Posted: April 12, 2010
Two Problems with the New Challenge to Section 5
On Wednesday of last week, private citizens and a private organization in Kinston, North Carolina filed a complaint challenging the constitutionality of Section 5 of the Voting Rights Act. This case, LaRoque v. Holder, follows last year’s U.S. Supreme Court decision in Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), which raised questions about Section 5's constitutionality but ultimately avoided deciding the question.
Plaintiffs in LaRoque are also unlikely to secure a determination of Section 5's constitutionality, though for different reasons than in NAMUDNO. There are two barriers to the federal district court deciding the constitutional issue. The first is that plaintiffs probably don’t meet the prudential requirements for standing. The second barrier – even more problematic for plaintiffs – is that they lack a private cause of action to challenge the statute’s constitutionality. If the district court follows existing law, it is difficult to see how it can reach the constitutional issue.
Do Plaintiffs Have Standing?
LaRoque arises from a referendum in Kinston, a municipality located in Lenoir County, North Carolina, which is covered by Section 5. Up until now, Kinston has conducted partisan elections for mayor and city council. The referendum, approved by voters in November 2008, would switch from partisan to nonpartisan elections for these offices. The U.S. Department of Justice (DOJ) objected to this change under Section 5, on the ground that the absence of party affiliation on the ballot would harm the ability of African American voters to elect their preferred candidates of choice.
The City of Kinston has not filed a district court action seeking judicial preclearance, as it’s entitled to do under Section 5. Instead, the city council has apparently decided to accept DOJ’s preclearance denial, voting not to take the matter to court. For this reason, the plaintiff isn’t heentity directly subject to Section 5, as was the case in NAMUDNO. Instead, plaintiffs are "voters, prospective candidates, and proponents of citizen referenda," including the one they would like the city to implement (Complaint ¶ 1.)
The first problem with a federal court entertaining the case is standing. In order to have standing, plaintiffs must satisfy both the requirements of Article III and prudential requirements that the Supreme Court has imposed. Under Article III: "A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright (1984). It is possible that at least some of the Plaintiffs meet the three requirements encompassed by this standard: 1) an injury in fact, 2) causation, and 3) redressability.
Even assuming that the minimum requirements of Article III are satisfied, however, the LaRoque plaintiffs probably don’t have standing. For a federal court to hear this case, they must also meet the separate prudential standing requirements, the judicially "self-imposed limits" on the exercise of federal jurisdiction. As a general rule, prudential standing bars the assertion of a right by a third party – i.e., by someone other than the rightsholder. As the Court put it in Elk Grove v. Newdow (2004), there’s a "general prohibition on a litigant’s raising another person’s legal rights." To the extent there is a rightsholder in this case, it’s not the private individuals and group that brought suit, but rather the City of Kinston.
There are exceptions to the general bar on a litigant asserting another person’s legal rights, but it’s doubtful that they apply here. The Court has allowed third-party standing, where there’s a special relationship between the would-be plaintiff and the rightsholder, and where there’s a genuine obstacle to the rightsholder asserting his or her own rights. A paradigmatic example of a special relationship is that between a doctor and a patient seeking contraception or an abortion, as in Singleton v. Wulff (1976). An example of a genuine obstacle to the rightsholder asserting his or her own rights is NAACP v. Alabama (1958), in which the NAACP asserted the associational rights of its members who, for good reason, wished to remain anonymous.
In LaRoque, there appears no be no special relationship or genuine obstacle to the rightsholder making the constitutional claim Plaintiffs seek to assert. While Plaintiffs supported the referendum and want the city to implement it, this probably isn’t enough of a special relationship to overcome the general bar against third-party standing. Nor is there any genuine obstacle to the city asserting its own rights. The city is free to challenge the constitutionality of Section 5, if it chooses. There’s no obstacle to the city asserting its rights – it’s simply decided not to do so.
The fact that the city has apparently chosen not to sue provides an additional reason for denying prudential standing. In Elk Grove, the Court rejected third-part standing of a parent seeking to challenge the words "under God" in the Pledge of Allegiance, on the ground that the interests of the parent and child were "potentially in conflict." It was doubtful, in that case, that Mr. Newdow had legal authority to speak for his daughter. In this case, the interests of the city and would-be plaintiffs appear to be not just "potentially" but actually in conflict, given Kinston’s decision not to challenge the preclearance denial or the constitutionality of Section 5. Accordingly, plaintiffs don’t seem to have prudential standing.
Do Plaintiffs Have a Right of Action?
