LaRoque v. Holder

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 6, 2011 Decided July 8, 2011

No. 10-5433

STEPHEN LAROQUE, ET AL.,
APPELLANTS

v.

ERIC H. HOLDER, JR., 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)

Hashim M. Mooppan argued the cause for appellants.
With him on the briefs were Michael A. Carvin, Noel J.
Francisco, and Michael E. Rosman.

Linda F. Thome, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the brief were
Samuel R. Bagenstos, Deputy Assistant Attorney General,
Ronald C. Machen Jr., U.S. Attorney, and Diana K. Flynn,
Attorney. James C. Kilbourne, Attorney, entered an
appearance.
 2
J. Gerald Hebert and Arthur Barry Spitzer were on the
brief for intervenors-appellees.

Before: ROGERS, TATEL, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: The citizens of Kinston, North
Carolina, approved a referendum switching city elections
from partisan to nonpartisan. Because Kinston lies in a
jurisdiction covered by section 5 of the Voting Rights Act of
1965, the city council had no authority to implement the
referendum until precleared by federal authorities, and
preclearance has not occurred. A candidate for public office
claiming a state-law entitlement to run under the suspended
nonpartisan system, together with other plaintiffs, filed suit
seeking to enjoin the Attorney General from enforcing section
5 against Kinston. Count one of plaintiffs’ complaint contends
that section 5, as reauthorized in 2006, exceeds Congress’s
Fourteenth and Fifteenth Amendment enforcement powers.
Count two contends that amendments made to section 5 in
2006 erect a facially unconstitutional racial-preference
scheme. The district court dismissed both counts for lack of
standing and a cause of action. Concluding that one of the
plaintiffs—the candidate for public office—has both standing
and a cause of action to pursue count one, we reverse and
remand for the district court to consider the merits of that
claim. Because plaintiffs’ standing with respect to count two
raises complex questions unaddressed by the district court and
the parties’ briefs, we vacate the district court’s dismissal of
that claim and remand for further consideration consistent
with this opinion.
 3

I.
“Congress enacted the Voting Rights Act of 1965 for the
broad remedial purpose of ‘rid[ding] the country of racial
discrimination in voting.’ ” Chisom v. Roemer, 501 U.S. 380,
403 (1991) (alteration in original) (quoting South Carolina v.
Katzenbach, 383 U.S. 301, 315 (1966)). Section 5, the
provision at issue in this case, prohibits “covered
jurisdictions”—those with histories of engaging in such
discrimination—from implementing any change in “any
voting qualification or prerequisite to voting, or standard,
practice, or procedure with respect to voting” without first
obtaining approval from federal authorities. 42 U.S.C. §
1973c(a); see also id. § 1973b(b) (setting forth the standards
for determining which jurisdictions shall be subject to section
5). Commonly referred to as “preclearance,” such approval
may be obtained in two ways. First, the covered jurisdiction
may seek a declaratory judgment from a three-judge panel of
the United States District Court for the District of Columbia
that the voting change “neither has the purpose nor will have
the effect of denying or abridging the right to vote on account
of race or color.” Id. § 1973c(a). Second, the jurisdiction may
submit the proposed change for review by the United States
Attorney General under the same purpose-or-effect test. Id.;
see also 28 C.F.R. § 51.52(a). If the Attorney General fails to
object within sixty days, section 5’s preemptive effect ends,
and the jurisdiction may implement the change. 42 U.S.C. §
1973c(a). If the Attorney General objects, the jurisdiction
retains the option of seeking preclearance from a three-judge
district court, but section 5 prohibits the jurisdiction from
implementing the change until it obtains a judgment from the
court that the preclearance requirements are satisfied. Id.; see
also Morris v. Gressette, 432 U.S. 491, 505 n.21 (1977).
 4
Originally “expected to be in effect for only five years,”
section 5 was “reauthorized . . . in 1970 (for 5 years), 1975
(for 7 years), and 1982 (for 25 years).” Nw. Austin Mun. Util.
Dist. No. One v. Holder, 129 S. Ct. 2504, 2510 (2009). The
Supreme Court upheld section 5’s original enactment and
those three reauthorizations as permissible exercises of
Congress’s Fifteenth Amendment enforcement power. See
Katzenbach, 383 U.S. at 334–35; see also Nw. Austin, 129 S.
Ct. at 2510. The Court, however, has yet to rule on the
constitutionality of Congress’s most recent extension, this one
enacted in 2006. See Nw. Austin, 129 S. Ct. at 2511–13; see
also Fannie Lou Hamer, Rosa Parks, and Coretta Scott King
Voting Rights Act Reauthorization and Amendments Act of
2006, Pub. L. No. 109-246, § 4, 120 Stat. 577, 580
(reauthorizing section 5 for twenty-five years).

The primary issue in this lawsuit is whether certain
private parties have standing to challenge the 2006
reauthorization. To satisfy the minimum standing
requirements implicit in Article III’s limitation of the federal
judicial power to actual “Cases” and “Controversies,” U.S.
Const. art. III, § 2, plaintiffs must establish “an ‘injury in
fact’—an invasion of a legally protected interest which is (a)
concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical,” Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992) (internal footnote, citations, and
quotation marks omitted). Furthermore, this “injury must be
fairly traceable to the challenged action of the defendant, and
likely to be redressed by a favorable decision.” Ord v. District
of Columbia, 587 F.3d 1136, 1140 (D.C. Cir. 2009) (internal
quotation marks omitted).

In addition to these minimum constitutional
requirements, courts have recognized prudential limitations
on standing not strictly compelled by the Constitution’s text.
 5
Most important for our purposes, the Supreme Court has held
that “even when the plaintiff has alleged injury sufficient to
meet the ‘case or controversy’ requirement, . . . [he] generally
must assert his own legal rights and interests, and cannot rest
his claim to relief on the legal rights or interests of third
parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975). This
prudential limitation is meant to avoid “the adjudication of
rights which those not before the Court may not wish to
assert” and to ensure “that the most effective advocate of the
rights at issue is present to champion them.” Duke Power Co.
v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 80 (1978).

With this legal background in mind, we turn to the facts
of the case before us. In a November 2008 referendum, the
residents of Kinston, North Carolina, voted by an almost two-
to-one margin to switch from partisan to nonpartisan elections
for mayor and city council. Absent section 5, Kinston’s city
council would have had a duty under North Carolina law to
amend the city’s charter to implement the referendum. See
N.C. Gen. Stat. §§ 160A-104, -108. But since Kinston lies in
Lenoir County, a covered jurisdiction, it may not implement
the referendum until precleared by federal authorities.

