Riley v. KennedyRiley v. Kennedy
This case presents a novel question concerning §5 of the Voting Rights Act of 1965. The setting, in a nutshell: A covered State passed a law adopting a new election practice, obtained the preclearance required by §5, and held an election. Soon thereafter, the law under which the election took place was invalidated by the State‘s highest court on the ground that it violated a controlling provision of the State‘s Constitution. The question presented: Must the State obtain fresh preclearance in order to reinstate the election practice prevailing before enactment of the law struck down by the State‘s Supreme Court? We hold that, for §5 purposes, the invalidated law never gained “force or effect.” Therefore, the State‘s reversion to its prior practice did not rank as a “change” requiring preclearance.
I
The Voting Rights Act of 1965 (VRA), 79 Stat. 437, as amended,
A change will be precleared only if it “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, or [because of membership in a language minority group].” Ibid. An election practice has the “effect” of “denying or abridging the right to vote” if it “lead[s] to a retrogression in the position of racial [or language] minorities with respect to their effective exercise of the electoral franchise.” Beer v. United States, 425 U. S. 130, 141 (1976). See also Young v. Fordice, 520 U. S. 273, 276 (1997);
Congress took the extraordinary step of requiring covered jurisdictions to preclear all changes in their voting practices because it “feared that the mere suspension of existing tests [in §4(a)] would not completely solve the problem, given the history some States had of simply enacting new and slightly
Sections 4 and 5 were originally scheduled to lapse once a covered jurisdiction complied with §4(a)‘s ban on the use of tests and devices for five years. See 79 Stat. 438. Finding continuing discrimination in access to the ballot, however, Congress renewed and expanded §§4 and 5 on four occasions, most recently in 2006.1 Sections 4 and 5 are now set to expire in 2031, see
II
The voting practice at issue in this litigation is the method used to fill midterm vacancies on the Mobile County Commission, the governing body of Mobile County, Alabama. Composed of three members elected by separate districts to four-year terms, the Commission has the power to levy taxes, make appropriations, and exercise other countywide executive and administrative functions. See
We set out first, as pivotal to our resolution of this case, a full account of two disputes over the means of filling midterm vacancies on the Commission. The first occurred between 1985 and 1988; the second began in 2004 and culminates in the appeal now before us.
Alabama is a covered jurisdiction with a coverage date of November 1, 1964. See 30 Fed. Reg. 9897 (1965). As of that date, Alabama law provided that midterm vacancies on all county commissions were to be filled by gubernatorial appointment. See
“In case of a vacancy, it shall be filled by appointment by the governor, and the person so appointed shall hold office for the remainder of the term of the commissioner in whose place he is appointed.”
In 1985, however, the state legislature passed a “local law” providing that any vacancy on the Mobile County Commission occurring “with twelve months or more remaining on the term of the vacant seat” would be filled by special election rather than gubernatorial appointment. 1985 Ala. Acts no. 85-237 (1985 Act).2 The DOJ precleared this new law in June 1985.
The first midterm opening on the Commission postpassage of the 1985 Act occurred in 1987, when the seat for District One—a majority African-American district—became vacant. In accord with the 1985 Act, the Governor called a special election. A Mobile County voter, Willie Stokes, promptly filed suit in state court seeking to enjoin the election. The 1985 Act, he alleged, violated
The state trial court rejected Stokes‘s argument and entered judgment for the state defendants. Stokes immediately appealed to the Alabama Supreme Court and sought an order staying the election pending that court‘s decision. The requested stay was denied, and the special election went forward in June 1987. The winner, Samuel Jones, took office as District One‘s Commissioner in July 1987. Approximately 14 months later, however, in September 1988, the Alabama Supreme Court reversed the trial court‘s judgment. Finding that the 1985 Act “clearly offend[ed] § 105 of the [Alabama] Constitution,” the court declared the Act unconstitutional. Stokes v. Noonan, 534 So. 2d 237, 238-239.
