||U.S. Department of Justice
Civil Rights Division
|Office of the Assistant Attorney General
||Washington, D.C. 20530
| ||January 8, 2007|
Mr. Troy King
Mr. John J. Park, Jr.
Assistant Attorney General
State of Alabama
Alabama State House
11 South Union Street
Montgomery, Alabama 36130
Dear Messrs. King and Park:
This letter refers to the change in method of selection for filling vacancies on the Mobile
County Commission from special election to gubernatorial appointment in Mobile County,
Alabama, pursuant to decisions of the Alabama Supreme Court in Stokes v. Noonan, 534 So. 2d
237 (Ala. 1988), and Riley v. Kennedy, 928 So. 2d 1013 (Ala. 2005), submitted to the Attorney
General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, as amended. This
matter arises from an order entered on August 18, 2006, by a three-judge panel in Kennedy v.
Riley, 445 F. Supp. 2d 1333 (M.D. Ala. 2006), ruling that the State of Alabama submit the two
decisions for preclearance under Section 5. We received your submission on November 9, 2006.
We have carefully considered the information you have provided, as well as census data,
comments, and information from other interested parties. Under Section 5, the Attorney General
must determine whether the submitting authority has met its burden of showing that the proposed
change "neither has the purpose nor will have the effect" of denying or abridging the right to vote
on account of race. Georgia v. United States, 411 U.S. 526 (1973). See also Procedures
for the Administration of Section 5 of the Voting Rights Act, 28 C.F.R. § 51.52. "A change affecting
voting is considered to have a discriminatory effect under Section 5 if it will lead to a
retrogression in the position of members of a racial or language minority group (i.e., will make
members of such a group worse off than they had been before the change) with respect to their
opportunity to exercise the electoral franchise effectively." 28 C.F.R. § 51.54(a)
(citing Beer v. United States, 425 U.S. 130, 140-42 (1976)).
Pursuant to Act No. 85-237 a vacancy on the Mobile County Commission is to be filled
through popular election by the voters within the relevant single-member district. That statute
was precleared by the Attorney General under Section 5 on June 17, 1985 (File No. 1985-1645),
and was first implemented in a 1987 District 1 special election. Pursuant to decision of the
Alabama Supreme Court in Stokes v. Noonan, that method of filling vacancies was changed from
election by the voters of the district to appointment by the Governor of Alabama in 1988, and
reaffirmed by Riley v. Kennedy in 2005.
Pursuant to the decision of the three-judge federal panel in Kennedy v. Riley, the State has
submitted the changes effected by Stokes v. Noonan and Riley v. Kennedy for review under
Section 5 of the Voting Rights Act. Additionally, we understand that Alabama law has changed,
legislatively reversing the decision in these cases and restoring the authority to fill vacancies to
the voters themselves for future elections. This is the effect of Act No. 2006-342, which was
signed by the Governor on April 12, 2006, and which would govern all future vacancies. The
question before us, therefore, is limited to whether the change effected by Stokes v. Noonan and
Riley v. Kennedy will lead to impermissible retrogression, caused by the appointment, rather than
election, of an individual to fill a vacancy on the Mobile County Commission for a term expiring
In evaluating whether a change affecting voting will lead to impermissible retrogression,
the Attorney General compares the submitted change to the practice or procedure in effect at the
time of the submission. 28 C.F.R. § 51.54(a). In light of your submission, we note that a change
brought about by a state court decision is subject to Section 5. Branch v. Smith, 538 U.S. 254,
262 (2003). A practice or procedure that is not legally enforceable under Section 5 cannot serve
as a benchmark; the comparison is with the last legally enforceable practice or procedure used by
the jurisdiction. Id. Changes that are not precleared are not enforceable. 42 U.S.C. § 1973c;
Hathorn v. Lovorn, 457 U.S. 255, 269 (1982); Clark v. Roemer, 500 U.S. 646, 652 (1991).
