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Thursday, April 17, 2008

The Trivialization of Voting Rights?

Riley v. Kennedy was argued on March 24th and awaits decision by SCOTUS. But the legal question argued is much less interesting than a larger sociological point raised by the case – a tendency for voting rights litigation today to become bogged down in bureaucratic and legalistic minutiae. Judging from the briefs and oral argument, I get the sense that voting rights law has lost its way in a maze of technicalities and precedents.

But to see how this case illustrates the trivialization of voting rights, one must wade through a rather thick set of facts.

Since 1868, Alabama law has required that vacancies on county commissions be filled by gubernatorial appointment. In 1985, however, the state legislature enacted a state statute requiring that vacancies on the county commission of Mobile be filled through special election. The federal government “precleared” this change in election law pursuant to section 5 of the Voting Rights Act, which requires changes with respect to voting to be approved by the feds in certain areas of the country where racism has been prevalent.

Despite this federal imprimatur, the 1985 law was obviously unconstitutional when it was enacted. The Alabama Constitution prohibits the state legislature from making “local” exceptions to otherwise generally applicable state laws. Accordingly, the Alabama Supreme Court struck down this 1985 law in 1988, because the statute applied only to Mobile. In response, the state legislature enacted a law in 2004, allowing all counties to enact their own local laws for holding special elections to fill vacancies on county commissions.

But Mobile County had enacted no such law in 2005, when Sam Jones, a county commissioner, was elected mayor of Mobile. Democrats wanted to prevent Republican Governor Bob Riley from filling the vacated commission seat with a Republican appointee. So they argued that the old 1985 law providing for special elections in Mobile County was somehow revived by the 2004 statute. The Alabama Supreme Court rejected the claim that the 2004 retroactively revived the 1985 law. Hence, the 140-year-old practice of gubernatorial appointment kicked in. Governor Riley duly filled the vacancy on the Mobile commission by appointing Juan Chastang, a Black Republican.

The appellants now argue that the failure to hold a special election under the defunct and unconstitutional 1985 law violates section 5 of the Voting Rights Act. According to appellants, the Alabama Supreme Court’s two decisions striking down and refusing to revive that 1985 law were new rules “with respect to voting different from that in force or effect on November 1, 1964.” In other words, the state supreme court’s decisions striking down the 1985 statute needed to be precleared under the 1965 Voting Rights Act, even though those decision reinstated an otherwise unobjectionable system of government – one that was undoubtedly in force and effect on November 1st, 1965, as required by the literal terms of the Voting Rights Act.

Huh? What’s the big principle at stake in the case?

No one argues that the 140-year-old practice of filling commission vacancies by gubernatorial appointment is somehow racially discriminatory in purpose or effect. No one argues that the Alabama Consitution’s prohibition on local laws is racially discriminatory in purpose or effect. No one argues that the Alabama Supreme Court enforcement of this utterly conventional state constitutional provision was racially discriminatory or racist. Finally, no one argues that Bob Riley, a moderate Republican, acted in a racist manner in appointing Juan Chastang, a Black Republican, to fill the vacancy on the Mobile County Commission.

The only big principle I could detect was the notion that the state legislature ought to be able to freeze in place voting rules that violate the state constitution simply by getting the feds to approve those changes under section 5. But why would anyone believe that minority voting rights would benefit in the long run from such a rule?

No one even attempted to answer this question in their briefs or oral argument in Riley. That lack of any big picture of social justice in appellants’ oral argument or briefs illustrates a tragic trivialization of modern voting rights litigation.

Posted by Rick Hills on April 17, 2008 at 11:33 AM in Current Affairs | Permalink


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Tracked on Apr 18, 2008 9:47:29 AM


The Justices that the litigators had were obviously seeking a big theory. Instead, they got Matthews v Perkins, Young v Fordice, and so forth: A batch of precedents, and not an ounce of common sense.

As Breyer imploringly asked, "what we want is to use enough sense to say, "look, [the unconstitutional law] wasn't really in effect. People challenged it the minute they could.... If you're going to say that that little bit counts as putting it in 'force and effect' [under section 5], you know what we're going to have? We're going to have every municipality all over the country that doesn't always know what the rules are, and they pass something, and people challenge it immediately, it's obviously wrong, and they're stuck with it as a matter of Federal law. That's going to be a mess."

The only response he got was that Perkins v Matthews required such a mess. Of course, if one believes that the Justices follow the principle of "stare decisis, pereat mundi," then I guess such a response counts as good lawyering. But I am predicting a 7-2 victory for Governor Riley.

Posted by: Rick Hills | Apr 19, 2008 5:22:00 PM

That lack of any big picture of social justice in appellants’ oral argument or briefs illustrates a tragic trivialization of modern voting rights litigation.

I tend to think it reflects the litigator's reality that you go into court with the Justices you have, not the Justices you want.

Posted by: Orin Kerr | Apr 19, 2008 2:09:00 PM

I think you mean to say the appellees' arguments--there's only one appellant, Governor Riley, and he's saying no preclearance was required.

Posted by: Chris | Apr 17, 2008 6:24:18 PM

I don't really get it...If the law's invalidated then it's not really a "change," it's more like a "change-*back*" to a practice that was fine all along. Or is that your whole point?

Posted by: Confused | Apr 17, 2008 6:20:22 PM

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