The Alabama Supreme Court‘s decree cast grave doubt on the legitimacy of Jones‘s election and, consequently, on his continued tenure in office. The Governor, however, defused any potential controversy by immediately invoking his authority under
B
The next midterm vacancy on the Commission did not occur until October 2005, when Jones—who had been re-elected every four years since 1988—was elected mayor of the city of Mobile. Once again, the method of filling the vacancy became the subject of litigation. In 2004, the state legislature had passed (and the DOJ had precleared) an amendment to
While the Governor‘s appeal to the Alabama Supreme Court was pending, Mobile County‘s election officials obtained preclearance of procedures for a special election, scheduled to take place in January 2006. In November 2005, however, the Alabama Supreme Court reversed the trial court‘s order. Holding that the 2004 Act “provide[d] for prospective application only” and thus did not resurrect the 1985 Act, Alabama‘s highest court ruled that “Governor Riley [wa]s authorized to fill the vacancy on the Mobile County Commission by appointment.” Riley v. Kennedy, 928 So. 2d 1013, 1017. Governor Riley promptly exercised that authority by appointing Juan Chastang.
The day after the Alabama Supreme Court denied rehearing, Kennedy commenced the instant suit in Federal District Court. Invoking §5, she sought declaratory relief and an injunction barring Governor Riley from filling the Commission vacancy by appointment unless and until Alabama gained preclearance of the decisions in Stokes and Kennedy. As required by §5, a three-judge District Court convened to hear the suit. See
In August 2006, the three-judge court, after a hearing, granted the requested declaration. The court observed first that for purposes of §5‘s preclearance requirement, “[c]hanges are measured by comparing the new challenged practice with the baseline practice, that is, the most recent practice that is both precleared and in force or effect.” 445 F. Supp. 2d 1333, 1336 (MD Ala.). It then determined that the 1985 Act‘s provision requiring special elections had been both precleared and put into “force or effect” with the special
Deferring affirmative relief, the District Court gave the State 90 days to obtain preclearance of Stokes and Kennedy. 445 F. Supp. 2d, at 1336. Without conceding that preclearance was required, the State submitted the decisions to the DOJ. Finding that the State had failed to prove that the reinstatement of gubernatorial appointment would not be retrogressive, the Department denied preclearance. See App. to Motion to Dismiss or Affirm 2a-8a. “The African-American voters of District 1,” the DOJ explained, “enjoy the opportunity to elect minority candidates of their choice” under the 1985 Act. Id., at 6a. A change to gubernatorial appointment would be retrogressive because it “would transfer this electoral power to a state official elected by a statewide constituency whose racial make-up and electoral choices regularly differ from those of the voters of District 1.” Ibid.
After the State unsuccessfully sought DOJ reconsideraton, Kennedy returned to the District Court and filed a motion for further relief. On May 1, 2007, the District Court ruled that “Governor Bob Riley‘s appointment of Juan Chastang to the Mobile County Commission . . . was unlawful under federal law” and vacated the appointment. App. to Juris. Statement 1a-2a. Governor Riley filed a notice of appeal in the District Court on May 18, 2007, and a jurisdictional statement in this Court on July 17, 2007. In November 2007, we postponed a determination of jurisdiction until our consideration of the case on the merits. 552 U. S. 1035.
In the meantime, a special election was held in Mobile County in October 2007 to fill the vacancy resulting from
III
Before reaching the merits of Governor Riley‘s appeal, we first take up Kennedy‘s threshold objection. The appeal, Kennedy urges, must be dismissed as untimely.
Section 5 provides that “any appeal” from the decision of a three-judge district court “shall lie to the Supreme Court.”
A final judgment is “one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U. S. 229, 233 (1945).5 The District Court‘s August 2006 order declared that the Alabama Supreme Court‘s decisions in Stokes and Kennedy required preclearance, but that order left unresolved Kennedy‘s demand for injunctive relief. We have long held that an order resolving liability without addressing a plaintiff‘s requests for relief is not final. See Liberty Mut. Ins. Co. v. Wetzel, 424 U. S. 737, 742-743 (1976). See also 15B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3915.2, p. 271 (2d ed. 1992).
