR Official Court Reporter JA 66

69 Case: Document: Filed: 02/04/2011 Page: and standing arguments are intertwined somewhat. But let's stick with standing for a second, and let's continue with my somewhat unfair question to you, but give me a hypothetical of who you think could have standing under your assessment as a private citizen. Who could be a private citizen who ever had the kind of personalized particular injury that would give them standing to proceed, either with the general challenge to the constitutionality of Section 5, or the more specific, to some extent, equal protection challenge that's brought here? Help me out. Who's a private person or what's the kind of context where you would have a private person who could bring that action? MR. DELLHEIM: Your Honor, standing here right now, I'm not sure I can answer the question. I mean, it is -- THE COURT: Does that mean that your position is you're not taking the position that no one could, but you can't imagine that there is anyone? MR. DELLHEIM: You know, again, go back to the fundamental principles of standing. If in fact there was a candidate in Your Honor's hypothetical who, because of the manner in which Congress wrote or amended Section 5, was somehow precluded from appearing on a ballot or somehow was shackled in some meaningful impending way from carrying out a meaningful campaign for office, perhaps under those circumstances a candidate might have standing. Bryan A. Wayne, RPR, CRR Official Court Reporter JA 67

70 Case: Document: Filed: 02/04/2011 Page: That certainly is not this case, and frankly, I can't quite imagine how that scenario would play itself out. But if the Court is solely looking at the standing question and leaving aside whether a plaintiff would have a cause of action under Morris and that line of cases, the Court would really have to look at whether in fact, apart from the Attorney General's application of Section 5 to that plaintiff, apart from that, if the plaintiff in fact suffered some cognizable harm, and the kind of cognizable harm that courts in other instances have found to be valid in terms of candidate standing. And it really has to do with whether there are genuine barriers to running for office. It's not merely that they don't have -- their chances aren't as good as other candidates or they can't raise as much money as other candidates, or the playing field is not absolutely level in every respect for every single candidate that seeks office. There has to be some fairly dramatic barrier. THE COURT: I don't find those words in the cases, the some fairly dramatic barrier, is that a standard that I can look to some case to find? What case would I look to for that standard? MR. DELLHEIM: Your Honor, I would look first to McConnell. Of course the Court did not use that language. But I think it's fair to say the courts have treated competitive standing claims with some degree of suspicion. And it is Bryan A. Wayne, RPR, CRR Official Court Reporter JA 68

71 Case: Document: Filed: 02/04/2011 Page: certainly fair to say, and for this I rely on the Gottlieb case from this circuit, that the plaintiff in a voting context, a candidate in a voting context has to show that he or she competes in the very same arena as a similarly situated candidate, and that that other candidate has benefitted from some illegal benefit that the government has conferred. In those circumstances a candidate might have standing, but again -- THE COURT: Why is this circumstance not one of those? MR. DELLHEIM: Well, No. 1, we would argue that Morris precludes all of the claims here. But if we're talking solely about standing, the reason that these plaintiffs, as candidates, have no standing is because the harms they allege are insufficiently concrete, particularized, impending. These are candidates who have done nothing to prepare to run. There's no indication at all other than their bare allegations that they intend to run. They have complete and total ballot access. They've been denied no funds, no campaign workers, no direct costs have been imposed. They're not the object of any practice that imposes a concrete disadvantage. And I hasten to say that the partisan system in Georgia has been declared by the Supreme Court in Jenness to be completely free, open, and legal. The system they decry here is not an illegal system. THE COURT: Be careful on standing not to take me to Bryan A. Wayne, RPR, CRR Official Court Reporter JA 69