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Friday, May 30, 2008

Civil Rights Lawyers' Ignorance of Local Government Law

The Court handed down Riley v Kennedy, 07-77, this week. Riley is a singularly tedious Voting Rights Act decision, and the result was predictable: 7-2 for Governor Riley, with the Court holding that the Alabama legislature's statute allowing local elections of county commissioners did not change the "baseline" of election practices when (a) the statute violated the state constitution and (b) the statute had been struck down by the state supreme court as soon as humanly possible.

An election law blog notes that my colleague Rick Pildes noted that the case illustrates the Court's trend away from the maximal enforcement of the Voting Rights Act. The same blog notes that I had earlier described the case as "trivial." (Actually, I described the plaintiffs' argument as trivial -- a bit of a difference).

But hidden in Riley is actually a larger moral: The feds should be extra-cautious about messing with state and local governments' structure. Here's the hook between this principle and the case: The Alabama Supreme Court's initial decision that the feds were being asked to veto actually advanced minority voting rights. Why? The state court had declared that the state legislature could not enact "special legislation" authorizing elections to fill vacated commission seats only in Mobile County: Instead, the court held that the state legislature would have to authorize such elections for every county in Alabama (which, indeed, the state legislature later did). This rule against special elections is a common one in state constitutions, and it serves the purpose of enhancing local autonomy by preventing state politicians from micro-managing one jurisdiction's local affairs.

Elections for every county in the state are obviously superior to elections in a single county if you are a minority voter. But the plaintiffs wanted the Feds effectively to nullify the state court's decision that bestowed this boon on minority voters because the state court's decision would prevent the election of a particular county commissioner. In other words, the plaintiffs, pursuing a short-term political advantage, would have vetoed a state constitutional doctrine that benefited minority voters over the longer term.

How could civil rights attorneys be so short-sighted? I suggest that the reason is their fundamental inexperience with local government and its peculiar issues. For the same reason, civil rights attorneys have thrown obstacles in front of annexations that simultaneously dilute minority voting strength yet increase urban tax base. In the annexation cases, it is obvious to anyone not in thrall to simplistic notions of of voting power that there is no easy answer to what will protect minority interests: Eliminate the annexation, and you give the Black majority of a declining city the dubious benefit of being captain of a sinking ship. Yet civil rights attorneys rigidly fought such annexations until the Court, in City of Richmond v. United States, 422 U.S. 358 (1975), held that such annexations could go forward so long as they maximized minority voting rights in the newly enlarged city. Riley, like City of Richmond, protects minority voters from the ignorance of civil rights lawyers.

In short, federal interference with local and state governmental structure is a dubious enterprise until the feds and their private surrogates, the civil rights bar, educates themselves about the arcane workings of non-federal government. Since this is unlikely to happen soon -- both the civil rights mentality and division of labor pose probably insuperable obstacles to structural subtlety -- one might want to limit federal interference with local structure except in the most plain cases of purposeful racial discrimination.

Posted by Rick Hills on May 30, 2008 at 07:50 AM | Permalink


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Rick Hills has this very interesting post on Riley v. Kennedy, arguing that the "larger moral" in the case is that "[t]he feds should be extra-cautious about messing with state and local governments' structure."... [Read More]

Tracked on May 30, 2008 11:08:29 AM

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Here's a guest post from Mike Pitts: In two posts over at Prawfsblawg, Rick Hills has taken the plaintiff's lawyers in Riley v. Kennedy to task for their pursuit of the case, calling the arguments offered by the plaintiff's lawyers... [Read More]

Tracked on Jun 2, 2008 5:37:03 PM


I believe he's arguing that that hypothetical world may obtain at some point in the near future.

Posted by: Asher Steinberg | Jun 3, 2008 3:50:53 PM

On further reading, maybe your premise (1) is supposed to be the proof that Stokes v. Noonan was really great for Black voters in the long run even though it harmed them? If so, I think that you are misunderstanding Alabama law. Stokes didn't cause the advent of anything like "home rule" in Alabama. So how could it be seen as a benefit to minority voters, even under your theory? It sounds, in the end, like you are wishing that the Alabama Supreme Court had taken an even harder line on local vs. general laws, in a way that would have spurred the Alabama Legislature to enact a general law calling for special elections in all municipalities - and then you are wishing that the DOJ had precleared that hypothetical Alabama Supreme Court decision? If that's it, then we don't live in that hypothetical world. If not this, I cannot tell what you are arguing.

