June 02, 2008

Pitts on Hills on Riley and the VRA

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 in the case "trivial" and going so far as to imply that the plaintiff's lawyers (and the Civil Rights bar at large) are "ignorant." I'll grant that the Riley case is quirky and that the particular situation of a state court invalidating a state or local voting rule that has been precleared by the federal government does not arise with much frequency. That said, I think a great deal of Rick's criticism is misplaced.

    Let's start off with what seems to be the main question posed by Rick's first blog post where he wrote:

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

      The answer here as to why minority voting rights would benefit in the long run is quite obvious--whatever has been precleared by the federal government will always be at least as good for minority voters than whatever came before. Section 5 prevents any retrogression of minority voting strength. Therefore, minority voters can never be worse off whenever a previously precleared change is implemented. Put another way, Section 5 operates as a one-way ratchet up. If any change away from a precleared change has to be submitted for Section 5 review, minority voting strength cannot be retrogressed. However, if a change away from a precleared change does not have to be submitted for Section 5 review, minority voting strength has the potential to be retrogressed.

    If Rick (or anyone else) can come up with a hypothetical situation where minority voters would ever be worse off when a state or local government has been forced to submit a change away from something that has already been precleared by the federal government, I'd be interested to see that hypothetical. Of course, you can craft a hypothetical where the federal government has made an error with the prior preclearance decision by approving something that was retrogressive or you could craft a hypothetical where the federal government makes an error with the future submission. Mistakes do occur, but mistakes are an anomaly and can happen with any preclearance decision. Moreover, the far more likely scenario is that the Department of Justice and the D.C. District Court will be too expansive--at least from the perspective of the Supreme Court--in their view of what Section 5 requires of state and local governments. At the end of the day, minority voters in all of the Section 5 covered jurisdictions would have benefited from the general rule sought by the plaintiffs in Riley because of Section 5's non-retrogression mandate--and non-retrogression is a "big principle."

    In his second blog post, Rick continues with his theme of asking why minority voters would be better off if they won Riley:

      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) . . .
      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.

    But Rick is incorrect in claiming that the State Supreme Court's ruling "bestowed [a] boon on minority voters" because the state legislature later authorized elections for every county in Alabama. Here, Rick implies that Alabama has passed a law mandating that every county hold an election in the event of a vacancy on the county commission. But, to the best of my knowledge, Alabama hasn't passed any such law. Justice Ginsburg's opinion in Riley states: "In 2004, the state legislature had passed (and DOJ had precleared) an amendment to Ala. Code s 11-3-6 providing that vacancies on county commissions were to be filled by gubernatorial appointment '[u]nless local law authorizes a special election' (emphasis added). Thus, it's true that state law now authorizes elections for every county, but only if the state legislature passes a local law. So if the situation prior to the Alabama Supreme Court decision was one in which the state legislature was making "local" exceptions and the situation after the State Supreme Court decision is one in which the state legislature is still making "local" exceptions, then I don't see how the Alabama Supreme Court decision bestowed a "boon" on minority voters. Perhaps Rick can explain what he views as the "boon" with more clarity.

    At the end of the day, Rick's larger moral from his second blog post is that "the feds should be extra cautious about messing with state and local governments' structure" Even if I don't personally agree with Rick's larger moral, I would agree that his larger moral is a legitimate viewpoint (and one that has been expressed elsewhere by others) with relation to the big-picture debate over the general utility of Section 5. But I do not think the connection Rick draws between his larger moral and Riley withstands scrutiny. And I think the criticisms he levels in his blog posts at the lawyers for the Riley plaintiffs (who, after all, won the decision from a three-judge panel below) similarly do not withstand scrutiny.

Posted by Rick Hasen at June 2, 2008 02:35 PM