Riley v. Kennedy , 128 S. Ct. 1970 ( 2008 )

(Slip Opinion) OCTOBER TERM, 2007 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
RILEY, GOVERNOR OF ALABAMA v. KENNEDY ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF ALABAMA
No. 07–77. Argued March 24, 2008—Decided May 27, 2008
Section 5 of the Voting Rights Act of 1965 (VRA) requires “covered ju-
risdictions” to obtain preclearance from the District Court for the
District of Columbia or the Department of Justice (DOJ) before “en-
act[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 cov-
erage 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 ap-
pointment. 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 re-
quest. Although Stokes immediately appealed to the Alabama Su-
preme 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 pre-
cleared, 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
2 RILEY v. KENNEDY
Syllabus
cured its infirmity under the Alabama Constitution. Adopting Ken-
nedy’s view, the trial court ordered the Governor to call a special elec-
tion. 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. Invok-
ing §5 of the VRA, she sought declaratory relief and an injunction
barring the Governor from filling the Commission vacancy by ap-
pointment 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 pre-
cleared and put into “force or effect” with the special election in 1987.
It followed, the District Court reasoned, that the gubernatorial ap-
pointment 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 Dis-
trict 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.
Held:
1. Because the District Court did not render its final judgment un-
til May 1, 2007, the Governor’s May 18 notice of appeal was timely.
Under §5, “any appeal” from the decision of a three-judge district
court “shall lie to the Supreme Court,” 42 U.S. C. §1973c(a), but the
appeal must be filed within 60 days of a district court’s entry of a fi-
nal judgment, see 28 U.S. C. §2101(b). Kennedy maintains that the
District Court’s August 2006 order qualified as a final judgment,
while the Governor maintains that the District Court’s final judg-
ment was the May 1 order vacating Chastang’s appointment. A final
judgment “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. The August 2006 order declared that preclear-
ance was required for the Stokes and Kennedy decisions, but left un-
resolved Kennedy’s demand for injunctive relief. An order resolving
liability without addressing a plaintiff’s requests for relief is not fi-
nal. See Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 742–743.
Pp. 9–10.
2. For §5 purposes, the 1985 Act never gained “force or effect.”
Cite as: 553 U. S. ____ (2008) 3
Syllabus
Therefore, Alabama’s reinstatement of its prior practice of guberna-
torial appointment did not rank as a “change” requiring preclearance.
Pp. 10–20.
(a) In order to determine whether an election practice constitutes
a “change” as defined in this Court’s §5 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”—or, absent
any change since the jurisdiction’s coverage date, the practice “in
force or effect” on that date. See Young v. Fordice, 520 U.S. 273,
282–283. Pp. 10–12.
(b) While not controlling here, three precedents addressing §5’s
term of art “in force or effect” provide the starting point for the
Court’s inquiry. In Perkins v. Matthews, 400 U.S. 379, the question
was what practice had been “in force or effect” in Canton, Mississippi,
on that State’s 1964 coverage date. A 1962 state law required at-
large elections for city aldermen, but Canton had elected aldermen by
wards in 1961 and again in 1965. This Court held that the city’s
1969 attempt to move to at-large elections was a change requiring
preclearance because election by ward was “the procedure in fact ‘in
force or effect’ in Canton” on the coverage date. Id., at 395. Simi-
larly, in City of Lockhart v. United States, 460 U.S. 125, the question
was what practice had been “in force or effect” in Lockhart, Texas, on
the relevant coverage date. The city had used a “numbered-post” sys-
tem to elect its city council for more than 50 years. Though the num-
bered-post system’s validity under state law was “not entirely clear,”
id., at 132, “[t]he proper comparison [wa]s between the new system
and the system actually in effect on” the coverage date, “regardless of
what state law might have required,” ibid. Finally, in Young v. Ford-
ice, the question was whether a provisional voter registration plan
precleared and implemented by Mississippi election officials, who be-
lieved that the state legislature was about to amend the relevant law,
had been “in force or effect.” See 520 U. S., at 279. As it turned out,
the state legislature failed to pass the amendment, and voters who
had registered under the provisional plan were required to reregister.
This Court held that the provisional plan was a “temporary misappli-
cation of state law” that, for §5 purposes, was “never ‘in force or ef-
fect.’ ” Id., at 282. Young thus qualified the general rule of Perkins
and Lockhart: A practice best characterized as nothing more than a
“temporary misapplication of state law,” is not in “force or effect,”
even if actually implemented by state election officials, 520 U. S., at
282. Pp. 12–15.
(c) If the only relevant factors were the length of time a practice
was in use and the degree to which it was implemented, this would
be a close case under Perkins, Lockhart, and Young. But an extraor-
4 RILEY v. KENNEDY
Syllabus
dinary circumstance not present in any past case is operative here,
impelling the conclusion that the 1985 Act was never “in force or ef-
fect”: 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. And because the State Supreme Court’s prerogative to say
what Alabama law is merits respect in federal forums, a law chal-
lenged at first opportunity and invalidated by Alabama’s highest
court is properly regarded as null and void ab initio, incapable of ef-
fecting 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 some-
times require courts to allow elections to proceed despite pending le-
gal challenges. Cf. Purcell v. Gonzalez, 549 U.S. 1, 5–6 (per curiam).
