Roughly five weeks after hearing oral argument in Shelby County v. Holder (see here and here for our oral argument preview and  wrap up), the D.C. Circuit on Monday will hear oral argument in LaRoque v. Holder, a companion case to Shelby County raising a similar constitutional challenge to Congress’ 2006 near-unanimous renewal of the preclearance requirement of the Voting Rights Act.  The preclearance provision, one of the Act’s most important and successful provisions, requires certain jurisdictions with a history of engaging in racial discrimination in voting – including Kinston, North Carolina, where Stephen LaRoque and other plaintiffs reside – to obtain federal permission before altering their voting laws and regulations.  LaRoque contends – as did Shelby County in its appeal – that the preclearance requirement is an outdated infringement on the equal sovereignty of the states, and that Congress lacked the authority to renew it under the Fifteenth Amendment’s express grant of power to enforce the constitutional prohibition on racial discrimination in voting.   LaRoque also argues that the 2006 renewal should be invalidated because Congress broadened the preclearance requirement in two respects, overturning two 5-4 Supreme Court rulings construing the Act that, in Congress’ view, had improperly narrowed the preclearance requirement and prevented it from operating in a manner consistent with the intent of Congress.   In LaRoque’s view, Congress’ power in this area is so limited that the Supreme Court’s statutory rulings interpreting the Voting Rights Act are beyond the power of Congress to alter.

Late in 2011, District Court Judge John Bates, a conservative appointed by President George W. Bush, rejected both of Laroque’s constitutional attacks, relying heavily on his prior 151-page, comprehensive opinion in Shelby County.   Noting Congress’ “preminent constitutional role,” Judge Bates upheld the amendments to the Act challenged by LaRoque, finding that “Congress carefully and extensively justified its decisions to amend the statute to overturn . . . two Supreme Court decisions interpreting Section 5 [of the Voting Rights Act].”  Early in 2012, the three-judge panel that had been randomly assigned to hear Shelby County — Judges David S. Tatel, Thomas B. Griffith and Senior Judge Stephen F. Williams — agreed to hear the appeal in LaRoque v. Holder on an expedited basis.

Recent events, however, may prevent the panel from reaching the merits of LaRoque’s challenges.  On February 10, 2012, the Department of Justice reconsidered the denial of preclearance that led to LaRoque’s challenge to the Voting Rights Act – the Attorney General’s refusal to preclear a referendum supported by LaRoque and others that would have changed the local elections in Kinston, North Carolina from partisan to nonpartisan.  Prompted by a review of a new voting change submitted in September 2011 by Lenoir County, North Carolina – where Kinston is located and where Laroque and other challengers reside – the Justice Department concluded that there had been a “substantial change in operative fact” and that, based on new demographic data submitted by Lenoir County, the proposed change to nonpartisan elections in Kinston should now be precleared.  The Department of Justice reasoned that, because of a substantial increase in the percentage of African Americans in the local voting age population, revealed in the new data, “the black electorate is now large enough to successfully elect its preferred candidates in either partisan or nonpartisan elections.”  Accordingly, based on the new evidence, the Department of Justice concluded that Kinston’s initiative was entitled to preclearance.

In the wake of the February 10 preclearance decision, the parties have debated whether the case should be dismissed as moot.  The Justice Department contends that it should be, while LaRoque argues that the case should go forward, portraying the Justice Department’s act as a “desperate, brazen, and outrageous effort to manipulate the scope of this Panel’s already-pending review of Section 5’s facial constitutionality.”  Inevitably, these mootness arguments will take center stage during Monday’s oral argument since, without a live controversy, the D.C. Circuit would lack jurisdiction to decide LaRoque’s constitutional challenge to the Voting Rights Act.

Check back after Monday’s argument for our reaction and analysis. 

UPDATED: After this post was published, the three-judge panel cancelled Monday’s scheduled oral argument.  In a brief order, the panel ordered the case removed from Monday’s oral argument calendar and indicated that the motion to dismiss the case as moot remains under consideration by the court.