Resisting the conclusion these authorities indicate, Kennedy maintains that the August 2006 order ranked as a final decision for two reasons. First, she contends, that order conclusively settled the key remedial issue, for it directed Governor Riley to seek preclearance of the Alabama Supreme Court‘s decisions in Stokes and Kennedy. See Brief for Appellees 26-27. This argument misapprehends the District Court‘s order: Far from requiring the Governor to seek preclearance, the District Court expressly allowed for the possibility that he would elect not to do so. See 445 F. Supp. 2d, at 1337 (“Defendant Riley is to keep the court informed of what action, if any, the State decides to take . . . .” (emphasis added)). Second, Kennedy notes that the District Court directed entry of its August 2006 order “as a final judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure,” ibid. See Brief for Appellees 27. “The label used by the District Court,” however, “cannot control [an] order‘s appealability.” Sullivan v. Finkelstein,
Because the District Court did not render its final judgment until May 1, 2007, Governor Riley‘s May 18 notice of appeal was timely. We therefore proceed to the merits.
IV
Prior to 1985, Alabama filled midterm vacancies on the Mobile County Commission by gubernatorial appointment. The 1985 Act adopted a different practice—special elections. That new practice was used in one election only, held in 1987. The next year, the Alabama Supreme Court determined, in Stokes v. Noonan, that the Act authorizing special elections was invalid under the State‘s Constitution. Properly framed, the issue before us is whether §5 required Alabama to obtain preclearance before reinstating the practice of gubernatorial appointment in the wake of the decision by its highest court invalidating the special-election law.6
It is undisputed that a “change” from election to appointment is a change “with respect to voting” and thus covered by §5. See Allen, 393 U. S., at 569-570; Presley v. Etowah
In order to determine whether an election practice constitutes a “change” as that term is defined in our §5 precedents, we compare the practice with the covered jurisdiction‘s “baseline.” We have defined the baseline as the most recent practice that was both precleared and “in force or effect“—or, absent any change since the jurisdiction‘s coverage date, the practice that was “in force or effect” on that date. See Young, 520 U. S., at 282-283. See also Presley, 502 U. S., at 495. The question is “whether a State has ‘enact[ed]’ or is ‘seek[ing] to administer’ a ‘practice or procedure’ that is ‘different’ enough” from the baseline to qualify as a change. Young, 520 U. S., at 281 (quoting
For the reasons that follow, we conclude that the 1985 Act was never “in force or effect” within the meaning of §5. At all relevant times, therefore, the baseline practice for fill
A
We have directly addressed the §5 term of art “in force or effect” on three prior occasions. As will become clear, these precedents do not control this case because they differ in a critical respect. They do, however, provide the starting point for our inquiry.
In Perkins v. Matthews, 400 U. S. 379 (1971), the question was what practice had been “in force or effect” in the city of Canton, Mississippi, on that State‘s §5 coverage date, November 1, 1964. A 1962 state law required selection of city aldermen by at-large elections rather than by ward. Canton, however, “ignored the mandate [of the statute] in the conduct of the 1965 municipal elections and, as in 1961, elected aldermen by wards.” Id., at 394. In the 1969 election, the city sought to switch to at-large elections. We held that this move was a change requiring preclearance because election by ward was “the procedure in fact ‘in force or effect’ in Canton on November 1, 1964.” Id., at 395.
We endeavored to determine in Perkins the voting procedure that would have been followed on the coverage date, November 1, 1964. Two choices were apparent: the state law on the books since 1962 calling for at-large elections, or the practice Canton actually used, without challenge, in 1965—election by wards. We picked the 1965 practice as the more likely indicator of the practice Canton would have employed had it held an election on the coverage date, just seven months earlier. See id., at 394-395.
Similarly, in City of Lockhart v. United States, 460 U. S. 125 (1983), the question was what practice had been “in force or effect” in Lockhart, Texas, on the relevant §5 coverage date, November 1, 1972. For more than 50 years, without challenge, the city had used a “numbered-post” system to
Finally, in Young v. Fordice, decided in 1997, the question was whether a provisional voter registration plan implemented by Mississippi election officials had been “in force or effect.” Believing that the state legislature was about to amend the relevant law, the officials had prepared and obtained preclearance for a new voter registration scheme. See 520 U. S., at 279. Roughly one-third of the State‘s election officials implemented the plan, registering around 4,000 voters. See id., at 278, 283. As it turned out, however, the state legislature failed to pass the amendment, and the voters who had registered under the provisional plan were required to reregister. See id., at 278. When the case reached us, we rejected the argument that “the [p]rovisional [p]lan, because it was precleared by the Attorney General, became part of the baseline against which to judge whether a future change must be precleared.” Id., at 282. Regarding the provisional plan as a “temporary misapplication of
B
Perkins and Lockhart established that an election practice may be “in force or effect” for §5 purposes despite its illegality under state law if, as a practical matter, it was “actually in effect.” Lockhart, 460 U. S., at 132. Our more recent decision in Young, however, qualified that general rule: A practice best characterized as nothing more than a “temporary misapplication of state law,” we held, is not “‘in force or effect,‘” even if actually implemented by state election officials. 520 U. S., at 282.
