Riley v. Kennedy

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Authorship: Thomas Chandler Haymore, a student at Stanford Law School

Contents

[edit] Briefs and Documents

Docket: 07-77

Argument Transcript

Issue: Whether states subject to Voting Rights Act pre-clearance requirements must receive Justice Department approval before implementing decisions of its highest court striking down previously pre-cleared state laws. (Disclosure: Akin Gump represents the respondent.)

[edit] Pre-grant

[edit] Post-grant

Amicus briefs

[edit] Pre-Argument Articles

[edit] Argument Preview

When a state’s highest court relies on the state constitution to invalidate a state law, and the state is subject to Section 5 of the Voting Rights Act, do the court’s actions constitute a “change” that triggers Section 5’s preclearance requirements? Does the preclearance of a trial court’s ruling that affects voting set a new baseline for measuring future voting-related changes under Section 5 if that court’s ruling is in the process of being appealed?

On March 24, 2008, the Supreme Court will consider these questions in No. 07-77, Riley v. Kennedy, a case that will determine whether the Governor of Alabama had the right to fill a vacancy on the Mobile County Commission by appointment, or whether that vacancy must instead be filled through a special election.

[edit] Background

Section 5 of the Voting Rights Act of 1965 prohibits certain “covered” jurisdictions, including Alabama, from “enact[ing] or seek[ing] to administer” a change to “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” unless that change is first precleared by either the U.S. District Court for the District of Columbia or the Attorney General of the United States. Preclearance will be granted only if the covered jurisdiction can show (as relevant here) that the proposed change “neither has the purpose nor will have the effect of denying or abiding the right to vote on account of race or color.” '

This Section 5 litigation centers around two decisions of the Supreme Court of Alabama, Stokes v. Noonan (1988), and Riley v. Kennedy (2005), dealing with the method used to fill vacancies on the Mobile County Commission. The first, Stokes, invalidated a local law (Act 85-237) that had established special elections for filling vacancies on the county commission on the ground that it conflicted with a general law on the same topic, which is prohibited by the Alabama constitution. Local laws, though passed by the entire state legislature, apply only to one county, and under § 105 of the Alabama Constitution cannot conflict with general laws with state-wide applicability. Nearly two decades later, the Alabama legislature enacted Act 2004-455, which allowed local laws to specify means of filling vacancies separate from those specified by the general law. Both acts were precleared by the U.S. Department of Justice. However, when a seat on the Mobile County Commission opened up in 2005, Governor Bob Riley announced that he intended to exercise his power to appoint a commissioner to fill the vacancy. Three state legislators (Yvonne Kennedy, James Buskey & William Clark—also the plaintiffs in this case) filed suit in a state trial court, which agreed with them and ordered a special election. On appeal, however, the Alabama Supreme Court held that Act 2004-455 acted only prospectively and therefore did not rehabilitate Act 85-237, and vacancies would still be filled by gubernatorial appointment. Governor Riley appointed Juan Chastang to the Mobile County Commission.

In response to the Alabama Supreme Court’s ruling and the Governor’s subsequent appointment of Chastang, in November 2005 Kennedy et al. brought suit in the U.S. District Court for the Middle District of Alabama, seeking both an injunction prohibiting the appointment and a declaratory judgment that, without preclearance from DOJ, the Governor lacked the power to make an appointment. The three-judge district court held that both the Stokes and Riley decisions required preclearance to be enforceable, and that without preclearance the vacancy would be filled using the most recent practice to receive preclearance – here, a special election. The court gave the State an opportunity to submit those decisions for preclearance, which it did, but the DOJ rejected both the State’s request for preclearance and its subsequent request for reconsideration. At the request of appellees Kennedy et al., the district court vacated Chastang’s appointment. The court also ordered a special election, which was held on October 9, 2007 and resulted in the election of Merceria Ludgood to the Commission. Governor Riley appealed directly to the Supreme Court, as allowed by 42 U.S.C. 1973c(a).

[edit] Jurisdictional Statement and Motion to Dismiss or Affirm

Riley’s Jurisdictional Statement relied on three main arguments. First, he contended that the district court’s decision “that the validity of State law is irrelevant” is contrary to the Supreme Court’s 1997 decision in Abrams v. Johnson. Just as Abrams held that an unconstitutional redistricting plan cannot become a § 5 baseline (against which to measure future changes in voting practices), the election law invalidated in Stokes cannot be used as a § 5 baseline. Furthermore, given the “short-lived” nature of Act 85-237 it could not establish a new § 5 baseline, as the Court held for a provisional voting plan in Young v. Fordice (1997).