Ruling otherwise would have the anomalous effect of binding Ala-
bama 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 simi-
lar errors in the future. Pp. 15–19.
(d) Although this Court’s reasoning and the facts of this case
should make the narrow scope of the holding apparent, some cau-
tionary observations are in order. First, the presence of a judgment
by Alabama’s highest court invalidating the 1985 Act under the State
Constitution is critical here. The outcome might be different were a
potentially unlawful practice simply abandoned by state officials af-
ter 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
Cite as: 553 U. S. ____ (2008) 5
Syllabus
down shortly thereafter. The same result would not necessarily fol-
low if a practice were invalidated only after enforcement without
challenge in several previous elections. Cf. Young, 520 U. S., at 283.
Finally, the consequence of the Alabama Supreme Court’s Stokes de-
cision was to reinstate a practice—gubernatorial appointment—
identical to the State’s §5 baseline. Preclearance might well have
been required had the court instead ordered the State to adopt a
novel practice. Pp. 19–20.
Reversed and remanded.
GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined.
STEVENS, J., filed a dissenting opinion, in which SOUTER, J., joined.
Cite as: 553 U. S. ____ (2008) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–77
_________________
BOB RILEY, GOVERNOR OF ALABAMA, APPELLANT
v. YVONNE KENNEDY ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
[May 27, 2008]
JUSTICE GINSBURG delivered the opinion of the Court.
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 prac­
tice, obtained the preclearance required by §5, and held an
election. Soon thereafter, the law under which the elec­
tion 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 pre­
clearance.
I
The Voting Rights Act of 1965 (VRA), 79 Stat. 437, as
amended, 42 U.S. C. §1973 et seq., “was designed by
Congress to banish the blight of racial discrimination in
voting, which ha[d] infected the electoral process in parts
2 RILEY v. KENNEDY
Opinion of the Court
of our country for nearly a century.” South Carolina v.
Katzenbach, 383 U.S. 301, 308 (1966). In three earlier
statutes, passed in 1957, 1960, and 1964, Congress had
empowered the Department of Justice (DOJ or Depart­
ment) to combat voting discrimination through “case-by­
case litigation.” Id., at 313. These lawsuits, however,
made little headway. Voting-rights suits were “unusually
onerous to prepare” and the progress of litigation was
“exceedingly slow,” in no small part due to the obstruction­
ist tactics of state officials. Id., at 314. Moreover, some
States “resorted to the extraordinary stratagem of contriv­
ing new rules of various kinds for the sole purpose of
perpetuating voting discrimination in the face of adverse
federal court decrees.” Id., at 335.
The VRA reflected Congress’ determination that
“sterner and more elaborate measures” were needed to
counteract these formidable hindrances. Id., at 309.
Sections 4 and 5 impose the most stringent of the Act’s
remedies. Under §4(b), as amended, a State or political
subdivision is a so-called “covered jurisdiction” if, on one of
three specified coverage dates: (1) it maintained a literacy
requirement or other “test or device” as a prerequisite to
voting, and (2) fewer than 50% of its voting-age citizens
were registered to vote or voted in that year’s Presidential
election. 42 U.S. C. A. §1973b(b) (Supp. 2007). Section
4(a) suspends the operation of all such “test[s] or device[s]”
in covered jurisdictions. §1973b(a) (main ed. and Supp.
2007). Section 5 requires covered jurisdictions to obtain
what has come to be known as “preclearance” from the
District Court for the District of Columbia or the DOJ
before “enact[ing] or seek[ing] to administer” any altera­
tion of their practices or procedures affecting voting.
§1973c(a) (Supp. 2007).
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
Cite as: 553 U. S. ____ (2008) 3
Opinion of the Court
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); 28 CFR §51.54
(2007). As amended in 2006, the statute defines “purpose”
to include “any discriminatory purpose.” 120 Stat. 581,
codified at 42 U.S. C. A. §1973c(c) (Supp. 2007).
Congress took the extraordinary step of requiring cov­
ered 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 different requirements with the
same discriminatory effect.” Allen v. State Bd. of Elec-
tions, 393 U.S. 544, 548 (1969). By putting the burden on
covered jurisdictions to demonstrate that future changes
would not be discriminatory, §5 served to “shift the advan­
tage of time and inertia from the perpetrators of the evil to
its victims.” Katzenbach, 383 U. S., at 328.
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. Find­
ing continuing discrimination in access to the ballot, how­
ever, 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 42 U.S. C. A. §1973b(a)(8)
(Supp. 2007), but a covered jurisdiction may “bail out” at
any time if it satisfies certain requirements, see
——————
1 See Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting
Rights Act Reauthorization and Amendments Act of 2006, 120 Stat.
577; Voting Rights Act Amendments of 1982, 96 Stat. 131; Voting
Rights Act Amendments of 1975, 89 Stat. 400; Voting Rights Act
Amendments of 1970, 84 Stat. 314.
4 RILEY v. KENNEDY
Opinion of the Court
§1973b(a)(1) (main ed. and Supp. 2007).
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
county-wide executive and administrative functions. See
Ala. Code §11–3–11 (1975).
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.
