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No. 07-77

 

In the Supreme Court of the United States

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

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING APPELLEES IN PART

PAUL D. CLEMENT
Solicitor General
Counsel of Record
GRACE CHUNG BECKER
Acting Assistant Attorney
General
GREGORY G. GARRE
Deputy Solicitor General
ERIC D. MILLER
Assistant to the Solicitor
General
DIANA K. FLYNN
GREGORY B. FRIEL
SARAH E. HARRINGTON
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

Section 5 of the Voting Rights Act requires pre clearance "[w]henever" a covered jurisdiction "enact[s] or seek[s] to administer any * * * standard, practice, or procedure with respect to voting different from that in force or effect" on the jurisdiction's coverage date. 42 U.S.C. 1973c(a) (2006). The questions presented are:

1. Whether appellant's notice of appeal-which was filed within 60 days of the entry of an injunction but more than 60 days after the district court issued a dec laratory order-was timely.

2. Whether the implementation of a change affecting voting concerning a state law that was previously pre cleared and enforced is exempted from Section 5 simply because it is precipitated by a state court decision de claring that the state law violates the state constitution.

 

 

In the 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

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING APPELLEES IN PART

INTEREST OF THE UNITED STATES

This appeal concerns the types of changes affecting voting that are subject to preclearance under Section 5 of the Voting Rights Act of 1965 (VRA), 42 U.S.C. 1973c (2006). The Attorney General is responsible for review ing electoral changes submitted for administrative preclearance and for defending actions seeking judicial preclearance; he also has authority to initiate suits to prevent the implementation of unprecleared changes. See 42 U.S.C. 1973c (2006); 42 U.S.C. 1973j(d). After the district court ruled that the voting change at issue in this case was subject to preclearance, the Attorney Gen eral reviewed the change and declined to preclear it.

STATEMENT

1. Section 5 of the VRA provides that "[w]henever" a covered jurisdiction "enact[s] or seek[s] to administer any * * * standard, practice, or procedure with re spect to voting different from that in force or effect" on its coverage date, it must first obtain administrative or judicial preclearance. 42 U.S.C. 1973c(a) (2006). Ala bama and its political subdivisions are covered jurisdic tions under Section 5, and their coverage date is Novem ber 1, 1964. See 28 C.F.R. Pt. 51, App.; 28 C.F.R. 51.6. A change in the method of filling government posts from election to appointment triggers Section 5's preclear ance requirement. See 28 C.F.R. 51.13(i); Allen v. State Bd. of Elections, 393 U.S. 544, 569-570 (1969).

A covered jurisdiction may seek administrative pre clearance for a voting change by applying to the Attor ney General. See 42 U.S.C. 1973c(a) (2006). Alterna tively, a jurisdiction may seek judicial preclearance by bringing a declaratory-judgment action in the United States District Court for the District of Columbia. See ibid. In either case, preclearance may be granted only if the jurisdiction demonstrates 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 or color." Ibid. A change has a discriminatory ef fect "if it will lead to a retrogression in the position of members of a racial * * * minority group * * * with respect to their opportunity to exercise the electoral franchise." 28 C.F.R. 51.54(a); see Beer v. United States, 425 U.S. 130 (1976).

If a covered jurisdiction attempts to implement a change affecting voting without obtaining preclearance, the Attorney General or a private party may bring an action for declaratory and injunctive relief to prevent implementation of the unprecleared change. See 42 U.S.C. 1973j(d); Allen, 393 U.S. at 554-555. Such an ac tion must be heard by a three-judge district court. See 42 U.S.C. 1973c(a) (2006).

2. a. As of November 1, 1964, the relevant date for Alabama under Section 5, Alabama law authorized the governor to make appointments to fill vacancies on county commissions. See Ala. Code § 12-6 (1959); see also Ala. Code § 11-3-6 (1977) (recodifying the authoriza tion in slightly modified form).

b. In 1985, the Alabama legislature enacted Act No. 85-237, 1985 Ala. Laws 137 (the Act), which required that a special election be held to fill any vacancy on the Mobile County Commission so long as at least 12 months remained in the term of the vacant seat. The Attorney General precleared the Act under Section 5. J.S. App. 4a.

In 1987, a vacancy occurred on the Mobile County Commission, and the governor called a special election as required by the Act. The procedures for conducting the special election were submitted by the State and precleared by the Attorney General under Section 5. Letter from Wm. Bradford Reynolds, Assistant Att'y Gen., Civil Rights Div., U.S. Dep't of Justice, to Glen Browder, Secretary of State of Alabama (June 22, 1987). Shortly before the election, Willie Stokes brought an action in state court challenging the constitutionality of the Act. The trial court rejected his claim and allowed the special election to proceed.

On appeal, the Alabama Supreme Court reversed. Stokes v. Noonan, 534 So. 2d 237 (Ala. 1988). It held that Act No. 85-237 violated the Alabama Constitution, which provides that no "local law * * * shall be enac ted in any case which is provided for by a general law." Ala. Const. Art. IV, § 105. Because a general Alabama law specified that vacancies in county commissions would be filled by gubernatorial appointment, the court held that the Act could not prescribe a different proce dure for Mobile County. See Stokes, 534 So. 2d at 239.

By the time of the Alabama Supreme Court's deci sion, the special election had already been held, and Sam Jones had won. J.S. App. 4a. Shortly after the decision, Alabama's governor appointed Jones to the commission seat for which he had campaigned (and won) in the elec tion. J.A. 27. Alabama did not seek preclearance of the voting change worked by Stokes. J.S. App. 4a.

c. In 2004, the Alabama legislature enacted Act No. 2004-455, 2004 Ala. Laws 809, which amended Alabama Code § 11-3-6 (1989) to provide that, "[u]nless a local law authorizes a special election, in case of a vacancy [on a county commission], it shall be filled by appointment by the governor." The Attorney General precleared Act No. 2004-455 under Section 5. J.S. App. 5a.

The next year, another vacancy occurred on the Mo bile County Commission. J.S. App. 5a. Appellees, three residents of Mobile County, brought an action in state court seeking a declaration that the vacancy must be filled by special election. Joint Stipulation of Fact 2. The key issue in that litigation was the meaning of Act No. 2004-455. Appellees contended that it revived Act No. 85-237, which the Alabama Supreme Court had in validated in Stokes. But appellant and other defendants argued that it merely authorized the Alabama legisla ture to enact local laws in the future to permit special elections for vacancies on county commissions. See J.S. App. 26a-27a. The trial court held that the vacancy on the Mobile County Commission should be filled by spe cial election, and appellant appealed to the Alabama Su preme Court. Id. at 26a.

While the appeal was pending, Mobile County's pro bate judge sought and obtained preclearance of certain procedures (including a schedule) for holding the special election. J.A. 22; Joint Stipulation of Fact Exh. I. Un der the precleared schedule, the general election was to take place in early January 2006. Id. Exh. I, Attach. B at 5. That special election did not occur, however, be cause in November 2005, the Alabama Supreme Court held that Act No. 2004-455 applied only prospectively and did not revive Act No. 85-237. Riley v. Kennedy, 928 So. 2d 1013 (Ala. 2005). The court concluded that Governor Bob Riley, appellant, had authority to make an appointment to fill the vacancy. Id. at 1017. A few days later, the governor appointed Juan Chastang to the Commission. J.S. App. 5a.1

3. a. Appellees then brought this action, claiming that the governor lacked authority to fill vacancies on the Mobile County Commission unless the State ob tained Section 5 preclearance of the change from elec tion to appointment. A three-judge district court was convened to consider plaintiffs' claim. J.S. App. 3a.

On August 18, 2006, the district court held that there had been a change from election to appointment that could not be implemented unless it was first precleared under Section 5. J.S. App. 3a-8a. The court concluded that Act No. 85-237 was the appropriate baseline for determining whether there had been a change, because the Act had received preclearance and was "put in force and effect" when a special election was held in 1987 to fill a vacancy on the Mobile County Commission. Id. at 7a. The court rejected appellant's argument that Act No. 85-237 could not serve as the baseline because the Alabama Supreme Court had declared that law unconsti tutional. Ibid. The court explained that it was "required to determine the baseline 'without regard for [its] legal ity under state law.'" Ibid. (quoting City of Lockhart v. United States, 460 U.S. 125, 133 (1983) (Lockhart)).

The district court emphasized that it was "in no way disputing the rulings of the Supreme Court of Alabama, the reasoning underlying the rulings in these two cases, or that the governors acted in accordance with state law in making the appointments" to the Mobile County Com mission. J.S. App. 8a. Rather, the court stated, it was simply holding that federal law required that the change precipitated by those decisions be precleared before it was "implemented." Ibid.