Second, Riley argued that preclearance from the Attorney General should not serve to “preserv[e] in amber a State action that was not final and immuniz[e] it from reversal before finality.” The Department of Justice precleared a special election schedule based on the state trial court decision that the Department knew was not final, and which was in fact later reversed by the state supreme court. Riley distinguished Perkins v. Matthews (1971), explaining that in that case the political subunit under consideration had deviated from state law without a court order instructing it to do so, and that the case dealt with a change from the practice in place as of the coverage date.

Finally, Riley raised both constitutional and workability concerns. First, he claimed that the “Department of Justice has made State law and effectively commandeered State officials.” Additionally, the district court’s decision highlights how preclearance can be given before the issue is sufficiently ripe to adequately consider constitutional challenges. The governor concluded with the assertion that Alabama, in the circumstances leading both to Stokes and Riley, had done nothing wrong: in both cases the Governor appointed an African-American to fill the vacancy on the county commission.

Appellees’ Motion to Dismiss or Affirm opens with the argument that because the three-judge district court’s August 18, 2006, ruling that the changes implemented by Stokes and Riley must be precleared was a final judgment, Riley only had sixty days to appeal (under Supreme Court Rule 18.1 and 28 U.S.C. § 2101(b)) and failed to do so. In fact, Riley did not file his notice of appeal until May 18, 2007, nine months after the August 18, 2006, order. That order was final because it “conclusively resolved the merits of the appellees’ complaint, ordered the Governor to obtain preclearance, and directed that its order be entered as the final judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.” Like many earlier cases in which the Court has exercised review, the district court left open the possibility that it would have to order further relief if the State did not obtain preclearance. Furthermore, treating the August 18, 2006, order, and not the May 1, 2007, supplemental order, as final comports with § 5’s overall purpose of resolving election disputes quickly.

Appellees’ substantive argument relies on Allen v. State Bd. of Elections (1969), emphasizing that “for nearly forty years, it has been beyond dispute that converting offices from elected to appointed constitutes a change with respect to voting that requires preclearance under § 5.”

Appellees then sought to rebut each of the Governor’s arguments. First, they clarified that “it is not the court’s decision that must be precleared; rather it is the use of the election practice mandated by the court’s decision that requires preclearance.” They cite Perkins, Branch v. Smith (2003), and Hathorn v. Lovorn (1982), all cases requiring preclearance for changes brought about by state-court decisions, for the proposition that it is immaterial where the impetus for the voting changes originates. Appellees also distinguished Abrams on the grounds that it dealt only with validity under the federal constitution. Treating a plan that is invalid under state law, but not federal law, as a § 5 baseline would not “entrench [the] unconstitutional practices the Voting Rights Act is designed to root out.”

To answer the Governor’s contention that Act 85-237, like the Provisional Plan in Young, was never “in force or effect,” appellees argued that “[t]he voting practice in Young was not “short-lived”—it was never born. Meanwhile, Act 85-237 “was passed by the state legislature, signed into law by the Governor, precleared by the U.S. Attorney General, and actually implemented in the 1987 election.” It is immaterial that the act was later abandoned.

In answer to Riley’s claims that the Department of Justice has commandeered the State, appellees argue that the failure to obtain preclearance and the subsequent requirement to keep an invalid state law on the books “is simply a consequence of § 5’s preclearance requirement and the supremacy of federal law.” (Appellees also noted that § 5 poses fewer federalism concerns because it was enacted pursuant to the Civil War Amendments). Requiring that state elections conform to § 5 is just one example of many valid, regulatory programs that “require[] state compliance.” Appellees further contended that Riley’s position would forestall the establishment of any baselines until a practice has been challenged in state court and upheld, resulting in few valid baselines for § 5 comparison. Riley’s view, taken to its conclusion, would allow States to bootstrap voting changes through the courts or state constitutional amendments without preclearance. Congress would never have included such a “major and obvious loophole.”

[edit] Merits Briefing

Riley’s opening brief on the merits repeated most of the arguments from his jurisdictional statement but greatly expanded on their reasoning. As an initial matter, Riley contended that appellees incorrectly characterized the August 18, 2006, order as a final judgment because the court left the question of remedy open. According to Riley, the plaintiffs sought an injunction in addition to declaratory judgment, and therefore the court’s decision “disposed of none of [their] prayers for relief,” but simply allowed the State time to seek preclearance. And the court’s denomination of its ruling as a final judgment is not dispositive; “merely calling a judgment ‘final’ does not make it so.” Consequently, Riley did not waive his right to appeal by failing to take an interlocutory appeal.