A
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 gubernato­
rial appointment. See Ala. Code §12–6 (1959). The rele­
vant provision was later recodified without substantive
change as Ala. Code §11–3–6 (1975), which stated:
“In case of a vacancy, it shall be filled by appoint­
ment 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 Com­
mission 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
Cite as: 553 U. S. ____ (2008) 5
Opinion of the Court
Ala. Acts no. 85–237 (1985 Act).2 The DOJ precleared this
new law in June 1985.
The first midterm opening on the Commission postpas­
sage 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 Art. IV,
§105, of the Alabama Constitution, which provides that no
“local law . . . shall be enacted in any case which is pro­
vided for by a general law.” On Stokes’s reading, the 1985
Act conflicted with §105 because the Act addressed a
matter already governed by Ala. Code §11–3–6.
The state trial court rejected Stokes’s argument and
entered judgment for the state defendants. Stokes imme­
diately 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 Sep­
tember 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 (1988).
The Alabama Supreme Court’s decree cast grave doubt
——————
2 Under the Alabama Constitution, a “general” law is “a law which in
its terms and effect applies either to the whole state, or to one or more
municipalities of the state less than the whole in a class.” Art. IV,
§110. A “special or private” law is a law that “applies to an individual,
association or corporation.” Ibid. A “local” law is “a law which is not a
general law or a special or private law.” Ibid. The 1985 Act was a local
law because it applied only to Mobile County; the remainder of the
State continued to be governed by Ala. Code §11–3–6 (1975).
6 RILEY v. KENNEDY
Opinion of the Court
on the legitimacy of Jones’s election and, consequently, on
his continued tenure in office. The Governor, however,
defused any potential controversy by immediately invok­
ing his authority under Ala. Code §11–3–6 and appointing
Jones to the Commission.
B
The next midterm vacancy on the Commission did not
occur until October 2005, when Jones—who had been
reelected 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 Ala. Code §11–3–6 providing that va­
cancies on county commissions were to be filled by guber­
natorial appointment “[u]nless a local law authorizes a
special election.” 2004 Ala. Acts no. 2004–455 (2004 Act).
When the 2005 vacancy arose, three Mobile County voters
and Alabama state legislators—appellees Yvonne Ken­
nedy, James Buskey, and William Clark (hereinafter
Kennedy)—filed suit against Alabama’s Governor, Bob
Riley, in state court. The 2004 Act’s authorization of local
laws providing for special elections, they urged, had re­
vived the 1985 Act and cured its infirmity under §105 of
the Alabama Constitution. Adopting Kennedy’s view, the
state trial court ordered Governor Riley to call a special
election.
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 resur­
rect the 1985 Act, Alabama’s highest court ruled that
“Governor Riley [wa]s authorized to fill the vacancy on the
Cite as: 553 U. S. ____ (2008) 7
Opinion of the Court
Mobile County Commission by appointment.” Riley v.
Kennedy, 928 So. 2d 1013, 1017 (2005). Governor Riley
promptly exercised that authority by appointing Juan
Chastang.
The day after the Alabama Supreme Court denied re­
hearing, 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 42 U.S. C. A.
§1973c(a) (Supp. 2007); Allen, 393 U. S., at 563.
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 election of Jones 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 “the two [Alabama Su­
preme Court] decisions . . . should have been precleared
before they were implemented.” 445 F. Supp. 2d, at 1336.
Deferring affirmative relief, the District Court gave the
State 90 days to obtain preclearance of Stokes and Ken-
nedy. 445 F. Supp 2d, at 1336. Without conceding that
preclearance was required, the State submitted the deci­
sions to the DOJ. Finding that the State had failed to
prove that the reinstatement of gubernatorial appoint­
ment would not be retrogressive, the Department denied
preclearance. See App. to Motion to Dismiss or Affirm 2a–
8 RILEY v. KENNEDY
Opinion of the Court
8a. “The African-American voters of District 1,” the DOJ
explained, “enjoy the opportunity to elect minority candi­
dates of their choice” under the 1985 Act. Id., at 6a. A
change to gubernatorial appointment would be retrogres­
sive 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 reconsidera­
tion, 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 juris­
diction until our consideration of the case on the merits.
552 U. S. ___.
In the meantime, a special election was held in Mobile
County in October 2007 to fill the vacancy resulting from
the District Court’s order vacating Chastang’s appoint­
ment.3 Chastang ran in the election but was defeated by
Merceria Ludgood, who garnered nearly 80% of the vote.
See Certification of Results, Special Election, Mobile
County (Oct. 16, 2007), http://records.mobile-county.net/
ViewImagesPDFAll.Aspx?ID=2007081288 (as visited May
22, 2008, and available in Clerk of Court’s case file).
Ludgood continues to occupy the District One seat on the
Commission. Her term will expire in November 2008.4
——————
3 The District Court denied the Governor’s motion to stay its judg­
ment pending this appeal. See App. 7.
4 Regardless of the outcome of this litigation, the method for filling
future midterm vacancies on the Commission appears to have been
settled. In 2006, the Alabama Legislature enacted a new measure
Cite as: 553 U. S. ____ (2008) 9
Opinion of the Court
III
Before reaching the merits of Governor Riley’s appeal,
we first take up Kennedy’s threshold objection. The ap­
peal, 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.” 42 U.S. C. §1973c(a). Such an appeal must be
filed within 60 days of the District Court’s entry of a final
judgment. See 28 U.S. C. §2101(b). Kennedy maintains
that Governor Riley’s May 18, 2007 notice of appeal came
too late because the District Court’s August 2006 order
qualified as a final judgment. If Kennedy’s characteriza­
tion is correct, then Governor Riley’s time to file an appeal
expired in October 2006 and his appeal must be dismissed.
