Stephen Laroque , Et Al . v. Eric H. Holder, J R., Attorney General of the United States , Et Al .

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided May 18, 2012
No. 11-5349
STEPHEN LAROQUE , ET AL .,
APPELLANTS
v.
ERIC H. HOLDER, J R., ATTORNEY GENERAL OF THE UNITED
STATES , ET AL .,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-00561)
Michael A. Carvin, Hashim M. Mooppan, and Michael E.
Rosman were on the briefs for the appellants.
Ronald C. Machen, Jr., U.S. Attorney, and Diana K.
Flynn, Linda F. Thorne, and Sarah E. Harrington, Attorneys,
U.S. Department of Justice, were on the brief for appellees.
R. Craig Lawrence, Assistant U.S. Attorney, entered an
appearance.
J. Gerald Hebert and Arthur B. Spitzer were on the briefs
for intervenors-appellees.

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Before: TATEL and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: In November 2008 the
citizens of Kinston, North Carolina approved a referendum
making local elections nonpartisan. Because Kinston is
located in Lenoir County, one of several North Carolina
counties covered by § 5 of the Voting Rights Act (“VRA”),
see 30 Fed. Reg. 9897 (Aug. 7, 1965), the city had to seek
preclearance from the Department of Justice before the law
could take effect. See 42 U.S.C. § 1973c. On August 17,
2009 the Attorney General interposed an objection on the
grounds that the proposed law would have discriminatory
effects on Kinston’s black population—specifically that it
would tend to deny black candidates the benefit of partisan
Democratic white “crossover” votes. Letter from Loretta
King to James P. Cauley III, Joint Appendix 46.
Appellants, a group of private individuals and a
membership organization that supported the law, then brought
this suit, challenging the constitutionality of § 5 and arguing
that, as amended by the VRA’s 2006 reauthorization, § 5
exceeded the powers granted to Congress by the
Reconstruction Amendments and violated the Fifth
Amendment’s equal protection guarantee. The district court
initially dismissed the suit for lack of standing, see LaRoque
v. Holder, 755 F. Supp. 2d 156, 159, 168 (D.D.C. 2010), but
we reversed and remanded based on the standing of plaintiff
John Nix, who had announced his intention to run for the
Kinston City Council in the 2011 elections and had provided
sufficient evidence that partisan elections increased his ballot-
access costs and decreased his likelihood of victory. See
LaRoque v. Holder, 650 F.3d 777, 785-87 (D.C. Cir. 2011).

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On remand the district court granted summary judgment for
the government, holding § 5 constitutional. See LaRoque v.
Holder, -- F.Supp.2d --, 2011 WL 6413850 (D.D.C. Dec. 22,
2011). This appeal followed.
While the appeal was pending before this court, and
before oral argument could take place, the Justice Department
changed its mind in light of some new evidence that it
received in a separate preclearance proceeding. After
requesting some additional information from Lenoir County,
the Department informed the court and the parties that the
Attorney General was withdrawing his objection to the
proposed change. Letter from Thomas E. Perez to James P.
Cauley III (Feb. 10, 2012). Three days later, the government
filed its merits brief arguing in part that the case had been
mooted by the Attorney General’s actions. See Appellees’ Br.
18-23. After considering the supplemental briefing from both
parties, we agree with the government and therefore vacate
the judgment and remand the case to the district court with
instructions to dismiss for lack of jurisdiction.
* * *
Article III limits our authority to “actual, ongoing
controversies.” Honig v. Doe, 484 U.S. 305, 317 (1988).
“Even where litigation poses a live controversy when filed,
the [mootness] doctrine requires a federal court to refrain from
deciding it if events have so transpired that the decision will
neither presently affect the parties’ rights nor have a more-
than-speculative chance of affecting them in the future.”
Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990)
(en banc). At first blush, it would seem that, thanks to
withdrawal of the objection, Kinston can implement the
referendum and hold nonpartisan elections, and the injury on
which we originally found standing—the extra burden a
partisan system placed on Nix’s chance to get elected—has