Pursuant to section 5, Kinston submitted the referendum
to the Attorney General, who, through the Justice
Department’s Civil Rights Division, objected to the
referendum in an August 17, 2009, letter. Letter from Loretta
King, Acting Assistant Att’y Gen., U.S. Dep’t of Justice,
Civil Rights Div., to James P. Cauley III, Kinston City Att’y
(Aug. 17, 2009) (included at J.A. 42–44). Although not
contending that the referendum was infected by a
discriminatory purpose, the Division concluded that Kinston
had failed to satisfy its burden of proving that the move to
nonpartisan elections would have no retrogressive effect on
the ability of black voters to elect their preferred candidates.
 6
See Beer v. United States, 425 U.S. 130, 141 (1976) (“[T]he
purpose of [section] 5 has always been to insure that no
voting-procedure changes would be made that would lead to a
retrogression in the position of racial minorities with respect
to their effective exercise of the electoral franchise.”). The
Division emphasized that although approximately 65% of
Kinston’s registered voters are black, “[b]lack voters have had
limited success in electing candidates of choice during recent
municipal elections.” Letter from Loretta King to James P.
Cauley III, supra, at 1–2. According to the Division, “[t]he
success that [black voters] have achieved has resulted from
cohesive support for candidates during the Democratic
primary (where black voters represent a larger percentage of
the electorate), combined with crossover voting by whites in
the general election.” Id. at 2. The Division was concerned
that moving to nonpartisan elections would cause black
Democratic candidates to lose support from the small number
of white voters who out of party loyalty have bucked the
racially polarized voting characteristic of Kinston elections.
Id. It also noted that black candidates would likely lose
campaign support and other assistance from the Democratic
party if the city moved to nonpartisan elections. Id. As a
result, the Division concluded, “[r]emoving the partisan cue in
municipal elections [would], in all likelihood, eliminate the
single factor that allows black candidates to be elected to
office.” Id.

After the city council voted against seeking de novo
review of the referendum by a three-judge district court,
several Kinston residents who supported the referendum and
one private membership association filed this suit against the
Attorney General on April 7, 2010. They sought a declaratory
judgment that section 5, as reauthorized and amended in
2006, is unconstitutional, as well as an injunction prohibiting
the Attorney General from enforcing section 5 against
 7
Kinston. The district court permitted six African-American
residents of Kinston and the North Carolina State Conference
of Branches of the National Association for the Advancement
of Colored People to intervene in support of the Attorney
General. Significantly for the issues before us, neither
Kinston, nor Lenoir County, nor North Carolina is a party to
this action.

Plaintiffs’ complaint contains two counts. Count one
alleges that in reauthorizing section 5, Congress exceeded its
power to enforce the Fourteenth and Fifteenth Amendments
because the statute “is not a rational, congruent or
proportional means to enforce [those Amendments’]
nondiscrimination requirements.” Compl. ¶¶ 33–34. Count
two contends that as a result of amendments Congress made
to section 5 in 2006, the section “violates the
nondiscrimination requirements of the Fifth, Fourteenth and
Fifteenth Amendments.” Id. ¶ 36. Arguing that plaintiffs
lacked standing and a cause of action to bring both counts, the
Attorney General and intervenors moved to dismiss.

Although the complaint appears to raise facial challenges
to section 5 and as-applied challenges to the constitutionality
of the Attorney General’s objection, plaintiffs have since
made clear that they intend to pursue only their facial
challenges. See LaRoque v. Holder, 755 F. Supp. 2d 156,
162–63 (D.D.C. 2010); Appellants’ Opening Br. 9. This
apparent change in position likely reflects the uncertainty over
whether courts may ever review the propriety of an Attorney
General objection under section 5. Expanding on the Supreme
Court’s decision in Morris v. Gressette, 432 U.S. at 504–05,
which held that the Attorney General’s failure to object to a
proposed voting change is unreviewable, three-judge district
courts have refused to entertain challenges to Attorney
General objections in declaratory judgment actions initiated
 8
by covered jurisdictions. See City of Rome v. United States,
450 F. Supp. 378, 380–82 (D.D.C. 1978); see also Cnty.
Council of Sumter Cnty. v. United States, 555 F. Supp. 694,
706–07 (D.D.C. 1983). In so doing, these courts have
emphasized that through declaratory judgment actions,
covered jurisdictions would obtain a de novo judicial
evaluation of whether they satisfied section 5’s preclearance
requirements and whether those requirements were
constitutional. See Sumter Cnty., 555 F. Supp. at 706; City of
Rome, 450 F. Supp. at 382 n.3. Given plaintiffs’ abandonment
of their as-applied challenge to the constitutionality of the
Attorney General’s objection, we have no need to decide
whether Morris would bar such a challenge where, as here,
the covered jurisdiction declines to bring a declaratory
judgment action under section 5 following an Attorney
General objection. Instead, we need only decide whether
plaintiffs enjoy standing and have a cause of action to
challenge the constitutionality of section 5 on its face.

Plaintiffs assert three theories of standing: as candidates
in Kinston elections, as supporters of the nonpartisan
referendum, and as Kinston voters. In support of the first
theory—the most important for purposes of this appeal—the
complaint alleges that two plaintiffs “intend[] to run for
election to the Kinston City Council in November of 2011.”
Compl. ¶¶ 3–4. Moreover, on the very day plaintiffs filed
their complaint, those two plaintiffs “held a press conference
to announce [their] candidacies.” Nix Decl. ¶ 7; Northrup
Decl. ¶ 7. As a registered Republican who would like to run
as an unaffiliated candidate, Compl. ¶ 3, one of these
plaintiffs, John Nix (the other potential candidate has since
decided against running), claims that section 5’s preemption
of Kinston’s nonpartisan referendum injures him in two ways.
First, in a system of nonpartisan elections, he could get his
name on the general-election ballot more cheaply and easily.
 9
As Nix explains, “under nonpartisan elections, putative
candidates need only file a candidacy notice and pay a filing
fee,” requirements that also apply to partisan elections.
Appellants’ Opening Br. 6, 19; see also N.C. Gen. Stat. §§
163-291, -294.2. By contrast, under the partisan regime,
“candidates must expend additional money and time to win a
party primary or obtain signatures from 4% of [qualified]
voters.” Appellants’ Opening Br. 6–7; see also N.C. Gen.
Stat. §§ 163-291, -296. Second, Nix argues that “the chances
of victory for non-Democratic candidates” such as himself
“would substantially improve” in nonpartisan elections
because “Democratic candidates would lose the benefit of
party-line straight-ticket voting and other strategic advantages
stemming from their overwhelming registered-voter
advantage.” Appellants’ Opening Br. 7.

