Beware of court cases that begin when black politicians decide that a black appointee isn’t the right kind to represent a majority-black district.
Naturally, the black appointee thought to be the wrong sort is a Republican and the black politicians opposing him are Democrats. The Democrats enlisted federal bureaucrats to carry their case to a friendly federal district court, which bizarrely ruled in their favor. Earlier this week, the U.S. Supreme Court heard oral arguments in Alabama’s appeal of that bizarre decision.
What happened was this: Since 1868, Alabama state law has required the governor to appoint replacements for any county commission seats that become open in the middle of a term. In 1985, the Alabama Legislature enacted a “local law” allowing Mobile County, alone among all 67 Alabama counties, to fill vacancies by special election instead.
The U.S. Justice Department “pre-cleared” the change, meaning federal officials found the change was not racially discriminatory. But the state Supreme Court overturned the law in 1987 on other grounds, namely that the Alabama Constitution does not allow local laws to directly contradict an existing statewide law. Nobody protested much then — certainly not the U.S. Justice Department — nor did anyone challenge the ruling for the next 18 years.
Jump forward to 2005. Mobile County Commissioner Sam Jones, a black Democrat, was elected mayor of Mobile (a 60 percent white city), thus leaving vacant his commission seat. Republican Gov. Bob Riley appointed black Republican Juan Chastang to fill the vacancy. Black Democratic politicians were outraged: Chastang wasn’t one of them.
Somehow, they convinced DOJ bureaucrats that the state Supreme Court ruling in 1987 had been a “change” that should have been submitted to Washington for pre-clearance under Section 5 of the federal Voting Rights Act — even though the only change it made was to reinstate the existing 1868 law, which itself had no racial or other civil rights implications.
In essence, the bureaucrats decided that their mere act of allowing the proposed change in 1985 was the equivalent, with two decades of hindsight, of actually imposing the change (even though Alabama continued to act under the 1868 law for the next two decades, thus clearly not implementing the change). Therefore, they argued, Alabama’s Supreme Court should have sought DOJ’s permission in 1987 to rule that the 1985 law was null and void.
Anywhere this side of Alice’s rabbit hole, the bureaucrats’ position looks like nonsense. What the Supreme Court did in 1987 was not a “change” requiring DOJ pre-clearance, it was a rejection of a proposed change that, by virtue of its rejection, never actually took effect.
A state supreme court is the final authority on all state laws that do not themselves violate the U.S. Constitution. That’s American Civics 101. And as Alabama argues in its brilliant Supreme Court brief (by Kevin Newsom, a Harvard Law grad who clerked for Justice David Souter), DOJ’s own Web site notes that any law pre-cleared under Section 5 (such as the 1985 law) “remains subject to a challenge on any other grounds” — such as that it otherwise violates a state’s laws or Constitution, just as the state Supreme Court ruled in 1987.
To do otherwise, as Justice Ruth Bader Ginsburg noted incredulously during Monday’s oral argument, is to say of a new state law that “when the [state] supreme court corrects it, that doesn’t count … [and] Alabama is locked into a mistake that was made about Alabama law.” As was indicated by the tenor of Justice Ginsburg’s questioning — matched by that of Justices Antonin Scalia and Samuel Alito Jr. — the very idea is absurd.
Or, as Chief Justice John Roberts Jr. asked, much more simply: “Why did Alabama have to pre-clear anything?”
The implications of this case vastly exceed the question of who gets to finish an Alabama county commission term. Serious constitutional principles and practicalities are at issue. That’s why Florida, South Carolina, Alaska, Louisiana, New Hampshire, New Mexico, South Dakota and Virginia filed an amicus brief on Alabama’s side, while not a single state argued otherwise. If all states affected by Section 5 can have state Supreme Court rulings overturned by bureaucratic fiat, they wrote, “the upheaval … could be staggering.”
The U.S. Supreme Court ought to rule in Alabama’s favor — unanimously.
Quin Hillyer is associate editorial page editor of The Washington Examiner. He can be reached at [email protected].
