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Riley v. Kennedy (07-77)

Oral argument: March 24, 2008

Appealed from: U.S. District Court for the Middle District of Alabama (May 1, 2007)

VOTING RIGHTS ACT, PRECLEARANCE, STATE LAW, FEDERALISM, ELECTIONS, GOVERNOR APPOINTMENTS, DISCRIMINATION, DISENFRANCHISEMENT

Throughout the early and mid 1900s, states such as Alabama discriminated against minorities by effectively denying them the right to vote. In response, Congress passed the Voting Rights Act, which required these states to receive approval from the federal government before changing their voting laws. In 1985 and again in 2004, the U.S. Department of Justice approved Alabama laws providing for special elections rather than appointments to the Mobile County Commission, which governs Mobile County, Alabama. The Supreme Court of Alabama found the 1985 law unconstitutional and the 2004 law inapplicable, so the governor continued to appoint Mobile County Commissioners. The U.S. Supreme Court will consider whether the Alabama court’s decisions changed state voting rules and thus needed approval by the federal government. This case could affect the future of the Voting Rights Act and determine the proper level of oversight by the U.S. Department of Justice over state court decisions regarding voting.

Questions presented

1. Whether the decision of a covered jurisdiction’s highest court that a precleared State law is unconstitutional and, thereby, invalid as a matter of State law is a change that affects voting that must be precleared before it can be enforced.

2. Whether the preclearance of a trial court’s ruling that affects voting while that ruling is on appeal and subject to possible reversal establishes a baseline such that the reversal of that decision is a change that must be precleared before it may be enforced.

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Issue

Under the Voting Rights Act, states such as Alabama must obtain federal preclearance for changes in state voting rules. Federal preclearance must come from either the U.S. Department of Justice or the U.S. District Court for the District of Columbia. Congress imposed the preclearance requirement to ensure that changes in state voting rules would not have a negative effect on the voting rights of minorities. When the Supreme Court of Alabama examined precleared voting rules and found them invalid on the basis of state law, did the State of Alabama need federal preclearance before striking these rules down? 

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Facts

After the Fifteenth Amendment prohibited states from interfering with the right to vote, many southern states intentionally passed laws to indirectly discriminate against African-American voters. See Brief for the NAACP as Amicus for Appellees at 16; Brief for Appellees at 4. For example, in the early twentieth century, Alabama required voters to be literate even though it knew that most African-Americans could not read. See id. In an effort to prevent such indirect discrimination, Congress enacted Section 5 of the Voting Rights Act (“VRA”) in 1965. See Brief for Project on Fair Representation as Amicus for Petitioner at 2. Under Section 5 of the VRA, states with a history of unlawful discrimination cannot change their voting rules without obtaining approval, or “preclearance,” from the U.S. Attorney General or the U.S. District Court for the District of Columbia. See U.S. Department of Justice: About Section 5 of the Voting Rights Act. This case originated in Alabama, a state subject to the VRA preclearance requirement. See Riley v. Kennedy, 445 F. Supp.2d 1333, 1335 (2006).

In Alabama, a county commission governs each county. See Brief for Appellees at 8. Since 1868, Alabama state law has generally authorized the Governor to appoint county commissioners without holding elections. See Brief for Petitioner at 6. In 1985, the Alabama Legislature passed Act No. 85-237, which limited the Governor’s right to appoint the three Mobile County commissioners and, instead, allowed Mobile County residents to choose commissioners through special elections. See id. at 7; January 8, 2007 Letter from the U.S. Attorney General. The U.S. Attorney General precleared Act No. 85-237. See id. at 1334–35. However, in Stokes v. Noonan, the Alabama Supreme Court held that Act No. 85-237 conflicted with the general state law and thus violated the Alabama Constitution. See 534 So.2d 237 (Ala. 1988). Stokes v. Noonan thus invalidated Act No. 85-237, and restored the Governor’s power to appoint Mobile County commissioners. See Riley v. Kennedy, 445 F. Supp.2d at 1335. Alabama did not submit the court’s decision and the resulting appointment system for preclearance. See id.

The issue of electing county commissioners did not arise again until 2004, when the Alabama Legislature passed Act No. 2004-455, which amended the general state law to allow for acts such as the one passed in 1985. See id. The U.S. Attorney General again granted preclearance. See id. When a vacancy on the Mobile County Commission arose in 2005, three African-American residents petitioned the Alabama courts to permit a special election under the 1985 law. See Jurisdictional Statement at 3. The Alabama Supreme Court, however, held that the act from 2004 did not revive the 1985 law pertaining to Mobile County. See Riley v. Kennedy, 928 So.2d 1013 (Ala.2005).  Therefore, the court reaffirmed the Governor’s power to appoint Mobile County commissioners. See id. Once again, Alabama did not submit this decision for preclearance. See Riley v. Kennedy, 445 F.Supp.2d at 1335.

