Comments on: The Department of Justice’s Override of the Alabama Supreme Court http://www.concurringopinions.com/archives/2008/03/the_department_1.html The Law, the Universe, and Everything Tue, 14 Feb 2012 05:18:12 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: Roger Friedman http://www.concurringopinions.com/archives/2008/03/the_department_1.html/comment-page-1#comment-49980 Roger Friedman Wed, 12 Mar 2008 15:01:37 +0000 http://www.solove.org/archives/2008/03/the-department-of-justice%e2%80%99s-override-of-the-alabama-supreme-court.html#comment-49980 Sounds like the case turns on whether any vacancies were ever filled by election pursuant to the local law. The Voting Rights Act requires changes in customs and practices, as well as laws, to be pre-cleared. Those of us old enough to remember Alabama in the 60s can testify that it was much more than statutory text that was used to disenfranchise blacks. The power under the 15th Amendment to address selective enforcement of laws, including state constitutions, should be unassailble. So if commission vacancies were ever filled by election, reverting to gubernatorial appointment would be a change in an act or practice requiring pre-clearance. This does not mean that the Supreme Court of Alabama must seek pre-clearance for its decsions, but that the state must seek pre-clearance before the governor makes an appointment. Sounds like the case turns on whether any vacancies were ever filled by election pursuant to the local law. The Voting Rights Act requires changes in customs and practices, as well as laws, to be pre-cleared. Those of us old enough to remember Alabama in the 60s can testify that it was much more than statutory text that was used to disenfranchise blacks. The power under the 15th Amendment to address selective enforcement of laws, including state constitutions, should be unassailble. So if commission vacancies were ever filled by election, reverting to gubernatorial appointment would be a change in an act or practice requiring pre-clearance. This does not mean that the Supreme Court of Alabama must seek pre-clearance for its decsions, but that the state must seek pre-clearance before the governor makes an appointment.

]]> By: Vercingetorix http://www.concurringopinions.com/archives/2008/03/the_department_1.html/comment-page-1#comment-49979 Vercingetorix Wed, 12 Mar 2008 00:25:19 +0000 http://www.solove.org/archives/2008/03/the-department-of-justice%e2%80%99s-override-of-the-alabama-supreme-court.html#comment-49979 On the explanation given here, the Mobile local government's enactment of a local-election scheme was <i>ultra vires</i>, therefore void <i>ab initio</i>. Any preclearance given to that scheme by DOJ was and is moot, because <i>there never was any change in Alabama's voting laws</i>. Since there has been no change, no preclearance of the past- and- still- current law is required under the V.R.A. The legal question almost comically simple. It's the political question which is difficult. This whole thing must be a product of racial bean-counters in the DOJ. On the explanation given here, the Mobile local government’s enactment of a local-election scheme was ultra vires, therefore void ab initio. Any preclearance given to that scheme by DOJ was and is moot, because there never was any change in Alabama’s voting laws. Since there has been no change, no preclearance of the past- and- still- current law is required under the V.R.A.

The legal question almost comically simple. It’s the political question which is difficult. This whole thing must be a product of racial bean-counters in the DOJ.

]]> By: Adam Winkler http://www.concurringopinions.com/archives/2008/03/the_department_1.html/comment-page-1#comment-49978 Adam Winkler Tue, 11 Mar 2008 20:51:32 +0000 http://www.solove.org/archives/2008/03/the-department-of-justice%e2%80%99s-override-of-the-alabama-supreme-court.html#comment-49978 Why is it inappropriate for Department of Justice officials to override a decision by a state supreme court? Federal law is supreme over state law, including state constitutional law. The DOJ is authorized to interpret the relevant federal law here, the Voting Rights Act, and those interpretations have the force of law. If the state supreme court reads the state constitution to require literacy tests when such tests are barred by federal law, federal law will trump the state court interpretation. The Alabama case appears unusual because the local law is portrayed as trumping the state constitution. But that is just the wrong framing. What is trumping the state constitution is the federal legal requirement that any change in voting must be precleared. The state court is just being bound like every other state government official to the federal preclearance requirement. Why is it inappropriate for Department of Justice officials to override a decision by a state supreme court? Federal law is supreme over state law, including state constitutional law. The DOJ is authorized to interpret the relevant federal law here, the Voting Rights Act, and those interpretations have the force of law. If the state supreme court reads the state constitution to require literacy tests when such tests are barred by federal law, federal law will trump the state court interpretation.

The Alabama case appears unusual because the local law is portrayed as trumping the state constitution. But that is just the wrong framing. What is trumping the state constitution is the federal legal requirement that any change in voting must be precleared. The state court is just being bound like every other state government official to the federal preclearance requirement.

]]> By: George Weiss http://www.concurringopinions.com/archives/2008/03/the_department_1.html/comment-page-1#comment-49977 George Weiss Tue, 11 Mar 2008 08:40:58 +0000 http://www.solove.org/archives/2008/03/the-department-of-justice%e2%80%99s-override-of-the-alabama-supreme-court.html#comment-49977 seems to me this case has ripeness issues the gov could simply take the state supreme court decisions to the dc circuit for declaratory judgment that the decisions were not discriminatory..(the other way to get a preclearance)..and it hasn't done so and has instead appealed to the SCOTUS....considering the fact that the decisions are clearly not discriminatory in the meaning of the voting rights act...i don't see why they wouldn't get it. seems to me this case has ripeness issues

the gov could simply take the state supreme court decisions to the dc circuit for declaratory judgment that the decisions were not discriminatory..(the other way to get a preclearance)..and it hasn’t done so and has instead appealed to the SCOTUS….considering the fact that the decisions are clearly not discriminatory in the meaning of the voting rights act…i don’t see why they wouldn’t get it.

]]> By: Taken Littorally http://www.concurringopinions.com/archives/2008/03/the_department_1.html/comment-page-1#comment-49976 Taken Littorally Tue, 11 Mar 2008 04:57:41 +0000 http://www.solove.org/archives/2008/03/the-department-of-justice%e2%80%99s-override-of-the-alabama-supreme-court.html#comment-49976 Would it give you pause if the situation involved tax collection? If not, why voting rights? Would it give you pause if the situation involved tax collection? If not, why voting rights?

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