If the only relevant factors were the length of time a practice was in use and the extent to which it was implemented, this would be a close case falling somewhere between the two poles established by our prior decisions. On one hand, as in Young, the 1985 Act was a “temporary misapplication” of state law: It was on the books for just over three years and applied as a voting practice only once. In Lockhart, by contrast, the city had used the numbered-post system “for over 50 years without challenge.” 460 U. S., at 132, n. 6. (Perkins is a less clear case: The city failed to alter its practice in response to changed state law for roughly seven years, but only a single election was held during that period. See 400 U. S., at 394.) On the other hand, in Young no election occurred during the time the provisional registration plan was in use, while in this case one election was held under the later invalidated 1985 Act.
We are convinced, however, that an extraordinary circumstance not present in any past case is operative here, impel
These characteristics plainly distinguish the present case from Perkins and Lockhart. The state judiciary had no involvement in either of those cases, as the practices at issue were administered without legal challenge of any kind. And in Lockhart, we justified our unwillingness to incorporate a practice‘s legality under state law into the §5 “force or effect” inquiry in part on this ground: “We doubt[ed] that Congress intended” to require “the Attorney General and the District Court for the District of Columbia” to engage in “speculation as to state law.” 460 U. S., at 133, n. 8. Here, in contrast, the 1985 Act‘s invalidity under the Alabama Constitution has been definitively established by the Alabama Supreme Court.
The prompt legal challenge and the Alabama Supreme Court‘s decision not only distinguish this case from Perkins and Lockhart; they also provide strong cause to conclude that, in the context of §5, 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 (1975). And because the prerogative of the Alabama Supreme Court to say what Alabama law is merits respect in federal forums,10 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 for §5 purposes. Indeed, Kennedy and the United States appear to concede that the 1985 Act would not have been “in
There is no good reason to hold otherwise simply because Alabama‘s highest court, proceeding at a pace hardly uncommon in litigated controversies, did not render its decision until after an election was held. In this regard, we have recognized that practical considerations sometimes require courts to allow elections to proceed despite pending legal challenges. Cf. Purcell v. Gonzalez, 549 U. S. 1, 5-6 (2006) (per curiam) (“Given the imminence of the election and the inadequate time to resolve the factual disputes, our action today shall of necessity allow the election to proceed without an injunction suspending the [challenged] rules.“).
Ruling as Kennedy and the United States urge, moreover, would have the anomalous effect of binding Alabama to an unconstitutional practice because of a state trial court‘s error. If the trial court had gotten the law of Alabama right, all agree, there would have been no special election and no tenable argument that the 1985 Act had ever gained “force or effect.” But 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 Act part of Alabama‘s § 5 baseline. No precedent of this Court calls for such a holding.
