Riley v. Plump -- our Motion to Dismiss or Affirm filed

This morning, my co-counsel and I filed the Motion to Dismiss or Affirm the appeal of Gov. Riley in Riley v. Plump, No. 07-1460, U.S. Supreme Court.

We also submitted this letter to the Clerk to inform him of additional developments in the case.

Plump v. Riley: Governor seeks further extension of Bowman's term, loses, and asks Justice Thomas for stay

Governor Riley asked the three-judge court for a stay pending appeal. We (Jim Blacksher and I) opposed the motion. The court has now granted a one-month extension to the stay.

Riley, not satisfied with one month, has asked Justice Clarence Thomas for a stay for the full time that the appeal is pending.

Publications

Co-author, The USERRA Manual (Thompson West, 2008) (with Kathryn Piscitelli)

Co-author, "Job Rights of Employees who Serve in the Military: USERRA Rights and Obligations," ATLA Docket (Ark. Trial Lawyers Ass'n), Spring 2008 (with Mary Dryovage and Kathryn S. Piscitelli) [This article has been published in two AAJ newsletters -- Employment Rights Section and Federal Tort and Military Advocacy Section]

Author, “Voting Rights Act of 1965,” “Right to Vote,” “Reynolds v. Sims,” in Encyclopedia of American Law (D. Schultz, ed.) (2002)

Author, “A Simple Agenda for Election Reform,” 50 The National Voter (2001)

Co-author, “Is There a Constitutional Right to Vote and Be Represented? The Case of the District of Columbia,” 48 Am. U. L. Rev. (1999) (edited transcript of conference session)

Co-author, “Alternative Electoral Systems as Voting Rights Remedies,” 18 FEC Journal of Election Administration (1997)

Co-author, “One Person, Seven Votes: The Cumulative Voting Experience in Chilton County, Alabama,” in Affirmative Action and Representation: Shaw v. Reno and the Future of Voting Rights (1997)

Co-author, “Alternative Voting: How it Works,” Voting Rights Review (Spring 1995) [HTML]

Co-author, “Cumulative Voting as a Remedy in Voting Rights Cases,” 84 National Civic Review (1995)

Author, “Alabama,” in The Quiet Revolution: The Impact of the Voting Rights Act in the South, 1965-1990 (1994)

Author, “Symposium: The Supreme Court, Racial Politics, and the Right to Vote: Shaw v. Reno and the Future of the Voting Rights Act,” 44 Am. U. L. Rev. (1994) (edited transcript of conference)

Author, “Cumulative and Limited Voting in Alabama,” in United States Electoral Systems: Their Impact on Minorities and Women (1992)

Author, “The Hunting of the Gerrymander”, 38 UCLA L. Rev. (1991) (review of Political Gerrymandering and the Courts)

Author, “Voluntary Constituencies: Modified At-Large Voting As A Remedy For Minority Vote Dilution In Judicial Elections,” 9 Yale L. & Pol’y Rev. (1991)

Author, “Alternatives to Single-Member Districts,” in Davidson and Grofman, eds., Minority Vote Dilution (1984)

Author, "Election Reform Bill Will Add Uniformity to U.S. Voting System," op-ed piece in Birmingham News, 20 October 2002

Author, "State must consider what-ifs in revising election laws," op-ed piece in Birmingham News, 17 November 2002

Gov. appeals Plump v. Riley

Governor Riley has filed a long-winded notice of appeal to the U.S. Supreme Court from the Judgment in Plump v. Riley.

Riley v. Kennedy -- Governor's reply brief filed

Gov. Riley has filed his reply brief in the U.S. Supreme Court case of Riley v. Kennedy.

Amicus briefs (supporting Kennedy) filed in Riley v. Kennedy

Amicus briefs have been filed supporting the Kennedy plaintiffs in Riley v. Kennedy, No. 07-77, in the US Supreme Court:

United States

ACLU

Lawyers' Committee for Civil Rights Under Law

NAACP Legal Defense Fund

Riley v. Kennedy -- appellees' brief filed

The appellees' brief in Riley v. Kennedy has been filed with the U.S. Supreme Court. While I am "counsel of record" in this case, a great team of people listed on the cover of the brief plus several students in the Stanford Law School Supreme Court Litigation Clinic have contributed to the brief.

Riley v. Kennedy -- Riley's opening brief in Supreme Court

Governor Riley has filed his opening brief in the U.S. Supreme Court in Riley v. Kennedy, No. 07-77. You may download the brief here.