Because the changes pursuant to Stokes and Riley were never precleared, they cannot serve as the
benchmark. See Kennedy, 445 F. Supp. 2d at 1336, (citing Abrams v. Johnson, 521 U.S. 74,
96-97 (1997)); Gresham v. Harris, 695 F.Supp. 1179, 1183 (N.D. Ga. 1988) (three-judge court),
aff'd sub nom. Poole v. Gresham, 495 U.S. 954 (1990). The benchmark is determined without
regard to its legality under state law. Kennedy, 445 F. Supp. 2d at 1336 (citing City of Lockhart
v. United States, 460 U.S. 125, 132-133 (1983)); Perkins v. Matthews, 400 U.S. 379, 394-95
Thus, the last precleared procedure for filling vacancies in the Mobile County
Commission that was in force or effect was the special election method set forth in Act No. 85-237.
Kennedy, 445 F. Supp. 2d at 1336. This Act remains in full force and effect, as it affects
voting, was precleared, and was implemented in the 1987 special election cycle. See Young v.
Fordice, 520 U.S. 273, 282-83 (1997); Lockhart, 460 U.S. at 132-33. It is therefore the
benchmark against which we measure the proposed change to fill vacancies by appointment of
the Governor of Alabama.
The measurement is straightforward. As a result of litigation under the Voting Rights
Act, Mobile County is governed by the three-member Mobile County Commission, the members
of which are elected from single-member districts. Brown v. Moore, Civ. Act. No. 75-298-P
(S.D. Ala. 1976) (unpublished opinion). One of the single-member districts, District 1, is over
sixty-three percent African-American in population and registered voters. The African-American
voters of District 1 enjoy the opportunity to elect minority candidates of their choice to the
County Commission; indeed, they enjoyed it in the 1987 special election in which Act 85-237
was first implemented. There is no dispute that the change 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. Attorneys General have on at least ten
occasions previously interposed objections to changes in method of selection from election to
appointment in Alabama and elsewhere. For instance, in 1971, the Attorney General objected to
Act No. 2445 of the Alabama Legislature, which changed the method of selection of judges of
Justice of the Peace Courts in Alabama from election to appointment. Letter of David L.
Norman, Assistant Attorney General, Civil Rights Division, to Hon. William J. Baxley, Attorney
General, State of Alabama, Dec. 26, 1973.
The transfer of electoral power effected by Stokes v. Noonan and Riley v. Kennedy
appears to diminish the opportunity of minority voters to elect a representative of their choice to
the Mobile County Commission. We have received no indication that the voters of District 1
would have selected the particular individual selected by the Governor. Under these
circumstances, the State has failed to carry its burden of proof that the change is not
retrogressive. On behalf of the Attorney General, therefore, I must interpose an objection to the
change in method of selection for vacancies occurring on the Mobile County Commission from
special election to gubernatorial appointment.
We note that under Section 5, you have the right to seek a declaratory judgment from the
United States District Court for the District of Columbia that the proposed change neither has the
purpose nor will have the effect of denying or abridging the right to vote on account of race,
color, or membership in a language minority group. See 28 C.F.R. § 51.44. In addition, you may
request that the Attorney General reconsider the objection. See 28 C.F.R.
§ 51.45. However,
until the objection is withdrawn or a judgment from the United States District Court for the
District of Columbia is obtained, the method of selection for vacancies on the Mobile County
Commission by gubernatorial appointment will continue to be legally unenforceable as a matter
of federal law. Clark v. Roemer, 500 U.S. 646 (1991); 28 C.F.R. § 51.10.
We also have been advised, as suggested above, that the State has, in essence, re-enacted
the provisions of Act No. 85-237 in Act No. 2006-342, which similarly provides that future
vacancies on the Mobile County Commission will be filled by special election. To the extent
that Act No. 2006-342 does not change the voting practices and procedures set forth in Act No.
85-237, it need not be submitted for Section 5 review. We respectfully request your advice as to
whether changes covered by Section 5 are contained in the 2006 law. In the meantime, special
elections may be held pursuant to Act No. 85-237.
To enable us to meet our responsibility to enforce the Voting Rights Act, please inform us
of the action the State of Alabama plans to take concerning this matter. If you have any
questions, please call Robert Lowell (202-514-3539), an attorney in the Voting Section. Because
this matter has been the subject of pending litigation in Kennedy v. Riley, we are serving copies
of this letter by facsimile transmission to the Court and counsel of record.
/s/ Wan J. Kim
Assistant Attorney General