Alabama’s Governor then appointed Juan Chastang to the Mobile County Commission. See Motion to Dismiss or Affirm at 5. The same residents who lost in Alabama’s Supreme Court filed the current suit in the U.S. District Court for the Middle District of Alabama to prevent Chastang from taking office until the Alabama Supreme Court’s decision received preclearance. See id. The District Court held for the legislators, reasoning that the Alabama Supreme Court’s decision and resulting appointment system required preclearance before the governor could appoint Chastang. See Riley v. Kennedy, 445 F. Supp.2d. The court granted Alabama 90 days to obtain preclearance. See id. at 1337. The U.S. Department of Justice denied preclearance, however, and on May 1, 2007 the District Court removed Chastang from his position. See Motion to Dismiss or Affirm at 8.

The Alabama Legislature passed a new law mandating elections for Mobile County Commissioners, and Mobile County residents elected Merceria Ludgood to the vacant seat. See id. Governor Riley continues to argue that his appointment of Juan Chastang was valid and that the District Court wrongfully removed Chastang from the Mobile County Commission. See Brief for Petitioner at 12. Governor Riley appealed the District Court’s decision to the U.S. Supreme Court, but the residents who filed this claim argue that his appeal came too late. See Brief for Appellees at 24.

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Discussion

Although states no longer engage in such flagrant discrimination practices as the Alabama literacy test, the American Civil Liberties Union (“ACLU”) claims that voter discrimination still occurs regularly. See VotingRights.org: ACLU Applauds Introduction of Voting Rights Act Reauthorization Legislation. According to the ACLU, there have been hundreds of lawsuits over intentional voter discrimination in the past five years, and therefore there is still a need for the Voting Rights Act. See id. The Project on Fair Representation disagrees, arguing that states have “broken free of their discriminatory past,” and therefore the Voting Rights Act is unnecessary. See Brief for Project on Fair Representation as Amicus for Petitioner. Congress agreed with the ACLU, and renewed the Voting Rights Act and its preclearance requirement for the next 25 years. See VotingRights.org: ACLU Applauds as President Bush Signs Reauthorization;Brief for Florida et al. as Amicus for Petitioner at 14.

The U.S. Department of Justice implied that preclearance is still appropriate for situations similar to this case. Over 34% of Mobile County and 62% of voters in Mobile County District 1 are African-American. See Brief for Appellees at 8; January 8, 2007 Letter from the U.S. Attorney General. But statewide, Alabama has a vastly different racial balance and voter choices. See January 8, 2007 Letter from the U.S. Attorney General. Therefore, Alabama’s governor would likely appoint someone to the Mobile County Commission whom Mobile County voters would not elect. See id. Indeed, in the 2007 Mobile County Commission election, 80% of Mobile County supported Democratic candidate Merceria Ludgood over the Governor’s Republican appointee, Juan Chastang. See Motion to Dismiss or Affirm at 8. Kennedy et al. agree with the Department of Justice and point out that laws authorizing the Governor to appoint county commissioners have a long history of racism, as they were first enacted to prevent counties with many African-American voters from electing liberal representatives to County Commissions. See Brief for Appellees at 9. Congress intended the Voting Rights Act to counter similar indirect discrimination. See Brief for Project on Fair Representation as Amicus for Petitioner at 2.

The Voting Rights preclearance requirement applies at least partially to sixteen states: Alabama, Alaska, Arizona, California, Florida, Georgia, Louisiana, Michigan, Mississippi, New Hampshire, New York, North Carolina, South Carolina, South Dakota, Texas and Virginia. See Brief for Florida et al. as Amicus for Petitioner at 1. The preclearance requirement currently applies to actions by state legislatures and executive officials but not to state court decisions. See Brief of Former State Court Justices as Amicus for Petitioner at 4. This case could change that general rule if the Supreme Court holds that state court decisions affecting voting must be precleared. 

Kennedy et al. argue that the Voting Rights Act preclearance requirement should apply to decisions by state courts which alter voting laws, as they claim the Alabama Supreme Court’s decision in Riley v. Kennedy, 928 So.2d 1013 (Ala.2005) did. See Brief for Appellees. Governor Riley claims that the requirement should not apply to state court decisions and that the Alabama Supreme Court decision did not change the voting laws, but rather maintained the status quo. See Brief for Petitioner.

The National Association for the Advancement of Colored People (“NAACP”) claims that unless the preclearance requirement applies to state court decisions, states will be able to evade the Voting Rights Act requirements. See Brief for the NAACP as Amicus for Appellees at 3. The NAACP points to cases through the 1960s in which Alabama courts interfered with minority voting rights, and it argues that such discrimination could continue. See id. at 10–21.