The district court did not enter an injunction. In stead, it gave the State 90 days in which to seek pre clearance. J.S. App. 8a, 9a. Its order stated that "if the State fails to comply with this requirement within the time allowed, the court will revisit the issue of remedy." Id. at 9a.

b. Appellant did not immediately appeal the district court's decision. Instead, he sought administrative preclearance of the change from election to appoint ment. Motion to Dismiss or Affirm (MDA) App. 2a-3a. The Attorney General interposed an objection to the change through the Assistant Attorney General for the Civil Rights Division. Id. at 2a-8a. He concluded that the State had failed to meet its burden of proof in estab lishing that the change in the method of filling vacancies on the Mobile County Commission-from election to appointment-was not retrogressive. Id. at 6a. He ex plained that, because they constitute over 63% of the population and registered voters in the district at issue, African-American voters "enjoy the opportunity to elect minority candidates of their choice to the County Com mission," and, indeed, enjoyed that power "in the 1987 special election in which Act 85-237 was first imple mented." Ibid. By contrast, "[t]here is no dispute that the change [from election to appointment] would trans fer this electoral power to a state official elected by a statewide constituency whose racial make-up and elec toral choices regularly differ from those of the voters" of the district at issue. Ibid.

In concluding that appellant had not met his burden of showing "that the change is not retrogressive," MDA App. 6a, the Assistant Attorney General determined that Act No. 85-237 was the appropriate benchmark to use in conducting the retrogression inquiry. Id. at 5a. On this point, his reasoning mirrored the district court's analysis. Ibid. Appellant sought reconsideration, which was denied. Id. at 9a-19a.

c. On May 1, 2007, the district court entered an or der vacating appellant's appointment of Chastang to the Mobile County Commission. J.S. App. 1a-2a. The court concluded that, without preclearance of the change from special elections to gubernatorial appointment, Chas tang's appointment was "unlawful under federal law." Id. at 2a. A special election was held to fill the resulting vacancy on the Commission; Chastang ran in the elec tion but was defeated. MDA 8-9.

d. Appellant filed a notice of appeal on May 18, 2007. J.S. App. 11a-13a.

SUMMARY OF ARGUMENT

I. This Court has jurisdiction over this appeal be cause the notice of appeal was filed within 60 days of the final judgment and is therefore timely. Although the district court entered an earlier order in which it granted declaratory relief, that order was not final be cause it left unresolved the question of an appropriate remedy. The time for filing a notice of appeal did not begin to run until the district court entered its later re medial order and the judgment therefore became final.

II. Under the text of Section 5 of the VRA, this Court's decisions interpreting Section 5, the Attorney General's Section 5 regulations, and longstanding prac tice in administering Section 5, Alabama was required to seek preclearance of the change in the method of filling vacancies on the Mobile County Commission from elec tion to appointment before that change was implemen ted by state officials.

Appellant contends that Section 5 is inapplicable be cause the change in question was precipitated by deci sions of the Alabama Supreme Court. But the text of Section 5 does not make exceptions based on the source of the change in state law; rather, the statutory pre clearance requirement is triggered "[w]henever" a cov ered jurisdiction enacts or seeks to administer "any" change in a voting practice or procedure from that "in force or effect." 42 U.S.C. 1973c(a) (2006). And this Court has accordingly held that Section 5 applies to "all voting changes," including those that are "mandated by order of a state court." Branch v. Smith, 538 U.S. 254, 262 (2003). Thus, whether the source of the change is a statute, a regulation, or a court decision, Section 5 re quires preclearance before officials in a covered jurisdic tion may implement a change affecting voting.

Appellant argues that no change in voting practices occurred in this case because, although an Alabama stat ute previously called for vacancies on the Mobile County Commission to be filled by special election, that statute was later declared unconstitutional by the Alabama Su preme Court. But this argument also is contradicted by settled precedent. As this Court has held, whether a particular practice is a change must be judged by refer ence to the most recent practice that was "in fact 'in force or effect.'" Perkins v. Matthews, 400 U.S. 379, 394-395 (1971). The invalidity of the old practice under state law is irrelevant in determining whether the new practice represents a change. Here, the statute calling for special elections was actually "in force or effect" be cause it was not only precleared, but actually used to hold an election.

Construing Section 5 to reach all changes affecting voting, regardless of the source of the change, does not, as appellant suggests, necessarily intrude unduly on the prerogatives of state courts. As the district court below emphasized, preclearance in these circumstances does not call for federal review of the accuracy of state deci sions under state law, but asks only whether a change in state law may be implemented by state officials without violating Section 5's non-retrogression command. That federal command indeed intrudes on the sovereignty of covered jurisdictions (for historical reasons that this Court has recognized and found justified), but there is nothing unique about changes precipitated by a state court-as opposed to a state legislature or regulatory body-that warrants carving an exception out of Section 5's unambiguous terms. Although a state judicial deci sion may suggest that the baseline procedure is not a permissible option under state law, state legislative or executive action could equally be prompted by such a view, and that is not a basis to exempt the actions of any branch of state government from preclearance.

ARGUMENT

I. THIS COURT HAS JURISDICTION OVER THIS APPEAL

This Court has jurisdiction over appeals from final judgments of three-judge district courts in cases brought under Section 5 of the VRA. See 42 U.S.C. 1973c(a) (2006). To invoke the Court's jurisdiction, an appellant must file a notice of appeal within 60 days of the judgment. See 28 U.S.C. 2101(b). In this case, the district court entered a final judgment on May 1, 2007, when it vacated Juan Chastang's appointment as a Mo bile County Commissioner. J.S. App. 1a-2a. The notice of appeal was filed 17 days later and is therefore timely. Id. at 11a-13a.

Appellees contend (Br. 25-28) that the district court's August 2006 decision was a final judgment that trig gered the 60-day deadline of Section 2101(b), meaning that the notice of appeal was seven months too late. They note (Br. 27) that the district court directed the clerk to enter the August 2006 decision as "a final judg ment." J.S. App. 10a. A court's characterization of its own decision is not dispositive, however, and an appel late court must decide for itself whether an order is fi nal. See Sullivan v. Finkelstein, 496 U.S. 617, 628 n.7 (1990); Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 741-742 (1976).

The August 2006 decision was not final. Although that decision determined that the State had violated Section 5, it left unresolved the question of an appropri ate remedy. See J.S. App. 9a-10a. "[A] decision is not final, ordinarily, unless it ends the litigation on the mer its and leaves nothing for the court to do but execute the judgment." Cunningham v. Hamilton County, 527 U.S. 198, 204 (1999) (internal quotation marks and citation omitted). In particular, a decision is not final when it determines liability but does not resolve all of a plain tiff's requests for relief. See Liberty Mut. Ins. Co., 424 U.S. at 742. In their complaint, appellees sought both declaratory and injunctive relief, including an order for bidding anyone appointed by the governor from serving on the Mobile County Commission unless the State first obtained preclearance. J.A. 11. But in its August 2006 decision, the district court did not issue an injunction. Instead, it deferred resolution of an appropriate rem edy, promising to "revisit the issue" in the event that the State failed to obtain preclearance within 90 days. J.S. App. 9a.

Contrary to appellees' suggestion (Br. 27), the dis trict court did not "order" the State to seek preclear ance. The court simply made clear that, before it would "consider taking any action regarding the appointment of Juan Chastang," it would "give the State 90 days to obtain the necessary preclearance." J.S. App. 8a. Had the State failed to seek preclearance, appellant would not have been subject to contempt sanctions; the court would merely have "revisit[ed] the issue of remedy," id. at 9a, as it ultimately did once preclearance was sought and denied. Because the August 2006 judgment did not include the injunction that plaintiffs requested (and later obtained), it was not final.

Adopting appellees' jurisdictional theory would en courage piecemeal appeals in Section 5 cases. By con trast, allowing a defendant to postpone appeal while it seeks preclearance of a particular change may obviate the need for appellate review; if preclearance is granted, the case will likely be moot. See, e.g., Berry v. Doles, 438 U.S. 190, 192-193 (1978). Avoiding unnecessary ap pellate litigation is particularly important where, as here, the parties have a right of direct appeal to this Court. Cf. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 470 n.12 (1985). In addition, the fact that Section 5 litigation often involves sensitive issues also counsels against encouraging unnecessary appeals in those cases.