In granting the motions to dismiss, the district court
raised several concerns about Nix’s standing as a candidate in
the 2011 election. For one thing, it doubted that Nix had
sufficiently alleged injuries that were “ ‘actual or imminent,
not conjectural or hypothetical.’ ” LaRoque, 755 F. Supp. 2d
at 174 (quoting Lujan, 504 U.S. at 560). According to the
district court, Nix’s allegation in the April 2010 complaint
that he “intend[ed] to run for election to the Kinston City
Council in November of 2011,” Compl. ¶ 3, was insufficient
to justify an inference that Nix actually would run in the 2011
election and thus incur the injuries alleged to flow from
Kinston’s partisan-elections system, see LaRoque, 755 F.
Supp. 2d at 173–75. Although acknowledging that Nix had
filed an affidavit discussing activities he had taken in support
of his candidacy, the district court refused to consider any
post-complaint activities because “ ‘[t]he existence of federal
jurisdiction . . . depends on the facts as they exist when the
complaint is filed.’ ” Id. at 174 (alteration in original) (quoting
Lujan, 504 U.S. at 569 n.4).
 10

The district court also doubted that Nix had alleged the
invasion of “ ‘legally protected interest[s],’ as required to
establish a constitutional injury in fact.” Id. at 175 (alteration
in original) (quoting Lujan, 504 U.S. at 560). This doubt
stemmed from the uncontroverted proposition that Kinston’s
partisan-elections system is constitutionally permissible under
the Supreme Court’s decision in Jenness v. Fortson, 403 U.S.
431, 432 (1971), which rejected First Amendment and Equal
Protection Clause challenges to a Georgia law prohibiting a
candidate’s name from being printed on the general-election
ballot unless she either won a party primary or obtained the
signatures of “at least 5% of the number of registered voters
at the last general election for the office in question.” Given
Jenness, the district court reasoned, Nix was unable to satisfy
his burden of establishing that section 5 either conferred an
“assertedly illegal benefit” to his campaign opponents or
subjected him to an “allegedly unlawful ballot access
requirement[].” LaRoque, 755 F. Supp. 2d at 177, 179
(internal quotation marks omitted).

Ultimately, however, the district court concluded it had
no need to resolve whether Nix had alleged actual or
imminent injury in fact since it believed that Nix was unable
to show that any such injury would likely be redressed
through a decision striking down section 5. See id. at 179–80,
182–83. The court grounded this conclusion on its
determination that the Attorney General’s objection nullified
Kinston’s referendum. See id. at 182 (“Kinston’s nonpartisan
referendum has not been held in abeyance as a result of the
Attorney General’s objection; it has been nullified.”). Even if
it invalidated section 5, the court reasoned, the referendum
“would remain nullified[] and would need to be re-passed by
Kinston voters in order to have any legal effect.” Id. at 183.
Having no way of knowing how the referendum would fare
 11
with voters the second time around, the court concluded that
Nix could not “establish ‘redressability’ as required by Article
III.” Id. According to the district court, this redressability
problem, along with several additional concerns, also doomed
plaintiffs’ other two standing theories—that they had standing
as proponents of the November 2008 referendum and as
voters in Kinston elections. See id. at 169–73, 180–83.

Two additional aspects of the district court’s decision are
relevant to the issues we face. First, although concluding that
plaintiffs lacked standing, the district court rejected the
Attorney General’s contention that they were unable to show
that their alleged injuries were fairly traceable to his
enforcement of section 5. According to the district court, the
complaint’s allegations were sufficient to establish causation
because “the Attorney General’s refusal to grant preclearance
to Kinston’s proposed change to nonpartisan elections was a
‘but for’ cause of plaintiffs’ alleged injur[ies].” Id. at 182.

Second, the district court explained that even if plaintiffs
had standing, it would nonetheless dismiss their complaint
under Federal Rule of Civil Procedure 12(b)(6) because they
lacked a viable cause of action. Reasoning that plaintiffs’
injuries—and thus their claims for relief—flowed only from
the Attorney General’s objection, the district court believed
that plaintiffs’ claims necessarily required them to challenge
that objection. But according to the district court, Morris and
its progeny barred judicial review of Attorney General
objections, thus depriving plaintiffs of a cause of action. See
id. at 163, 183–87.

Plaintiffs now appeal. We review de novo the district
court’s dismissal for lack of standing and failure to state a
claim upon which relief can be granted. See Muir v. Navy
Fed. Credit Union, 529 F.3d 1100, 1105 (D.C. Cir. 2008);
 12
Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir.
2006). At this stage of the litigation, we “must accept as true
all material allegations of the complaint,” drawing all
reasonable inferences from those allegations in plaintiffs’
favor, Warth, 422 U.S. at 501, and “presum[ing] that general
allegations embrace those specific facts that are necessary to
support the claim,” Lujan, 504 U.S. at 561 (internal quotation
marks omitted). And in assessing plaintiffs’ standing, we must
assume they will prevail on the merits of their constitutional
claims. See Muir, 529 F.3d at 1105 (“In reviewing the
standing question, the court must be careful not to decide the
questions on the merits for or against the plaintiff, and must
therefore assume that on the merits the plaintiffs would be
successful in their claims.” (internal quotation marks
omitted)). But see Nw. Austin Mun. Util. Dist. No. One v.
Mukasey, 573 F. Supp. 2d 221, 235–82 (D.D.C. 2008)
(upholding the constitutionality of Congress’s 2006
reauthorization of section 5), rev’d on other grounds, 129 S.
Ct. 2504 (2009).

II.
We begin with the question of whether plaintiffs have
standing and a cause of action to pursue the claim, raised in
count one, that in reauthorizing section 5 Congress exceeded
its Fourteenth and Fifteenth Amendment enforcement powers.

