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

Election law experts have been quick to speculate about what the Supreme Court’s decision in Riley v. Kennedy, handed down this past Tuesday, means for the future of Section 5 (the preclearance provision) of the Voting Rights Act (VRA). Rick Pildes argues that the decision reflects a trend, which began in the 1990s, of “greater skepticism from the Court” “regarding the boundaries of the special coverage regime under Section 5 of the Act.” Rick Hasen worries that the decision bodes ill for the Court’s upcoming review of the constitutionality of the recently-renewed Section 5 in the NAMUDNO case. But what is most interesting to me, as a matter both of statutory interpretation and of election law, is Part IV of Justice Stevens’ dissenting opinion, which employs a classic Hart & Sacks Legal Process approach —the “Mischief Rule”— to argue that Section 5 preclearance should be required in a case such as this.

Before delving into this most interesting argument by Justice Stevens, a little background: VRA §5, of course, subjects certain “covered jurisdictions” (which earned that designation through a history of suppressing minority voting rights) to a presumption of bad faith behavior in election administration. It operates by freezing in place the election administration procedures in such covered jurisdictions, and requiring that such jurisdictions obtain “preclearance” from either the Justice Department (DOJ) or the District Court for the District of Columbia before they may make any changes to voting/election procedure. The typical preclearance lawsuit thus tends to involve a proposal by a state entity to implement some new change to election procedure in a covered jurisdiction, and a challenge by a minority group arguing that the proposed change will have the effect of disenfranchising minority voters. Riley turns that classic procedural posture on its head: In 1985, Alabama passed a law adopting a new election practice (changing the procedure for filling midterm vacancies on the Mobile County Commission from gubernatorial appointment to special election), obtained the preclearance required by Section 5, and held an election (in 1987). Soon thereafter, the Alabama Supreme Court invalidated the law under which the election took place on the ground that it violated the Alabama Constitution. When the next midterm vacancy arose (in 2005), the governor sought to fill it by appointment, prompting litigation. The question presented before the Supreme Court = Whether Alabama must obtain fresh preclearance in order to reinstate the election practice —i.e., gubernatorial appointment— that was in place before the special election procedure, ultimately struck down by the Alabama Supreme Court, was enacted? Does reinstatement of the gubernatorial appointment procedure constitute a change/abandonment of the special election procedure used in 1987, and thus require Section 5 preclearance?


The Supreme Court, in an opinion written by Justice Ginsburg, and joined by every Justice except Justices Stevens and Souter, answers both of these questions in the negative. The invalidated 1985 law, the Court holds, never gained “force or effect” for Section 5 purposes, and so the State’s reversion to its prior practice of gubernatorial appointment did not rank as a “change” requiring preclearance. Underlying the Court’s opinion is an overwhelming respect for the judgment by “Alabama’s highest court” declaring the 1985 Act and its special election procedure invalid under the Alabama State Constitution, and a conscious effort to limit the ruling to the peculiar facts of this case.

So, at first blush, the Court’s opinion does not seem so terribly ominous. After all, the way the Court paints the picture, the facts of Riley seem to fall at the outer-boundaries of Section 5’s reach. Until, that is, one reads Justice Stevens’ dissent. The dissent makes clear that the way the Court paints the picture is itself worrisome. Leaving aside arguments over the proper application of relevant precedents, the Court ignores two powerful canons of statutory construction that point decidedly in favor of requiring preclearance in this case. First, it neglects the substantive canon (background norm) favoring liberal construction of Section 5 of the VRA (See Allen v. State Board of Elections, noting Congress’ intent to give Section 5 the “broadest possible scope,” reaching “any state enactment which altered the election law of a covered State in even a minor way”).

Second, the Court ignores the fact that election law changes worked by state courts fall squarely within the “Mischief” that the VRA was designed to correct. Although Justice Stevens does not explicitly reference the Hart and Sacks “Mischief Rule” in his dissent, it is very much a mischief argument that he is making when he insists that deference to state courts is improper in construing the VRA, because discrimination against minority voters by state courts was part of the “history of voting practices” that the VRA originally was designed to remedy. In fact, Justice Stevens’ dissent provides a classic mischief-style history lesson in the state of affairs that led to enactment of the VRA — recounting how the Alabama Supreme Court not only (1) imposed procedural obstacles in the way of minority litigants seeking to challenge local election officials’ discriminatory registration procedures, but (2) drafted and promulgated a complex registration questionnaire designed to block the registration of African-American voters. Justice Stevens’ history lesson shows that “prior to the VRA, the Alabama Supreme Court worked hand-in-hand with the Alabama Legislature to erect obstacles to African-American voting,” and makes clear that deference to state courts in covered jurisdictions thus is as out of step with Section 5 as is deference to state election boards or legislatures. In other words, the scenario at issue in Riley falls much closer to the core of Section 5 than the majority would have us think.

Why, then, this collective amnesia on the part of seven members of the Roberts Court? Well, the fear behind election law experts’ lamentations is that it is not so much amnesia that is at work, but rather a deliberate conclusion by a majority of the Justices that the original mischief the VRA was designed to remedy no longer is relevant in construing the scope of Section 5. Justice Stevens’ dissent tellingly notes that he “do[es] not mean to cast aspersions on the current members of the Alabama Supreme Court”—i.e., he does not mean to suggest that their invalidation of the 1985 law was motivated by a desire to disfranchise minority voters. Under traditional principles of statutory construction (and VRA construction in particular), he does not need to suggest anything of the kind; the Alabama Supreme Court’s history of discriminating against minority voters is enough to relieve it of any entitelement to deference from federal courts and to bring election law changes worked by its decisions within Section 5’s preclearance regime. The fact that seven members of the Court completely ignore this principle suggests that they believe the original impetus behind Section 5 (the mischief Congress sought to correct) does not matter going forward — it is almost as if the majority is engaging in a “dynamic updating” of the VRA, taking current conditions, rather than time-of-enactment conditions, into account. And if that is the case, then election law experts are correct to worry about the future of Section 5 and its preclearance mechanism (particularly given that the findings upon which Congress based its 2006 renewal of the VRA harken back to data from 1964).

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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.

    Imagine:

    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 http://www.scotusblog.com/wp/wp-content/uploads/2008/05/vra_decision1.pdf (tks to Scotusblog).

  5. R.Friedman says:

    Oops, make that 3-judge district court