II. THE DISTRICT COURT CORRECTLY HELD THAT ALA BAMA IMPLEMENTED A CHANGE AFFECTING VOT ING THAT IS SUBJECT TO SECTION 5 PRECLEARANCE

Appellant incorrectly characterizes the change at issue in this case, consistently describing the relevant governmental action as "two decisions" of the Alabama Supreme Court. It is not the decisions themselves, how ever, that are subject to Section 5 preclearance. Rather, it is the change affecting voting that resulted from the implementation of those decisions-namely, the change in the method of filling vacancies on the Mobile County Commission from election to appointment as manifested by the governor's appointment. The text of Section 5 and this Court's precedents make clear that such a change is subject to preclearance, and appellant's efforts to resist that conclusion are unavailing.

A. Section 5 Applies To All Changes Affecting Voting, Even When Those Changes Are Triggered By State Courts

Section 5 requires covered jurisdictions to obtain preclearance "[w]henever" they "enact or seek to admin ister any" change affecting voting. 42 U.S.C. 1973c(a) (2006). Congress's use of capacious language like "whenever" and "any" reflects its intent to reach all changes in voting procedures or practices that covered jurisdictions may "enact or seek to administer." See United States v. Gonzales, 520 U.S. 1, 5 (1997) ("Read naturally, the word 'any' has an expansive meaning.").

The use of the disjunctive-"enact" or "seek to ad minister"-implies that those terms have different mea nings in the statute. See Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 229 (1993). And in ordinary usage, "administer" has a meaning that is different from and broader than "enact." The word "enact" ordinarily refers to the process by which a legis lative body votes a bill into law. See Black's Law Dictio nary 567 (8th ed. 2004) (Black's) ("[t]o make into law by authoritative act; to pass"); Webster's Third New Inter national Dictionary of the English Language 745 (1986) (Webster's) ("to establish by legal and authoritative act: make into a law; esp: to perform the last act of legisla tion upon (a bill) that gives the validity of law"); see also Branch, 538 U.S. at 264. The word "administer," by con trast, more commonly refers to the implementation of an established legal requirement. See Webster's 27 ("to direct or superintend the execution, use, or conduct of"); Black's 46 (defining "administration" as "[t]he manage ment or performance of the executive duties of a govern ment"). In other words, it "encompasses nondiscretion ary acts" by officials "endeavoring to comply with the superior law of the State." Lopez v. Monterey County, 525 U.S. 266, 279 (1999).

When a state official attempts to implement a prac tice affecting voting that is different from a practice pre viously administered in that jurisdiction, the official "seek[s] to administer" a change affecting voting, and he or she must submit it for preclearance. Section 5 makes no distinction among the numerous potential sources of such a change-whether an agency makes the change on its own motion or because of an intervening state court decision. Accordingly, the statute explicitly requires preclearance before a state official may implement a voting change ordered by a state court.

That is not a novel proposition. This Court has previ ously recognized that Section 5 "requires preclearance of all voting changes * * * and there is no dispute that this includes voting changes mandated by order of a state court." Branch, 538 U.S. at 262. Thus, in Branch, the Court concluded that a redistricting plan imposed by a Mississippi state court was subject to Section 5 pre clearance. Id. at 265. As the Court explained, "[t]here is no doubt that the State was 'seek[ing] to administer' the changes" mandated by the state court's decision. Ibid.; see LULAC v. Texas, 995 F. Supp. 719, 725 (W.D. Tex. 1998) (three-judge court).

Similarly, in Hathorn v. Lovorn, 457 U.S. 255 (1982), this Court concluded that a Mississippi Supreme Court decision had resulted in a change affecting voting that was subject to Section 5 preclearance. Id. at 265 & n.16, 270. In that case, county officials refused to implement a state statute requiring election of school board mem bers from single-member districts. After the Missis sippi Supreme Court upheld the statute's core require ment that board members be elected by district, a state trial court ordered that elections be held, and it further required that a run-off be held if no candidate received a majority. The county officials submitted the court- ordered change to the Attorney General, who interposed an objection to the run-off requirement. The Mississippi Supreme Court then ordered that elections be held un der the state statute, without regard to whether the county had obtained Section 5 preclearance. Id. at 257- 261. This Court reversed. Concluding that "the [court- ordered] change in election procedure [was] subject to § 5," id. at 270, the Court observed that "the presence of a court decree does not exempt the contested change from § 5." Id. at 265 & n.16.

These decisions-interpreting and giving effect to the broad terms of Section 5-resolve the question here as a matter of stare decisis. See Patterson v. McLean Credit Union, 491 U.S. 164, 172-173 (1989) ("[C]onsider ations of stare decisis have special force in the area of statutory interpretation.").

B. Act No. 85-237 Is The Relevant Baseline For Identifying A Change In Voting Practices Under Section 5

"To determine whether there have been changes with respect to voting" under Section 5, a court "must com pare the challenged practices with those in existence before they were adopted." Presley v. Etowah County Comm'n, 502 U.S. 491, 495 (1992). This Court has often used the term "baseline" to refer to the "status quo that is proposed to be changed." Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 334 (2000). Applying that well-settled law, the district court correctly held that Act No. 85-237, which mandates special elections to fill vacancies on the Mobile County Commission, is the relevant baseline for determining whether a gubernatorial appointment to the commission represented a voting change that was sub ject to Section 5 preclearance. And using that baseline, the court was correct to hold that a change took place.

1. The appropriate Section 5 baseline is the practice currently "in force or effect"

Appellant suggests (Br. 26-27) that when a covered jurisdiction reverts to a practice that was in place on its coverage date (in Alabama's case, November 1, 1964), the change might not be covered by Section 5, since the practice would not be "different from that in force or effect on November 1, 1964." 42 U.S.C. 1973c(a) (2006). That suggestion should be rejected. "[T]he purpose of § 5 has always been to insure that no voting-procedure changes would be made that would lead to a retrogres sion in the position of racial minorities with respect to their effective exercise of the electoral franchise." Beer, 425 U.S. at 141. Appellant's suggested reading would have the perverse result of leaving some minor retro gressive changes subject to Section 5 scrutiny, while creating a safe harbor for jurisdictions to regress all the way back to their 1964 practices, thus encouraging the very retrogression that the statute aims to prevent.

By setting a coverage date in Section 5, Congress merely established the first baseline against which the potentially discriminatory nature of future practices would be judged, with the natural assumption, if not ex pectation, that the baseline would advance as voting practices progressed in covered jurisdictions. Nothing in the statute or its history supports an interpretation that would permit covered jurisdictions to make discrim inatory changes affecting voting as long as those chan ges did not institute voting practices that were worse than those in place in 1964. Adopting that interpretation more than 40 years after the passage of Section 5-dur ing which time covered jurisdictions have made consid erable strides in their ongoing effort to improve voting practices-could have a significant retrogressive effect on voting practices in such jurisdictions.

Every court to consider the issue has concluded that a reversion to a voting practice in place on the Section 5 coverage date is a change subject to preclearance. See Gresham v. Harris, 695 F. Supp. 1179, 1183 (N.D. Ga.) (three-judge court), vacated sub nom. Poole v. Gresham, 488 U.S. 978 (1988), reinstated opinion aff'd, 495 U.S. 954 (1990); Dotson v. City of Indianola, 521 F. Supp. 934, 943 (N.D. Miss. 1981) (three-judge court), aff'd, 456 U.S. 1002 (1982); NAACP, DeKalb County Chapter v. Georgia, 494 F. Supp. 668, 677 (N.D. Ga. 1980) (three- judge court). Although this Court has not directly con fronted the issue, it has never suggested that reversions to practices in place on the coverage date are exempt from the statute. To the contrary, the Court has stated categorically that, "[i]n § 5 preclearance proceedings * * * the baseline is the status quo that is proposed to be changed: If the change 'abridges the right to vote' relative to the status quo, preclearance is denied." Boss ier Parish Sch. Bd., 528 U.S. at 334; see Presley, 502 U.S. at 495 ("Absent relevant intervening changes, the Act requires us to use practices in existence on Novem ber 1, 1964, as our standard of comparison.") (emphasis added). In determining the appropriate baseline in Young v. Fordice, 520 U.S. 273 (1997), for example, this Court noted that the statute's coverage date "often, as here, is not directly relevant, for differences once pre cleared normally need not be cleared again." Id. at 281. Instead, "[t]hey become part of the baseline standard for purposes of determining whether a State has 'en act[ed]' or is 'seek[ing] to administer' a 'practice or pro cedure' that is 'different' enough itself to require pre clearance." Ibid.

