Riley v. Kennedy

The Supreme Court took a narrow stance in a voting rights dispute involving the governor of Alabama.

The case concerned whether Gov. Bob Riley (R) needed clearance from the federal government under Section 5 of the Voting Rights Act of 1965 before altering election procedures that could impact minority voters.

Section 5 established that certain states with a history of discrimination – such as Alabama – could not make changes to their election laws without getting clearance from the Department of Justice.

In 2005, the governor appointed Republican Juan Chastang to fill a vacancy on the Mobile County Commission. Three state Democratic lawmakers challenged the appointment, arguing that a special election should have been held and that Riley's decision required clearance from the Department of Justice.

In January 2007, the DOJ said Riley's appointment did appear to weaken minority voters. Later, a three-judge panel on the U.S. District Court for the Middle District of Alabama ruled against Riley, vacating the appointment. A Democratic candidate defeated Chastang in a special election.

The district court held that "Changes are measured by comparing the new challenged practice with the baseline practice, that is, the most recent practice that is both precleared and in force or effect."

In asking the Supreme Court to review the case, the governor pointed to the state constitution, which allows for gubernatorial appointments in such cases. Special elections were established only after subsequent legislation and litigation in the mid-1980s, and they were quickly struck down by the Alabama Supreme Court as violating the state constitution.

On the other hand, the Democratic lawmakers and concerned voting rights groups contended that allowing the change to stand would carve out an exception in which voting changes made by state courts would be accepted without federal review, even if they were discriminatory.

On May 27, the Supreme Court sided with the governor. "For the reasons that follow, we conclude that the 1985 Act was never 'in force or effect' within the meaning of §5. At all relevant times, therefore, the baseline practice for filling midterm vacancies on the Commission was the pre-1985 practice of gubernatorial appointment," Justice Ruth Bader Ginsburg wrote for the majority. "The State's reinstatement of that practice thus did not constitute a change requiring preclearance."

Justice John Paul Stevens wrote a dissenting opinion, joined by Justice David Souter.

"This case calls for nothing more than a straightforward application of our precedent; that precedent makes clear that the special election procedure was the relevant baseline and that gubernatorial appointment therefore represents a change that must be precleared," Stevens contended.