Quite a crowd gathered in Courtroom 8 of the D.C. federal courthouse last Friday when the Department of Justice tried to convince federal District Judge John D. Bates to dismiss the lawsuit filed by residents and candidates from Kinston, N.C. When DOJ claimed the power under Section 5 of the Voting Rights Act to invalidate their referendum changing the town elections from partisan to nonpartisan, the citizens filed suit to challenge the constitutionality of the renewal of Section 5. DOJ’s response was to try to deny them their day in court.
One half of the courtroom was occupied by lawyers and staff from the Voting Section of the Justice Department on a taxpayer-paid field trip. Even Julie Fernandes, the Deputy Assistant Attorney General for Civil Rights under an ethical cloud for her role in the New Black Panther Party scandal, was there. She apparently didn’t see the irony of her having an announced, race-based policy for enforcing the Voting Rights Act, on one hand, and her presence as the DOJ argued for the continued constitutionality of Section 5 on the other.
If where you sit is a sign of where you stand, it was probably appropriate that the DOJ staff were all sitting on the left side of the courtroom. Of course, they may have been avoiding me, sitting on the right side.
The DOJ lawyer arguing the case, Richard Dellheim, had only uttered about two sentences when Judge Bates started peppering him with questions. Bates seemed somewhat taken aback by the government’s claim that nobody in Kinston had standing to contest the constitutionality of a federal statute like Section 5.
Dellheim was put in the awkward position of claiming that no one had suffered a legal injury — neither Kinston’s voters, who approved the referendum that has been nullified, nor candidates who wanted to run for office under the system the referendum would have adopted. Bates asked Dellheim when, if ever, any voter would have standing to make such a claim under the government’s view. Dellheim’s answer was basically “Never.”
The DOJ’s claim that the candidates have no injuries, despite the fact that running as an independent candidate in a partisan election in North Carolina imposes extra burdens on candidates, was strained and hypocritical. The department was basically arguing that making ballot access more difficult doesn’t injure a candidate and, thus, doesn’t give him standing to sue. This position completely contradicts the position the Department has taken on numerous prior occasions when it has argued that ballot-qualification requirements violated Section 5.
It was also embarrassing to see NAACP lawyer Anita Earls actually argue that private citizens shouldn’t have standing to sue the attorney general for his interference in Kinston’s referendum, and that they have no right to contest the constitutionality of a federal statute like Section 5. The prior case law may be somewhat unclear on this point, but it was astonishing to watch the NAACP, which shared the government’s argument time as interveners in the lawsuit, argue for restricted access to the courts by aggrieved voters — like their members.
Earls also made the truly bizarre claim that while the plaintiffs did not have standing to sue under Section 5, they could have filed a Section 2 lawsuit against Section 5. Since the Kinston plaintiffs are claiming that the renewal of Section 5 was unconstitutional, it was completely nonsensical to argue that they could have used one portion of the Voting Rights Act to attack another provision of the same law, particularly since the Supreme Court has held that the two parts of the law do entirely different things.
The DOJ also contended that the case was not ripe for adjudication, because the lawsuit was filed 19 months before the next election.
But Dellheim could not really dispute the point raised by Judge Bates that it can take two years for a lawsuit to make its way through the courts. It would make no sense to force the Kinston plaintiffs to wait until shortly before the 2011 election to sue. If they did, local election officials would object that the lawsuit was filed too late to let them do their jobs properly. And the next election in Kinston draws closer every day.
There was a funny moment when DOJ argued that Judge Bates shouldn’t grant standing to voters because there were “millions and millions” of them in Section 5 jurisdictions that might flood the courts with complaints about the attorney general’s actions. Judge Bates jokingly replied that Dellheim seemed to be saying that there were millions of people that did not like what the attorney general was doing, and that DOJ wanted the judge to keep them out of court. There was probably more truth to that joke than the judge realized.
Hashim Mooppan argued very effectively for the Kinston plaintiffs. He had the facts, the law, and the prior court decisions down cold, and he made a very persuasive case for granting the candidates standing to pursue this claim. He seemed astonished at the government’s claim that there was no redressability, i.e., even if the case proceeded and Section 5 was found unconstitutional, the government argued that no one knew what effect that would have on the Kinston referendum.
But as Mooppan argued, that defied common sense and the plain terms of the Voting Rights Act and North Carolina law. The referendum was not in force only because it was pre-empted by Section 5 of the Voting Rights Act. If Section 5 is found unconstitutional, the referendum will immediately go into effect.
One of Judge Bates’s final questions to DOJ during rebuttal was whether he should feel comfortable issuing a decision that no private citizen has the right to challenge the constitutionality of Section 5. Dellheim seemed as uncomfortable answering that question as the court did asking it. I almost felt sympathy for him during these arguments — the facts in this case are terrible for the Justice Department, because the objection in Kinston was so unjustified and so obviously partisan. So Dellheim was left to argue that the Kinston plaintiffs should not even get their day in court, a very dubious proposition to make in reference to a law, the Voting Rights Act of 1965, whose entire purpose was to protect the voting rights of individual citizens.
Bates promised to issue a decision soon. There is no question that his decision, whatever it is, will be appealed. Next up: another voting rights case assigned to Judge Bates filed by Shelby County, Alabama, also contesting the constitutionality of the renewal of Section 5.