The District Court took care to note that its decision “d[id] not in any way undermine [Stokes and Kennedy] under state law.” 445 F. Supp. 2d, at 1337. In some theoretical sense, that may be true. Practically, however, the District Court‘s decision gave controlling effect to the erroneous trial court decision and rendered the Alabama Supreme Court‘s corrections inoperative. Alabama‘s Constitution, that State‘s Supreme Court determined, required that, in the years here involved, vacancies on the Mobile County Commission be filled by appointment rather than special election. Nothing
The dissent, too, appears to concede that its reading of § 5 would bind Alabama to an unconstitutional practice because of an error by the state trial court. See post, at 435. But it contends that this imposition is no more “offensive to state sovereignty” than “effectively requiring a State to administer a law it has repealed,” post, at 436—a routine consequence of § 5. The result described by the dissent, however, follows directly from the Constitution‘s instruction that a state law may not be enforced if it conflicts with federal law. See
This burden is more than a hypothetical concern. The realities of election litigation are such that lower state courts
C
Although our reasoning and the particular facts of this case should make the narrow scope of our holding apparent, we conclude with some cautionary observations. First, the presence of a judgment by Alabama‘s highest court declaring the 1985 Act invalid under the State Constitution is critical to our decision.12 We do not suggest the outcome would be the same if a potentially unlawful practice had simply been abandoned by state officials after initial use in an election. Cf. Perkins, 400 U. S., at 395. Second, the 1985 Act was challenged the first time it was invoked and struck down shortly thereafter. The same result would not necessarily follow if a practice were invalidated only after enforcement without challenge in several previous elections. Cf. Young, 520 U. S., at 283 (“[T]he simple fact that a voting practice is unlawful under state law does not show, entirely by itself, that the practice was never ‘in force or effect.’ . . . A State, after all, might maintain in effect for many years a plan
* * *
For the reasons stated, the judgment of the United States District Court for the Middle District of Alabama is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Voting practices in Alabama today are vastly different from those that prevailed prior to the enactment of the Voting Rights Act of 1965 (VRA), 79 Stat. 437, as amended,
Nevertheless, since Congress recently decided to renew the VRA,1 and our task is to interpret that statute, we must give the VRA the same generous interpretation that our cases have consistently endorsed throughout its history. In my judgment, the Court‘s decision today is not faithful to those cases or to Congress’ intent to give § 5 of the VRA,
I
Section 5 preclearance is required “[w]henever a [covered] State . . . shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964.”
As an initial matter, the language of § 5 requires that the practice be “different from that in force or effect on November 1, 1964.” It is undisputed that the practice in force or effect in 1964 was gubernatorial appointment, see
The argument that a return to gubernatorial appointment will never require preclearance under § 5 because gubernatorial appointment was the practice in effect in 1964 is neither persuasive nor properly before the Court. Appellant expressly abandoned any such argument in his briefs to this Court. See Reply Brief 8 (“Our contention, as we have already said, is not that the Court needs to rethink prior dicta suggesting that, despite its language, § 5 operates like a ratchet to subsume newly-precleared practices . . . . That question is not before the Court, and we take no position on it“). Further, appellant did not raise the argument in either of his trial briefs to the District Court. Governor‘s Trial Brief in Kennedy v. Riley, Civ. Action No. 2:05 CV 1100-T (MD Ala.); Governor‘s Supp. Trial Brief in Kennedy v. Riley, Civ. Action No. 2:05 CV 1100-T (MD Ala.).
Appellant‘s decision not to challenge the preclearance requirement on this ground was no doubt because of the settled law to the contrary. Reflecting the fact that Congress certainly did not intend § 5 to create a “safe harbor” for voting practices identical to practices in effect in 1964, the settled understanding among lower courts and the Department of Justice is that § 5 operates instead as a ratchet, freezing in place the most recent voting practice. See Brief for United States as Amicus Curiae 16-18 (collecting cases);
Whether a voting practice represents a change that requires preclearance is measured against the previously precleared “baseline” practice in force or effect. Young v. Fordice, 520 U. S. 273, 282-283 (1997); Presley v. Etowah County Comm‘n, 502 U. S. 491, 495 (1992). The baseline is the practice actually in effect immediately prior to the putative change, whether or not that practice violates state law. In Perkins v. Matthews, 400 U. S. 379 (1971), for example, we held that the baseline practice was not at-large elections, even though at-large elections were required by a 1962 state statute. Because the city had never implemented that statute, we held that the practice actually in force or effect on November 1, 1964, was ward elections, despite that practice‘s illegality under state law. Id., at 394-395.
The situation was similar in City of Lockhart v. United States, 460 U. S. 125 (1983). There we considered whether the practice of using numbered posts for elections was in force on the relevant coverage date and concluded that despite the possibility that this practice was illegal under Texas law, the numbered-post system could serve as the baseline. Id., at 132, and n. 6. We emphasized once again that “[s]ection 5 was intended to halt actual retrogression in minority voting strength without regard for the legality under state law of the practices already in effect.” Id., at 133.