Posted by: Sam Heldman | Jun 2, 2008 9:14:22 PM

DOJ isn't favoring "short-term interests of plaintiffs." It is considering retrogressive effect on minority voting rights - a particular legal standard that you oddly fail to mention in this and in your earlier post on Riley v. Kennedy. You are writing as though DOJ, by objecting to the Mobile County change, was taking a stand on the proper balance of power between state and local government levels. But it just wasn't. It was considering the governing legal standard of retrogression. So argue, if you like, that the statute should be amended to enshrine your pet views. Or if you really want to prove that your pet views of localism are actually in the long-term interests of Black voters in this instance, such that somehow DOJ should have found the change to be non-retrogressive even though it harmed Black voters, then give us evidence to prove your paradoxical view. But without any of that, your current argument is misplaced.

Posted by: Sam Heldman | Jun 2, 2008 9:02:24 PM

Mike Pitts has a thoughtful response to my criticism of the plaintiffs in the Riley case on Rick Hasen's election law blog. He takes issue with my contention that the Alabama Supreme Court's decision enforcing the state constitutional ban on local laws benefited minority voters and asks me to clarify.

Here's my argument:

(1) Here's the general premise: It is better for any geographically concentrated group capable of controlling a local government to have broad powers to initiate legislation at the local level. it is worse for such voters to have to petition the state legislature for special authorization to undertake some local initiative.

(2) State constitutions use a variety of devices to foster local governments with such broad powers to initiate policy. One method is to give local governments general powers to enact laws -- so-called "home rule." Another method is to ban the state legislature from enacting "local laws" for particular local governments.

(3) In theory, this latter "anti-special legislation" method forces the state legislature either to bestow powers generally on all local governments or suffer the consequences of having powerless localities that cannot address problems peculiar to a particular community. But ...

(4) ...whether the state legislature responds to the ban in the former or latter way is always hard to predict. If the state court interprets the ban on special laws very leniently, then the state legislature will likely just evade the constitutional provision.

(5) The Alabama supreme court has been struggling for decades to determine whether or not to put teeth into the state's constitutional ban on local legislation. Peddycoart v. City of Birmingham
354 So.2d 808 (Ala. 1978) took a fairly tough stand, while Baldwin County v. Jenkins, 494 So.2d 584 (Ala.1986) backed off, weakening the provision of the state constitution by allowing local laws on the same subject covered by general laws if the former were contained in the same "general" laws as the latter. As the four dissenters noted in Baldwin County, the state legislature engaged in an "obvious ploy" to get around Peddycoart -- by putting language in the "general" statute authorizing local laws for county commission elections.

(6) I think that the Baldwin County dissenters were correct and the majority, incorrect. The Alabama Supreme Court essentially backed down in the effort to enforce the state constitution.

(7) Which brings us to Stokes v Noonan, 534 So.2d 237 (Ala.1988). Stokes struck down a "pure" local law -- thus helping minority voters (see Premise (1) above). But Stokes distinguished rather than overruled Baldwin County, opening the way for the transparent ploy of the state legislature to authorize local laws on county elections in a general law. Which is what (as Mike Pitts notes) the Alabama legislature did.

(8) Mike Pitts is absolutely correct that the Alabama legislature has not authorized broad county elections, as the state constitution seems to require. But I still say that, in the long run, having the Alabama Supreme Court struggle to strengthen the rule against special legislation is a good thing for minority voters. Maybe next time, the court will overrule Baldwin County and return to Peddycoart.

(9) But one thing is absolutely certain: No one at DOJ or on the 3-judge panel thought of these long-term considerations, any more than they think of them with annexations. They can't: As the narrative above indicates, the whole thing is just too darn complicated for someone who does not specialize in the topic.

(10) And that's why I think that the feds should back off: They will tend to slight the long-run considerations in favor of short-term interests of plaintiffs.

Posted by: Rick Hills | Jun 2, 2008 6:50:51 PM

Well, "I think that Black voters and their lawyers should sometimes forego enforcement of the civil rights laws because they should believe in the precise same division of power between state and local levels of government as I do" doesn't make much of a blog post, I guess. But I appreciate your backing down from the nastiness. Sam

Posted by: Sam Heldman | May 30, 2008 4:16:11 PM

"Ignorant" was a strong and, perhaps, obnoxious term, and I hereby apologize for its use.