Article III Standing
As explained above, to satisfy the “irreducible
constitutional minimum of standing” implicit in Article III’s
case-or-controversy requirement, plaintiffs must establish an
“injury in fact” fairly traceable to the Attorney General’s
enforcement of section 5 and redressable by a decision
striking down that statute. Lujan, 504 U.S. at 560–61 (internal
quotation marks omitted). Starting with the first of these
 13
requirements—injury-in-fact—we conclude that plaintiff John
Nix has sufficiently alleged that he is at risk of suffering
“concrete and particularized” injuries to two judicially
cognizable interests. Id. at 560. First, the partisan-elections
regime makes the process of getting on the general-election
ballot more costly and time consuming. As Nix argues, courts
have recognized that “[s]uch ballot-access requirements
impose an ‘injury-in-fact,’ not only because non-compliance
prevents ‘candidates’ from ‘appear[ing] on the . . . ballot,’ but
also because even compliance requires ‘significant amounts
of time, money, personnel, and energy,’ which are limited
‘campaign resources’ that could have been ‘allocate[d]’
elsewhere.” Appellants’ Opening Br. 19–20 (second and third
alterations in original) (quoting Krislov v. Rednour, 226 F.3d
851, 856–58 (7th Cir. 2000)); see also Storer v. Brown, 415
U.S. 724, 738 n.9 (1974) (holding that candidates had “ample
standing” to challenge ballot-access requirements). Second,
Nix alleges that Kinston’s partisan-elections system injures
him by providing a competitive advantage to his Democratic
opponents, who enjoy benefits from straight-ticket voting and
party loyalty that would largely evaporate in a nonpartisan
system, and we have held that such competitive injuries in the
electoral arena can confer Article III standing. See Shays v.
FEC, 414 F.3d 76, 85–87 (D.C. Cir. 2005).

Although the district court doubted that either of these
injuries involved the invasion of a “legally protected” interest,
LaRoque, 755 F. Supp. 2d at 179 (internal quotation marks
omitted), the Attorney General does not press that argument
on appeal, and for good reason. The very foundation for Nix’s
claims is that he has a “legally protected” interest under North
Carolina law in having the nonpartisan referendum
implemented by Kinston’s city council, and according to Nix,
the only barrier to the vindication of this interest is section 5,
which he claims is unconstitutional and thus void. Courts
 14
have “long recognized” that legislatures “may enact statutes
creating legal rights, the invasion of which creates standing,
even though no injury would exist without the statute.” Shays,
414 F.3d at 89 (internal quotation marks omitted). We thus
disagree with the district court that because Kinston’s
partisan-elections system is constitutionally permissible under
the Supreme Court’s decision in Jenness, Nix cannot establish
a judicially cognizable injury. See Parker v. District of
Columbia, 478 F.3d 370, 377 (D.C. Cir. 2007) (noting that the
Supreme Court has used the phrases “legally protected
interest” and “cognizable interest” interchangeably).
Kinston’s residents could have voted to retain partisan
elections, but since they chose otherwise, Nix has a
cognizable interest in reaping the benefits he claims would
flow from the nonpartisan system.

On appeal, the Attorney General takes a different tack
than the district court, arguing that Nix’s alleged harms are
too “abstract, contingent, and speculative” to support
standing. Att’y Gen.’s Br. 22. Although conceding that the
nonpartisan system might “provide Nix easier access to the
general election ballot,” the Attorney General suggests that
the system might “impede [Nix’s] ultimate electoral success
by ensuring that he will face a larger number of competitors
in the general election than he would in a partisan system.” Id.
at 32. But the Attorney General cites no support for the
proposition that Nix’s standing can be defeated by the
possibility that the partisan system, though imposing greater
ballot-access costs, might ultimately improve Nix’s chances
of electoral success by limiting competition in the general
election. Indeed, the argument runs contrary to our decision in
Shays, which drew on case law regarding “procedural”
injuries in holding that candidates may have standing to
challenge “illegally structured” campaign environments even
if “the multiplicity of factors bearing on elections” prevents
 15
them from establishing “with any certainty that the challenged
rules will disadvantage their . . . campaigns.” 414 F.3d at 90–
91 (internal quotation marks and citation omitted); see also
Lujan, 504 U.S. at 572 n.7 (“The person who has been
accorded a procedural right to protect his concrete interests
can assert that right without meeting all the normal standards
for redressability and immediacy.”). Nix argues that he is
being forced to compete in an “illegally structured”
environment because the threat of the Attorney General’s
enforcement of section 5, which he claims—and we must
assume—is unconstitutional, is preventing the Kinston city
council from carrying out its state-law duty to implement the
nonpartisan referendum. Given this, our holding in Shays
means that Nix has no obligation to demonstrate definitively
that he has less chance of victory under the partisan than the
nonpartisan system.

Even if we take the Attorney General’s argument on its
own terms, however, Nix’s allegation that partisan elections
will “substantially harm[] [his] chances for election by . . .
making party affiliation a factor in voter[s’] choices,” Compl.
¶ 28, is far from “speculative,” Att’y Gen.’s Br. 32 n.8. Just
look at the Civil Rights Division’s objection letter. The
Division refused to preclear the nonpartisan system because it
worried that black Democratic candidates would suffer from
the loss of the electoral benefits associated with party loyalty
and straight-ticket voting. The Attorney General’s contention
that this reasoning “says nothing about the chances of any
particular Republican candidate in any particular election” is
simply wrong. Id. After all, the Division’s letter does say
something: it says that Democratic candidates in Kinston tend
to receive some votes that they would otherwise not receive
absent their party affiliation. True, a particular non-
Democratic candidate might be able to overcome this
disadvantage based on “factors specific to the candidate, his
 16
or her opponents, the issues salient to the electorate at the
time of the election, and mobilization and turnout.” Id. But
that does not change the fact that, all other things being equal,
the Democratic label in Kinston tends to benefit Democratic
candidates and thus disadvantage their opponents.

Given all this, we think it clear that Nix would have
easily satisfied all elements of the injury-in-fact requirement
had plaintiffs waited to file their complaint until Nix’s
campaign was well under way and he had begun collecting
signatures to appear on the general-election ballot as an
unaffiliated candidate. At that point, there would have been
no doubt that his injury was “actual” because he would have
been incurring the ballot-access costs associated with partisan
elections. In addition, he might have been able to allege that
he was currently incurring competitive injury since he was
devoting special resources to counteract the partisan
advantage his Democratic opponent would enjoy in the
general election. The only question, then, is whether, as the
district court found, plaintiffs’ filing of their complaint while
Nix’s campaign was still in its infancy destroys his standing
because it undermines the “imminence” of the injuries he
alleges. We think not.