In Fordice, 520 U. S. 273, our most recent case deciding whether a voting practice was a baseline under § 5, we concluded that the registration procedure at issue was not “in force or effect” and therefore could not serve as the § 5 baseline. In 1994, Mississippi began modifying its registration practices in an attempt to comply with the National Voter Registration Act of 1993, 107 Stat. 77,
An ordinary observer asked to describe voting practice in Alabama with respect to the method of filling vacancies on the Mobile County Commission would no doubt state that before 1985 the practice was gubernatorial appointment, between 1985 and 1988 the practice was special election, and beginning in 1988 the practice changed to gubernatorial appointment.
In the face of this history, the Court comes to the startling conclusion that for purposes of the VRA Alabama has never ceased to practice gubernatorial appointment as its method of selecting members of the Mobile County Commission. But under our case law interpreting § 5, it is clear that a change occurred in 1988 when Stokes returned Alabama to gubernatorial appointment.2 This represented a change because the relevant baseline was the special election procedure mandated by the Alabama Legislature‘s enactment of the 1985 Act, which was precleared by the Department of Justice in June 1985. Pursuant to that law, the Governor called a special election when a vacancy arose in 1987. The vacancy was filled, and the newly elected commissioner took office in July 1987 serving, by way of his election, until September 1988.
The differences between this case and Fordice are legion. In holding that the provisional registration system in Fordice did not constitute the baseline by which to measure future practices, we emphasized that the plan was abandoned as soon as it was clear that it would not be enacted, the plan was in use for only 41 days, and only about one-third of the election officials had even implemented the proposal. 520 U. S., at 283. Further, the State rectified the situation far in advance of any elections; there was no evidence that anyone was prevented from voting because of reliance on the rejected plan. Ibid.
Fordice was in essence a case of “no harm, no foul.” Here, of course, the special election did take place, and the elected commissioner held his post for 14 months, voting on hundreds of measures shaping the governance of Mobile County. While the voters in Fordice could be reregistered under the new procedures, Jones’ election to the commission and his 14-month service cannot be undone.
The majority seems to acknowledge that Fordice is distinguishable, stating that if “the only relevant factors were the length of time a practice was in use and the extent to which it was implemented, this would be a close case.” Ante, at 424. The Court relies, however, on the “extraordinary cir-
The majority makes much of the fact that to adopt the view of the three-judge District Court would make the question whether a voting practice is “in force or effect” turn on whether the circuit court happened to get the law right in time to stop the election. Ante, at 426. But the majority‘s approach turns instead on whether Alabama possesses highly motivated private litigants. If Stokes had not challenged the election until it had already taken place (or had failed to appeal), the election would be in force or effect under the majority‘s view. Nothing in the VRA or our cases suggests that the VRA‘s application should hinge on how quickly private litigants challenge voting laws.
Our decisions in Perkins and Lockhart give no indication that if a citizen in Canton, Mississippi, or Lockhart, Texas, had challenged the legality of the ward elections or the numbered-post system, the illegality of those practices under state law would have been any more relevant to their status as the relevant baselines. This case calls for nothing more than a straightforward application of our precedent; that precedent makes clear that the special election procedure was the relevant baseline and that gubernatorial appointment therefore represents a change that must be precleared.
III
The VRA makes no distinction among the paths that can lead to a change in voting practice, requiring preclearance “whenever” a State seeks to enact “any” change in voting practice.
The majority does not dispute that a change in voting practice wrought by a state court can be subject to preclearance. See ante, at 420-421 (citing Branch v. Smith, 538 U. S. 254 (2003), and Hathorn v. Lovorn, 457 U. S. 255 (1982)). But the majority falters when it treats the change effected by Stokes differently for § 5 preclearance purposes than it would treat a newly enacted statute or executive regulation. The majority finds it “anomalous” that Alabama might be bound “to an unconstitutional practice because of a state trial court‘s error.” Ante, at 426. The clear theme running through the majority‘s analysis is that the Alabama Supreme Court is more deserving of comity than the Alabama Legislature.