But if, as Governor Riley maintains, the District Court did
not issue a final judgment until the order vacating Chas­
tang’s appointment on May 1, 2007, then the Governor
filed his appeal well within the required time.
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 unre­
——————
providing that, on a going-forward basis, vacancies on the Commission
will be filled by special election. See 2006 Ala. Acts no. 2006–342. The
DOJ precleared the statute in July 2007. The passage of this law does
not render this case moot: If the Governor prevails in his appeal,
Chastang may seek reinstatement to the Commission to serve out the
remainder of the term ending in November 2008. See Brief for United
States as Amicus Curiae 5, n. 1.
5 Catlin and the other authorities cited in this Part interpret the
meaning of “final decisions” in 28 U.S. C. §1291, the statute governing
appeals from district courts to the courts of appeals. We find them
instructive in interpreting the parallel term “final” judgment in
§2101(b).
10 RILEY v. KENNEDY
Opinion of the Court
solved Kennedy’s demand for injunctive relief. We have
long held that an order resolving liability without address­
ing 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 Prac­
tice 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 Ala­
bama Supreme Court’s decisions in Stokes and Kennedy.
See Brief for Appellees 26–27. This argument misappre­
hends the District Court’s order: Far from requiring the
Governor to seek preclearance, the District Court ex­
pressly 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.” Sul-
livan v. Finkelstein, 496 U.S. 617, 628, n. 7 (1990). See
also Wetzel, 424 U. S., at 741–743.
Because the District Court did not render its final judg­
ment 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 elec­
tions. That new practice was used in one election only,
held in 1987. The next year, the Alabama Supreme Court
Cite as: 553 U. S. ____ (2008) 11
Opinion of the Court
determined, in Stokes v. Noonan, that the Act authorizing
special elections was invalid under the State’s Constitu­
tion. Properly framed, the issue before us is whether §5
required Alabama to obtain preclearance before reinstat­
ing the practice of gubernatorial appointment in the wake
of the decision by its highest court invalidating the spe­
cial-election law.6
It is undisputed that a “change” from election to ap­
pointment is a change “with respect to voting” and thus
covered by §5. See Allen, 393 U. S., at 569–570; Presley v.
Etowah County Comm’n, 502 U.S. 491, 502–503 (1992).
We have also stated that the preclearance requirement
encompasses “voting changes mandated by order of a state
court.” Branch v. Smith, 538 U.S. 254, 262 (2003). See
also Hathorn v. Lovorn, 457 U.S. 255, 265–266, and n. 16
(1982). The question is whether, given the circumstances
here presented, any “change” within the meaning of §5
occurred in this case.
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
——————
6 As framed by the District Court, the issue was whether the Alabama
Supreme Court’s decisions in Stokes v. Noonan and Riley v. Kennedy
should have been precleared. See 445 F. Supp. 2d, at 1336. This
formulation, we conclude, misstates the issue in two technical respects.
First, §5 requires a covered jurisdiction to seek preclearance of any
changed “practice . . . with respect to voting.” 42 U.S. C. A. §1973c(a)
(Supp. 2007). The “practice” at issue here is gubernatorial appoint­
ment. That practice, and not the Alabama Supreme Court’s interpreta­
tion of state law in Stokes and Kennedy, is the proper subject of the §5
inquiry. Second, as Governor Riley noted, see Brief for Appellant 25, if
there was a change requiring preclearance, it came about as a result of
Stokes, not Kennedy. Stokes held that the 1985 Act violated the Ala­
bama Constitution, and the State accordingly reinstated the practice of
gubernatorial appointment with the Governor’s 1988 appointment of
Jones. Kennedy simply determined that the 2004 Act did not resurrect
the 1985 Act; that decision itself prompted no change in the State’s
election practices.
12 RILEY v. KENNEDY
Opinion of the Court
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 jurisdic­
tion’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 adminis­
ter’ a ‘practice or procedure’ that is ‘different’ enough”
from the baseline to qualify as a change. Young, 520 U. S.,
at 281 (quoting 42 U.S. C. §1973c).7
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
filling midterm vacancies on the Commission was the pre­
1985 practice of gubernatorial appointment. The State’s
reinstatement of that practice thus did not constitute a
change requiring preclearance.
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
——————
7 By its terms, §5 requires preclearance of any election practice that is
“different from that in force or effect on” the relevant coverage date—in
this case, November 1, 1964. 42 U.S. C. A. §1973c(a) (Supp. 2007).
Governor Riley’s opening brief suggested that this text could be read to
mean that no preclearance is required if a covered jurisdiction seeks to
adopt the same practice that was in force or effect on its coverage
date—even if, because of intervening changes, that practice is different
from the jurisdiction’s baseline. See Brief for Appellant 26–27. In
response, Kennedy and the United States noted that the DOJ, see 28
CFR §51.12 (2007), and the lower courts to consider the question, see,
e.g., NAACP, DeKalb Cty. Chapter v. Georgia, 494 F. Supp. 668, 677
(ND Ga. 1980) (three-judge court), have rejected this interpretation.