A number of states claim that if the preclearance requirement applies to state courts, it will negatively affect state resources and the judicial process. See Brief for Florida et al. as Amicus for Petitioner. They point out that states must already devote substantial time and resources to justifying changes in voting laws. See id. at 8. If they had to justify court decisions as well as legislative and executive actions, compliance with the Voting Rights Act would cost the state even more than it already does and deplete public resources. See id. Every court interpretation of a statute affecting voting could be subject to the preclearance requirement. See id. at 13. Furthermore, these states worry that the preclearance requirement will be retroactive and states will have to justify past as well as future court decisions. See id. at 14.

Unlike legislators, judges cannot refine their decisions until the Department of Justice accepts them. See id. at 18. If court decisions were subject to the preclearance requirement, judges would have to negotiate with federal officials over their decisions, clogging the courts. See id. Similarly, the states supporting Governor Riley also worry that state court judges would feel pressure to make decisions based on what the U.S. Justice Department would approve rather than on the state law requires. See id. While this could lead to less discriminatory voting laws, it could upset the judicial process by forcing judges to violate other laws in order to reach the desired result. For example, the Stokes v. Noonan court might have approved an unconstitutional statute and rendered the Alabama Constitution less meaningful merely because the Department of Justice would not approve a return to the system of Governor appointments.

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Analysis

At issue is whether a state needs federal preclearance under the Voting Rights Act before it can strike down changes in state voting rules that had federal preclearance but were held invalid by the highest court of the state. According to Governor Riley, Alabama did not need federal preclearance to revoke such changes because they were actually void from the start as a matter of state law. Brief for Petitioner at 23. According to the Alabama legislators who brought this case, Alabama needed federal preclearance to repeal those changes because once they won federal preclearance, they became part of the “baseline” against which any subsequent changes had to be compared under the Voting Rights Act. Brief for Appellees at 22.

When Congress passed the Voting Rights Act in 1965, Alabama’s governor had the authority to appoint county commissioners without holding elections. Brief for Petitioner at 6. In 1985, the Alabama Legislature passed an act allowing for special elections of Mobile County Commissioners. Brief for Appellees at 11. The U.S. Department of Justice (DOJ) precleared this act under the Voting Rights Act, but in Stokes v. Noonan the Alabama Supreme Court found the act invalid as a matter of general state law. Brief for Petitioner at 7. In 2004, Alabama’s legislature amended the general state law to allow for acts such as the one from 1985. Id. at 7. An Alabama trial court held that the 2004 amendment revived the special elections act from 1985, and the DOJ again precleared special elections. Id. at 8. In Riley v. Kennedy, however, the Alabama Supreme Court found that the 2004 amendment could not retroactively revive an act from 1985. Id. at 8-9.

In sum, the Alabama Supreme Court has issued two decisions upholding the governor’s authority to appoint Mobile County commissioners. Yet since the DOJ never precleared these decisions, Kennedy et al. argue that the Voting Rights Act still requires Mobile County Commissioners to be selected through elections. Brief for Appellees at 33. The U.S. District Court for the Middle District of Alabama agreed with Kennedy et al., and held that special elections should proceed unless Governor Riley obtained DOJ preclearance for the two decisions of the Alabama Supreme Court. Id. at 18. The DOJ refused to preclear those decisions, however, on grounds that governor appointments of Mobile County commissioners could disenfranchise black voters. Id. at 18-19. Governor Riley then appealed from the district court’s order straight to the U.S. Supreme Court. Brief for Petitioner at 12; see also 42 U.S.C. § 1973c(a).

Did Alabama Need Federal Preclearance to Enforce Two Decisions From its Highest Court?

Governor Riley argues that when the DOJ precleared changes that turned out to be invalid under Alabama law, the state did not need the DOJ’s permission to revoke those changes and return to prior practice. Brief for Petitioner at 14. Riley quotes from Section 5 of the Voting Rights Act: “Whenever a State . . . shall enact . . . [a] procedure with respect to voting different from that in force or effect on November 1, 1964 . . . [the procedure will need federal preclearance].” Id. at 26, quoting 42 U.S.C. § 1973c(a). Riley points out that when Alabama’s Supreme Court ordered a return to the prior practice of governor appointments, it actually reinstated a procedure that was in effect November 1, 1964. Id. Thus, Riley concludes that Alabama’s return to prior practice was not the sort of change that required DOJ preclearance. Id.