Riley’s substantive argument focused on the argument that § 5 cannot mean “that a state supreme court’s decision invalidating a state statute might be subject to the veto of a federal executive official.” Citing Justice Kennedy’s dissenting opinion in Alaska Department of Environmental Conservation v. EPA, Riley contended that “the Court should at least insist upon a clear instruction from Congress” – which does not exist here – before intruding so heavily into a state’s sovereign sphere.

First, the procedure of gubernatorial appointment is no “different from [the practice] in force or effect on November 1, 1964,” and therefore does not fall under § 5’s reach. The brief characterized as dicta language from Supreme Court precedent suggesting that the § 5 baseline becomes every new, precleared change, and claimed that reversions back to practices as of the coverage date by the “state supreme court’s exercise of judicial review” are so unique as to deserve a “clear textual warrant for the district court’s interpretation.” In addition, the enforceability of a voting practice depends also on its validity under state law. In fact, § 5 and the Department of Justice regulations specifically envision the susceptibility of precleared practices to court challenges.

Second, the historical context – which informs and to some degree defines the scope of § 5’s remedies – shows that Congress was not worried about state-court decisions, but rather about the “cat-and-mouse” game played by agile legislative and executive officials who could stay one step ahead of the federal government. Applying § 5 to the cumbersome court processes “is more square peg, round hole.” Riley concluded that “we have found no indication in the Voting Rights Act’s vast legislative history that Congress ever contemplated §5’s application to ordinary exercises of judicial review.”

Third, Riley argued that the district court’s decision contradicts Supreme Court precedent. Under Abrams, “Section 5 cannot be used to freeze in place” an unconstitutional plan. Analogizing the situation in Abrams to the current legislation, Riley posited that the district court cannot “freeze into place” a voting scheme held to be unconstitutional in Stokes. Appellee’s contention that Abrams referred only to federal constitutionality is of no avail or relevance: “Abrams is clear: A practice authoritatively determined to be ‘unconstitutional’ cannot be ‘fr[ozen] in place as a §5 baseline.’”

Riley also distinguished other Supreme Court precedent relied on by the appellees. Neither Perkins nor City of Lockhart v. United States, both of which determined § 5 baselines regardless of legality under state law, involved “a state supreme court’s authoritative determination of state law” or “whether an unlawful state statute precleared after the statutory coverage date is automatically entitled to §5 baseline status.” Branch, concerning a court-ordered reapportionment plan, does not apply because it did not involve a core judicial-review function. The comment in Hathorn v. Loborn that § 5 applies to state-court decisions is also inapposite because “[i]t makes sense to require §5 preclearance when . . . a state court orders implementation of a practice that was neither part of the coverage-date baseline nor subsequently precleared.” But in the current case there is nothing new that has not already been held valid under § 5: the practice of gubernatorial appointment in place on November 1, 1964.

Riley also argued that subjecting Stokes and Riley to § 5 scrutiny would have harmful policy effects. Citing the Supreme Court’s 2000 decision in Bossier Parish II, he contended that affirming the district court’s reasoning would “exacerbate the ‘substantial’ federalism costs” of § 5 in three ways. First, it would strip the Alabama Supreme Court, the “ultimate expositor” of Alabama law, of “its authority to decide pure state-law questions [and force it], instead, to obtain the federal government’s blessing to exercise that sovereign responsibility.” Second, if the Department of Justice does not preclear a state court’s decision to invalidate a voting law, that state is forced “to keep in place a practice held invalid under state law.” Third, if § 5 really did reach Stokes and Riley, in might not be “congruent and proportional” as required by City of Boerne v. Flores (1997).

Finally, Riley argued that Act 85-237, authorizing special elections to fill a vacancy, was never “in force or effect,” as required by 42 U.S.C. 1973c(a), because it only had “the single election mistakenly conducted under it.”

The opening of the Brief for Appellees tracked the jurisdictional argument from the Motion to Dismiss or Affirm closely. They argued, contrary to Riley, that the district court resolved the only three questions before it (as defined by City of Lockhart): “(i) whether the challenged practice constitutes a change covered by Section 5; (ii) whether preclearance procedures were followed; and (iii) if not, what remedy is appropriate.” As Riley conceded, the court below answered the first two questions. But, appellees argued, it also answered the final question on remedy because this Court in Lopez v. Monterey County (1996) has held that “the appropriate remedy is to enter an order ‘afford[ing] local officials an opportunity to seek federal approval.’” The fact that appellees filed a postjudgment motion for relief “d[id] not revive the time for appealing an underlying final judgment.” The Governor’s position on the nature of the district court’s August 18, 2006, order would significantly delay appellate review and, ironically, encourage district courts to issue more draconian, and thus final, remedies.