In the April 2010 complaint, Nix alleged that he
“intend[ed] to run for election to the Kinston City Council in
November of 2011,” Compl. ¶ 3, and on the same day
plaintiffs filed their complaint, he held a press conference
announcing his candidacy, Nix Decl. ¶ 7; see also Haase v.
Sessions, 835 F.2d 902, 907 (D.C. Cir. 1987) (noting that a
plaintiff “can freely augment his pleadings with affidavits,”
such as the affidavit Nix filed discussing, among other things,
his press conference, to establish the plaintiff’s standing). The
district court nonetheless appears to have been concerned that
since Nix had “never before held office” and at the time of the
 17
complaint had taken few steps to establish his candidacy,
LaRoque, 755 F. Supp. 2d at 175, the risk he would change
his mind was unacceptably high, thus raising the possibility
that the court would end up “render[ing] an advisory opinion
in ‘a case in which no injury would have occurred at all,’ ”
Animal Legal Def. Fund, Inc. v. Espy, 23 F.3d 496, 500 (D.C.
Cir. 1994) (quoting Lujan, 504 U.S. at 564 n.2). But when
plaintiffs filed their complaint, the election in which Nix
planned to run was only nineteen months away, a far cry from
the more than four-year gap that sank Senator Mitch
McConnell’s standing in McConnell v. FEC, 540 U.S. 93,
225–26 (2003) (holding that Senator McConnell lacked
standing to challenge a provision of the Bipartisan Campaign
Reform Act of 2002 (“BCRA”) that at earliest would have
affected him in his 2008 reelection campaign), overruled on
other grounds by Citizens United v. FEC, 130 S. Ct. 876
(2010). In our view, Nix’s allegation that he intended to run in
the November 2011 election and his public announcement at
the press conference sufficiently establish the “substantial
probability” of imminent injury required for Article III
standing. Chamber of Commerce v. EPA, No. 09-1237, 2011
WL 1601753, at *6 (D.C. Cir. Apr. 29, 2011) (internal
quotation marks omitted); cf. Shays, 414 F.3d at 92 (holding
that incumbent congressmen subject to two-year election
cycles had standing to challenge the FEC’s implementation of
certain provisions of BCRA).

Indeed, as Nix argues, a contrary holding “would place
courts and candidates in an untenable position.” Appellants’
Opening Br. 31. While federal litigation can take months,
even years, Nix contends, and neither the Attorney General
nor intervenors dispute, that campaigns for local offices rarely
span multiple years. See Burlington N. R.R. Co. v. STB, 75
F.3d 685, 689–90 (D.C. Cir. 1996) (noting that since federal
litigation often takes at least two years to resolve, agency
 18
orders “of less than two years’ duration ordinarily evade
review” for purposes of the “capable of repetition, yet evading
review” exception to mootness (internal quotation marks
omitted)); see also Appellants’ Opening Br. 31–32 (“[M]ost
political campaigns do not begin two years before the
election, and especially not campaigns for local offices by
novice candidates.”); Nix Decl. ¶ 10 (stating that Nix would
not begin gathering signatures to appear on the general-
election ballot as an unaffiliated candidate until September
23, 2010, “because signatures are due on September 23, 2011,
and are only valid for a year”). As a result, were we to agree
with the district court that Nix lacked standing to sue because
his campaign was still at an early stage when plaintiffs filed
their complaint, we would essentially require novice political
candidates like Nix either (1) to waste resources by
accelerating their campaigns to confirm their standing, or (2)
to delay suing until the eve of election, thus injecting
uncertainty into campaigning and imposing burdens on the
courts by requiring them to expedite the litigation. Nothing in
Article III requires us to impose such an undesirable set of
options on candidates and courts. Given our conclusion that
Nix’s concrete plan to run in the November 2011 election
suffices to establish the imminence of his alleged injuries, we
have no need to reach plaintiffs’ alternative argument that the
district court should have considered activities described in
Nix’s affidavit occurring after the date the complaint was
filed.

Turning to the issue of causation, we agree with Nix that
his alleged injuries are fairly traceable to the Attorney
General’s insistence on enforcing section 5’s preclearance
requirement. Absent section 5 and the threat that the Attorney
General would enforce it by, for example, seeking to enjoin
any attempted implementation of a non-precleared election
change, see 42 U.S.C. § 1973j(d); Allen v. State Bd. of
 19
Elections, 393 U.S. 544, 561 (1969), there is no reason to
doubt that the Kinston city council would carry out its state-
law duty to implement the referendum, see Nat’l Wrestling
Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 941 (D.C.
Cir. 2004) (noting that a plaintiff is not deprived of standing
by the possibility that a third party might take “the
extraordinary measure of continuing [its] injurious conduct in
violation of the law”).

Against this reasoning, the Attorney General presents two
arguments. First, relying on the Supreme Court’s holding in
McConnell that political candidates were unable to claim
competitive injury from increased campaign-contribution
limits because the candidates, like their competitors, could
take advantage of the increases, the Attorney General
contends that Nix lacks standing because his alleged injuries
are traceable not to the Attorney General’s insistence on
enforcing section 5 but instead to Nix’s “personal choice.”
McConnell, 540 U.S. at 228. According to the Attorney
General, since Kinston’s current election system permits Nix
to “choose whether to run for office as either a partisan or a
nonpartisan candidate,” any “disadvantages he may suffer as a
result of that choice are caused by his own action, not the
operation of Section 5, the Attorney General’s objection, or
Kinston’s election system.” Att’y Gen.’s Br. 38. We disagree.
Unlike the candidates in McConnell, who could cure their
“fundraising disadvantage” by exploiting BCRA’s increased
contribution limits, McConnell, 540 U.S. at 228 (internal
quotation marks omitted), Nix could avoid the ballot-access
costs associated with Kinston’s partisan-elections system only
by abandoning his aspiration of appearing on the general-
election ballot. This option, however, is available to all
candidates challenging ballot-access requirements, yet that
has hardly stopped the Supreme Court from holding that
political candidates have “ample standing” to bring such
 20
challenges. Storer, 415 U.S. at 738 n.9. Similarly, Nix could
avoid the alleged electoral disadvantages of the partisan
system only by running as a Democrat. But given Nix’s First
Amendment right to freedom of association, that option
cannot possibly provide a basis for depriving him of standing.
See Williams v. Rhodes, 393 U.S. 23, 30 (1968) (explaining
that the First Amendment protects “the right of individuals to
associate for the advancement of political beliefs”); see also
Storer, 415 U.S. at 738 n.9, 745–46 (holding that candidates
had standing to challenge requirements for appearing on the
general-election ballot as independents even though they
could have chosen to run in a party primary).

