Thompson v. Attorney General

¶1concurring:

¶2While I agree that the preliminary injunction should not issue, I acknowledge that this case presents a difficult question that requires a holding against the Plaintiffs. That holding is compelled, at least in part, by the ambiguity of our authority to remedy violations of.§ 5 in light of the invalidation of § 4(b)’s coverage formula.

¶3The Supreme Court in Shelby County “issue[d] no holding on § 5 itself,” instead deciding that Congress’s 2006 extension of § 4(b)’s coverage formula triggering preclearance under § 5 was unconstitutional *437under “current conditions.” 133 S.Ct. at 2631. The Supreme Court also refused to overturn prior opinions holding that the 1970, 1975, and 1982 amendments extending the coverage formula were constitutional. Id. at 2620-2621. Plaintiffs prop: erly argue that, based on those holdings, Shelby County does not void § 4(b)’s coverage formula from enactment through 2006. In fact, there is no dispute in this case that at some point following enactment, § 9-19-17 should have been submitted- for preclearance1 and that Mississippi failed to do so. In seeking relief for this failure, Plaintiffs request that we enjoin enforcement of § 9-19-17. The state argues, citing a letter it received from the United States Department of Justice (DOJ), that an injunction may not issue because the DOJ will no longer review applications for preclearance. The authority to issue such an injunction is unclear post-Shelby County.

¶4“The goal of [the] three-judgé district court” in hearing § 5 claims is to fashion a remedy appropriate to “ensure that the covered jurisdiction submits its election plan ... for preclearance.” Lopez v. Monterey County, 519 U.S. 9, 24, 117 S.Ct. 340, 136 L.Ed.2d 273 (1996). But, submission alone does not render a statute lawful and enforceable. Instead, I see the preclearance requirement as twofold, requiring both a submission and a determination2 that the change does not unlawfully alter voting conditions or eligibility. It remains unclear if we may issue any remedy to achieve such a goal.

¶5Conceivably, the relief requested by Plaintiffs could result in preclearance. For example, Shelby County did not strip the United States District Court for the District of Columbia of jurisdiction to hear an action seeking a declaratory judgment that § 9-19-17 complies with the Voting Rights Act. Mississippi could file such an action and an affirmative decision would dissolve any injunction. The Mississippi legislature could also reenact § 9-19-17’. Since Mississippi is not subject to preclearance for changes made after 2006, any newly enacted changes are automatically enforceable. It seems obvious..that if we did enjoin Mississippi from applying § 9-19-17, there are steps, the state could take to .cure the deficiency and achieve the goal of preelearance. :But, . the Supreme Court’s decision in Shelby County to eliminate the coverage provisions yet “issue no holding on .§ 5 itself’ clouds our authority to do so.

¶6Section 5 of the Voting Rights Act is the law of the land. Invalidating the Act’s coverage formula leaves open the question of whether there is an appropriate remedy, such as an injunction, that could-achieve § 5’s purpose. The Supreme Court certainly could not have intended to effectively grant immunity for all violations of § 5 that occurred before 2006. But much less certain is what a three-judge panel should *438do when confronted with a violation of § 5 that occurred before 2006.

¶7For these reasons, I concur that a preliminary injunction should not issue.

¶10concurring in the judgment:

¶11I agree that no preliminary injunction should issue. The plaintiffs have not established a substantial likelihood of success on the merits. The State’s enforcement of § 9-19-17 may in fact comply with federal law.

¶12I write separately, though, to note uncertainty in the reach of Shelby County. The panel concludes that after Shelby County, courts cannot enforce § 5 at all. But another possible interpretation of Shelby County is that courts cannot enforce § 5 for voting changes enacted after July 27, 2006, the date the Voting Rights Act was reauthorized with an unconstitutional coverage formula. If that is the case, § 5 still applies to voting changes enacted before 2006, including § 919-17.

¶13A few considerations have shaped this view.

¶14First, the text of Shelby County suggests that it applies prospectively. The Supreme Court framed the question not as whether the Act’s “extraordinary measures” were previously constitutional — they were — but instead whether they “continue to satisfy constitutional requirements.” Shelby Cnty., 133 S.Ct. at 2619 (emphasis added). The coverage formula was invalidated “in light of current conditions,” not conditions as they were in 1965 or 1980. Id. at 2627. And the ultimate holding was that the coverage formula “can no longer be used as a basis for subjecting jurisdictions to preclearance.” Id. at 2631 (emphasis added).

¶15This language is forward-looking. The opinion acknowledged the many benefits the Voting Rights Act provided to our society because it did not wish to disturb them.1 It simply held that preclearance was no longer necessary for future changes. Other courts agree. See, e.g., Page v. Virginia State Bd. of Elections, No. 3:13-CV-678, 2015 WL 3604029, at *4 (E.D.Va. June 5, 2015) (three-judge court) (holding, in case filed after Shelby County, that “Section 5’s requirements of review and preclearance for covered areas no longer apply to Virginia with respect to future changes to its voting and election laws.”); Harris v. Arizona Indep. Redistricting Comm’n, 993 F.Supp.2d 1042, 1076 (D.Ariz.2014) (“Nothing in Shelby County suggests that all those maps [drawn after the 2010 census] are now invalid, and we are aware of no court that has reached such a conclusion, despite the concern expressed in the dissenting opinion that leaving the maps in place would give continuing force to Section 5.”).