See Brief for Appellees 47–49; Brief for United States as Amicus Curiae
17–18. We need not resolve this dispute because the result in this case
is the same under either view. But see post, at 2–3 (taking the issue
up, although it is academic here).
Cite as: 553 U. S. ____ (2008) 13
Opinion of the Court
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 ques­
tion 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 selec­
tion 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 pro­
cedure 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 cover­
age 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 elect its city council. See id., at 132, n. 6.8 A
——————
8 Under the “numbered post” system, “the two commissioner posts
were designated by number, and each candidate for commissioner
specified the post for which he or she sought election.” City of Lockhart
v. United States, 460 U.S. 125, 127 (1983) (internal quotation marks
omitted). It contrasted with an alternative system “in which all of the
candidates . . . run in a single election, and the two receiving the
14 RILEY v. KENNEDY
Opinion of the Court
group of plaintiffs nonetheless contended that the num­
bered-post system was never “in force or effect” because it
lacked state-law authorization. We noted that the validity
of the numbered-post system under state law was “not
entirely clear.” Id., at 132.9 Relying on Perkins, we con­
sidered the uncertain state of Texas law “irrelevant,” for
“[t]he proper comparison [wa]s between the new system
and the system actually in effect on November 1, 1972,
regardless of what state law might have required.” 460
U. S., at 132 (footnote omitted).
Finally, in Young v. Fordice, decided in 1997, the ques­
tion 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 pre­
pared and obtained preclearance for a new voter registra­
tion scheme. See 520 U. S., at 279. Roughly one-third of
the State’s election officials implemented the plan, regis­
tering 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 argu­
ment that “the [p]rovisional [p]lan, because it was pre-
cleared by the Attorney General, became part of the base­
line against which to judge whether a future change must
be precleared.” Id., at 282. Regarding the provisional
plan as a “temporary misapplication of state law,” we held
that, for §5 purposes, the plan was “never ‘in force or
effect.’ ” Ibid. We emphasized that the officials who im­
plemented the provisional plan “did not intend to adminis­
——————
greatest number of votes are elected.” Id., at 127, n. 1.
9 We commented in this regard that the longevity of the numbered-
post system “suggest[ed] a presumption of legality under state law.”
Id., at 132, n. 6.
Cite as: 553 U. S. ____ (2008) 15
Opinion of the Court
ter an unlawful plan” and that they abandoned it “as soon
as its unlawfulness became apparent.” Id., at 283. We
also noted that the provisional plan had been used for only
41 days and that the State “held no elections” during that
period. Ibid.
B
Perkins and Lockhart established that an election prac­
tice 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 imple­
mented, 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 chal­
lenge.” 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 cir­
cumstance not present in any past case is operative here,
impelling the conclusion that the 1985 Act was never “in
16 RILEY v. KENNEDY
Opinion of the Court
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 invali­
dated by the Alabama Supreme Court.
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 Colum­
bia” 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 Per-
kins and Lockhart; they also provide strong cause to con­
clude 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 pre­
rogative of the Alabama Supreme Court to say what Ala­
bama law is merits respect in federal forums,10 a law
challenged at first opportunity and invalidated by Ala­
bama’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
——————
10 The dissent observes that the Alabama Supreme Court’s decision in
Stokes was not unanimous. See post, at 8–9. Like this Court, the
Alabama Supreme Court does not shy away from revealing dissenting
opinions. Of course, it is the majority opinion that declares what state
law is.
Cite as: 553 U. S. ____ (2008) 17
Opinion of the Court
that the 1985 Act would not have been “in force or effect”
had the Alabama Supreme Court stayed the 1987 election
pending its decision in Stokes (or simply issued its decision
sooner). See Brief for Appellees 51; Brief for United States
as Amicus Curiae 23–24.
There is no good reason to hold otherwise simply be­
cause Alabama’s highest court, proceeding at a pace
hardly uncommon in litigated controversies, did not ren­
der 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 immi­
nence 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 sus­
pending the [challenged] rules.”).
Ruling as Kennedy and the United States urge, more­
over, 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 Ala­
bama 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 miscon­
strued 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 theo­
retical 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,
18 RILEY v. KENNEDY
Opinion of the Court
required that, in the years here involved, vacancies on the
Mobile County Commission be filled by appointment
rather than special election. Nothing inherent in the
practice of appointment violates the Fifteenth Amendment
or the VRA. The DOJ, however, found that a change from
special elections to appointment had occurred in District
One, and further found that the change was retrogressive,
hence barred by §5. The District Court’s final decision,
tied to the DOJ determination, thus effectively precluded
the State from reinstating gubernatorial appointment, the
only practice consistent with the Alabama Constitution
pre-2006.11 Indeed, Kennedy’s counsel forthrightly ac­
knowledged that the position she defends would “loc[k]
into place” an unconstitutional practice. Tr. of Oral Arg.
32.
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 7.
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 8—a routine
consequence of §5. The result described by the dissent,
however, follows directly from the Constitution’s instruc­
tion that a state law may not be enforced if it conflicts
with federal law. See Art. VI, cl. 2. Section 5 prohibits
States from making retrogressive changes to their voting
practices, and thus renders any such changes unenforce­
able. To be sure, this result constrains States’ legislative
freedom. But the rule advocated by the dissent would
effectively preclude Alabama’s highest court from applying
to a state law a provision of the State Constitution entirely
harmonious with federal law. That sort of interference
——————
11 As earlier noted, see supra, at 8–9, n. 4, the Alabama Legislature
modified the relevant state law in 2006 by adopting special elections on
a going-forward basis.