As a second line of defense, the Attorney General argues
that since Kinston’s city council declined to seek a
declaratory judgment that the change to nonpartisan elections
had neither a discriminatory purpose nor a discriminatory
effect, “Kinston’s decision to continue its partisan election
system was . . . ‘the independent action of [a] third party not
before the court,’ that is, the City of Kinston.” Att’y Gen.’s
Br. 39 (alteration in original) (internal citation omitted)
(quoting Lujan, 504 U.S. at 560). This argument also fails. As
an initial matter, case law makes clear that private parties who
otherwise satisfy the requirements for standing may challenge
federal preemption of state actions even if state officials have
abandoned their legal challenges. See, e.g., Schulz v.
Williams, 44 F.3d 48, 52–53 (2d Cir. 1994) (holding that a
political party chairman had standing to appeal a district court
decision striking down state election laws even though the
state board of elections had decided against appealing).
Furthermore, although causation and redressability are
“ordinarily ‘substantially more difficult’ to establish” where,
as here, a plaintiff challenges the government’s regulation of a
third party (i.e., the City of Kinston), Lujan, 504 U.S. at 562
(quoting Allen v. Wright, 468 U.S. 737, 758 (1984)), this is no
 21
ordinary case. As we have held, a party may have “standing to
challenge government action that permits or authorizes third-
party conduct that would otherwise be illegal in the absence
of the Government’s action”—precisely what Nix seeks to do.
Nat’l Wrestling Coaches Ass’n, 366 F.3d at 940. He alleges
that absent section 5, the Kinston city council would have a
state-law duty to implement the voter referendum—an
interpretation of North Carolina law that neither the Attorney
General nor intervenors challenge. See N.C. Gen. Stat. §§
160A-104, -108. Nix’s alleged injuries are thus fairly
traceable to the Attorney General “because the intervening
choices of” the Kinston city council “are not truly
independent of” the Attorney General’s insistence on
enforcing section 5. Nat’l Wrestling Coaches Ass’n, 366 F.3d
at 940–41.

Moving on to redressability, the Attorney General wisely
refrains from defending the district court’s holding that even
if Nix satisfies the other requirements for Article III standing,
his alleged injuries would not be redressed by a judgment
declaring section 5 unconstitutional and enjoining the
Attorney General from enforcing it. The premise underlying
this conclusion—that the Attorney General’s objection
“nullified” Kinston’s referendum, LaRoque, 755 F. Supp. 2d
at 182–83—suffers from two flaws. First, it misconstrues
section 5. That statute provides that “no person shall be
denied the right to vote for failure to comply” with a new
electoral law “unless and until” the law is precleared by either
the Attorney General or the District Court for the District of
Columbia. 42 U.S.C. § 1973c(a). By objecting to an electoral
change, the Attorney General in no way nullifies the proposed
change. Instead, he simply fails “to . . . end” section 5’s
“postpon[ement]” of “the implementation” of that change.
Morris, 432 U.S. at 504; see also Nw. Austin, 129 S. Ct. at
2511 (“Section 5 . . . suspend[s] all changes to state election
 22
law . . . until they have been precleared by federal authorities .
. . .”). As Nix points out, if Attorney General objections
nullified proposed electoral changes, then even covered
jurisdictions would lack standing to challenge section 5’s
constitutionality after receiving such objections. See
Appellants’ Opening Br. 41. That, however, would conflict
with the Supreme Court’s decision in City of Rome v. United
States, 446 U.S. 156, 161–62, 173–83 (1980), which reached
the merits of constitutional challenges raised by a covered
jurisdiction whose electoral changes the Attorney General had
refused to preclear.

Second, the district court’s analysis overlooks the fact
that if, as Nix alleges, section 5 is unconstitutional, the
Attorney General’s actions pursuant to that unconstitutional
statute would be void. And the general rule is “that a void act
cannot operate to repeal a valid existing statute,” meaning that
the existing statute “remains in full force and operation as if
the repeal had never been attempted.” Conlon v. Adamski, 77
F.2d 397, 399 (D.C. Cir. 1935). This rule is well illustrated by
the Supreme Court’s decision in Clinton v. City of New York,
524 U.S. 417 (1998), which held unconstitutional the Line
Item Veto Act. Under the district court’s reasoning in the case
before us, plaintiffs in Clinton would have lacked standing
because the President’s cancellation of the budgetary
provisions at issue in that case would have “nullified” those
provisions despite the unconstitutionality of his actions. Yet
the Supreme Court squarely held that plaintiffs had standing
because the budgetary provisions the President had
purportedly canceled would have benefitted them. See id. at
429–36. The Court nowhere suggested that Congress would
have to re-pass the canceled provisions for them to be
operative. Likewise here—the Attorney General’s ultra vires
action under an allegedly unconstitutional federal statute
could hardly deprive Nix of standing.
 23

In sum, a judgment declaring section 5 unconstitutional
would remove the federal barrier to the implementation of the
nonpartisan referendum, and absent that barrier, there is no
reason to believe that the Kinston city council would refrain
from carrying out its state-law duty to put the referendum,
which the Attorney General’s objection did not and could not
nullify, into effect. As a result, Nix has established that his
alleged injuries would likely be redressed by a decision in his
favor.

Prudential Standing
Having concluded that Nix satisfies all the prerequisites
for Article III standing with respect to count one, we turn to
the Attorney General’s contention that Nix nonetheless lacks
prudential standing to assert the rights of the City of Kinston
and the State of North Carolina against federal interference
“with a specific aspect of state sovereignty”—i.e., control
over municipal elections. Att’y Gen.’s Br. 39–40 (internal
quotation marks omitted). In support, the Attorney General
relies on the prudential principle, discussed above, that “even
when [a] plaintiff has alleged injury sufficient to meet the
‘case or controversy’ requirement, . . . the plaintiff generally
must assert his own legal rights and interests, and cannot rest
his claim to relief on the legal rights or interests of third
parties.” Warth, 422 U.S. at 499.

The Attorney General’s argument, however, is foreclosed
by Bond v. United States, No. 09-1227 (U.S. June 16, 2011),
which the Supreme Court issued following oral argument in
this case. In Bond, the Court held that a criminal defendant
charged with attempting to poison her husband’s paramour
had standing to challenge the federal statute under which she
was indicted on the grounds “that, by enacting it, Congress
exceeded its powers under the Constitution, thus intruding
 24
upon the sovereignty and authority of the States.” Id. at 1. The
Court reiterated that our federal system’s allocation of power
between the national government and the states is meant to
protect not only “the integrity, dignity, and residual
sovereignty of the [s]tates,” but also “individual liberty.” Id.
at 9; see also New York v. United States, 505 U.S. 144, 181
(1992) (“[T]he Constitution divides authority between federal
and state governments for the protection of individuals.”). As
a result, where, as here, an individual “is a party to an
otherwise justiciable case or controversy, [he] is not forbidden
to object that [his] injury results from disregard of the federal
structure of our Government.” Bond, No. 09-1227, slip op. at
13–14; see also id. at 10 (“Fidelity to principles of federalism
is not for the States alone to vindicate.”). Of course, a litigant
is in no way freed from familiar constitutional and prudential
standing requirements merely because he challenges a law
that he claims “upset[s] the constitutional balance between the
National Government and the States.” Id. at 10, 13. Certainly,
if Nix lacked a concrete, particularized, redressable injury and
was instead seeking only to vindicate “the right, possessed by
every citizen, to require that the Government be administered
according to law,” he would have no standing to challenge
section 5. Valley Forge Christian Coll. v. Ams. United for
Separation of Church & State, Inc., 454 U.S. 464, 482–83
(1982) (internal quotation marks omitted); see also Bond, No.
09-1227, slip op. at 13. But since Nix otherwise satisfies the
requirements for standing, he may through this lawsuit pursue
his “direct interest” in the invalidation of a statute that he
contends exceeds Congress’s enumerated powers and thus
endangers the liberty-protecting structure of our federal
system. Bond, No. 09-1227, slip op. at 10.