Profile of Fred Plump

The Birmingham News has a profile of Fred Plump, my client and the plaintiff in the suit against Gov. Riley's appointment of a county commissioner: Fred Plump looks out for the underdog.

When a guy he knew was sure to get pummeled by friends in the neighborhood, Plump took a stand and walked him to safety.

"I knew they were wrong," Plump said. "So, I decided to walk this guy clean out of the neighborhood, stepping out with my neck on the line. When I saw things that were not right, I was always standing up for others."

Plump, of Fairfield, filed a federal discrimination lawsuit in the early 1970s when he sought to become a Birmingham firefighter after passing the firefighter's exam, but was passed over for a spot. -- Activist Fred Plump relishes fight with Gov. Riley over Jefferson County post- al.com

The whole story is also available here as a PDF file.

Plump v. Riley, preliminary injunction requested

We have filed an amended complaint and a motion for a preliminary injunction. The Birmingham News has a story on the new filings.

The amended complaint adds new theories to the complaint -- that is, new legal claims on which the court can rule. In addition to basing our claim on Section 5 of the Voting Rights Act (which is based on the idea that there is a change in election laws that must be precleared), we have added claims that the Governor's action -- even if they are precleared -- have a discriminatory effect.

Amended complaint [pdf]
Motion for preliminary injunction [pdf]
Birmingham News article [pdf]

Plump v. Riley filed

James Blacksher and I have filed on behalf of a Jefferson County voter, Mr. Fred Plump, a suit against Gov. Bob Riley. Despite the earlier ruling in Kennedy v. Riley, the Governor still persists in believing that he has the authority to appoint a county commissioner to fill a vacancy, even when there is a local law to the contrary. Here are the pleadings so far:

Complaint [pdf]
Exhibit A [pdf]
Exhibit B [pdf]
Exhibit C [pdf]
Exhibit D [pdf]

Riley v. Kennedy (was Kennedy v. Riley) to be heard by Supreme Court

The Supreme Court agreed to hear Governor Riley's appeal today in the case known in the Supreme Court as Riley v. Kennedy, No. 07-77. The order from the Court is here.

The Governor's reply brief was filed a couple of weeks ago. It is here.

The Questions Presented by the Governor are the following:

This Section 5 litigation involves two decisions of the Supreme Court of Alabama, Stokes v. Noonan, 534 So. 2d 237 (Ala. 1988), and Riley v. Kennedy, 928 So. 2d 1013 (Ala. 2005). Those decisions concern the manner of filling vacancies on the Mobile County Commission and are based on valid, race-neutral, generally-applicable principles of law. The three-judge district court held that both decisions required preclearance to be enforceable. The State submitted the decisions for preclearance, and the Attorney General of the United States interposed an objection. The district court then entered a remedy order vacating a gubernatorial appointment that had relied on these State court decisions to fill a vacancy that had arisen. This appeal presents the following questions:

1. Whether the decision of a covered jurisdiction’s highest court that a precleared State law is unconstitutional and, thereby, invalid as a matter of State law is a change that affects voting that must be precleared before it can be enforced.

2. Whether the preclearance of a trial court’s ruling that affects voting while that ruling is on appeal and subject to possible reversal establishes a baseline such that the reversal of that decision is a change that must be precleared before it may be enforced.

Earlier information on the case is available here,
here, here, here, here, and here.

Kennedy v. Riley update, in the Supreme Court

My co-counsel and I have filed a motion to dismiss or affirm the State of Alabama's appeal in Riley v. Kennedy, No. 07-77 in the U.S. Supreme Court. The State's jurisdictional statement is available here.

The case was brought by my clients under Section 5 of the Voting Rights Act for an injunction against the Governor's appointment of a replacement county commissioner in Mobile County. Our suit asserted that the Governor had not obtained preclearance of an Alabama Supreme Court decision before enforcing it.

Earlier information on the case is available here, here, here, here, and here.

Kennedy v. Riley update

After the federal court ordered the Governor to obtain preclearance under the Voting Rights Act before he administers the law requiring appointment of replacement county commissioners, the Justice Department denied preclearance and a request for reconsideration. The Court then granted plaintiffs' motion for relief and denied the State's motion for a stay. The State has now filed a notice of appeal.

However, the Probate Judge has not called the election yet, but has moved to intervene in the federal case and asks the Court to set a schedule for the election that will take longer than the 90 days allowed by the statute. The plaintiffs have just filed a response suggesting a shorter time limit.

Earlier information on the case is here.