In addition, the Attorney General has consistently rejected an interpretation of Section 5 that would ex clude from the preclearance requirement any change that merely reverts to a practice in place on November 1, 1964. Under a regulation in place since 1987, a voting change is subject to preclearance "even though it * * * returns to a prior practice or procedure." 28 C.F.R. 51.12. In promulgating that regulation, the Attorney General explained that the rule was intended "to make explicit that a voting change that returns a jurisdiction to a practice that was previously in effect (e.g., to that in use on November 1, 1964) is subject to the preclearance requirement." 52 Fed. Reg. 488 (1987). That regulation reflects an interpretation of Section 5 that is entitled to "substantial deference." Lopez, 525 U.S. at 281.

Significantly, Congress has twice reauthorized or amended parts of the VRA since that regulation without changing the relevant language of Section 5. See Voting Rights Language Assistance Act of 1992, Pub. L. No. 102-344, 106 Stat. 921; Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reautho- rization and Amendments Act of 2006, Pub. L. No. 109-246, 120 Stat. 577. "Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change." Lorillard v. Pons, 434 U.S. 575, 580 (1978); see Dougherty County Bd. of Educ. v. White, 439 U.S. 32, 38 (1978). In reauthorizing the statute, Congress should be presumed to have en dorsed the settled construction that reversions to pre- 1964 practices are not exempt from Section 5.

2. An existing practice's invalidity under state law is irrelevant

Appellant contends (Br. 36-38) that Act No. 85-237 cannot serve as the Section 5 baseline because the Ala bama Supreme Court declared the act unconstitutional under state law. However, the text of Section 5 focuses the inquiry on whether there has been a change from a practice that was "in force or effect." A practice is "in force or effect" if it is actually carried out by state offi cials, whether or not it is later found to be unlawful. Cf. Black's 794 (defining "in force" as "[i]n effect; opera tive"). Accordingly, this Court has made clear that a covered jurisdiction must obtain preclearance before changing any voting practice that is "in fact 'in force or effect,'" even if the motivating reason for the change is that the existing practice violates state law. Perkins, 400 U.S. at 394-395; accord Lockhart, 460 U.S. at 132-133.

a. In Perkins, this Court held that the City of Can ton, Mississippi, was required to obtain preclearance before holding at-large elections for aldermen in 1969. The use of an at-large system represented a change be cause, in the 1965 election, the city had selected alder men by ward. Perkins, 400 U.S. at 394-395. The Court held that preclearance was necessary even though the ward-based system used in 1965 had violated a pre-ex isting state statute requiring at-large elections. Id. at 394. Concluding that "the procedure in fact 'in force or effect' in Canton on November 1, 1964, was to elect al dermen by wards," the Court held that the 1969 change was subject to preclearance, even though it was de signed to bring the city into compliance with state law. Id. at 394-395.

Later, in Lockhart, this Court reaffirmed that the validity under state law of a jurisdiction's voting-related practice is "essentially irrelevant" to the Section 5 in quiry, 460 U.S. at 132, because "Section 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. The issue in that case was whether voting changes that the City of Lock hart, Texas, implemented in 1973 were retrogressive as compared to the voting system in place on November 1, 1972, Texas's coverage date under Section 5. Id. at 127- 130, 132-133. In deciding the retrogression question, the district court had determined that the relevant baseline was the voting system authorized under state law, not the system that the city actually used before 1973. Id. at 130, 132. This Court rejected that analysis, emphasiz ing that "[t]he proper comparison is between the new system and the system actually in effect on November 1, 1972, regardless of what state law might have re quired." Id. at 132 (emphasis added; footnote omitted).

Congress ratified the holdings in Perkins and Lock hart when it reauthorized Section 5 in 1975, 1982, and 2006, without changing the relevant language of Section 5. The general presumption that Congress is presumed to be aware of, and to adopt, a judicial interpretation of a statute when it reenacts that statute without altering the relevant language is particularly appropriate here because "in 1975, both the House and Senate Judiciary Committees, in recommending extension of the Act, noted with approval the 'broad interpretations to the scope of Section 5' in * * * Perkins." White, 439 U.S. at 39 (quoting S. Rep. No. 295, 94th Cong., 1st Sess. 16 (1975), and H.R. Rep. No. 196, 94th Cong., 1st Sess. 9 (1975)).

b. Appellant offers two theories for distinguishing Perkins and Lockhart, but neither is persuasive. First, he points out (Br. 40) that the cases did not involve "a state supreme court's authoritative determination of state law." That is true but beside the point. An author itative judicial opinion is just one way of removing any legitimate dispute about a provision's validity under state law. In Perkins, even without such an opinion, there was no dispute that the practice of ward-based elections was, in fact, unlawful under Mississippi law. See 400 U.S. at 394 & n.12. In light of that lack of dis pute, a state-court declaratory judgment action could have confirmed the invalidity of ward-based elections. Nothing in this Court's opinion in Perkins suggests that the preclearance requirement could have been side stepped simply by bringing such an action.

Second, appellant notes (Br. 41-43) that neither Per kins nor Lockhart involved invalid state statutes that were precleared after the coverage date of Section 5. He reasons (Br. 42) that, although "Congress had good reason in 1965 to freeze into place" practices then in force, "the same logic doesn't hold" with respect to prac tices that were "not enacted or implemented until long after November 1, 1964." That argument is simply a variation on appellant's suggestion that Section 5 might permit retrogression to practices that were in place on a jurisdiction's coverage date-a suggestion that is at odds with the settled administrative and judicial con struction of the statute. See pp. 17-18, supra. More over, if anything, the fact that the change is from a precleared practice makes it more natural to presume that preclearance will be required before implementing any departure from that practice.

c. Appellant also contends (Br. 35-38) that using Act No. 85-237 as a baseline conflicts with this Court's deci sion in Abrams v. Johnson, 521 U.S. 74 (1997). That is incorrect. In Abrams, a federal district court devised a redistricting plan to replace the legislative plan that this Court had declared unconstitutional in Miller v. John son, 515 U.S. 900 (1995). See Abrams, 521 U.S. at 77-78, 82-86. In rejecting a Section 5 challenge to that plan, this Court refused to use as a benchmark the earlier redistricting plan that had been declared invalid in Miller, explaining that "Section 5 cannot be used to freeze in place the very aspects of a plan found unconsti tutional." Id. at 97. Abrams is inapposite here because the plan that this Court rejected as a benchmark in that case was invalid under the federal Constitution. The Section 5 analysis is not so limited by state law. Indeed, the point of the VRA was to end discriminatory state voting practices, many of which were based on provi sions of state constitutions and judicial constructions of such provisions. See, e.g., Ala. Const. Art. VIII, § 181 (repealed 1965) (prescribing literacy test).

3. Act No. 85-237 is an appropriate baseline because it was "in force or effect" before the voting change at issue here

Finally, relying on Young v. Fordice, supra, appel lant contends (Br. 51-56) that Act No. 85-237 cannot serve as the baseline because it was never "in force or effect." That argument is also unavailing.

In Young, Mississippi's secretary of state devised a new voter-registration plan in anticipation that the state legislature would pass a bill authorizing the new proce dures. While the proposed legislation was pending, the Attorney General precleared the proposed plan, and some of Mississippi's registrars began using it to regis ter voters. It soon became clear that the Mississippi legislature would not enact the legislation necessary to make the plan valid under state law, and at that point, Mississippi officials notified registrars to stop using the new procedures. Young, 520 U.S. at 277-278, 282-283. This Court held that the precleared plan was never in force or effect and thus could not serve as a Section 5 baseline, emphasizing that "the State held no elections prior to its abandonment of the [plan], nor were any elections imminent." Id. at 283.

Act No. 85-237 is entirely different. Unlike the plan at issue in Young, it actually became law before it was precleared-and it undeniably went into effect. Cru cially, the Act was implemented in June 1987, when a special election was held to fill a vacancy on the Mobile County Commission. See J.A. 20-21, 27. It was not until September 30, 1988-more than 15 months after the special election-that the Alabama Supreme Court de clared Act No. 85-237 invalid. Although appellant de scribes the Act as "void ab initio" (Br. 25), the Alabama court's decision cannot alter the historical reality that the Act was actually in effect for the 1987 election. Even if the law never had "force" at some theoretical level, it seems impossible to deny that it was "in effect." Indeed, under appellant's position, the law never would have been in effect even if scores of elections had been con ducted under the law for decades before it was invali dated. Nothing in this Court's Section 5 jurisprudence requires such a counter-intuitive result.

Although Young does not govern here, it does recog nize an important limiting principle. There would be considerable artificiality with using a procedure as a relevant baseline for measuring retrogression if that procedure were so obviously unconstitutional that it was immediately enjoined and never went into effect. Ac cordingly, Section 5 requires a procedure to have been "in force or effect." A proposal that never has the force of law or takes effect does not constitute a baseline un der Young. By contrast, a law like Act No. 85-237, that was not only enacted but approved by a trial court and put into effect by an election, provides a relevant base line, and treating it as such responds to the reality that judicial interpretations, no less than legislative or gu bernatorial acts, can have a retrogressive effect.