Given our conclusion that Nix has both Article III and
prudential standing to argue that Congress’s 2006
reauthorization of section 5 exceeded its Fourteenth and
 25
Fifteenth Amendment enforcement powers, and given that
Nix and the other plaintiffs all rely on the same arguments
against section 5’s constitutionality, we have no need to
decide whether those other plaintiffs also have standing to
raise the claim asserted in count one. See Comcast Corp. v.
FCC, 579 F.3d 1, 6 (D.C. Cir. 2009) (“[I]f one party has
standing in an action, a court need not reach the issue of the
standing of other parties when it makes no difference to the
merits of the case.” (internal quotation marks omitted)). We
thus turn to the question of whether Nix has a cause of action
to pursue that claim.

Cause of Action
Neither the Attorney General nor intervenors contest
Nix’s argument that courts may recognize nonstatutory causes
of action for private parties to seek declaratory and injunctive
relief against the enforcement of statutes that allegedly
venture beyond the bounds of Congress’s enumerated powers.
This implicit concession of the validity of Nix’s argument
makes sense given the Supreme Court’s recent decision in
Free Enterprise Fund v. Public Co. Accounting Oversight
Board, 130 S. Ct. 3138, 3151 n.2 (2010), which recognized a
nonstatutory cause of action for an accounting firm to seek
declaratory and injunctive relief against the Public Company
Accounting Oversight Board on the grounds that the statute
creating the Board violated the Appointments Clause and
impermissibly encroached on the President’s authority to
remove Executive Branch officials. Although the case before
us involves the separation of powers between the federal
government, on the one hand, and the states and the people,
on the other, instead of between Congress and the President,
we fail to see why a different result would be required merely
because vertical rather than horizontal separation of powers is
at issue. See Gregory v. Ashcroft, 501 U.S. 452, 458 (1991)
(analogizing between “the separation and independence of the
 26
coordinate branches of the Federal Government” and the
“balance of power between the States and the Federal
Government”); see also Bond, No. 09-1227, slip op. at 10–12
(relying on the same analogy in holding that a litigant who
otherwise satisfies the requirements for standing may
“challenge a law as enacted in contravention of constitutional
principles of federalism”).

The only question, then, is whether the Attorney General
and the district court are correct that Nix has no nonstatutory
cause of action because his claim necessarily requires judicial
review of the Attorney General’s objection, which case law
suggests might be unreviewable under any circumstances. See
supra pp. 7–8 (discussing Morris and related precedent). As
the Attorney General acknowledged at oral argument,
however, Nix and the other plaintiffs have made it abundantly
clear that they have no intention of challenging that objection.
See Oral Arg. Tr. at 32:15–33:7. To the contrary, although
their complaint seems to raise both as-applied and facial
challenges to section 5, plaintiffs have repeatedly confirmed
that they are now arguing only that section 5, as reauthorized
in 2006, is facially unconstitutional. See, e.g., Appellants’
Opening Br. 9. According to plaintiffs, their injuries flow not
from the Attorney General’s objection, but rather from section
5’s allegedly unconstitutional preemption of voting changes
that have failed to receive preclearance. True, the Attorney
General could have terminated section 5’s preemption of the
nonpartisan referendum by preclearing it. But we agree with
plaintiffs that “[n]either law nor logic requires [them] to
challenge the Attorney General’s failure to alleviate the
statutorily imposed injury[] in order to challenge Congress’
infliction of that injury in the first place.” Id. at 45–46.

Because section 5 is preventing the Kinston city council
from carrying out its state-law duty to implement the
 27
nonpartisan referendum, Nix has both standing and a cause of
action to seek declaratory and injunctive relief against the
Attorney General—the Executive Branch official charged
with enforcing section 5—on the grounds that the provision
exceeds Congress’s enumerated powers.

III.
This brings us finally to whether plaintiffs have standing
to assert the equal protection challenge raised in count two.
Even if the 2006 reauthorization of section 5 as a whole did
not exceed Congress’s Fourteenth and Fifteenth Amendment
enforcement powers, plaintiffs allege, the addition of
subsections (b)–(d) to section 5 “transform[ed]” the provision
into an unconstitutional “race-based minority-entitlement
scheme.” Pls.’ Mem. in Opp’n to Def.’s Mot. to Dismiss 1,
July 1, 2010.

Congress added two of these subsections, (b) and (d), in
response to the Supreme Court’s decision in Georgia v.
Ashcroft, 539 U.S. 461, 480 (2003), which held that in
determining whether a proposed electoral change has a
retrogressive effect, federal authorities should not focus solely
on whether the change reduces minorities’ ability to elect
their preferred candidates. See H.R. Rep. No. 109-478, at 68–
72 (2006). Instead, the Court ruled, they should consider “the
totality of the circumstances” and especially whether a plan
that decreases minorities’ ability to elect their preferred
candidates in some districts has the offsetting benefit of
increasing their political influence in other districts. See
Georgia, 539 U.S. at 480–85. Essentially overruling Georgia
v. Ashcroft, Congress added subsections (b) and (d) to section
5, which make clear that the section 5 inquiry should focus on
whether the proposed change “has the purpose of or will have
the effect of diminishing the ability of any citizens of the
United States on account of race or color . . . to elect their
 28
preferred candidates of choice.” 42 U.S.C. § 1973c(b); see
also id. § 1973c(d) (“The purpose of subsection (b) . . . is to
protect the ability of such citizens to elect their preferred
candidates of choice.”). According to plaintiffs, these
amendments establish an unconstitutional “floor for minority
electoral success in all covered jurisdictions until 2031,
regardless of whether minorities in those jurisdictions have an
equal opportunity to elect their preferred candidates or to
participate in the political process under the voting change,
and regardless of whether there are compelling reasons
supporting the voting change.” Compl. ¶ 25.