Imagine that the 1985 Act had been held constitutional by the Alabama Supreme Court in Stokes, but that in 1988 the Alabama Legislature changed its mind and repealed the Act, enacting in its place a statute providing for gubernatorial appointment. Imagine further that the Department of Justice refused to preclear the practice (as it no doubt would); if Alabama wanted to fill an open seat on the Mobile County Commission it would have to administer its former special election practice even though that law had been repealed. It is not clear to me or to the United States, see Brief as Amicus Curiae 25-27, why effectively requiring a State to administer a law it has repealed is less offensive to state sovereignty than requiring a State to administer a law its highest court has found unconstitutional. The VRA, “by its nature, intrudes on state sovereignty.” Lopez v. Monterey County, 525 U. S. 266, 284 (1999).
The majority attempts to portray the Circuit Court Judge‘s decision as so far outside the bounds of Alabama law,
IV
Finally, the history of the voting practices that the VRA sought to address, especially in Alabama itself, indicates that state courts must be treated on the same terms as state legislatures for § 5 purposes. Specifically, the history of Alabama‘s voter registration requirements makes this quite clear.3 Alabama‘s literacy test originated in a constitutional convention called in 1901 “largely, if not principally, for the purpose of changing the 1875 Constitution so as to eliminate Negro voters.” United States v. Alabama, 252 F. Supp. 95, 98 (MD Ala. 1966); see also M. McMillan, Constitutional Development in Alabama, 1789-1901, pp. 217-232 (1955);
The Alabama Constitution provided for judicial review of contested registrar decisions, see
Alabama‘s literacy test was later amended via the “Boswell Amendment” to include a requirement that voters demonstrate that they were able to “understand and explain any article of the constitution of the United States in the English language.”
During the period from 1951 to 1964, the Alabama Supreme Court rendered the questionnaire more and more complex. In 1960, in response to the efforts of African-American organizations to educate voters, the questions were arranged in different sequences for different questionnaires. B. Landsberg, Free at Last To Vote: The Alabama Origins of the 1965 Voting Rights Act 19 (2007). These new questionnaires had the effect of blocking the registration of thousands of African-American voters. For example, as a
The Alabama Supreme Court responded to the litigation surrounding its questionnaire by drafting a new questionnaire in 1964; that questionnaire had a literacy and civics test on which questions were rotated, resulting in 100 different forms of the test. E. Yadlosky, Library of Congress Legislative Reference Service, State Literacy Tests as Qualifications for Voting 19 (1965). The tests contained questions such as “Ambassadors may be named by the President without the approval of the United States Senate. (True or False),” and “If no person receives a majority of the electoral vote, the Vice President is chosen by the Senate. (True or False).” Ibid. (internal quotation marks omitted).6 These tests were finally put to rest throughout the country in the VRA, which mandates that “[n]o citizen shall be denied, because of his failure to comply with any test or device, the right to vote.”
In sum, prior to the VRA, the Alabama Supreme Court worked hand in hand with the Alabama Legislature to erect obstacles to African-American voting. While I do not wish to cast aspersions on the current members of the Alabama Supreme Court or the court that decided Stokes v. Noonan, 534 So. 2d 237, the history of the Alabama Supreme Court‘s role in designing Alabama‘s literacy test provides a vivid illustration of why voting changes wrought by state-court de-
V
There is simply nothing about this case that takes it outside the ordinary reach of our VRA precedents. Because the 1985 Act was precleared and put in effect during the 1987 election, the practice of special elections serves as the relevant baseline. With the correct baseline in mind, it is obvious that the gubernatorial appointment put in place by Stokes is a practice “different from” the baseline. Because gubernatorial appointment represents a change, it must be precleared, as the three-judge District Court correctly held.
I therefore respectfully dissent.
Notes
“We want the white men who once voted in this State and controlled it, to vote again. We want to see that old condition restored. Upon that theory we took the stump in Alabama, having pledged ourselves to the white people of Alabama, upon the platform that we would not disfranchise a single white man, if you trust us to frame an organic law for Alabama, but it is our purpose, it is our intention, and here is our registered vow to disfranchise every negro in the State and not a single white man.” 3 Official Proceedings of the Constitutional Convention of the State of Alabama, May 21st, 1901, To September 3rd 1901, p. 2844 (1941).