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.


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).

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."

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."

Posted in Riley v. Kennedy, Everything Else