C. Appellant's "State Sovereignty" Arguments Do Not Compel A Different Result

Appellant suggests (Br. 45-49) that the district court's decision impermissibly intrudes upon state sov ereignty. That argument lacks merit.2

Appellant repeatedly complains (Br. 23-26) that the application of Section 5 in this case "strips state courts of their authority to decide pure-state law questions." That is incorrect. The district court made clear that, in requiring preclearance of the change from special elec tions to gubernatorial appointment, it was "in no way disputing the rulings of the Supreme Court of Alabama * * * or that the governors acted in accordance with state law in making the appointments" to the Mobile County Commission. J.S. App. 8a. The district court was not called upon to determine whether the practices in place under Act No. 85-237 were legal under state law. It was required only to determine whether the election practices implemented by appellant were differ ent from those previously in place. See LULAC, 995 F. Supp. at 726. That is a question of federal law and, as explained above, the district court correctly answered it.

Appellant therefore errs in suggesting that Section 5 subjects state supreme courts to the "insult" of having their "authoritative determinations of state law" re viewed by employees of the federal executive branch. Br. 40 (quoting Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461, 513 (2004) (Kennedy, J., dissenting)). To the contrary, by focusing federal officials on the baseline in "effect," as opposed to the baseline validly in effect, Section 5 avoids such second-guessing. As the Attorney General's letters denying preclearance with respect to the voting change in this case illustrate, see MDA App. 2a-8a, 9a-19a, in reviewing a voting change mandated by a state supreme court in a covered juris diction, the Attorney General (or the District Court for the District of Columbia in an appropriate case) does not review the court's interpretation of state law for correct ness, but rather takes that motivation for a change as a given. The Attorney General determines only whether the change would discriminate against minority voters in violation of Section 5. See id. at 5a-6a, 15a-17a. If the Attorney General concludes that preclearance should be denied, he does not "overrule" the state court's interpre tation of its own law in any respect. Rather, he simply determines that the requirements of a state law conflict with the requirements of Section 5. By virtue of the Su premacy Clause, Section 5 and its non-retrogression requirement trump contrary provisions of a state law or a state constitution. See U.S. Const. Art. VI, Cl. 2. That effect was obvious and unproblematic when the VRA overrode state constitutional provisions and judicial de cisions allowing practices like literacy tests, and it is no less true in a context like this.

In instances such as this, in which a voting practice currently in place is determined to violate state law, Sec tion 5 will not always require the State to keep in place the particular practice found to be unlawful under state law. In many cases, Section 5 will merely restrict the range of remedies available to the State to cure the state-law deficiency, but the state will remain free to chose among the non-retrogressive options available under state law. Here, of course, the choice is binary: a vacancy can be filled either through an election or by an appointment. And the Attorney General concluded that Section 5 prevents state officials from implementing a change in state law from elections to appointment be cause, the Attorney General found, that change would have an impermissible retrogressive effect.

Appellant complains (Br. 46-47) that the application of Section 5 may force Alabama to hold elections under a statute that is invalid under state law. It is well-estab lished, however, that failure to obtain Section 5 preclear ance for a change affecting voting can justify "an injunc tion prohibiting the State from enforcing its election laws." Allen, 393 U.S. at 562-563. And until preclear ance is obtained, courts may properly order covered jurisdictions to hold elections using procedures that are no longer authorized or valid as a matter of state law. See, e.g., Perkins, 400 U.S. at 394-395; In re McMillin, 642 So. 2d 1336, 1337-1339 (Miss. 1994) (requiring elec tions to proceed under statutes that the state legislature had repealed) (cited with approval in Branch, 538 U.S. at 262). This impact on state law is just a manifestation of preemption principles as applied to voting and the VRA. A covered jurisdiction could not resist application of Section 5 by insisting that elections without literacy tests or elections by ward are simply unauthorized by state law. The result should be no different here.

Appellant contends that the intrusion on state sover eignty inherent in Section 5 becomes intolerable where, as here, the state's highest court-"the 'ultimate exposi tor[]' of Alabama law"-is the entity that has mandated the voting change. Br. 46 (quoting Mullaney v. Wilbur, 421 U.S. 684, 691 (1975)). But as a matter of federalism, there is no logical justification for giving changes affect ing voting greater deference if ordered by a state court than if mandated by the legislature (the State's ultimate lawmaking body) or the governor (the State's ultimate executive official). Appellant does not contend that a state legislature's repeal of a previously precleared stat ute is exempt from scrutiny under Section 5 (even, pre sumably, if the legislature acts out of a firmly-held, oath-driven view that the previous statute violated state law). But he fails to explain how requiring preclearance of the implementation of a state court decision invalidat ing a statute intrudes on state sovereignty to any greater degree than requiring preclearance of the deci sion of the legislature, with the concurrence of the gov ernor, to repeal the same statute. And the discovery of such a new dimension of Our Federalism would directly undermine Section 5, since many of the problems lead ing to the passage of Section 5 were the product of state court decisions. See Appellees' Br. 4-7.

To be sure, some intrusion on state sovereignty is inherent in the Section 5 preclearance requirement, which this Court has upheld as constitutional. See South Carolina v. Katzenbach, 383 U.S. 301, 334-335 (1966). As the Court has explained, "the Voting Rights Act, by its nature, intrudes on state sovereignty. The Fifteenth Amendment permits this intrusion, however." Lopez, 525 U.S. at 284-285; see City of Rome v. United States, 446 U.S. 156, 179 (1980). But nothing in the Con stitution, this Court's precedents, or Section 5 justifies re-"split[ting] the atom of sovereignty," U.S. Term Lim its, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring), in a way that would require the federal courts-or for that matter the Attorney General-to accord greater respect to the decisions of state courts than they must to the decisions of state legislatures or state officials. And drawing such a distinction ultimately could erode, rather than reinforce, the important feder alism principles established by this Court by creating an arbitrary line that lacks foundation in our Constitution's structure and history.3

D. The District Court's Application Of Section 5 Does Not Make The Statute Unworkable

Finally, appellant argues (Br. 49) that continuing to interpret Section 5 to apply to changes that are man dated by state courts is "unworkable" and "unneces sary." It is neither. Appellant concedes (Br. 45) that voting changes resulting from state court decisions can be subject to preclearance under Section 5, because fed eral approval "is necessary to an election practice's enforceability" in order to prevent covered jurisdictions from evading the mandate of Section 5 by "'laundering' unprecleared practices through the courts." And the Attorney General has a longstanding and effective prac tice of reviewing changes mandated by state court deci sions. A number of States charge their courts with re sponsibility for adopting various voting changes includ ing annexations, de-annexations, redistricting plans, and special election schedules. For example, the Alabama Supreme Court was historically responsible for pre scribing the form and content of the State's voter-regis tration form, see Act No. 2006-570, 2006 Ala. Laws 1331, amending and renumbering Ala. Code § 17-4-122 (Lex isNexis 2005) as § 17-3-52 (LexisNexis 2007), and the changes it ordered were subject to preclearance, see, e.g., Letter from Joseph D. Rich, Acting Chief, Voting Section, Civil Rights Div., U.S. Dep't of Justice, to Lyn da K. Woodall, Assistant Att'y Gen., State of Alabama (Apr. 18, 2000) (declining to interpose objection to re vised "Alabama Voter's Update Form" adopted by Ala bama Supreme Court). In addition, the Attorney Gen eral has reviewed hundreds of changes resulting from state court decisions in Virginia and Mississippi approv ing annexations. See, e.g., City of Richmond v. United States, 422 U.S. 358 (1975); Va. Code Ann. § 15.2-3202 (LexisNexis 2003); Miss. Code Ann. § 21-1-29 (West 1999).

