The Justice Department today objected (under the Voting Rights Act) to 2 decisions of the Alabama Supreme Court. What follows is probably more than you want to know about the background:
Since 1985, the state law applicable to filling vacancies on the Mobile County Commission has swung between gubernatorial appointment and special election.
In 1985, the Alabama Legislature adopted Act 85-237, a local act providing for the election of county commissioners whenever vacancies occurred on the Mobile County Commission. The Alabama Attorney General submitted Act 85-237 for preclearance on 15 April 1985. The U.S. Attorney General issued a no objection letter regarding Act 85-237 on 17 June 1985. At this point, Alabama law authorized a special election, and that was the only way to fill a vacancy consistent with the Voting Rights Act.
In the Spring of 1987, a vacancy occurred in the District 1 Commissioner position on the Mobile County Commission. Act 85-237 required a special election if more than one year remained in the term. Since there was more than one year remaining in the term, the election officials of Mobile County called a special election.
Sam Jones and another candidate qualified for the Democratic nomination, and Jones was nominated by the Democratic Party in a special primary. Jones also won the special general election over opposition.
Shortly after the vacancy occurred, a Mobile County voter filed suit to have Act 85-237 declared unconstitutional. The Circuit Court ruled in favor of the constitutionality of the law. On appeal to the Alabama Supreme Court, the Court held that the subject matter of Act 85-237 was subsumed by general law (Ala. Code § 11-3-6) and was therefore invalid under Ala. Const. Art. IV § 105. Stokes v. Noonan, 534 So.2d 237 (Ala. 1988).
Under Hathorn v. Lovorn, 457 U.S. 255 (1982), the State of Alabama or Mobile County should have submitted the Stokes v. Noonan decision for preclearance. Until such preclearance was obtained, neither Mobile County nor the State could legally enforce or administer the change made by Stokes v. Noonan. The State has stipulated that no such submission has occurred (prior to this one).
Gov. Guy Hunt gave Sam Jones a commission of appointment after the Stokes decision. Because the State never obtained preclearance for the Stokes decision before Gov. Hunt administered it by appointing Jones, Gov. Hunts action was unnecessary and illegal because Joness elected term on the Mobile County Commission had not been terminated.
In 2004, the Legislature adopted Act 2004-455 which amended Ala. Code § 11-3-6 to allow local laws providing methods other than gubernatorial appointment for filling vacancies. The Alabama Attorney General submitted Act 2004-455 for preclearance on 9 August 2004. The Attorney General of the U.S. issued a no objection letter regarding Act 2004-455 on 28 September 2004.
The submission of Act 2004-455 mentioned Stokes v. Noonan, but did not state explicitly whether the new Act would have any effect on the previously-precleared Act 85-237.
When Mobile County Commissioner Sam Jones was elected Mayor of the City of Mobile and made plans to resign from his position on the Commission, Reps. Kennedy, Buskey, and Clark filed suit in Montgomery County Circuit Court for relief including a declaration that the vacancy should be filled by special election. The plaintiffs took the position that Act 2004-455 had revived Act 85-237. Eventually, the Alabama Supreme Court decided that Act 2004-455 had a prospective effect only; that is, only local acts passed after the effective date of Act 2004-455 could take advantage of the proviso enacted by that Act.
The benchmark against which to judge the Riley v. Kennedy decision is the situation in force and effect immediately before it was decided. Abrams v. Johnson, 521 U.S. 74, 97 (1997); Section 5 Guidelines, 28 C.F.R. § 51.54(b)(1). The benchmark situation was the special-election requirement of Act 85-237 which had been precleared and administered in 1985-87 and reaffirmed by Act 2004-455 (which in turn had been precleared in 2004 and administered in other counties in 2004).
In summary, each time the Legislature has acted to provide for special elections to fill vacancies, the Alabama Attorney General has submitted the act and obtained preclearance. In contrast, the Alabama Attorney General has now belatedly submitted the Alabama Supreme Court decisions for preclearance only after being ordered to do so by the District Court.
Disclosure: I am one of the attorneys for Reps. Kennedy, Buskey, and Clark.