On a panel at "Working in the Public Interest" Conference

On 30 and 31 March, I will be a member of a panel discussing felon disfranchisement on the University of Georgia School of Law Conference on Working in the Public Interest. The Conference organizers describe it this way:

Entirely student organized, WIPI seeks to bring together eminent practitioners in their respective fields, students, and faculty to discuss practical approaches to lawyering which can best serve the poor. Practical methods of challenging poverty are often not covered in traditional law school courses. This conference seeks to remedy that and provide dynamic, creative ways to combat poverty through the vehicle of the law.

For more information about the Conference, including the schedule of panels, go to the WIPI site.

Unpublished papers

Race and Election Reform, June 2001, 12 pages, [PDF]

A summary of the Voting Rights Act, 4 pages, [Word format]

Bailout under Section 5 of the Voting Rights Act, 5 pages, [PDF]

Federal Restrictions on State and Local Campaigns, Political Groups and Individuals, December 2002, 27 pages [PDF]

Candidate Compliance with the Alabama Fair Campaign Practices Act, February 2003, 4 pages [PDF]

Free and Fair Elections: A Quick Comparison on Election Administration in Florida and Bosnia, 17 pages, conference paper, early 2002, [PDF]

My Cases: Defending Black-Majority District Plans

Fouts v. Harris, 88 F.Supp.2d 1351 (S.D. Fla. 1999), aff’d sub. nom. Chandler v. Harris, 529 U.S. 1084 (2000) -- court dismissed constitutional challenge to three South Florida congressional districts on grounds of laches; I represented black intervenors defending districting plan

Sanders v. Dooly County, GA, 245 F.3d 1289 (11th Cir 2001) -- defense of majority black districts used in county commission and school board elections; issue of laches in declaratory judgment cases

Thompson v. Smith, 52 F.Supp.2d 1364 (M.D. Ala) (3-judge court) -- defense of majority-minority legislative districts in Alabama; dismissal of some claims

My Cases: Under Section 5, Voting Rights Act

Kennedy v. Riley, --- F.Supp.2d ----, 2006 WL 2413709 (M.D.Ala., Aug 18, 2006) -- in suit regarding appointment of county commissioner, court held that two decisions of the Alabama Supreme Court could not be enforced until they had been precleared

Reno v. Bossier Parish School Board, 7 F.Supp.2d 29 (D DC 1998) (3-judge court), aff’d 528 U.S. 320 (2000) -- Section 5 of the Voting Rights Act requires proof of intent to retrogress rather than generalized intent to discriminate against protected voter group

Presley v. Etowah County Commission, 502 US 491 (1992), on remand, 869 F.Supp. 1555 (M.D. Ala.1994) -- held: Section 5 of the Voting Rights Act does not apply to changes in the powers of county commissioners; on remand, achieved relief under Section 2 of the Voting Rights Act

Mack v. Russell County Com'n, 840 F.Supp. 869 (M.D.Ala. 1993) -- related case with Presley

Singer v. City of Alabaster, 2002 U.S. LEXIS 3231, 122 S. Ct. 1908,152 L. Ed. 2d 819 (2002), aff’g 821 So. 2d 954 (Ala. 2001) -- defended winning candidate in election contest against claim that city had violated plaintiffs’ rights by obeying Section 5

Henderson v. Harris, 804 F.Supp. 288 (M.D.Ala. 1992)

Virginia v. Reno, 117 F.Supp.2d 46 (D.D.C. 2000), aff’d 531 U.S. 1062 (2001) -- Virginia sought preclearance of its law barring the use of adjusted census data; dismissed on grounds of unripeness

Ward v. State of Alabama, 31 F.Supp.2d 968 (M.D. Ala. 1998) (3-judge court) -- successful Section 5 seeking injunction to enforcement of unprecleared change in Alabama absentee voting law

Sumter County Democratic Executive Committee v. Dearman, 514 F.2d 1168 (5th Cir. 1975) -- challenge under Section 5 of Voting Rights Act; second appeal: Ward v. Dearman, 626 F.2d 489 (5th Cir. 1980)

Kennedy v. Riley

The Mobile Press Register reports: A panel of three federal judges ruled Friday that Gov. Bob Riley should have sought federal approval before appointing Juan Chastang to the Mobile County Commission.

The judges ordered Riley to get clearance from the U.S. Department of Justice that the Chastang appointment complied with the Voting Rights Act of 1965. The governor has 90 days to ask the Justice Department for its approval.