Cite as: 553 U. S. ____ (2008) 19
Opinion of the Court
with a state supreme court’s ability to determine the
content of state law, we think it plain, is a burden of a
different order.
This burden 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. See,
e.g., Akins v. Secretary of State, 154 N. H. 67, 67–68, 74,
904 A.2d 702, 703, 708 (2006) (preelection challenge
rejected by a state trial court but eventually sustained in a
postelection decision by the State Supreme Court); Cobb v.
State Canvassing Bd., 2006–NMSC–034, ¶¶1–17, 140
N. M. 77, 79–83 (2006) (same); Maryland Green Party v.
Maryland Bd. of Elections, 377 Md. 127, 137–139, 832
A.2d 214, 220–221 (2003) (same); O’Callaghan v. State,
914 P.2d 1250, 1263–1264 (Alaska 1996) (same); Peloza v.
Freas, 871 P.2d 687, 688, 692 (Alaska 1994) (same). We
decline 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.
C
Although our reasoning and the particular facts of this
case should make the narrow scope of our holding appar­
ent, 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 Con­
stitution 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
——————
12 There is no indication in the record that the Alabama Supreme
Court’s decisions in Stokes and Kennedy were anything other than
reasonable and impartial interpretations of controlling Alabama law.
20 RILEY v. KENNEDY
Opinion of the Court
result would not necessarily follow if a practice were in­
validated 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 prac­
tice was never ‘in force or effect.’ . . . A State, after all,
might maintain in effect for many years a plan that tech­
nically . . . violated some provision of state law.”). Finally,
the consequence of the Alabama Supreme Court’s decision
in Stokes was to reinstate a practice—gubernatorial ap­
pointment—identical to the State’s §5 baseline. Preclear­
ance might well have been required had the court instead
ordered the State to adopt a novel practice.13
* * *
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.
——————
13 In view of these limitations, the concern expressed in Part IV of the
dissent, see post, at 9–13, is misplaced. The Alabama Supreme Court’s
historical role in administering the State’s discriminatory literacy test,
the dissent contends, “indicates that state courts must be treated on the
same terms as state legislatures for §5 purposes,” post, at 9. But it is
common ground that a “change” made pursuant to a state-court order is
subject to §5 scrutiny; the only question is whether the Alabama
Supreme Court’s ruling in Stokes triggered a “change” within the
meaning of our decisions. See supra, at 11; post, at 8. More impor­
tantly, none of the past discriminatory actions by the state court
identified in the dissent would have been sheltered from §5 review by
our tightly bounded decision in this case.
Cite as: 553 U. S. ____ (2008) 1
STEVENS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–77
_________________
BOB RILEY, GOVERNOR OF ALABAMA, APPELLANT
v. YVONNE KENNEDY ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
[May 27, 2008]
JUSTICE STEVENS, with whom JUSTICE SOUTER joins,
dissenting.
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, 42 U.S. C. §1973 et seq. (2000 ed. and Supp. V).
Even though many of those changes are, at least in part,
the consequence of vigorous and sustained enforcement of
the VRA, it may well be true that today the statute is
maintaining strict federal controls that are not as neces-
sary or appropriate as they once were. The principal
events at issue in this case occurred in the 1980’s, when
the State’s transition from a blatantly discriminatory
regime was well underway.
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 his-
tory. In my judgment, the Court’s decision today is not
faithful to those cases or to Congress’ intent to give §5 of
the VRA, §1973c (2000 ed.), the “broadest possible scope,”
——————
1 Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting
Rights Act Reauthorization and Amendments Act of 2006, 120 Stat.
577. The Act passed the Senate by a vote of 98 to 0. 152 Cong. Rec.
S8012 (July 20, 2006).
2 RILEY v. KENNEDY
STEVENS, J., dissenting
reaching “any state enactment which altered the election
law of a covered State in even a minor way.” Allen v. State
Bd. of Elections, 393 U.S. 544, 566–567 (1969). I think it
clear, as the Department of Justice argues and the three-
judge District Court held, 445 F. Supp. 2d 1333 (MD Ala.
2006), that the Alabama Supreme Court’s decision in
Stokes v. Noonan, 534 So. 2d 237 (1988), caused a change
in voting practice that required preclearance.
I
Section 5 preclearance is required “[w]henever a [cov-
ered] State . . . shall enact or seek to administer any vot-
ing 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.” 42 U.S. C.
§1973c. The critical question in this case is whether the
procedure for selecting Mobile County Commissioners
arising out of Stokes—gubernatorial appointment—is a
“change” under §5.
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
Ala. Code §12–6 (1959); the practice of calling a special
election to fill midterm openings on the Mobile County
Commission was not introduced until the passage of
Alabama Act No. 85–237 (1985 Act), 1985 Ala. Acts no.
85–237.
The argument that a return to gubernatorial appoint-
ment 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 re-
think prior dicta suggesting that, despite its language, §5
Cite as: 553 U. S. ____ (2008) 3
STEVENS, J., dissenting
operates like a ratchet to subsume newly-precleared prac-
tices . . . . 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 Sup-
plemental 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 Con-
gress 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 (col-
lecting cases); 28 CFR §51.12 (2007). Furthermore, Con-
gress has reauthorized the VRA in the face of this under-
standing without amending the relevant language of §5.