Instead, I would amend my remarks to say that the civil rights bar should -- perhaps actually is, but in any case, should be -- aware of the mundane principles of local government law and their benefits, even when these principles contradict the short-term advantage of their constituents.

Such principles include the limitation of state legislatures' desire to control local patronage and power with special legislation. (I'd also include a lot of other principles that civil rights litigation sometimes, I think, slights -- including, for instance, maintaining local autonomy over school finance -- a value that, I believe, was slighted by Serrano v Priest).

Of course, the civil rights bar is fully entitled to disagree with my priorities here. But I think that sometimes that bar could do a better job of explaining why (for instance) the maximization of Black political power in a single special election for county commissioner justifies the burdens on ordinary local government virtues that were being enforced by the Alabama Supreme Court. I do not think that the bar carried that burden in Riley.

That last remark is not meant as a gratuitous swipe: It is just a deeply respectful expression of my deeply felt view on the Riley case. On a personal note, Pam Karlan was my debate coach when I was an undergrad: I know her work well, and I respect her enormously. (Her oral argument in Morse before SCOTUS, for instance, was one of the best oral arguments that I've ever had the pleasure of attending).

But I believe that her position in Riley was a mistake.

Posted by: Rick Hills | May 30, 2008 3:36:38 PM

Adding also:

Pride in being "blunt" is no good justification for saying that a group of other people (civil rights advocates, civil rights lawyers, and the Kennedy plaintiffs and lawyers in particular) are "ignorant" about local government laws, and are somehow inherently incapable of grasping subtlety. Unless by "blunt" you mean "willfully obnoxious without factual basis."

I shouldn't read your posts when I'm grumpy, I know.

Posted by: Sam Heldman | May 30, 2008 2:58:07 PM

But nothing that you have said gives any indication that you have any basis for believing that Stokes v. Noonan (decided in the 1980s, nothing to do with Gov. Riley) was good for Black voters, even in a long-term sense. You are speaking purely in theory, based on what seems "obvious" to you, but entirely divorced from empirical knowledge - and then criticizing people on-the-scene (including the plaintiffs, real live Black elected officials) for not buying into your theory. In any event, I am a firm believer in expressing strong views - I just think that you ought to make sure that your strong views have a real grounding in fact before you call other people short-sighted and purely self-interested for not agreeing! Then again, I am a lawyer rather than a law professor, and lawyers are used to the necessity of using evidence rather than just saying that things are obviously true.

Posted by: Sam Heldman | May 30, 2008 2:49:20 PM

I do not intend to be supercilious -- just blunt about expressing my strong views. (I take a page from Brian Leiter's book here: Don't mince words when one feels that an argument is a disaster).

As far as knowing Alabama, here's what I can say. I teach Alabama's constitution in my course on Local Government Law. Thus, I am aware of the following facts about Alabama's weird regime:

(1) Alabama has one of the most amended constitutions in the Union. Many of these hundreds of amendments micro-manage the county system of government in Alabama. For instance, there are specific amendments dealing with the Hale County probate judge's jurisdiction, and so forth.

(2) Reformers like Governor Riley have been trying for decades to reform this system of top-down management to introduce rational localism to Alabama.

(3) The Alabama Supreme Court was enforcing one of the few state constitutional provisions that limits this absurdly fragmented system of centralized policing of local government. They should be applauded, not subject to preclearance.

(4) The notion that individual plaintiffs with particular political grievances about specific candidates in specific elections should be trusted to act as private attorneys general to vindicate general principles of localism is silly. These plaintiffs represent no one but themselves.

Posted by: Rick Hills | May 30, 2008 2:29:12 PM

Wow, supercilious much?

As one of the lesser lights on the Riley v. Kennedy appellees' team, I am comfortable that our clients and my cocounsel know a great deal about the workings of Alabama state and local government, and about the long-term interests of Black voters in Alabama in that real-world environment. If you know much about those things, I don't see any indication of it in what you have written. On what basis do you claim to have more knowledge about these things than the plaintiffs themselves, and more knowledge than those who have practiced voting and election law - under both federal and state law - in Alabama for decades? With specific regard to the local vs. general laws question in the context of special elections vs. appointments, have you studied up on the actual history of how that has played out in Alabama? If so, it doesn't come through in your post.

Posted by: Sam Heldman | May 30, 2008 2:11:10 PM

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