Riley v. Kennedy Decision--an Alabama Decision

In my summary of the facts of the case, I concluded that this immensely complex case only had to do with matters in AL and therefore would not be of general applicability. The Court, in its decision of yesterday, concurred with that assertion. This case, however, is important for any who study elections law and especially the "preclearance" requirement under federal law for "covered" jurisdictions--i.e., states which formerly discriminated against minorities in access to the right to vote. Let me summarize the facts of the case in a narrative form briefly, and then highlight the reasoning behind the decision (7-2; opinion by Ginsburg; dissent by Stevens/Souter). I take my points from the Syllabus of the decision.

Relevant Background Facts

"Section 5 of the Voting Rights Act of 1965 (VRA) requires “covered jurisdictions” to obtain preclearance from the District Court for the District of Columbia or the Department of Justice (DOJ) before “enact[ing] or seek[ing] to administer” any changes in their practices or procedures affecting voting.

Alabama is a covered jurisdiction. As of its November 1, 1964 coverage date, state law provided that midterm vacancies on county commissions were to be filled by gubernatorial appointment. In 1985, the state legislature passed, and the DOJ precleared, a “local law” providing that Mobile County Commission midterm vacancies would be filled by special election rather than gubernatorial appointment. In 1987, the Governor called a special election for the first midterm opening on the Commission postpassage of the 1985 Act. A Mobile County voter, Willie Stokes, filed suit in state court seeking to enjoin the election, but the state trial court denied his request. Although Stokes immediately appealed to the Alabama Supreme Court, the special election went forward and the winner took office. Subsequently, however, the Alabama Supreme Court reversed the trial court's judgment, finding that the 1985 Act violated the State Constitution.

When the next midterm Commission vacancy occurred in 2005, the method of filling the opening again became the subject of litigation. In 2004, the state legislature had passed, and the DOJ had precleared, a law providing for gubernatorial appointment as the means to fill county commission vacancies unless a local law authorized a special election. When the vacancy arose, appellee voters and state legislators (hereinafter Kennedy) filed suit against the Governor in state court, asserting that the 2004 Act had revived the 1985 Act and cured its infirmity under the Alabama Constitution. Adopting Kennedy's view, the trial court ordered the Governor to call a special election. Before the election took place, however, the Alabama Supreme Court reversed the trial court's order, holding that the 2004 Act did not resurrect the 1985 Act. The Governor therefore filled the vacancy by appointment, naming Commissioner Chastang to the open seat. Kennedy then commenced this suit in Federal District Court. Invoking § 5 of the VRA, she sought declaratory relief and an injunction barring the Governor from filling the Commission vacancy by appointment unless and until Alabama gained preclearance of the Stokes and Kennedy decisions. A three-judge District Court granted the requested declaration in August 2006. It determined that the “baseline” against which any change should be measured was the 1985 Act's provision requiring special elections, a measure both precleared and put into “force or effect” with the special election in 1987. It followed, the District Court reasoned, that the gubernatorial appointment called for by Stokes and Kennedy ranked as a change from the baseline practice; consequently, those decisions should have been precleared. Deferring affirmative relief, the District Court gave the State 90 days to obtain preclearance. When the DOJ denied the State's request for preclearance, Kennedy returned to the District Court and filed a motion for further relief. On May 1, 2007, the District Court vacated the Governor's appointment of Chastang to the Commission, finding it unlawful under § 5 of the VRA. The Governor filed a notice of appeal in the District Court on May 18."

The Court's Decision

Crucial for the majority's decision was the fact that for sec. 5 purposes of the Voting Rights Act, the 1985 Act passed by the AL legislature never gained "force or effect." Therefore, AL's reinstatement of its prior practice of gubernatorial appointment did not rank as a "change" requiring preclearance.

In order to determine whether an election practice constituted a "change" defined in the Court's precedents, the practice must be compared with the covered jurisdiction's "baseline," i.e., the most recent practice both precleared and "in force or effect." The Court then engaged in examination of three of its precedents interpreting sec. 5 to conclude what is meant by "force or effect." Though the precedents didn't "control," they gave guidance. This case, however, had an "extraordinary" circumstance which determined its outcome. Let the Court explain:

"But an extraordinary circumstance not present in any past case is operative here, impelling the conclusion that the 1985 Act was never “in force or effect”: The Act was challenged in state court at 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. These characteristics plainly distinguish this case from Perkins and Lockhart, where the state judiciary had no involvement. The prompt legal challenge and the State Supreme Court's decision also provide strong cause to conclude that, in the § 5 context, the 1985 Act was never “in force or effect.” A State's highest court is unquestionably “the ultimate exposito[r] of state law.” Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508. And because the State Supreme Court's prerogative to say what Alabama law is merits respect in federal forums, a law challenged at first opportunity and invalidated by Alabama's highest court is properly regarded as null and void ab initio, incapable of effecting any change in Alabama law or establishing a voting practice under § 5. There is no good reason to hold otherwise simply because Alabama's highest court did not render its decision until after an election was held. To the contrary, practical considerations sometimes require courts to allow elections to proceed despite pending legal challenges. Cf. Purcell v. Gonzalez, 549 U.S. 1, 5-6, 127 S.Ct. 5, 166 L.Ed.2d 1 (per curiam). Ruling otherwise would have the anomalous effect of binding Alabama to an unconstitutional practice because of the state trial court's error. The trial court misconstrued the State's law and, due to that court's error, an election took place. That sequence of events, the District Court held, made the 1985 Act part of Alabama's § 5 baseline. In essence, the District Court's decision gave controlling effect to the erroneous trial court ruling and rendered the Alabama Supreme Court's corrections inoperative. That sort of interference with a state supreme court's ability to determine the content of state law is more than a hypothetical concern. The realities of election litigation are such that lower state courts often allow elections to proceed based on erroneous interpretations of state law later corrected on appeal. The Court declines to adopt a rigid interpretation of “in force or effect” that would deny state supreme courts the opportunity to correct similar errors in the future."

Conclusion

Thus, the critical factor here was the presence of a judgment by AL's highest court invalidating the 1985 Act under the State Constitution. Because of these facts, facts confined no doubt just to the case before us, this case won't have a lot of "play" in the future. But, here it is...

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