See Voting Rights Act Reauthorization and Amendments
Act of 2006, 120 Stat. 577; ante, at 3, n. 1 (describing the
history of renewals and extensions of the VRA). Thus, the
inclusion of the date 1964 in the language of §5 poses no
obstacle to my conclusion that Stokes—even though it
returned to gubernatorial practice—implemented a change
in voting practice that required preclearance.
II
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
4 RILEY v. KENNEDY
STEVENS, J., dissenting
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 re-
quired by a 1962 state statute. Because the city had never
implemented that statute, we held that the practice actu-
ally in force or effect on November 1, 1964 was ward elec-
tions, 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 Young v. Fordice, 520 U.S. 273 (1997), 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 there-
fore could not serve as the §5 baseline. In 1994, Missis-
sippi began modifying its registration practices in an
attempt to comply with the National Voter Registration
Act of 1993, 107 Stat. 77, 42 U.S. C. §1973gg et seq. (2000
ed. and Supp. V). In late 1994, the Mississippi Secretary
of State proposed a series of changes and assumed that
the Mississippi Legislature would adopt those changes.
The Secretary of State told at least one election official to
begin registering voters under the new plan. The pro-
posed changes were precleared, and about 4,000 voters
were registered. The legislature failed to adopt the pro-
posal, however, and the registrants were notified that they
were not, as they had thought, registered to vote in state
Cite as: 553 U. S. ____ (2008) 5
STEVENS, J., dissenting
or local elections. Fordice, 520 U. S., at 277–278. We held
that the provisional registration system was not the base-
line because it was never in force or effect.
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 appoint-
ment, 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 star-
tling 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 Com-
mission. 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.
It is difficult to say that the special election practice was
never “in force or effect” with a straight face. Jones was
elected and sat on the three-member Mobile County
Commission for approximately 14 months. During those
14 months, the County Commission held dozens of meet-
ings, at which the Commission exercised its executive and
——————
2 Even the majority cannot escape this conclusion, stating that “[t]he
State’s reinstatement of th[e] practice [of gubernatorial appointment]
did not constitute a change requiring preclearance.” Ante, at 12 (em-
phasis added); see also, e.g., ante, at 7, 12. Of course, if there was no
change, then there was nothing to reinstate.
6 RILEY v. KENNEDY
STEVENS, J., dissenting
administrative functions. During the time he served as a
result of the special election, Jones was central to actions
having a direct and immediate impact on Mobile County.
For example, at a meeting held on October 13, 1987, the
Commission considered 25 agenda items, one of which was
paying claims and payrolls of over $1 million. Minutes
from Meeting Oct. 13, 1987.
The differences between this case and Fordice are le-
gion. 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 imple-
mented the proposal. 520 U. S., at 283. Further, the
State rectified the situation far in advance of any elec-
tions; 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 Mo-
bile County. While the voters in Fordice could be reregis-
tered 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 15. The Court relies, however, on the
“extraordinary circumstance” that the 1985 Act was chal-
lenged immediately and that the 1987 election was held
“in the shadow” of that legal challenge. Ante, at 15–16.
But a cloud of litigation cannot undermine the obvious
conclusion that the special election practice was in force or
effect. That practice, therefore, is the practice to which
Cite as: 553 U. S. ____ (2008) 7
STEVENS, J., dissenting
gubernatorial appointment must be compared.
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 17. 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. 42 U.S. C. §1973c. And changes to voting prac-
tice can arise in at least four ways: (1) legislative enact-
ment; (2) executive action; (3) judicial changes, either by a
proactive judicial decision (e.g., redistricting) or, as in this
case, through judicial interpretation of state law; or (4)
informal abandonment or adoption by election officials.
8 RILEY v. KENNEDY
STEVENS, J., dissenting
The majority does not dispute that a change in voting
practice wrought by a state court can be subject to pre-
clearance. See ante, at 11 (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 Ala-
bama might be bound “to an unconstitutional practice
because of a state trial court’s error.” Ante, at 17. 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 gu-
bernatorial appointment. Imagine further that the De-
partment 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 adminis-
ter 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 requir-
ing 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, see ante, at 17, that allowing it to effectively establish
the special election practice as a §5 baseline would be
intolerable. I am certain, however, that the two Alabama
Supreme Court Justices dissenting in Stokes would dis-
Cite as: 553 U. S. ____ (2008) 9
STEVENS, J., dissenting
agree. 534 So. 2d, at 239 (opinion of Steagall, J., joined by
Adams, J.). The dissenting Justices argued that the 1985
Act was sufficiently “amendatory” to avoid the require-
ments of Peddycoart v. Birmingham, 354 So. 2d 808 (Ala.
1978), because it merely amended the 1957 Act creating
the Mobile County Commission. The Circuit Court Judge
followed similar reasoning, citing Alabama Supreme Court
precedent stating that “[i]t is the duty of the courts to
sustain the constitutionality of a legislative act unless it is
clear beyond a reasonable doubt that it is in violation of
the fundamental law.” Stokes v. Noonan, CV–87–001316
(Mobile County, May 19, 1987). Nothing in the circuit
court judge’s decision indicates that this case calls for
anything other than a straightforward application of our
precedent.