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effectively disappeared. Appellants, however, offer three
arguments why the Attorney General’s actions have not
rendered their claims moot. We take each in turn.
Appellants’ primary contention is that the VRA does not
grant the Attorney General the power to withdraw a § 5
objection once made, and that therefore the Justice
Department’s February 10th letter is without legal effect. See
Appellants’ Response to the Attorney General’s Mot. to
Dismiss as Moot (“Appellants’ Response”) 3. In an earlier
case we assumed without deciding that the Department had
authority to withdraw an objection. Harris v. Bell, 562 F.2d
772, 774 (D.C. Cir. 1977). Now we must decide.
The statute itself indeed makes no mention of withdrawal
or reconsideration of § 5 objections. See 42 U.S.C. § 1973c.
The Attorney General claims that direct authority for his
action is to be found in regulations promulgated by the Justice
Department over four decades ago. See 28 C.F.R. § 51.46; 36
Fed. Reg. 18,186, 18,190 (Sept. 10, 1971). Although § 5 does
not explicitly grant the Department power to promulgate
implementing regulations, such authority has long been
recognized, see Georgia v. United States, 411 U.S. 526, 536-
37 (1973), and the Supreme Court has accorded such
regulations “substantial deference,” Lopez v. Monterey
County, 525 U.S. 266, 281 (1999).
Appellants offer no reason—and we can imagine none—
why the Department should be unable to withdraw an
objection. The Department argues that absent such authority
it would “be unable to correct errors in preclearance decisions
or take account of changes in law or facts without asking the
jurisdiction to resubmit the proposed change.” Appellees’
Reply in Support of the Attorney General’s Mot. to Dismiss 3.
Of course this argument itself assumes that such resubmission
and approval automatically overrides a prior objection. And

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that assumption is clearly well-founded; otherwise the
jurisdiction could obtain clearance for laws erroneously
objected to only by launching a wholly unnecessary lawsuit.
Neither the text nor the purpose of § 5 provides any reason to
require either of these pointless exercises, and we therefore
have no trouble finding the Department’s assertion of
authority to withdraw objections to be reasonable and
consistent with the statutory scheme.
Second, appellants argue that § 5 might still injure them
in the future. One of the appellants, Stephen LaRoque,
informs us that as a state legislator, he intends to propose two
“local bills” that would change voting practices in Lenoir
County, and that these proposals will soon require
preclearance. See Appellants’ Response 9; id., Attach. A. Of
course they would require preclearance only if they are passed
into law and implemented.
And that’s a big “if.” LaRoque tells us that “[b]y custom
and practice,” other members of the North Carolina General
Assembly “defer to the members whose districts are affected
by a local bill.” Id., Attach. A. LaRoque acknowledges that
he represents only “parts” of Lenoir County and the City of
Kinston. Id. Indeed, according to the North Carolina General
Assembly’s website, the other part of Lenoir County is
represented by an African-American Democrat named
William Wainwright. See Lenoir County Representation,
North Carolina General Assembly, http://www.ncleg.net/gascr
ipts/counties/counties.pl?county=Lenoir (last visited May 9,
2012). LaRoque does not even claim that Mr. Wainwright
agrees with his proposal, or that in the event of a split between
Lenoir County’s representatives the other members of the
Assembly would still “defer” to him.
Even assuming those gaps were filled, appellants offer us
no evidence that the Department would object to either of the

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proposed changes, or, apart from a conclusory assertion, that
the failure to implement either change would cause them any
cognizable injury. We thus agree with the government that
such hypothetical legislation is far too speculative to
constitute a continuing “personal stake” in the validity of § 5.
Lewis v. Continental Bank Corp., 494 U.S. 472, 478 (1990).
Finally, appellants argue that invalidating § 5 would give
Nix a “strong argument” that the North Carolina State Board
of Elections should order a new election for the Kinston City
Council. See Appellants’ Response 10. Although North
Carolina law does make provision for new elections in certain
conditions, see N.C. Gen. Stat. § 163-182.13(a), North
Carolina courts have held that “[t]here is [still] no statutory
authority vesting the State Board with the power to revoke a
certificate of election” once it has issued and once the elected
officials have been sworn in. In re Caldwell County Election
Protests of Hutchings, 600 S.E.2d 901 (table), 2004 WL
1610347, at *3 (N.C. Ct. App. 2004). The prospect of a new
election in the event of § 5’s invalidation is thus too
speculative to give appellants a continued stake in the
litigation.
* * *
Due to the Attorney General’s withdrawal of his
objection, nothing will hinder appellant Nix from running in a
nonpartisan election during the next cycle. Given this, and
appellants’ inability to present us with any other cognizable
injury caused by § 5, we hold that appellants have “obtained
everything that [they] could recover” from this lawsuit, Better
Gov’t Ass’n v. Dep’t of State, 780 F.2d 86, 91 (D.C. Cir.
1986), and that the case is thus moot.
We vacate the judgment of the district court and remand
the case with instructions to dismiss for lack of jurisdiction.

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So ordered.

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