If the Justice Department finds that the appointment violated voters' rights, Chastang's nomination could be voided, and a special election could be held to fill the seat. -- Judges say Justice must OK Chastang

Comment: The court's decision may be viewed here.

Cecil Gardner and Vance McCrary (of the Gardner, Middlebrooks, Gibbons & Kittrell firm in Mobile, AL) and I represented the plaintiffs in that action.

Gooden v. Worley: federal court dismisses case for lack of standing

On 26 May 2006, the U.S. District Court for the Northern District of Alabama dismissed a challenge to the practice of the Secretary of State of encouraging registrars to bar applicants convicted of any felony from registering. The State Constitution bars only those convicted of felonies involving moral turpitude. The NAACP Legal Defense Fund and I had brought suit under Section of the Voting Rights Act to require the Secretary of State to cease this practice until she obtained preclearance for it. You can download the file here.

Selected documents from Kennedy v. Riley

Here are documents in Yvonne Kennedy et al v. Governor Bob Riley:

Complaint

Defendant's Answer

Plaintiffs' Trial Brief and Reply Brief.

Defendant's Trial Brief

The suit alleges that the Governor and the State violated Section 5 of the Voting Rights Act by failing to preclear a decision of the Alabama Supreme Court which changed the method of filling vacancies on the Mobile County Commission.

My Cases: Racial Vote Dilution

Bolden v. City of Mobile, 423 F.Supp. 384 (S.D. Ala.. 1976); aff'd 571 F.2d 238 (5th Cir. 1978), rev. 446 US 55 (1980); vac. and rem. 626 F.2d 1324 (5th Cir. 1980); after remand by US Supreme Court, 542 F.Supp. 1050 (S.D. Ala. 1982) -- reapportionment of Mobile city commission

Brown v. Moore, 428 F.Supp. 1123 (S.D. Ala. 1976), vac. & rem. sub nom. Williams v. Brown, 446 US 236 (1980), vac. & rem. sub nom. Brown v. Moore, 631 F.2d 731 (5th Cir. 1980) (merits); sub nom. Moore v. Brown, 448 US 1335 (1980) (Powell, Cir.J.) (application for stay); after remand by US Supreme Court, 542 F.Supp. 1078 (S.D. Ala. 1982), aff'd 706 F.2d 1103 (11th Cir. 1983), aff'd mem. sub nom. Board of School Comm'rs v. Brown, 464 US 1005 (1983) -- reapportionment of Mobile county commission and school board

Johnson v. Hamrick, 1998 WL 476186 (N.D.Ga.1998), 196 F.3d 1216 (11th Cir. 1999) -- successful Section 2 claim against city council remanded for additional findings of fact

Davis v. Chiles, 139 F.3d 1414 (11th Cir. 1998), cert. den. sub nom. Davis v. Bush, 526 U.S. 1003 --challenge to at-large judicial elections

Dillard v. Crenshaw County, 640 F.Supp. 1347, 649 F.Supp. 289 (M.D. Ala. 1986) (11th Cir. 1987) -- reapportionment action against nine county commissions: Pickens, Etowah, Calhoun, Russell, Lawrence, Crenshaw, Coffee, Talladega, Escambia; all counties settled except Calhoun, which appealed on the remedy issue; the case was later amended to ask for reapportionment of 188 other county commissions, county school boards, and city and town councils; additional reported decisions are listed below:

Dillard v. Crenshaw County (Calhoun County), 679 F.Supp. 1546 (M.D.Ala. 1988), aff’d 831 F.2d 246 (11th Cir. 1987)

Dillard v. Baldwin County Commission, 694 F.Supp. 836 (M.D. Ala. 1988), 701 F.Supp. 808 (M.D.Ala., 1988) aff’d 862 F.2d 878 (11th Cir. 1988)

Dillard v. Baldwin County Board of Education, 686 F.Supp. 1459, 47 Ed. Law Rep. 915 (M.D. Ala. 1988)

Dillard v. Town of Louisville, 730 F.Supp. 1546 (M.D.Ala., 1990)

Dillard v Baldwin County Commission, 53 F.Supp.2d 1266 (M.D.Ala.1999), vac. and rem. 225 F.3d 1271 (11th Cir. 2000) --representing black voters in challenge by intervenors against authority of federal court to order change in size of county commission in racial vote dilution case

Dillard v. Chilton County Board of Education, 699 F.Supp. 870 (M.D. Ala. 1988), aff'd 868 F.2d 1274, 1989 US App Lexis 1336 (11th Cir. 1989) -- approval of settlement containing cumulative voting plan