Congress added the other challenged amendment,
subsection (c), in response to another Supreme Court
decision, Reno v. Bossier Parish School Board, 528 U.S. 320
(2000). See H.R. Rep. No. 109-478, at 66–68. In that case, the
Court held that nothing in section 5 “prohibit[s] preclearance
of a redistricting plan enacted with a discriminatory but
nonretrogressive purpose.” Bossier Parish, 528 U.S. at 341.
In other words, the Court ruled that section 5 permits
preclearance of an electoral provision that, though motivated
by racial animus, has neither the purpose nor the effect of
reducing minorities’ current electoral power. Congress
effectively overruled this holding by adding subsection (c),
which provides that the term “purpose” in section 5 means
“any discriminatory purpose.” 42 U.S.C. § 1973c(c). Given
the Justice Department’s alleged history of objecting to voting
changes that fail to “increase minority-preferred candidates’
success to the maximum practicable extent,” plaintiffs claim
that subsection (c) constitutes “an implicit command for
covered jurisdictions to engage in race-based voting practices
and procedures” to maximize minorities’ electoral strength.
Compl. ¶ 26.
 29
Significantly, plaintiffs do not contest the
constitutionality of the pre-2006 preclearance standards
articulated in Georgia v. Ashcroft and Bossier Parish. Instead,
they challenge only Congress’s “substantive expansion of the
preclearance standard” through the addition of subsections
(b)–(d). Appellants’ Opening Br. 8 (emphasis in original
removed).

Plaintiffs’ standing to raise the equal-protection claim
asserted in count two receives relatively little attention in both
the district court’s opinion and the parties’ appellate briefs. As
a result, many questions relevant to this very difficult issue
remain unaddressed, or at least have yet to be addressed in a
manner commensurate with their complexity.

For example, plaintiffs allege that they have been injured
by section 5’s “ ‘postpon[ement] [of] the implementation of
[the] validly enacted [referendum]’ in furtherance of
Congress’ minority-preferring regime.” Appellants’ Reply Br.
30 (third and fourth alterations in original) (quoting Morris,
432 U.S. at 504). But section 5’s preemptive provision
appears in subsection (a), not subsections (b)–(d), thus
presenting the following questions: even were we to declare
subsections (b)–(d) unconstitutional, would we sever and
strike down only those subsections, leaving subsection (a)
untouched? And if so, what would happen to the Kinston
referendum and the Attorney General’s decision to refuse
preclearance, given that the preemption and the preclearance
decision both occurred under a statutory scheme that included
the allegedly defective subsections (b)–(d)? See Advantage
Media, L.L.C. v. City of Eden Prairie, 456 F.3d 793, 801 (8th
Cir. 2006) (relying on INS v. Chadha, 462 U.S. 919, 931–36
(1983), in holding that severability can be relevant to the issue
of standing).
 30
These questions are complicated by the fact that only
Kinston and its officials, not plaintiffs, are authorized to
submit electoral changes for preclearance. See 42 U.S.C. §
1973c(a); 28 C.F.R. § 51.23. So far, Kinston has neither
joined this lawsuit nor exercised its right to request
reconsideration of the Attorney General’s objection. See 28
C.F.R. § 51.45. So what is the remedy the plaintiffs seek with
respect to count two, and does the redressability of their
alleged injuries depend on whether Kinston will seek
reconsideration of the Attorney General’s preclearance
decision? See Lujan, 504 U.S. at 562 (“[W]hen the plaintiff is
not himself the object of the government action or inaction he
challenges, standing is not precluded, but it is ordinarily
substantially more difficult to establish.” (internal quotation
marks omitted)). Given these considerations, can plaintiffs
satisfy the causation and redressability requirements of
Article III standing with respect to count two?

Another question is whether, as the district court
believed, see LaRoque, 755 F. Supp. 2d at 185–87, and as the
Attorney General argues on appeal, Att’y Gen.’s Br. 46,
plaintiffs’ count-two claim requires review of the Attorney
General’s objection—something plaintiffs disclaim any
intention of seeking given their fear of running afoul of
Morris and its progeny. If the answer is no—because
plaintiffs are bringing only a facial challenge, see Appellants’
Reply Br. 30—then have they met the requirement that
litigants claiming injury from a racial classification establish
that they “personally [have been] denied equal treatment by
the challenged discriminatory conduct”? United States v.
Hays, 515 U.S. 737, 743–44 (1995) (internal quotation marks
omitted).

Without meaningful briefing on these issues, we are
hesitant to decide plaintiffs’ count-two standing. Of course,
 31
we could ask for additional briefing. But that would take time,
and as plaintiffs’ repeated requests for us to expedite this
litigation so that it can be resolved before the November 2011
election indicate, time is of the essence. Given this, and given
that plaintiffs themselves characterize count two as a fallback
position, see Oral Arg. Tr. at 13:2–4, 15:11–15
(characterizing count two as an “alternative claim[]” that
plaintiffs brought in case they lose on count one), we are
reluctant to consume precious time resolving plaintiffs’
standing to bring count two—time the district court could
instead devote to considering the merits of plaintiffs’ principal
argument, asserted in count one, that Congress’s 2006
reauthorization of section 5 exceeded its Fourteenth and
Fifteenth Amendment enforcement powers.

Therefore, exercising our discretion to decline to reach
issues neither addressed by the district court nor adequately
briefed on appeal, we shall vacate the district court’s
dismissal of count two and remand so that court may, in the
first instance, consider the issues we have identified with
respect to that count while also addressing the merits of count
one. See Int’l Union, United Auto., Aerospace & Agric.
Implement Workers of Am. v. Brock, 783 F.2d 237, 251 (D.C.
Cir. 1986) (noting that federal appellate courts have discretion
to remand “purely legal” issues unaddressed by the district
court and inadequately briefed on appeal). In doing so, we
emphasize that nothing in this opinion should be read as
expressing definitive views about how the questions we have
posed should be answered. Moreover, we recognize that
plaintiffs’ assertion of standing with respect to count two
might raise other issues beyond those we have identified. That
said, we expect that by addressing the questions we have
raised, the parties will help the district court, and ultimately
this court, (1) identify the precise theories on which plaintiffs
rely in support of their count-two standing, and (2) understand
 32
how those theories relate to existing precedent and what
implications the theories might have for future cases.

IV.
For the foregoing reasons, we reverse the district court’s
dismissal of count one, vacate its dismissal of count two, and
remand for further proceedings consistent with this opinion.

So ordered.