Thomas Haymore discusses the opinion in Riley v. Kennedy (07-77) below. Please note that Thomas was on the Stanford Supreme Court clinic team that worked on the case on behalf of the appellees.

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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