Case 1:10-cv-00561-JDB Document 55 Filed 08/01/11 Page 52 of 56   42 identifies a change as retrogressive if it diminishes minority voters’ “ability * * * to elect their preferred candidates of choice.” 42 U.S.C. 1973c(b). But ability does not invariably lead to success.

The New Section 5’s “Discriminatory Purpose” Prong The 2006 Congress additionally eliminated Section 5’s critical focus on retrogressive changes, abrogating Bossier II and enabling the denial of preclearance where “any discriminatory purpose” is found. See 42 U.S.C. § 1973c(c). In so doing, it blithely “exacerbate[d] the ‘substantial’ federalism costs that the preclearance procedure already exacts,” apparently indifferent as “to the extent” that its amendment “rais[ed] concerns about § 5’s constitutionality.”

And, as we now show, the Government’s justiciability defense is also meritless even on its own limited terms. A. Plaintiffs Have Standing To Bring Their Equal Protection Challenge To The 2006 Amendments In attacking Plaintiffs’ standing to challenge the 2006 amendments to the preclearance standard (42 U.S.C. § 1973c(b)-(d)), the Government argues that Plaintiffs cannot demonstrate either that the 2006 amendments caused the suspension of Kinston’s referendum or that invalidation of the 2006 amendments will revive the referendum, because the referendum would still need to be precleared under the reauthorized pre-2006 standard (42 U.S.C. § 1973c(a)). Govt.

And, as we now show, the Government’s justiciability defense is also meritless even on its own limited terms. A. Plaintiffs Have Standing To Bring Their Equal Protection Challenge To The 2006 Amendments In attacking Plaintiffs’ standing to challenge the 2006 amendments to the preclearance standard (42 U.S.C. § 1973c(b)-(d)), the Government argues that Plaintiffs cannot demonstrate either that the 2006 amendments caused the suspension of Kinston’s referendum or that invalidation of the 2006 amendments will revive the referendum, because the referendum would still need to be precleared under the reauthorized pre-2006 standard (42 U.S.C. § 1973c(a)). Govt.

Only Kinston and its officials, not plaintiffs, are authorized to submit electoral changes for preclearance under Section 5. See 42 U.S.C. § 1973c(a); 28 C.F.R. § 51.23.

10. Because this action is brought pursuant to 42 U.S.C. § 1973c(a), a three-judge district court is statutorily required. See Allen, 393 U.S. at 563.

See LaRoque v. Holder, 650 F.3d 777, 793 (D.C. Cir. 2011). Congress enacted 42 U.S.C. § 1973c(b) to limit the inquiry to whether a proposed plan will have the effect or was intended to diminish minority voters ability to elect their candidate of choice. Id.

at 141 – are furthered by subsection (a). See 42 U.S.C. 1973c(a); see also 2006 Reauthorization, Pub. L. No. 109-246, § 2 (“The purpose of this Act is to ensure that the right of all citizens to vote * * * is preserved and protected as guaranteed by the Constitution.”)

2 Based on this motion, the attached supporting materials, and the record in this case, the Kennie Intervenors seek a total sum of $353,150.97 in attorneys’ fees, expenses and costs. BACKGROUND, FACTS AND PROCEDURAL HISTORY On January 24, 2012, the State of Texas filed a complaint for declaratory judgment that SB 14, the Texas photo ID bill, complied with Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c. One week later, on February 1, 2012, the Kennie Intervenors were the first parties to 2 In either event, any appeal from an order awarding or denying attorneys’ fees would lie to the U.S. Court of Appeals for the D.C. Circuit.

See, e.g., Texas v. United States of America, et 14 The State bears the burden of proving that SB 14 “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color [or membership in a language group].” 42 U.S.C. § 1973c(a). Case 1:12-cv-00128-RMC-DST-RLW Document 134 Filed 05/21/12 Page 8 of 31 9 al., 2012 U.S. Dist LEXIS 5, at **29-30 (D.D.C. Jan 2, 2012), partially vacated on unrelated grounds (Jan. 6, 2012, Order; Dkt.