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 consti-
tutional convention called in 1901 “largely, if not princi-
pally, 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. McMillian,
Constitutional Development in Alabama, 1789–1901, pp.
217–232 (1955); Hunter v. Underwood, 471 U.S. 222(1985).4 Not wishing to run directly afoul of the Fifteenth
——————
3 The NAACP Legal Defense and Educational Fund’s amicus brief
provides a history of the role that Alabama courts played in promoting
and retaining discriminatory voting practices.
4 The spirit of the Constitution’s registration provision was captured
by the statement of Delegate Heflin:
“We want the white men who once voted in this State and controlled
10 RILEY v. KENNEDY
STEVENS, J., dissenting
Amendment, delegates at the convention devised a poll tax
and a literacy test in order to disfranchise African-
Americans. The effects of the new Constitution were
staggering: In 1900, 100,000 African-Americans were
enrolled as voters in Alabama. By 1908, only 3,742 Afri-
can-Americans were registered to vote. Alabama, 252
F. Supp., at 99; V. Hamilton, Alabama: A Bicentennial
History 96 (1977).5
The Alabama Constitution provided for judicial review
of contested registrar decisions, see §186 (1901), but that
review provision was rendered all but useless by the Ala-
bama Supreme Court’s adoption of both a strong presump-
tion that the Board of Registrars’ decisions were valid and
stringent pleading requirements. For example, in Haw-
kins v. Vines, 249 Ala. 165, 30 So. 2d 451 (1947), the Ala-
bama Supreme Court rejected a petition from a denial of
registration because the petitioner averred that he “is a
——————
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 disfran-
chise 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).
5 Provisions following the lead of the 1890 “Mississippi Plan” were
enacted in other State Constitutions, with similar results. See C.
Zelden, The Battle for the Black Ballot 17–18 (2004) (describing similar
changes to registration practice in Mississippi, South Carolina, North
Carolina, Louisiana, Alabama, Virginia, Texas, and Georgia and their
effects on registration); C. Woodward, Origins of the New South 1877–
1913, pp. 321–349 (1951) (describing effect of Mississippi Plan on the
States that adopted it). While poor white voters were also disfran-
chised to a significant degree, these provisions fell most heavily on
African-American voters. See id., at 342–343 (demonstrating that
between 1897 and 1900 in Louisiana registered white voters dropped by
about 40,000 and registered African-Americans dropped by approxi-
mately 125,000).
Cite as: 553 U. S. ____ (2008) 11
STEVENS, J., dissenting
citizen of the United States,” “is able to read and write,”
and “is over the age of twenty-one years,” rather than
expressly stating that he met those requirements at the
time he attempted to register. Id., at 169, 30 S. 2d, at 455
(emphasis deleted; internal quotation marks omitted). In
Hawkins the Alabama Supreme Court also reaffirmed its
previous holding in Boswell v. Bethea, 242 Ala. 292, 296–
297, 5 So. 2d 816, 820–821 (1942), that the decisions of the
Board of Registrars are “presumptively regular and valid
and the burden is on the one who would attack the order
to show error.” 249 Ala., at 169, 30 So. 2d, at 454.
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.” Ala. Const. §181 (1901)
(as amended in 1946 by Amdt. 55). That amendment was
held to be unconstitutional in Davis v. Schnell, 81 F. Supp.
872, 881 (SD Ala. 1949). Not easily deterred, the legisla-
ture responded with a new amendment, ratified in De-
cember 1951, which provided that the Alabama Supreme
Court would promulgate a uniform questionnaire to be
completed by all applicants. Ala. Const. §181 (1901) (as
amended in 1951 by Amdt. 91); see United States v. Pen-
ton, 212 F. Supp. 193, 204, 205 (MD Ala. 1962) (reproduc-
ing questionnaire in App. B).
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 ques-
tionnaires. B. Landsberg, Free at Last to Vote: The Ala-
bama 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 district court in Alabama found, between
12 RILEY v. KENNEDY
STEVENS, J., dissenting
1954 and 1960 only 14 African-Americans were registered
to vote in Dallas County—a county with approximately
15,000 African-Americans. See United States v. Atkins,
323 F.2d 733, 736 (CA5 1963). Among the African-
Americans denied registration were two doctors and six
college graduates. Ibid.
The Alabama Supreme Court responded to the litigation
surrounding its questionnaire by drafting a new question-
naire 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 Con-
gress 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 Sen-
ate. (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.” 42 U.S. C. §1973aa.
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
——————
6 Some of other questions were “Are post offices operated by the state
or federal government?,” “When residents of a city elect their officials,
the voting is called a municipal election (True or false),” “Of what
political party is the president of the United States a member?,” and
“What is the chief executive of Alabama called?” United States v.
Parker, 236 F. Supp. 511, 524, 525, 528 (MD Ala. 1964) (reproducing
the questionnaire).
Cite as: 553 U. S. ____ (2008) 13
STEVENS, J., dissenting
provides a vivid illustration of why voting changes
wrought by state-court decisions must be treated on the
same terms as those brought into effect by legislative or
executive action.
V
There is simply nothing about this case that takes it
outside the ordinary reach of our VRA precedents. Be-
cause 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.