Prudential standing isn’t the only problem in LaRoque. The second obstacle to the district court entertaining Plaintiffs’ constitutional claims is that they have no private right of action. Plaintiffs are private citizens and a group suing a federal official, the U.S. Attorney General, for allegedly violating the U.S. Constitution. They cite no federal statute that gives them a right to sue, and I don’t believe that one exists.
There’s no federal statute that generally confers a right of action on plaintiffs claiming that a federal official has violated their constitutional rights. Section 1983 gives a right of action to those claiming that a state or local official has violated their constitutional rights, but § 1983 doesn’t cover violations committed by federal officials.
Plaintiffs might assert that the Administrative Procedures Act (APA) allows them to challenge DOJ’s preclearance decisions, but the Supreme Court closed off that avenue in Morris v. Gressette (1977). In that case, the Court held that Section 5 precluded private plaintiffs from obtaining judicial review of the Attorney General’s preclearance decisions. It’s true that Morris dealt with a decision by the Attorney General not to object – rather than a decision to make an objection, as in LaRoque. But it’s hard to see why this should matter, for the purpose of APA reviewability, since Morris held that the preclearance scheme created by Congress precludes APA review.
In other contexts, the Supreme Court has implied a right of action on plaintiffs alleging a violation of their own constitutional rights. The leading case is Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971), an opinion by Justice Brennan that allowed a private plaintiff to bring a damages claim against federal agents who had allegedly conducted an unconstitutional search and arrest. In the decades since Bivens was decided, the Court has curtailed the availability of an implied right of action to challenge federal officials’ violation of constitutional rights. It has created an exception where there is an "alternative existing process" for protecting the right at issue and declined to extend Bivens beyond its core of protection for individual constitutional rights. More broadly, the Court has increasingly viewed the judicial implication of rights of action – under Bivens and in other contexts – with suspicion. As Justice Scalia has put it, with his own inimitable flair: "Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action." Correctional Services Corp. v. Malesko (2001) (Scalia, J., concurring).
It’s very hard to see how a right of action could be implied for the private plaintiffs in LaRoque. They can’t plausibly claim that their constitutional rights have been violated. The claim instead is that Congress has acted in access of its delegated powers. If there is a "victim" of this alleged constitutional violation, it’s Kinston and similarly situated state and local entities, by virtue of the unwarranted intrusion on their sovereignty. I can’t think of a case in which a cause of action has been implied in favor of private individuals under similar circumstances.
Because there is no statute that expressly confers a right of action upon them, the LaRoque Plaintiffs must persuade the courts to create one. For the district court to do so would be a stretch, one that runs contrary to the direction in which the Supreme Court has moved in recent decades.
Should Plaintiffs Be Able to Sue?
To this point, I have been examining whether the LaRoque plaintiffs can sue based on existing law on standing and private rights of action. Many people – myself included – believe that the Supreme Court has been too restrictive in these lines of cases, failing to provide access to federal court in circumstances where it’s warranted. Of course, Congress could certainly create a right of action for citizens like those in LaRoque, who wish to challenge a preclearance denial where the affected jurisdiction affected declines to do so (assuming there’s no Article III bar). Alternatively, the Supreme Court could change the law to allow an implied right of action in this sort of case.
Even for those of us who support a broadening of private rights of action, it’s questionable whether that’s appropriate in this case. After all, Kinston residents who want to see the referendum implemented do have a remedy. They can go to the city council and ask it to revisit the decision not to seek judicial preclearance – or, alternatively, try to persuade the city to bail out of coverage. Failing that, citizens can try to persuade voters that the city council’s decision was wrong and have councilmembers voted out of office.
Supporters of the referendum might counter that this course of action is unlikely, given that African Americans constitute a majority of Kinston’s registered voters. Were whites consistently outvoted in city elections, this might be a reasonable argument for creating a right of action. But according to the DOJ’s letter denying preclearance, blacks have actually been a minority of voters in most of the city’s recent elections. If that’s true, it’s hard to see a good reason to change existing law, and allow private plaintiffs like those in LaRoque to sue, contrary to the wishes of the affected government entity.
The Supreme Court stated in NAMUDNO that it believes there to be serious questions about whether Section 5 is constitutional. There will surely be a case that provides a suitable vehicle for raising that issue again. In my view, LaRoque isn’t that case.
Dan Tokaji is an authority on election law and voting rights. He specializes in election reform, including such topics as voting technology, voter ID, provisional voting, and other subjects addressed by the Help America Vote Act of 2002. He also studies issues of fair representation, including redistricting and the Voting Rights Act of 1965. View Complete Profile