Riley v. Kennedy
The Supreme Court ruled that Alabama did not need federal preclearance to return to filling Mobile County Commission vacancies by gubernatorial appointment, because the 1985 law that had briefly allowed special elections was struck down by Alabama's own Supreme Court and therefore never took lasting legal effect under the Voting Rights Act.
The decision narrows what counts as a voting-practice 'baseline' under the Voting Rights Act's preclearance rules, holding that a state law invalidated by a state's highest court soon after a court challenge cannot lock a covered state into an unconstitutional practice.
How it got here: A three-judge federal district court ruled that preclearance was required and later vacated the Governor's appointment; the Governor appealed directly to the Supreme Court under the Voting Rights Act.
The Case in Depth
What happened
Alabama traditionally filled midterm vacancies on the Mobile County Commission by gubernatorial appointment. A 1985 state law switched to special elections instead, and one such election was held in 1987. A Mobile County voter successfully challenged that law, and Alabama's Supreme Court declared it unconstitutional in 1988. When a new vacancy arose in 2005, voters and legislators sued, arguing Alabama had to get federal approval before reverting to gubernatorial appointment.
The question before the Court
When Alabama's highest court struck down a law that had let voters fill a county commission vacancy by special election, could the state go back to picking commissioners by governor's appointment without getting federal approval first?
The Court's answer
No — the Court ruled that Alabama did not need federal preclearance to go back to filling the vacancy by gubernatorial appointment. Because the 1985 law authorizing special elections was challenged right away and then struck down by Alabama's own Supreme Court as unconstitutional, the Court treated that law as if it had never validly existed for Voting Rights Act purposes. That meant the legal 'baseline' against which any change should be measured remained the older practice of gubernatorial appointment, not the brief special-election practice.
Since Alabama's return to appointment matched that true baseline rather than departing from it, there was no 'change' triggering the preclearance requirement. The Court emphasized this holding was narrow, resting specifically on the quick legal challenge and the state supreme court's invalidation of the law.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
The ruling lets Alabama keep filling Mobile County Commission vacancies by appointment without seeking federal sign-off, resolving a dispute that had blocked a sitting commissioner's appointment. More broadly, it tells other covered states and the Justice Department that a law struck down by a state supreme court shortly after being challenged won't count as a locked-in voting practice requiring preclearance to undo.
What changes now
The case is sent back to the district court for further proceedings consistent with the Supreme Court's ruling, meaning Alabama does not need preclearance to fill the disputed vacancy by appointment. Because a new state law adopted in 2006 already shifted future vacancies to special elections, the practical stakes going forward were limited mainly to whether the previously ousted appointee could seek reinstatement for the remainder of his term.
What this does not decide
The Court stressed its holding was narrow: it turned specifically on the fact that Alabama's highest court invalidated the 1985 law shortly after it was challenged. The Court noted the outcome might differ if an unlawful practice were simply abandoned by officials, or invalidated only after years of unchallenged use, or if a court order had created a wholly new practice instead of restoring the old one.
Concurrences and dissents
Dissent — Justice Stevens
“It is difficult to say that the special election practice was never “in force or effect” with a straight face.”Stevens's central objection that the 1987 special election clearly had real, lasting effects.
Justice Stevens argued the Voting Rights Act should be read broadly, and that under the Court's own precedents (Perkins, Lockhart, Young), the special-election practice used in 1987 was clearly 'in force or effect' for fourteen months, during which the elected commissioner cast votes on major county business. He argued the majority wrongly treats state-court-ordered changes more leniently than legislative or executive changes, and that Alabama's history of courts enabling discriminatory voting rules shows state courts should be treated just like legislatures under Section 5. He would have required preclearance before Alabama reverted to appointment.
How the Court got there
The legal reasoning, step by step
- The Court first resolved a timeliness dispute, holding that the district court's August 2006 order was not a final judgment because it left Kennedy's request for injunctive relief unresolved; the real final judgment came May 1, 2007, making the Governor's appeal timely.
- Turning to the merits, the Court explained that under Section 5 of the Voting Rights Act, whether a voting practice counts as a 'change' requiring federal preclearance depends on comparing it to the jurisdiction's 'baseline' — the most recent practice that was both approved by federal officials and actually 'in force or effect.'
- The Court reviewed three prior cases defining 'in force or effect': practices used without legal challenge for years generally count as the baseline even if their legality under state law is shaky, but a practice that was only a brief, mistaken application of state law, later abandoned, does not count.
- The Court identified a new factor not present in the earlier cases: the 1985 special-election law was challenged in court immediately, the one election held under it took place while that challenge was still pending, and Alabama's highest court ultimately struck the law down as unconstitutional.
- Because a state's highest court is the final word on what state law means, the Court reasoned that a law invalidated soon after being challenged should be treated as if it never validly existed, so it could not establish a new voting-practice baseline under the Act.
- The Court concluded that treating the invalidated law as the baseline would improperly lock Alabama into an unconstitutional practice based on a trial court's legal error, and would undercut the state supreme court's authority to correct such errors, so the pre-1985 practice of gubernatorial appointment remained the true baseline and no preclearance was required.
Doctrinal impact
Cases affected by this decision
Distinguishes Young v. Fordice (520 U. S. 273)
The Court distinguished this case from Young's 'temporary misapplication' rule while relying on it as a starting point.
Distinguishes Perkins v. Matthews (400 U. S. 379)
The Court found Perkins did not control because no court had invalidated the practice there.
Distinguishes City of Lockhart v. United States (460 U. S. 125)
The Court distinguished Lockhart because the state judiciary had no involvement in that case.