The Attorney General has also reviewed numerous redistricting plans formulated by state courts. See, e.g., Letter from Ralph F. Boyd, Jr., Assistant Att'y Gen., Civil Rights Div., U.S. Dep't of Justice, to Hon. Knox V. Jenkins, Jr., Senior Resident Judge, Superior Ct. of Johnston County, N.C. (July 12, 2002) (declining to in terpose an objection to redistricting plans for state leg islature adopted by state court); Letter from James P. Turner, Acting Ass't Att'y Gen., Civil Rights Div., U.S. Dep't of Justice, to Hon. Jimmy Evans, Attorney Gen., State of Alabama (July 23, 1993) (same); Letter from John R. Dunne, Assistant Att'y Gen., Civil Rights Div., U.S. Dep't of Justice, to Hon. Robert A. Butterworth, Attorney Gen., State of Florida (Aug. 12, 1992) (same); Letter from John R. Dunne, Assistant Att'y Gen., Civil Rights Div., U.S. Dep't of Justice, to Hon. Daniel E. Lungren, Attorney Gen., State of California (Feb. 28, 1992) (same). And he has reviewed a number of changes in election dates resulting from state court orders. See, e.g., Letter from Bill Lann Lee, Acting Ass't Att'y Gen., Civil Rights Div., U.S. Dep't of Justice, to T.H. Freeland IV, Freeland & Freeland (Aug. 17, 1998) (objecting to cancellation of municipal election in Grenada, Missis sippi, ordered by Mississippi Supreme Court); Letter from John R. Dunne, Assistant Att'y Gen., Civil Rights Div., U.S. Dep't of Justice, to Virginia B. Ragle, Assis tant Att'y Gen., State of Alaska (July 8, 1992) (declining to interpose an objection to delay of an election ordered by Alaska state courts).

In addition, this is hardly the first time that the At torney General has reviewed a change affecting voting resulting from a court decision interpreting state law. For example, the Attorney General reviewed the change resulting from the Mississippi Supreme Court's decision in Myers v. City of McComb, 943 So. 2d 1 (Miss. 2006), which interpreted the Mississippi Constitution to pro hibit a person from simultaneously serving as a city se lectman and a state representative. See Letter from John Tanner, Chief, Voting Section, Civil Rights Div., U.S. Dep't of Justice, to Reese Partridge, Assistant Att'y Gen., State of Mississippi (July 26, 2007). That change was submitted for preclearance in response to a federal court order rejecting the city's argument that the state court's decision did not result in a change af fecting voting because it "merely interpreted a constitu tional provision in effect long before the VRA become effective." Myers v. City of McComb, No. 3:05-CV-00481 (S.D. Miss. Nov. 23, 2005), slip op. 5-6 (three-judge court). In another case, the Attorney General reviewed changes in the procedures used by counties in Alabama to count absentee ballots mandated by the Alabama Su preme Court's decision in Williams v. Lide, 628 So. 2d 531 (Ala. 1993). See Letter from Deval L. Patrick, As sistant Att'y Gen., Civil Rights Div., U.S. Dep't of Jus tice, to Mark Givhan, Deputy Att'y Gen., State of Ala bama (Nov. 22, 1994).

There is therefore no reason to give credence to ap pellant's suggestion (Br. 49) that recognizing that Sec tion 5 covers changes affecting voting that result from the decisions of state courts will alter the course of Sec tion 5 enforcement, much less result in a flood of litiga tion. Section 5 has been interpreted to apply to such changes for more than a quarter of a century-at least since this Court's 1982 decision in Hathorn.

Nor is there merit to the suggestion (Br. 50) that Congress would have seen "no overriding need" to apply Section 5 to changes resulting from state court deci sions. Congress enacted the VRA "to banish the blight of racial discrimination in voting, which ha[d] infected the electoral process in parts of our country for nearly a century." South Carolina v. Katzenbach, 383 U.S. at 308. Central to that goal is Section 5's requirement that "all voting changes * * * includ[ing] voting changes mandated by order of a state court" be submitted for preclearance. Branch, 538 U.S. at 262. History demon strates the wisdom of Congress's decision to create such a broad remedy: Shortly after the enactment of the VRA, a federal district court had to enjoin Alabama cir cuit courts from interfering with the implementation of the VRA. Reynolds v. Katzenbach, 248 F. Supp. 593 (S.D. Ala. 1965) (per curiam) (three-judge court). More over, the decisions of state court judges-who in Ala bama, as in many other States, are elected by the peo ple-can reflect the "policy choices of the elected repre sentatives of the people" just as much as the decisions of state legislators. McDaniel v. Sanchez, 452 U.S. 130, 153 (1981). Such choices-Congress explicitly mandated in Section 5 and this Court has held-must be pre cleared in covered jurisdictions like Alabama. Ibid.

 

CONCLUSION

The judgment of the district court should be af firmed.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
GRACE CHUNG BECKER
Acting Assistant Attorney
General
GREGORY G. GARRE
Deputy Solicitor General
ERIC D. MILLER
Assistant to the Solicitor
General
DIANA K. FLYNN
GREGORY B. FRIEL
SARAH E. HARRINGTON
Attorneys

 

FEBRUARY 2008

1 In response to the 2005 court decision, the Alabama legislature enacted a statute reinstating special elections as the method of filling vacancies on the Mobile County Commission. Act No. 2006-342, 2006 Ala. Laws 913. The Attorney General precleared that statute in July 2007. Letter from John Tanner, Chief, Voting Section, Civil Rights Div., U.S. Dep't of Justice, to John J. Park, Jr., Special Ass't Att'y Gen., State of Alabama (July 10, 2007). Thus, regardless of the outcome of this appeal, future vacancies on the Mobile County Commission will be filled by special election rather than gubernatorial appointment. The case is not moot, however, because if appellant were to prevail, Chas tang-who lost his seat as a result of this litigation, see pp. 7-8, infra- could be reinstated to complete his term, which runs through Novem ber 2008.

2 To the extent that appellant and his amici attempt to cast doubt on the constitutionality of Section 5, those arguments are not properly presented. The arguments were not pressed or passed upon below, and for good reason. The District Court for the District of Columbia has ex clusive jurisdiction over challenges to the constitutionality of Section 5. See 42 U.S.C. 1973l(b); Allen, 393 U.S. at 557-558. That court is cur rently considering a constitutional challenge to the reauthorization of Section 5. See Northwest Austin Mun. Util. Dist. No. 1 v. Mukasey, No. 1:06-cv-1384. But this case presents no occasion to consider such a challenge.

3 Appellant also asserts (Br. 47) that the district court's decision allows the Attorney General to "commandeer[]" state officials in vio lation of New York v. United States, 505 U.S. 144 (1992), and Printz v. United States, 521 U.S. 898 (1997). But prohibiting a State from imple menting one of its election laws is by no means "commandeering" within the meaning of New York or Printz. This Court has explained that "commandeering" involves "requir[ing] the States in their sovereign capacity to regulate their own citizens." Reno v. Condon, 528 U.S. 141, 151 (2000). No violation of the anti-commandeering principle occurs where, as here, a federal statute regulates state activities "rather than 'seek[ing] to control or influence the manner in which States regulate private parties.'" Id. at 150 (quoting South Carolina v. Baker, 485 U.S. 505, 514 (1988)).

 

APPENDIX

1. 18 U.S.C. 3731 (2000 & Supp. V 2005) provides:

Appeal by United States

In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information or granting a new trial after verdict or judg ment, as to any one or more counts, or any part thereof, except that no appeal shall lie where the double jeop ardy clause of the United States Constitution prohibits further prosecution.

An appeal by the United States shall lie to a court of appeals from a decision or order of a district court sup pressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact ma terial in the proceeding.

An appeal by the United States shall lie to a court of appeals from a decision or order, entered by a district court of the United States, granting the release of a per son charged with or convicted of an offense, or denying a motion for revocation of, or modification of the condi tions of, a decision or order granting release.

The appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted.

The provisions of this section shall be liberally con strued to effectuate its purposes.

 

2. 18 U.S.C. 3742 (2000 & Supp. V 2005) provides:

Review of a sentence

(a) APPEAL BY A DEFENDANT.-A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence-

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect appli cation of the sentencing guidelines; or

(3) is greater than the sentence specified in the applicable guideline range to the extent that the sen tence includes a greater fine or term of imprison ment, probation, or supervised release than the max imum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the maximum established in the guideline range; or

(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreason able.

(b) APPEAL BY THE GOVERNMENT.-The Govern ment may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence-

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect appli cation of the sentencing guidelines;

(3) is less than the sentence specified in the ap plicable guideline range to the extent that the sen tence includes a lesser fine or term of imprisonment, probation, or supervised release than the minimum established in the guideline range, or includes a less limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11)1 than the mini mum established in the guideline range; or

(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreason able.

The Government may not further prosecute such appeal without the personal approval of the Attorney General, the Solicitor General, or a deputy solicitor general des ignated by the Solicitor General.

(c) PLEA AGREEMENTS.-In the case of a plea agreement that includes a specific sentence under rule 11(e)(1)(C) of the Federal Rules of Criminal Proce dure-

(1) a defendant may not file a notice of appeal under paragraph (3) or (4) of subsection (a) unless the sentence imposed is greater than the sentence set forth in such agreement; and

(2) the Government may not file a notice of ap peal under paragraph (3) or (4) of subsection (b) un less the sentence imposed is less than the sentence set forth in such agreement.