Appellees began their substantive argument that changes brought about by state-court decisions are not exempt from § 5 preclearance by emphasizing “that changes from election to appointment remain one of four paradigmatic ‘typologies’ that require preclearance.” They then focused on the “categorical” language of § 5 in using the words “whenever” and “any” in describing that section’s scope. Under Supreme Court precedent, “whenever” has been defined to mean “at any or all times that; in any or every instance which;” “any” is understood to have “an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’” Congress has shown no intention of contradicting this meaning. According to appellees, Riley “reads Section 5 as if ‘whenever’ means ‘sometimes’ and ‘any’ means ‘some.’”

Appellees contended that this categorical language means “that Section 5 requires preclearance whenever a change reflects a covered jurisdiction’s ‘policy choices,’ whatever the source of those choices.” Though Riley argued that the state court decision in Branch was not a “core judicial-review function,” appellees pointed out that Supreme Court precedent has held that crafting a redistricting plan is “an appropriate and well-considered exercise of judicial power” (citing Reynolds v. Sims, 377 U.S. 533 (1964)). Appellees further argue that Hathorn “squarely establishes that the answer to the . . . question [of whether changes brought about by state-court decisions are subject to preclearance] is ‘yes.’” The Department of Justice’s regulations, which are afforded “substantial deference” in interpreting § 5, also support this point: under 28 C.F.R. § 51.35, if a preclearance submission is not within the scope of § 5, then the Attorney General “will make no response on the merits.” In this case, the Department of Justice twice rejected Alabama’s assertion that the change from special election to gubernatorial appointment was not covered by § 5.

Appellees next asserted that neither the Court nor Congress has made the distinction between state judiciaries and other state government organs that Riley tried to make. In fact, the Supreme Court “has recognized that state courts make value choices related to voting practices.” Given the historical role of Alabama state courts in disenfranchising minority citizens, Riley’s reasoning “would . . . open[] a loophole in the statute the size of a mountain.” Appellees also rejected Riley’s contentions that the changes brought about by Stokes and Riley were race-neutral because this “has no bearing on the fact that the change from election to appointment required preclearance.”

The last part of appellees’ brief argued that special election is the appropriate § 5 baseline for comparing voting-related changes. Relying on Perkins, Presley, and Young, appellees contended that “[t]he baseline changes when a jurisdiction implements a new, precleared practice.” Citing Georgia v. Ashcroft (2003), which used a 1997 voting plan as a baseline, appellees asserted that the § 5 baseline is not just the practice “in force or effect” on the coverage date. Again, the Department of Justice’s regulations provide support, holding that “[a]ny change affecting voting, even though it . . . returns to a prior practice or procedure, . . . must meet the Section 5 preclearance requirement.” If Alabama, and by extension all other covered jurisdictions, were allowed to return to the practices in place as of the coverage date without preclearance, “they would be able to erase decades of progress.”

Though Riley claimed that the regulations do not specifically address changes flowing from state-court orders, appellees cited the Federal Register to support their contention that the Department of Justice “clarified § 51.12, Scope of Requirement, to make explicit that a voting change that returns a jurisdiction to a practice that was previously in effect (e.g., to that in use on November 1, 1964) is subject to the preclearance requirement.” Because Act 85-237 was precleared by the Department of Justice and actually put into effect with the election of 1987, it serves as the relevant baseline. Stokes may have rendered Act 85-237 void as a matter of state law, but it cannot change either the fact that an election was held under it or that federal law recognizes it as the baseline. (Appellees later also claimed that gubernatorial appointment cannot serve as the § 5 baseline because that practice had not been precleared).

Appellees concluded by refuting Riley’s policy arguments. Although “Section 5 sometimes constrains state policy choices[, t]he idea that old laws, even if repealed, must be kept in effect until their replacements are precleared [is] a mainstay of Section 5.” Riley’s arguments to the contrary, that Stokes, under the reasoning in Abrams, invalidates Act 85-237 as a baseline, “invert the Supremacy Clause.” While federal law is indifferent to the status of state policy as a court decree or statute, and thus overrides them both equally, state law cannot be indifferent to contradictory federal law. The Alabama Supreme Court’s decision in Stokes cannot change the basic operation of Section 5. If it could, then Alabama, and other jurisdictions, “could circumvent Section 5 altogether by regulating their election processes through state constitutions rather than statutes.”