Kennedy et al. argue that the Alabama Supreme Court’s decisions required preclearance because they represented departures from previously precleared voting rules. Brief for Appellees at 33. According to Kennedy et al., Section 5 was designed to stop a cycle in which federal courts struck down unconstitutional laws only to see some states come up with new ways to disenfranchise minority voters. Id. at 4. Since racially motivated laws may be worded in neutral terms, Congress instructed the Attorney General to check every rule change in certain states for its effect on minorities’ right to vote. Id. at 7. Thus, Kennedy et al. interpret Section 5 to require federal preclearance for all changes in electoral law—even if those changes bring back the electoral rules of 1964. Id. at 35, 45. Kennedy et al. quote from Young v. Fordice: “[D]ifferences [in electoral law] once precleared . . . become part of the baseline standard for purposes of determining whether a State [is trying to install rules that would disenfranchise minority voters].” Id. at 45; 520 U.S. 273, 281 (1997). For Kennedy et al., once the DOJ precleared elections for county commissioners, a return to the old system of governor appointments needed DOJ preclearance to ensure that it would not disenfranchise minority voters. Id. at 45.

Would the Preclearance Requirement Violate Principles of Judicial Review and Federalism if Applied to State Courts?

Riley also argues that preclearance under Section 5 cannot nullify the power of state courts to conduct judicial review. Brief for Petitioner at 27. Quoting from Section 5, Riley insists that precleared voting rules still have to be valid under state law before they can be considered good law: “[Neither administrative or judicial preclearance] shall bar a subsequent action to enjoin enforcement of such . . . procedure.” Id. at 28, quoting 42 U.S.C. § 1973c(a). Quoting from the DOJ’s own regulations, Riley adds: “The preclearance . . . of a voting change does not constitute the certification that the voting change satisfies any other requirement of the law beyond that of Section 5 . . . .” Id. at 28, quoting 28 C.F.R. § 51.49. Relying on the idea of federalism, Riley concludes that the district court erred by ignoring the legality of the 1985 act under state law and recognizing it as the baseline against which subsequent changes had to be measured. Id. at 27.

Responding to Governor Riley’s argument about federalism, Kennedy et al. insist that courts are not exempt from federal preclearance just because they claim to rely on state law. Brief for Appellees at 41. They point out that Alabama’s Supreme Court historically participated in the disenfranchisement of minority voters right along with Alabama’s lawmakers and governors. Id. at 5. For instance, when Alabama enacted a literacy test for voters, Alabama’s Supreme Court drafted the questions and even updated them when civil rights organizations started helping minorities pass the test. Id. Kennedy et al. thus conclude that when a court purports to cancel elections that had DOJ preclearance and lets the governor appoint public officials, its order cannot be enforced without the approval of the DOJ. See id. Quoting from Allen v. State Board of Elections, Kennedy et al. write: “when the selection of ‘an important county officer’ is ‘made appointive instead of elective’ the ‘power of a citizen’s vote is affected.’” Id. at 33. In sum, Kennedy et al. insist that even if the Alabama Supreme Court did not intentionally seek to disenfranchise black voters, it is the DOJ’s duty to check if its decisions might nevertheless affect the rights of minority voters to participate in democratic politics. Id. at 34.

Did Governor Riley Wait Too Long Before Appealing?

The parties also dispute whether the U.S. Supreme Court has jurisdiction over this case. According to Kennedy et al., Governor Riley waited too long before appealing the district court’s judgment: “The three-judge [district] court issued its final judgment on August 18, 2006, but Governor Riley did not file his appeal until May 18, 2007, far outside the sixty-day jurisdictional time limit for appeals set by 28 U.S.C. § 2101(b).” Brief for Appellees at 23. Governor Riley responds that the district court’s order from August 2006 was not really a final judgment: “That order declared that [the Alabama Supreme Court decisions] required § 5 preclearance, but it declined to enjoin enforcement of those decisions pending preclearance or to enter any other remedy.” Brief for Petitioner at 13. Governor Riley argues that while he could have appealed from the August 2006 order, he had every right to appeal only after the district court actually invalidated his appointment of a county commissioner on May 1, 2007. Id. at 17, 21. Thus, Governor Riley concludes that only eighteen days passed between the district court’s final judgment and his appeal to the U.S. Supreme Court. See Brief for Petitioner at 12. 

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Conclusion

The Supreme Court’s decision will most likely define the proper balance between federal preclearance of state voting rules under the Voting Rights Act and states’ rights to strike down those rules if they violate state law. A win for Governor Riley would mean that the highest court in the state can examine voting rules that had federal preclearance, find them invalid under state law, and strike them down without obtaining permission from the U.S. Department of Justice. A win for Kennedy and the other plaintiffs would mean that the highest court in the state needs federal permission before it can strike down such rules. If the Supreme Court dismisses the case on jurisdictional grounds, however, it would leave the underlying dispute unsettled for purposes of U.S. law. In that case, Governor Riley would lose on procedural grounds but this case could not be cited as mandatory precedent in similar disputes. 

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Authors

Prepared by: Allison Condon & Michael Litvin

Edited by: Tim Birnbaum

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Additional Sources

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