Dillard v. City of Greensboro, 865 F.Supp. 773, 870 F.Supp. 1031 (M.D. Ala. 1994), vacated and remanded 74 F.3d 230 (11th Cir. 1996), on remand 946 F.Supp. 946 (M.D. Ala. 1996), 956 F.Supp. 1576 (M.D. Ala.1997); 34 F.Supp.2d 1330 (M.D. Ala. 1999) (awarding fees)

Dillard v. City of Foley, 926 F.Supp. 1053 (M.D. Ala. 1995), 166 F.R.D. 503, 35 Fed.R.Serv.3d 314 (M.D. Ala. 1996), 995 F.Supp. 1358 (M.D. Ala. 1998) -- approving agreement for annexation elections to settle suit claiming refusal to annex black-majority areas, and second opinion on fees

Dillard v. Crenshaw County, 748 F.Supp. 819 (M.D.Ala. 1990) --court enforced settlement made by Shelby County Commission despite its attempt to withdraw

Dillard v. Town of Cuba, 708 F.Supp. 1244 (M.D. Ala. 1988) -- approving settlements for limited voting plans in Towns of Cuba and Waldo

Dillard v. Town of North Johns, 717 F.Supp. 1471 (M.D.Ala., 1989)

Sumbry v. Russell County, Ala., 993 F.Supp. 1439 (M.D.Ala. 1998) --representing black voters in challenge by intervenors against authority of federal court to order change in size of county commission in racial vote dilution case

Medders v. Autauga County Board of Education, 858 F.Supp. 1118 (M.D. Ala. 1994) (awarding fees)

Dillard v. City of Elba, 863 F.Supp. 1550 (M.D. Ala. 1993) (awarding fees)

Brooks v. Hobbie, 631 So.2d 883 (1993) -- redistricting of Alabama Legislature

Hawthorne v. Baker, 750 F.Supp. 1090 (M.D.Ala. 1990), 756 F.Supp. 527 (M.D.Ala. 1990), 762 F.Supp. 1475 (M.D.Ala. 1991) --challenge to method of selection of members of governing bodies of state and county Democratic committees (Sections 2 and 5 of Voting Rights Act)

Taylor v. Jefferson County Commission, CV 84_C_1730_S (N.D. Ala.), settled August 1985 -- resulted in the Jefferson County Commission being changed from a three_member at_large body to a five_member body being elected from single_member districts

Adams v. City of Gadsden, CV 85_PT_1054_M (N.D. Ala.), settled June 1985 -- resulted in Gadsden's abandonment of the commission form of government and utilizing a mayor and 7_member council, elected from single_member districts

McMillan v. Escambia County, Fla., 638 F.2d 1239 and 1249 (5th Cir. 1981), county commission aspect reversed on rehearing 688 F.2d 960 (5th Cir. 1982), reh. en banc den. 692 F.2d 758 (5th Cir. 1982); vac. and rem. 466 US 48 (1984); on remand from Supreme Court, aff'd 748 F.2d 1037 (5th Cir. 1984); on remand from Court of Appeals, 559 F.Supp. 720 (ND Fla 1983), appeal docketed No. 83_3275 (11th Cir), cert. before judgment denied, 464 US 830 (1983) -- reapportionment of Escambia County commission and school board and Pensacola city commission

Jenkins v. City of Pensacola, 638 F.2d 1249 (5th Cir. 1981) -- remedy phase of city aspect of McMillan; proper use of mixed plan of apportionment to remedy a proven racial dilution by at_large elections

Nevett v. Sides, 533 F.2d 1361 (5th Cir. 1976), 571 F.2d 209 (5th Cir. 1978), cert. denied 446 US 95 (1980) -- reapportionment of Fairfield

Corder v. Kirksey, 585 F.2d 708 (5th Cir. 1978), 625 F.2d 520 (5th Cir. 1980), 639 F.2d 1191 (5th Cir. 1981), rehearing denied 688 F.2d 991 (5th Cir. 1982), cert. denied, 460 US 1013 (1983) -- reapportionment of Pickens Co. commission and school board

Broadhead v. Ezell, 348 F.Supp. 1244 (S.D. Ala. 1972) -- reapportionment of Choctaw County Commission

Cane v. Worcester County, Maryland, 35 F.3d 921 (4th Cir. 1994); 59 F.3d 165 (4th Cir. 1995) -- amicus curiae brief supporting use of cumulative voting as a remedy for racial vote dilution