(d) RECORD ON REVIEW.-If a notice of appeal is filed in the district court pursuant to subsection (a) or (b), the clerk shall certify to the court of appeals-

(1) that portion of the record in the case that is designated as pertinent by either of the parties;

(2) the presentence report; and

(3) the information submitted during the sen tencing proceeding.

(e) CONSIDERATION.-Upon review of the record, the court of appeals shall determine whether the sen tence-

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect appli cation of the sentencing guidelines;

(3) is outside the applicable guideline range, and

(A) the district court failed to provide the written statement of reasons required by section 3553(c);

(B) the sentence departs from the applicable guideline range based on a factor that-

(i) does not advance the objectives set forth in section 3553(a)(2); or

(ii) is not authorized under section 3553(b); or

(iii) is not justified by the facts of the case; or

(C) the sentence departs to an unreasonable degree from the applicable guidelines range, hav ing regard for the factors to be considered in im posing a sentence, as set forth in section 3553(a) of this title and the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c); or

(4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable.

The court of appeals shall give due regard to the oppor tunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and, ex cept with respect to determinations under subsection (3)(A) or (3)(B), shall give due deference to the district court's application of the guidelines to the facts. With respect to determinations under subsection (3)(A) or (3)(B), the court of appeals shall review de novo the dis trict court's application of the guidelines to the facts.

(f) DECISION AND DISPOSITION.-If the court of appeals determines that-

(1) the sentence was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate;

(2) the sentence is outside the applicable guide line range and the district court failed to provide the required statement of reasons in the order of judg ment and commitment, or the departure is based on an impermissible factor, or is to an unreasonable de gree, or the sentence was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable, it shall state specific reasons for its conclusions and-

(A) if it determines that the sentence is too high and the appeal has been filed under subsec tion (a), it shall set aside the sentence and re mand the case for further sentencing proceedings with such instructions as the court considers ap propriate, subject to subsection (g);

(B) if it determines that the sentence is too low and the appeal has been filed under subsec tion (b), it shall set aside the sentence and re mand the case for further sentencing proceedings with such instructions as the court considers ap propriate, subject to subsection (g);

(3) the sentence is not described in paragraph (1) or (2), it shall affirm the sentence.

(g) SENTENCING UPON REMAND.-A district court to which a case is remanded pursuant to subsection (f)(1) or (f)(2) shall resentence a defendant in accor dance with section 3553 and with such instructions as may have been given by the court of appeals, except that-

(1) In determining the range referred to in sub section 3553(a)(4), the court shall apply the guide lines issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, and that were in effect on the date of the previous sentencing of the defendant prior to the appeal, to gether with any amendments thereto by any act of Congress that was in effect on such date; and

(2) The court shall not impose a sentence out side the applicable guidelines range except upon a ground that-

(A) was specifically and affirmatively in cluded in the written statement of reasons re quired by section 3553(c) in connection with the previous sentencing of the defendant prior to the appeal; and

(B) was held by the court of appeals, in re manding the case, to be a permissible ground of departure.

(h) APPLICATION TO A SENTENCE BY A MAGISTRATE JUDGE.-An appeal of an otherwise final sentence im posed by a United States magistrate judge may be taken to a judge of the district court, and this section shall apply (except for the requirement of approval by the Attorney General or the Solicitor General in the case of a Government appeal) as though the appeal were to a court of appeals from a sentence imposed by a district court.

(i) GUIDELINE NOT EXPRESSED AS A RANGE.-For the purpose of this section, the term "guideline range" includes a guideline range having the same upper and lower limits.

(j) DEFINITIONS.-For purposes of this section-

(1) a factor is a "permissible" ground of depar ture if it-

(A) advances the objectives set forth in sec tion 3553(a)(2); and

 

(B) is authorized under section 3553(b); and

(C) is justified by the facts of the case; and

(2) a factor is an "impermissible" ground of de parture if it is not a permissible factor within the meaning of subsection (j)(1).

3. 28 U.S.C. 1291 provides:

Final decisions of district courts

The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have ju risdiction of appeals from all final decisions of the dis trict courts of the United States, the United States Dis trict Court for the District of the Canal Zone, the Dis trict Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court. The jurisdiction of the United States Court of Appeals for the Federal Circuit shall be limited to the jurisdiction described in sections 1292(c) and (d) and 1295 of this title.

 

4. 28 U.S.C. 1292 provides:

Interlocutory decisions

(a) Except as provided in subsections (c) and (d) of this section, the courts of appeals shall have jurisdiction of appeals from:

(1) Interlocutory orders of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Is lands, or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or re fusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court;

(2) Interlocutory orders appointing receivers, or refusing orders to wind up receiverships or to take steps to accomplish the purposes thereof, such as directing sales or other disposals of property;

(3) Interlocutory decrees of such district courts or the judges thereof determining the rights and lia bilities of the parties to admiralty cases in which ap peals from final decrees are allowed.

(b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a control ling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ulti mate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

(c) The United States Court of Appeals for the Fed eral Circuit shall have exclusive jurisdiction-

(1) of an appeal from an interlocutory order or decree described in subsection (a) or (b) of this sec tion in any case over which the court would have ju risdiction of an appeal under section 1295 of this ti tle; and

(2) of an appeal from a judgment in a civil action for patent infringement which would otherwise be appealable to the United States Court of Appeals for the Federal Circuit and is final except for an ac counting.

(d)(1) When the chief judge of the Court of Interna tional Trade issues an order under the provisions of sec tion 256(b) of this title, or when any judge of the Court of International Trade, in issuing any other interlocu tory order, includes in the order a statement that a con trolling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may ma terially advance the ultimate termination of the litiga tion, the United States Court of Appeals for the Federal Circuit may, in its discretion, permit an appeal to be taken from such order, if application is made to that Court within ten days after the entry of such order.

(2) When the chief judge of the United States Court of Federal Claims issues an order under section 798(b) of this title, or when any judge of the United States Court of Federal Claims, in issuing an interlocutory or der, includes in the order a statement that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litigation, the United States Court of Appeals for the Federal Circuit may, in its discretion, permit an appeal to be taken from such order, if application is made to that Court within ten days after the entry of such order.

(3) Neither the application for nor the granting of an appeal under this subsection shall stay proceedings in the Court of International Trade or in the Court of Fed eral Claims, as the case may be, unless a stay is ordered by a judge of the Court of International Trade or of the Court of Federal Claims or by the United States Court of Appeals for the Federal Circuit or a judge of that court.

(4)(A) The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction of an appeal from an interlocutory order of a district court of the United States, the District Court of Guam, the Dis trict Court of the Virgin Islands, or the District Court for the Northern Mariana Islands, granting or denying, in whole or in part, a motion to transfer an action to the United States Court of Federal Claims under section 1631 of this title.

(B) When a motion to transfer an action to the Court of Federal Claims is filed in a district court, no further proceedings shall be taken in the district court until 60 days after the court has ruled upon the motion. If an appeal is taken from the district court's grant or denial of the motion, proceedings shall be further stayed until the appeal has been decided by the Court of Appeals for the Federal Circuit. The stay of proceedings in the dis trict court shall not bar the granting of preliminary or injunctive relief, where appropriate and where expedi tion is reasonably necessary. However, during the pe riod in which proceedings are stayed as provided in this subparagraph, no transfer to the Court of Federal Claims pursuant to the motion shall be carried out.

(e) The Supreme Court may prescribe rules, in ac cordance with section 2072 of this title, to provide for an appeal of an interlocutory decision to the courts of ap peals that is not otherwise provided for under subsection (a), (b), (c), or (d).

 

5. 28 U.S.C. 2107 provides:

Time for appeal to court of appeals

(a) Except as otherwise provided in this section, no appeal shall bring any judgment, order or decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed, within thirty days after the entry of such judgment, or der or decree.

(b) In any such action, suit or proceeding in which the United States or an officer or agency thereof is a party, the time as to all parties shall be sixty days from such entry.

(c) The district court may, upon motion filed not later than 30 days after the expiration of the time other wise set for bringing appeal, extend the time for appeal upon a showing of excusable neglect or good cause. In addition, if the district court finds-

(1) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry, and

(2) that no party would be prejudiced,

the district court may, upon motion filed within 180 days after entry of the judgment or order or within 7 days after receipt of such notice, whichever is ear lier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.

(d) This section shall not apply to bankruptcy mat ters or other proceedings under Title 11.