[edit] Oral Argument Recap

Though this appeal presented two questions to the Court, the first concerning the timeliness of the Governor’s appeal, the justices seemed interested only in the second question: Whether voting-related changes brought about by State court orders are covered by § 5.

Arguing for appellant, Kevin Newsom began his affirmative case by relying on Young, despite the scant attention this case received in his brief, arguing that the Court’s decision in Young precluded application of the § 5 requirements because Act 85-237 was never “in force or effect.” Like the provisional voter registration plan in Young, the special election of 1987 “resulted only from a temporary misapplication of State law and it was immediately corrected upon acknowledgement that it was unlawful in fact.” Had the State trial court correctly interpreted State law, there never would have been an election.

Newsome then confronted several hypothetical situations posed by the justices. First was Justice Kennedy, asking how exactly a trial court takes the need for preclearance into consideration. Newsome clarified that State courts would not issue provisional judgments to be cleared by the federal government; rather the preclearance must come before the changes are implemented by administrative action. In response to a question by Justice Scalia on the types of district cases requiring preclearance, Newsom answered that they do not contend “that a State court ordering redistricting, . . . exercising what is functionally . . . a legislative power” requires preclearance. The point, Newsom contended, is that redistricting cases are qualitatively different from the current case and should be treated differently.

Justice Souter asked whether there had been other State court cases invalidating a State election law that had been subject to preclearance. Though Newsom answered in the negative, Justice Souter was unimpressed: That “answer does not prove much . . . as long as the preclearance review had not preceded the State constitutionality judgment . . . there would be no law” subject to preclearance. Responding next to both Justices Kennedy and Scalia, Newsom argued that even though Act 85-237 had “technically” been in place, according to the Court’s holding in Danforth, the State supreme court had not changed the law by holding that statute unconstitutional—it had merely declared what the law had always been.

Justices Ginsburg, Souter, and Kennedy next hypothesized situations in which preclearance would not be sought because a State court would immediately declare the law unconstitutional. Justice Kennedy pointed out that a Federal court might expressly wait until a statute has received preclearance before ruling on it; in contrast, Justice Scalia posited that the Attorney General might take the opposite track, refusing preclearance until the State courts have reviewed a law. To Justice Scalia, granting preclearance for something in the midst of ongoing litigation (something that Newsom said he was not aware of happening elsewhere) would be “an exercise in futility.” Newsom also reaffirmed that in the instant case, a challenge was brought in State court as soon as possible, when the first vacancy under the new law occurred.

Justice Breyer then pointed out that when Sam Jones was appointed to the Mobile County Commission, that appointment was presumably not made expressly retroactive—further indication that the election had a real, practical effect. In contrast to the current case, “the net practical effect of the [registration plan] in Young v. Fordice, was null, zero, zilch.” Newsom responded that even if the Court disregarded his interpretation of Young, the Court should still carve out an exception for State court exercises of judicial review. Any abuse of that power could be challenged under the Fourteenth and Fifteenth Amendments and § 2 of the Voting Rights Act. Justice Breyer pressed further, asking if appellant had any evidence indicating that it had ever mattered for § 5 purposes whether “the cause of a change in a State plan was a decision of . . . five members of a court . . . or whether it was a legislative decision.” In response, Newsom contended that given the federalism costs of appellees’ position, they should bear the burden, under Bossier Parish II and Georgia v. Ashcroft, of showing “that Congress clearly intended to include” State court decisions within § 5’s reach. In response to Justice Alito’s question as to why the history of discriminatory practices of Alabama state courts does not provide a basis for appellees’ position, Newsom replied in two parts. First, appellees had failed to show any congressional intent to include State court orders. Second, state courts “exercising judicial review are institutionally incapable of changing the law specifically in the way the Congress was concerned about when it enacted § 5.”

Chief Justice Roberts then pressed appellant on why he had not relied more on language in § 5 that technically limits its scope to those changes which deviate from the practice in force or effect as of November 1, 1964. Though Newsom initially suggested that dicta in Presley and Young would be inapposite because a different baseline might apply to legislative and executive changes as compared to judicial orders, he eventually agreed with the Chief Justice that there should only be one baseline. In finishing up his answer to the Chief Justice, Newsom also emphasized what he described as the “savings clause” of § 5, which expressly subjects precleared statutes to suit. This provision shows at least partially “that Congress was thinking about court decisions enjoining existing baselines differently from the way it was thinking about the typical legislative and administrative changes” subject to § 5.