¶16The Mississippi Attorney General’s Office may also agree. When the Office was consulted in 2013 on the reach of Shelby County, it issued a formal opinion stating the following:

A retroactive application of Shelby County to give immediate effect to legislation objected to prior to Shelby County and commonly considered to be dead by all parties concerned would lead to needless confusion in the conduct of elections in Mississippi.

A prospective application, which is indicated by the Supreme Court by its own plain language quoted above, leaves *439'existing election law in place and offers the Mississippi legislature the freedom to consider amendments in the future which comply with the .remaining effective provisions of the Voting Rights Act' without Mississippi being subject to any preclearance requirements.

¶17In re: The Honorable Eddie Hadskey, 2013 WL 5975618, at *3 (Miss.A.G. Oct. 28, 2013).2 Under the reasoning of this opinion, § 9-19-17 cannot be enforced. The statute was technically and legally ‘dead’ from 1980-onward because it was never precleared.3See 28 C.F.R. § 51.1(a).

¶18Perhaps an even stronger reason to enforce § 5, however, is found by reading Shelby County with an eye toward the underlying purpose of the Voting Rights Act.

¶19Preclearance was “a prophylactic measure” intended to halt voting changes in areas with a history of racial discrimination in voting. City of Rome v. United States, 446 U.S. 156, 202, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980). As the Court wrote when it first upheld the Voting Rights Act,

The record shows that in most of the States covered by the Act, including South Carolina, various tests and devices have been instituted with the purpose of disenfranchising Negroes, have been framed in such a way as to facilitate this aim, and have been administered in a discriminatory fashion for many years...... Congress had reason to suppose that these States might try similar maneuvers in the future in order to evade-the remedies for voting discrimination' contained in the‘Act itself.... Under the compulsion of these unique circumstances, Congress responded in a permissibly decisive manner.

¶20South Carolina v. Katzenbach, 383 U.S. 301, 333-35, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966); see also Beer v. United States, 425 U.S. 130, 140, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976). (“Section 5 was a response to a common practice in some jurisdictions of staying one step ahead of the federal courts by passing new discriminatory voting laws as soon as the old ones had been struck down.”).

¶21Because of this disheartening history, the Supreme Court repeatedly refused to disturb Congress’s coverage formula. The Court upheld the 1965 Act,’the 1970 reauthorization, the 1975 reauthorization, and the 1982 reauthorization against constitutional challenges, each time “finding that circumstancés continued to justify the provisions.” Nw. Austin Mun. Util Dist. No. One v. Holder, 557 U.S. 193, 200, 129 S.Ct. 2504, 174 L.Ed.2d 140 (2009) (collecting cases). And when considering the 1975 reauthorization, which included the period during which § 9-19-17 was enacted, the Supreme Court explained, “Congress’ considered determination that at least another *4407 years of statutory remedies were necessary to counter the perpetuation of 95 years of pervasive voting discrimination is both unsurprising and unassailable. The extension of the Act, then, was plainly a constitutional method of enforcing the Fifteenth Amendment.” City of Rome, 446 U.S. at 182, 100 S.Ct. 1548. When circumstances on the ground changed, the coverage formula should have changed too, said Shelby County. But the formula was upheld for decades for a reason.

¶22Mississippi was a covered jurisdiction from 1965 to (at a minimum) 2006 because Congress reasonably feared that new voting laws the state enacted would violate the Fifteenth Amendment. Every voting change the Mississippi Legislature enacted in 1980, therefore, was deemed to present too significant a risk of perpetuating racial discrimination.

¶23When Shelby County is read against this historical backdrop, it is not clear why Mississippi should be excused from its failure to preclear a 1980 voting change, including and especially § 9-19-17. The statute is a product of a time and era Congress thought unreliable on voting issues. It carries a risk that the persons it excludes from running for office would be excluded for the wrong reasons.

¶24The panel today essentially answers this question: How can a state violate § 5 by seeking to administer a law without preclearance when that state is no longer subject to 'preclearance? But the state violated § 5 when it failed to seek preclearance for § 9-19-17 in the last 33 years it was a covered jurisdiction.4 The law was a nullity when enacted and cannot be administered today. So, a more appropriate question may be: How can a state seek to administer a law that is null and void because it was never precleared?

¶25Again, the panel’s resolution of the motion is a correct application of the preliminary injunction standard. I certainly agree that under Shelby County, states have no obligation to preclear laws enacted by the current generation of voters and legislators. Shelby County’s application to the past, though is less clear. If skepticism of earlier laws remains justifiable, then this court and others like it have the power to enforce § 5, at least against laws of another era.5