6. Rule 4 of the Federal Rules of Appellate Procedure provides:

Appeal as of Right-When Taken

 

(a) Appeal in a Civil Case.

 

(1) Time for Filing a Notice of Appeal.

(A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal re quired by Rule 3 must be filed with the district clerk within 30 days after the judgment or order appealed from is entered.

 

(B) When the United States or its officer or agency is a party, the notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered.

 

(C) An appeal from an order granting or denying an application for a writ of error coram nobis is an appeal in a civil case for purposes of Rule 4(a).

(2) Filing Before Entry of Judgment. A notice of ap peal filed after the court announces a decision or or der-but before the entry of the judgment or order-is treated as filed on the date of and after the entry.

(3) Multiple Appeals. If one party timely files a no tice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.

(4) Effect of a Motion on a Notice of Appeal.

(A) If a party timely files in the district court any of the following motions under the Federal Rules of Civil Procedure, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion:

(i) for judgment under Rule 50(b);

(ii) to amend or make additional factual find ings under Rule 52(b), whether or not granting the motion would alter the judgment;

(iii) for attorney's fees under Rule 54 if the district court extends the time to appeal under Rule 58;

(iv) to alter or amend the judgment under Rule 59;

(v) for a new trial under Rule 59; or

(vi) for relief under Rule 60 if the motion is filed no later than 10 days after the judgment is entered.

(B)(i) If a party files a notice of appeal after the court announces or enters a judgment-but before it disposes of any motion listed in Rule 4(a)(4)(A)-the notice becomes effective to appeal a judgment or or der, in whole or in part, when the order disposing of the last such remaining motion is entered.

 

(ii) A party intending to challenge an order dis posing of any motion listed in Rule 4(a)(4)(A), or a judgment altered or amended upon such a motion, must file a notice of appeal, or an amended notice of appeal-in compliance with Rule 3(c)-within the time prescribed by this Rule measured from the en try of the order disposing of the last such remaining motion.

(iii) No additional fee is required to file an amended notice.

(5) Motion for Extension of Time.

(A) The district court may extend the time to file a notice of appeal if:

(i) a party so moves no later than 30 days af ter the time prescribed by this Rule 4(a) expires; and

(ii) regardless of whether its motion is filed before or during the 30 days after the time pre scribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.

(B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, no tice must be given to the other parties in accordance with local rules.

(C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 10 days after the date when the order granting the motion is entered, whichever is later.

 

(6) Reopening the Time to File an Appeal. The dis trict court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:

(A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry;

(B) the motion is filed within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and

(C) the court finds that no party would be preju diced.

(7) Entry Defined.

(A) A judgment or order is entered for purposes of this Rule 4(a):

(i) if Federal Rule of Civil Procedure 58(a)(1) does not require a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a); or

(ii) if Federal Rule of Civil Procedure 58(a)(1) requires a separate document, when the judg ment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a) and when the earlier of these events occurs:

 

o the judgment or order is set forth on a separate document, or

o 150 days have run from entry of the judgment or order in the civil docket under Federal Rule of Civil Procedure 79(a).

(B) A failure to set forth a judgment or order on a separate document when required by Federal Rule of Civil Procedure 58(a)(1) does not affect the valid ity of an appeal from that judgment or order.

(b) Appeal in a Criminal Case.

(1) Time for Filing a Notice of Appeal.

(A) In a criminal case, a defendant's notice of appeal must be filed in the district court within 10 days after the later of:

(i) the entry of either the judgment or the order being appealed; or

(ii) the filing of the government's notice of appeal.

(B) When the government is entitled to appeal, its notice of appeal must be filed in the district court within 30 days after the later of:

(i) the entry of the judgment or order being appealed; or

(ii) the filing of a notice of appeal by any de fendant.

(2) Filing Before Entry of Judgment. A notice of appeal filed after the court announces a decision, sentence, or order-but before the entry of the judg ment or order-is treated as filed on the date of and after the entry.

(3) Effect of a Motion on a Notice of Appeal.

(A) If a defendant timely makes any of the following motions under the Federal Rules of Criminal Proce dure, the notice of appeal from a judgment of convic tion must be filed within 10 days after the entry of the order disposing of the last such remaining mo tion, or within 10 days after the entry of the judg ment of conviction, whichever period ends later. This provision applies to a timely motion:

(i) for judgment of acquittal under Rule 29;

(ii) for a new trial under Rule 33, but if based on newly discovered evidence, only if the motion is made no later than 10 days after the entry of the judgment; or

(iii) for arrest of judgment under Rule 34.

(B) A notice of appeal filed after the court an nounces a decision, sentence, or order-but before it disposes of any of the motions referred to in Rule 4(b)(3)(A)-becomes effective upon the later of the following:

(i) the entry of the order disposing of the last such remaining motion; or

(ii) the entry of the judgment of conviction.

(C) A valid notice of appeal is effective-without amendment-to appeal from an order disposing of any of the motions referred to in Rule 4(b)(3)(A)

(4) Motion for Extension of Time. Upon a finding of excusable neglect or good cause, the district court may-before or after the time has expired, with or without motion and notice-extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b).

(5) Jurisdiction. The filing of a notice of appeal under this Rule 4(b) does not divest a district court of jurisdiction to correct a sentence under Federal Rule of Criminal Procedure 35(a), nor does the filing of a motion under 35(a) affect the validity of a notice of ap peal filed before entry of the order disposing of the mo tion. The filing of a motion under Federal Rule of Criminal Procedure 35(a) does not suspend the time for filing a notice of appeal from a judgment of conviction.

(6) Entry Defined. A judgment or order is en tered for purposes of this Rule 4(b) when it is entered on the criminal docket.

(c) Appeal by an Inmate Confined in an Institution.

(1) If an inmate confined in an institution files a notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institu tion's internal mail system on or before the last day for filing. If an institution has a system designed for legal mail, the inmate must use that system to re ceive the benefit of this rule. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.

(2) If an inmate files the first notice of appeal in a civil case under this Rule 4(c), the 14-day period provided in Rule 4(a)(3) for another party to file a notice of appeal runs from the date when the district court dockets the first notice.

(3) When a defendant in a criminal case files a notice of appeal under this Rule 4(c), the 30-day pe riod for the government to file its notice of appeal runs from the entry of the judgment or order ap pealed from or from the district court's docketing of the defendant's notice of appeal, whichever is later.

(d) Mistaken Filing in the Court of Appeals. If a no tice of appeal in either a civil or a criminal case is mis takenly filed in the court of appeals, the clerk of that court must note on the notice the date when it was re ceived and send it to the district clerk. The notice is then considered filed in the district court on the date so noted.

 

7. Rule 26 of the Federal Rules of Appellate Procedure provides:

Computing and Extending Time

(a) Computing Time. The following rules apply in computing any period of time specified in these rules or in any local rule, court order, or applicable statute:

(1) Exclude the day of the act, event, or default that begins the period.

(2) Exclude intermediate Saturdays, Sundays, and legal holidays when the period is less than 11 days, unless stated in calendar days.

(3) Include the last day of the period unless it is a Saturday, Sunday, legal holiday, or-if the act to be done is filing a paper in court-a day on which the weather or other conditions make the clerk's office inaccessible.

(4) As used in this rule, "legal holiday" means New Year's Day, Martin Luther King, Jr.'s Birthday, Washington's Birthday, Memorial Day, Independ ence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, Christmas Day, and any other day declared a holiday by the President, Congress, or the state in which is located either the district court that rendered the challenged judgment or or der, or the circuit clerk's principal office.

(b) Extending Time. For good cause, the court may extend the time prescribed by these rules or by its order to perform any act, or may permit an act to be done af ter that time expires. But the court may not extend the time to file:

(1) a notice of appeal (except as authorized in Rule 4) or a petition for permission to appeal; or

(2) a notice of appeal from or a petition to enjoin, set aside, suspend, modify, enforce, or otherwise re view an order of an administrative agency, board, commission, or officer of the United States, unless specifically authorized by law.

(c) Additional Time after Service. When a party is required or permitted to act within a prescribed period after a paper is served on that party, 3 calendar days are added to the prescribed period unless the paper is deliv ered on the date of service stated in the proof of service. For purposes of this Rule 26(c), a paper that is served electronically is not treated as delivered on the date of service stated in the proof of service.

8. Rule 52 of the Federal Rules of Criminal Procedure provides:

Harmless and Plain Error

(a) HARMLESS ERROR. Any error, defect, irregular ity, or variance that does not affect substantial rights must be disregarded.

(b) PLAIN ERROR. A plain error that affects sub stantial rights may be considered even though it was not brought to the court's attention.

 

1 See references in text note below.