In conclusion, Newsom responded to Justice Ginsburg’s question about what the Governor’s actions would be if he won by answering that it would be the Governor’s option to either confirm the election of Merceria Ludgood or reinstate Juan Chastang.

Arguing for appellees, Pamela Karlan opened argument by pointing out that the Court’s language in Young, borrowing from Perkins and City of Lockhart, established “the general rule . . . that when a law is in force or effect its constitutionality under State law doesn’t matter.” In response to a question by Justice Scalia, Karlan responded that it was unclear if Act 85-237 had been challenged as quickly as possible and that two 2008 Alabama cases, Roper v. Rhodes and Wood v. Booth, held that if a prospective election is not challenged in a timely fashion, the fact that the elected person is not entitled to the office does not, on its own, permit a subsequent challenge.

Justice Ginsburg then challenged Karlan that appellees’ position “locked [Alabama] into a mistake that was made about Alabama law by [a] circuit court.” Karlan disagreed, pointing out that it was not just a circuit court’s mistake; the law actually went into effect. Karlan then answered a few questions on whether, under Alabama law, Act 85-237 had actually been in effect. According to appellant’s trial brief, the Alabama supreme court did not declare the law void ab initio and, furthermore, Alabama law is not entirely clear on when a statute goes into effect. Responding to Justice Kennedy’s question as to the result if the Alabama supreme court had clearly held Act 85-237 void ab initio, Karlan asserted that Perkins and City of Lockhart still hold that as a matter of Federal law the statute would have been “in effect.”

Justice Alito then pressed Karlan on whether state laws that flagrantly violate state constitutions would be “locked in.” Upon answering in the affirmative, Karlan was confronted by several questions from Justice Scalia as to whether § 5 operated to make an otherwise unconstitutional law somehow constitutional under the State constitution. Though disagreeing with the terminology used by Justice Scalia, Karlan characterized § 5 as a “clear, bright-line rule”: States cannot change election practices or laws without obtaining preclearance. Justice Souter proposed that the unconstitutional law did not become a baseline, but rather the State existed in a stalemate with § 5, and had to come up with some solution that would receive preclearance.

Karlan and Justice Kennedy then exchanged hypotheticals concerning jurisdictions who mistakenly adopt illegal or unconstitutional practices, and Karlan affirmed that preclearance would be required. Karlan also pointed out that this is not necessarily a case about judicial review. Given that the State legislature intended Act 2004-215 to cure the constitutional defects of Act 85-237, this was not just an exercise of judicial review by a State supreme court, but rather a straightforward case of statutory interpretation: whether Act 2004-215 was retroactive or proactive. (Karlan acknowledged that her characterization, based upon, inter alia, her clients’ opinions, was at odds with the Alabama supreme court’s decision).

After Justice Ginsburg pointed out that at bottom this case was about “a review of a lower court by a higher court,” Karlan responded that Hathorn and Branch, both likewise involving review of lower courts by higher courts, require ruling for the appellees in this case.

At this point the Chief Justice returned to the same line of questioning that he had entered upon with Newsom: “Why did Alabama have to preclear anything . . . [Since this was] not a change from what was . . . ‘in force or effect’ on November 1st, 1964[?]” The Chief Justice pointedly rejected Karlan’s reliance on the Court’s prior holdings, terming them dicta. Karlan then turned to the argument that the Governor was not in fact trying to return to the practice of November 1, 1964, since following the 1977 Federal district court case Brown v. Moore, Mobile County switched from at-large to districted elections. According to Karlan, the appellant “want[s] to go back to the 1977 to 1985 practice.” The Chief Justice agreed with appellees on their characterization of the DOJ regulations and the House report, but asked how this “squar[ed] with the statutory language.” In response, and in concluding her argument, Karlan pointed out how the Court has recognized other features of § 5 that are not strictly provided for in the text. For example, Allen provided for private rights of action. Though Congress has not changed the text of § 5, it has implicitly adopted these and the other Court decisions through subsequent reauthorizations.

Arguing on behalf of the United States, Assistant to the Solicitor General Kannon Shanmugam faced a question by Justice Scalia as to whether counsel had “any problem with the republican form of government provision in the Constitution.” Counsel replied “Absolutely not.” Shanmugam disagreed with Justice Scalia that § 5 was imposing upon the voters of Alabama something they had never chosen, characterizing the current case as one in which the people of Alabama had adopted a law that did go into effect, even if it were later held to be invalid.

