The “Mischief Rule” Rule and the VRA in Riley v. Kennedy

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5 Responses

  1. Sean M. says:

    I understand the point of the post, but I rather wonder if enforcing the pre-clearance mechanism in this case would obliterate state judicial review over a state’s own constitution and/or laws.


    State legislators pre-clear a change in law with the DOJ which is then passed. However, the bill is unconstitutional under the state constitution. However, the state Supreme Court cannot act because its jurisdictional requirements need an actual case or controversy to come before it, meaning the law must be passed. When the state Supreme Court goes to strike down the law, must it pre-clear its decision with DOJ? Is the AL Supreme Court not just subordinate to the Supreme Court but also the U.S. District Court for the District of Columbia?

    That raises serious federalism issues that I think motivate the majority opinion in this case.

  2. Marcia McCormick says:

    The state supreme court would not have to preclear its decision before striking down the statute. The court’s decision would invalidate the method of election at issue and simply leave a vacuum to be filled by the state legislature. The state legislature would be free to choose another method of filling the office, one that’s constitutional under the state’s constitution, and could seek preclearance for that method. If preclearance is denied (as happened in Riley), the state would have to try again.

    If the DOJ continued to deny preclearance to every proposal, essentially backing the state into a practice that was unconstitutional under it’s state constitution, then there would be a federalism concern. It’s the denial of preclearance that implicates federalism, but that federalism concern is exactly what the VRA says does not outweigh the federal interest and the danger to individual voting rights. If the state constitution requires an action that violates federal law, federal law wins. It’s a supremacy clause issue and a 15th and 14th amendment issue.

    So really, the problem that created Riley was the DOJ’s decision not to preclear the practice that Alabama chose after the prior law was struck down, but that is not how the Court chose to analyze the issue.

  3. John Smith says:

    “Mischief” appears to require an affirmative action by the state court. The act of the Court in Riley was a negating, not an affirmative, action. So I believe there was no Court action that needed preclearance, and Stevens’s view of the situation as vulnerable to mischief is incorrect.

  4. R.Friedman says:

    This is the second time this year Stevens has accused Ginsberg of pulling her punches, the other being NJ v. Del. I think he is right; I don’t think she’s been up to the contentiousness of the Court for some years now. She was the swinging vote in Booker/Fan-Fan but didn’t write. She didn’t pressure Scalia to get rid of the obnoxious “hypothetical legislative history” footnote attack on Stevens in Santos. For a more robust defense of the VRA, see the recent DC Cir case at (tks to Scotusblog).

  5. R.Friedman says:

    Oops, make that 3-judge district court