Riley v. Kennedy

This enormously complex case from Alabama arises out of what are known as the "preclearance" requirements that certain (Southern) states must follow when changing their election procedures. Ever since the US instituted major voting rights changes in the 1960s, fully to include minorities and people of color in the voting process, states which formerly discriminated against these minorities at the polls had to receive "preclearance" of any electoral change from the US Department of Justice. The purpose of the preclearance requirement was to make sure that election changes weren't happening to the detriment of minorities. This principle forms the background of this convoluted Alabama case. In a nutshell, the case has to do with whether the State of Alabama in the person of former Governor Bob Riley had to get preclearance (and failed to do so at the proper time) for election law changes (or were they changes?) as a result of a 2005 decision of the Alabama Supreme Court. But in order more completely to unpack that sentence, you should know the following...

Helpful (and Necessary) Background Information

1. Historically AL had a general law requiring gubernatorial appointment of commissioners to vacancies on county boards of commissioners.

2. In 1985 the AL legislature enacted local legislation allowing vacancies on the Mobile County Commission ("MCC") to be filled by special election. It kept the general law, however, in place.

3. This 1985 law was submitted to the US AG in 1985 and was "precleared." Thus, it could go into effect.

4. In 1987 a vacancy arose on the MCC, and the County prepared to fill it through a special election, as per statute. A county voter filed suit, challenging the constitutionality of the 1985 law on state law grounds. He argued that the specific law conflicted with the earlier general law--which held that the Governor filled vacancies. Thus, he claimed, the new law violated the state constitutional provision against a local law conflicting with a general, statewide, law.

5. The AL Supreme Court agreed with the voter and, on Sept. 30, 1988, ruled that the 1985 law conflicted with the statewide general law. The result of the decision was to require that future vacancies on the MCC be filled by gubernatorial appointment--the old system.

6. No preclearance was sought for this judicial decision.

7. Fast forward to 2004. The AL legislaure in that year amended the general election law again, but this time in a slightly different way than in 1985. It allowed county commision vacancies to be filled by special election "when a local law authorizes a special election." Thus, the legislature hoped to get beyond the conflict that had derailed its plan in the late 1980s. The state submitted this law for preclearance, and it was precleared by the AG in the USDOJ.

8. In 2005 another vacancy arose on the MCC. A group of voters filed a petition in state court seeking a declaration that a special election was required to fill the vacancy. The county circuit court agreed. However, the Governor appealed, arguing that the state law didn't authorize such an election (that is, the locality had to pass an ordinance authorizing it). The Alabama Sup Ct. agreed with the Governor in 2005 and once again ordered that the vacancies on the MCC be filled by appointment rather than in accordance with a special election practice.

9. The State of Alabama sought no preclearance of the Sup. Ct decision. Perhaps it thought that only legislative changes to voting practices required preclearance. Perhaps it also thought that the Sup Ct. decision, because it returned things to the status quo ante, didn't really require preclearance. Who really knows what they thought?

10. In 2006 the AL legislature enacted legislation reinstating special elections as the method of filling vacancies on the MCC, re-adopting the 1985 Act without change. Aren't we in Bill Murray's Groundhog Day at about this time? The state submitted the legislative change to the US AG for preclearance; no objection followed from the US gov't.

11. After the 2005 decision of the AL Supreme Court, returning to gubernatorial appointment for MCC vacancies, the Governor appointed a certain Juan Chastang to a vacant seat on the MCC. On Nov. 16, 2005 appellees in this case (i.e., the case now before the US Supreme Court) filed an action in the USDC for the Middle District of AL seeking to enjoin his appointment until the 2005 decision of the AL Sup. Ct was precleared.

12. The District Court agreed with the appellees and held that preclearance was required. On August 18, 2006 the DC entered judgment in favor of plaintiffs and ordered the State of AL to obtain preclearance in accordance with sec. 5 of the Voting Rights Act of 1965.

13. According to law (28 USC sec. 2101(b)), AL had 60 days to appeal the DC's ruling. It did not do so. Instead, it sought preclearance of the 2005 decision of the AL Sup. Ct. It had 90 days to do so. It filed for preclearance in on Nov. 9, 2006 (within the 90 days after the DC's decision), but its request was rejected on Jan. 8, 2007.

14. After failing to receive preclearance from the US DOJ, the State was entitled to seek preclearance from the US DC for the District of Columbia, but it didn't do so. The State also didn't remove Chastang from his seat. The AL District Court removed Chastang from his seat on May 1, 2007. Undeterred, he ran for the seat in a special election in Oct. 2007 and was trounced by an 80-20% margin.

The Issue(s) Before the Court

The complexity of the facts of this case needed to be recited so that the two questions on which cert. was granted can come into closer focus. They are:

"1. Whether this Court lacks jurisdiction over the present appeal because appellant's notice of appeal was untimely filed.

2. Whether the Voting Rights Act requires preclearance before implementation of a judicial decision by a covered jurisdiction's highest court that forbids the continued use of an already precleared state law because that law is invalid under the state constitution."

The first question is an issue because the District Court's decision of August 2006 had to have been appealed, and was not, within 60 days of the decision. At least that is the position of the brief filed on behalf of Kennedy by the Stanford Law School Supreme Court Clinic. The second question gets to the heart of the case's substance--whether the AL Supreme Court's 2005 decision needed judicial preclearance before the Governor implemented it by making his special appointment.

So we have the curious situation where a federal law, which was enacted to regulate and make easier and more just the state election procedures, has now brought us into a thicket of unimaginable complexity. The Court will hack through the underbrush, to be sure, but I am mum on what they will do. Indeed, since the issue probably isn't a major one many other places, I don't think that many outside of AL will be holding their breaths while the Court deliberates.