Shanmugam agreed with Justice Ginsburg that the only reason that this change required preclearance is because an Alabama circuit court incorrectly interpreted State law, and thus an election was actually held, regardless of its invalidity. Shanmugam also conceded to the Chief Justice and Justice Kennedy that if, hypothetically speaking, a State court decided to postpone deciding a case until after an election was held, and if that election were precleared and held, then any contrary holding by a later court would require preclearance.

Justice Breyer then asked what “harm does it do to the enforcement of the civil rights laws of the United States if the holding of this Court were where [an election law or plan] was challenged immediately . . . it never took force or effect?” Shanmugam answered that first, under the governing precedent of Young, the special election mandated under Act 85-237 was “in force or effect,” and second, that City of Lockhart and Perkins establish that the validity of the practice under state law is immaterial if the practice was actually “in force or effect.”

The Chief Justice followed up by asking if Shanmugam had “anything to add to [appellee’s] response to my quaint fixation on the language of the statute?” While conceding that a formal textual argument could be made that § 5 allows reversion to the practice in effect on November 1, 1964, Shanmugam countered that the question was not properly before the Court. In addition, this interpretation runs counter to the decisions of the lower courts, as well as to the DOJ’s regulations, which the Court has held are due substantial deference.

At the opening of appellant’s rebuttal time, Justice Stevens posed the question of whether the language emphasized by the Chief Justice gave a covered jurisdiction a “safe harbor” for adopting voting changes. Newsom replied that, under the Court’s dicta, it would not do so for legislative and executive changes, but proposed that the instant case was of a different kind and might therefore fall under a different rule. Newsom also disagreed with appellees that the change from at-large to districted elections in 1977 meant that the Governor was trying to return Alabama to a 1977 practice, not a 1964 practice.

Newsom also characterized and emphasized the Federal district court’s decision below as requiring preclearance of Stokes and Riley themselves, not just their implementation. This, Newsom claimed, is an “extraordinary change of the traditional course of relations between the states and Federal Government.” Though authorized by § 5, the legislative history of that section deals with legislative and executive actions. The instant case deals with neither and this “extraordinary departure” should not be expanded to include State court’s exercise of judicial review.

In conclusion, Justice Souter pressed Appellant on “[w]hy as a matter of federalism is it more extraordinary to review a court determination than the determination of a popularly elected legislature?” Appellant responded with two points. First, such a rule would cover a lot more changes. Second, there is also a qualitative difference, considering that state courts, as federal courts, do not change law but determine what it is.

[edit] Opinion Analysis

With a “preclearance” mechanism requiring Justice Department approval before a state may “enact or seek to administer” any changes in “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting,” Section 5 of the Voting Rights Act has generated its fair share of public debate and legal challenge. In a carefully worded and consciously narrow opinion, the Court this week in Riley v. Kennedy, by a 7-2 vote, carved out an exemption from § 5 coverage, although the technicalities of the fact-specific ruling limit the reach of the opinion.

Understanding the Court’s holding requires a refresher of the background of the case, already outlined above, but reproduced in brief in this paragraph. Riley involved two decisions of the Alabama Supreme Court, Stokes v. Noonan (1988) and Riley v. Kennedy (2005), dealing with the Mobile County Commission. When § 5 went into effect on November 1, 1964, the Mobile County Commission filled midterm vacancies through gubernatorial appointment. A 1985 precleared local law purported to change this practice to require a special election instead, but a voter challenged this law when a seat became open in 1987. Although the trial court upheld the local law and an election was held that year, the Alabama Supreme Court in Stokes held the law unconstitutional and the special election invalid. (The Governor at the time avoided any crisis by appointing the same person who had won the special election.) In 2004, the state legislature passed, and had precleared, a law permitting local laws to authorize special elections for midterm vacancies instead of gubernatorial appointment. When the next vacancy occurred in 2005, the current Governor moved to appoint his choice to fill the vacancy, but the appellants in this case brought suit in state court, charging that the 2004 Act had revived the 1985 local law. Again, although the trial court agreed with the plaintiffs, the Alabama Supreme Court in Riley denied relief, and the Governor appointed Juan Chastang to the commission. Subsequently appellants brought the instant suit in federal district court, which ruled in their favor. The court held that because the special election practice had been implemented, changing back to gubernatorial appointment would require DOJ preclearance, which was never obtained. Therefore, special election would remain the practice even under the 2004 law. The district court also gave the Governor an opportunity to seek preclearance for gubernatorial appointment. When that was denied, the district court ordered the post on the Commission vacated and ordered a special election, which Chastang lost in a landslide.

