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CA9Doc 291

CA9Doc 291

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Published by Kathleen Perrin
City and County of San Francisco citation of supplemental authorities - citing holding in LaRoque v. Holder from the U.S. District Court for the District of Columbia (copy attached). Filed 12/28/2010
City and County of San Francisco citation of supplemental authorities - citing holding in LaRoque v. Holder from the U.S. District Court for the District of Columbia (copy attached). Filed 12/28/2010

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Published by: Kathleen Perrin on Dec 29, 2010
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C
ITY AND
C
OUNTY OF
S
AN
F
RANCISCO
O
FFICE OF THE
C
ITY
A
TTORNEY
 
D
ENNIS
J.
 
H
ERRERA
 City Attorney
 
T
HERESE
M.
 
S
TEWART
 C
HIEF
D
EPUTY
C
ITY
A
TTORNEY
 
Direct Dial: (415) 554-4708Email: therese.stewart@sfgov.org
C
ITY
H
ALL
,
ROOM
234,
 
O
NE
D
R
.
 
C
ARLTON
B.
 
G
OODLETT
P
LACE
,
 
S
AN
F
RANCISCO
,
 
C
ALIFORNIA
94102-5408R
ECEPTION
:
 
(415)
 
554-4708
 
·
 
Electronically Filed
December 28, 2010Molly C. DwyerClerk of CourtUnited States Court of Appeals for the Ninth CircuitP.O. Box 193939San Francisco, CA 94119-3939Re:
Perry v. Schwarzenegger 
, Case No. 10-16696Argued December 6, 2010 Dear Ms. Dwyer:Pursuant to Fed. R. App. P. 28(j), appellee and plaintiff-intervenor City and County of San Francisco submits this letter advising the Court of a memorandum opinion issued onDecember 20, 2010, in
 LaRoque v. Holder 
, Civ. Action No. 10-0561 (JDB), U.S. District Courtfor the District of Columbia, a copy of which is attached.
 LaRoque
holds that the proponents of a referendum establishing a nonpartisan municipalelectoral system lack standing to challenge the United States Attorney General's decision not topreclear the electoral system pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c.At pages 20-27,
 LaRoque
offers a thorough discussion of referendum/initiative proponentstanding. It rejects proponents' argument that they have standing as quasi-legislators, noting themajority view that initiative proponents do not suffer an Article III injury-in-fact when initiativesthey have supported are nullified. Mem. Op. at 24-27 (citing
 Nolles v. State Comm. for the Reorg. of Sch. Dists.
524 F.3d 892, 989 (8th Cir. 2008) and
Providence Baptist Church v. Hillandale Comm., Ltd.
, 425 F.3d 309, 318 (6th Cir. 2005)).
 LaRoque
demonstrates that theProposition 8 Proponents are incorrect to claim, as they do at pages 22-24 of their opening brief,that California's laws securing the right to propose and vote for initiatives created in them aparticularized interest that is injured by a judicial order invalidating Proposition 8. TheProposition 8 Proponents share the same injury as the referendum proponents in
 LaRoque
and
Providence Baptist Church
, each of whom had state-created rights to propose initiatives but noneof whom had Article III standing when the measures they supported were nullified.Very truly yours,DENNIS J. HERRERACity Attorney /s/ THERESE M. STEWARTChief Deputy City Attorney
Case: 10-16696 12/28/2010 Page: 1 of 1 ID: 7594414 DktEntry: 291-1
 
UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIASTEPHEN LAROQUE, et al.Plaintiffs,v.Civil Action No. 10-0561 (JDB)ERIC H. HOLDER, Jr., in his officialcapacity as Attorney General of the UnitedStates,Defendant.MEMORANDUM OPINION
Plaintiffs, five private citizens and a private membership association, filed this actionchallenging the constitutionality of Section 5 of the Voting Rights Act ("Section 5"), see 42U.S.C. § 1973c, both facially and as applied to the Attorney General's refusal under Section 5 to"preclear" a proposed amendment to the Kinston, North Carolina city charter. The amendment,adopted by Kinston voters in a November 2008 referendum, would have replaced the city'scurrent electoral system -- in which candidates for mayor or city council must either be winnersof party primaries or unaffiliated persons who obtain a sufficient number of signatures -- with anonpartisan system, in which anyone may run for local political office and no candidate isaffiliated with any political party on the ballot. See Compl. ¶¶ 1, 14-15. Pursuant to Section 5,Kinston submitted its proposed voting change to the Attorney General, who interposed anobjection to the change on the ground that the "elimination of party affiliation on the ballot willlikely reduce the ability of blacks to elect candidates of choice." See id. ¶ 19. On November 16,2009, the Kinston City Council voted not to seek administrative reconsideration of the Attorney-1-
Case: 10-16696 12/28/2010 Page: 1 of 53 ID: 7594414 DktEntry: 291-2
 
General's objection or a declaratory judgment from this Court authorizing the proposed electoralchange. See Def.'s Mem. in Supp. of Def.'s Mot. to Dismiss ("Def.'s Mem.") [Docket Entry 11],Ex. 1, Kinston City Council Meeting Minutes, at 19. Plaintiffs filed this action on April 7, 2010,arguing that Section 5 unconstitutionally exceeds Congress's enforcement authority under theFourteenth and Fifteenth Amendments and that Section 5, as amended in 2006, violates thenondiscrimination guarantees of the Fifth, Fourteenth and Fifteenth Amendments. See id. ¶¶ 1,33-34, 36. Now before the Court is defendant's motion to dismiss, which argues that plaintiffslack standing and that there is no cause of action for private persons to challenge theconstitutionality of Section 5 as applied to the Attorney General's objection to a jurisdiction'sproposed electoral change. See Def.'s Mem. at 1. For the reasons explained below, the Courtwill grant defendant's motion to dismiss.
1
BACKGROUND
The Voting Rights Act of 1965 "was designed by Congress to banish the blight of racialdiscrimination in voting." South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966). Toeffectuate this purpose, Section 5 prohibits certain covered jurisdictions, where votingdiscrimination has historically been the "most flagrant," see id. at 315, from making any changesto their voting practices or procedures unless those changes are first "submitted to and approvedby a three-judge Federal District Court in Washington, D.C., or the Attorney General." See Nw.
1
On December 16, 2010, in order to avoid unnecessary work by counsel on briefs dueDecember 21, the Court issued an Order granting defendant's motion and dismissing the case.See Order [Docket Entry 41] at 1. This Memorandum Opinion explains the basis for that Order.A parallel challenge to the constitutionality of Section 5, brought by a covered jurisdiction,remains pending before this Court. See Shelby Cnty. v. Holder, 1:10-cv-00651 (JDB) (D.D.C.filed Apr. 27, 2010). A hearing on the merits of that challenge is set for February 2, 2011.-2-
Case: 10-16696 12/28/2010 Page: 2 of 53 ID: 7594414 DktEntry: 291-2

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