The Court opened its opinion, authored by Justice Ginsburg, with a brief recap of the history of the Voting Rights Act and Sections 4 and 5 in particular, mentioning specifically that the Act has been extended multiple times based on evidence of continuing discrimination. As an initial matter, the Court quickly dispensed with plaintiffs’ argument that Governor Riley failed to timely file a notice of appeal because the district court’s August 2006 order was final and the Governor failed to file within 90 days. The Court held that it was the district court’s May 1, 2007 order, following the plaintiffs’ motion for further relief, which vacated Chastang’s appointment, that was final because it “end[ed] the litigation on the merits and l[eft] nothing for the court to do but execute the judgment.” The August 2006 order, by contrast, “left unresolved Kennedy’s demand for injunctive relief” and therefore could not be final.

Turning to the merits of the case, the Court acknowledged that a “change from election to appointment is a change” under § 5 and “that the preclearance requirement encompasses voting changes mandated by order or a state court.” The key issue, however, is “whether . . . any change within the meaning of § 5 occurred in this case.” A change is measured against the relevant baseline, which is either “the most recent practice that was both precleared and in force or effect” or the practice as of the coverage date if there have been no intervening changes. Relying on a synthesis of Perkins v. Matthews (1971), City of Lockhart v. United States (1983), and Young v. Fordice (1997), the Court concluded that the 1985 law had never been “in force or effect” and therefore never established a § 5 baseline. Without that change, the baseline remained as it was on the coverage date – i.e., filling midterm vacancies on the Mobile County Commission by gubernatorial appointment – and thus presented no challenge to Governor Riley in appointing Chastang.

The key difference between the instant case and the other illegal or doubtfully legal voting practices in Perkins and City of Lockhart, which the Court held to be valid baselines, is that “[the 1985] Act was challenged in state court at the first opportunity, the lone election was held in the shadow of that legal challenge, and the Act was ultimately invalidated by the Alabama Supreme Court.” Furthermore, the Court reaffirmed the Alabama Supreme Court’s role as the “ultimate exposito[r] of state law” (quoting Mullaney v. Wilbur (1975)). When it held the 1985 Act unconstitutional, the act was void ab initio and “incapable of effecting any change in Alabama law or establishing a voting practice for § 5 purposes.” If the trial court’s erroneous decision to uphold the 1985 Act could establish a § 5 baseline, it would produce “the anomalous effect of binding Alabama to an unconstitutional practice because of a state trial court’s error.” This, the Court concluded, would be worse than the typical application of § 5 (under the Supremacy Clause) to prevent the application of a state law that conflicts with federal law. Ruling for the appellants “would effectively preclude Alabama’s highest court from applying to a state law a provision of the State Constitution entirely harmonious with federal law,” such as gubernatorial appointment.

The majority opinion concluded with several significant caveats. First, the Court emphasized the importance of the fact that the state’s highest court, rather than a trial or intermediate appellate court, had held the 1985 Act to be unconstitutional. Second, the 1985 Act was challenged as soon as possible; had it not been, the Act might have been considered to be “in force or effect.” Finally, the state supreme court did not order the adoption of a novel practice, but rather the return to the § 5 baseline: gubernatorial appointment.

Justice Stevens, joined by Justice Souter, argued in dissent “that § 5 operates . . . as a ratchet, freezing into place the most recent voting practice . . . actually in effect immediately prior to the putative change.” The definition of a baseline for § 5 purposes is made regardless whether the baseline violates state law. The dissent also referenced Perkins, City of Lockhart, and Fordice, but drew from them a different conclusion, namely that “[i]t is difficult to say that the special election practice was never in force or effect with a straight face.” Unlike the voting practice in Fordice, Jones served on the Mobile County Commission for 14 months following his special election victory in 1987. The fact that a suit was filed to challenge the election is immaterial: “a cloud of litigation cannot undermine the obvious conclusion that the special election practice was in force or effect.”

The dissent accused the majority of being animated by the concern that “the Alabama Supreme Court is more deserving of comity than the Alabama Legislature,” even though it is unclear “why effectively requiring a State to administer a law that has [been] repealed is less offensive to state sovereignty than requiring a State to administer a law its highest court has found unconstitutional.”

In conclusion, Justice Stevens dwelt at length on the complicity of the Alabama Supreme Court in voting rights discrimination to emphasize that the courts should fall under the reach of § 5 just as do the legislatures.

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