Amicus Curiae Brief — Sole v. Wyner

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No. 06-531 ;

IN THE } OFF

Supreme Court of the United States

MICHAEL W. SOLE, SECRETARY, FLORIDA DEPARTMENT OF

ENVIRONMENTAL PROTECTION, ET AL.,

Petitioners,

Vv.

T.A. WYNER, ET AL.,

Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF OF THE BRENNAN CENTER FOR JUSTICE

AS AMICUS CURIAE SUPPORTING RESPONDENTS

WENDY R. WEISER LAURA W. BRILL*

RENEE PARADIS JONATHAN P. STEINSAPIR

BRENNAN CENTER FOR ABIGAIL B. KRAUSER

JUSTICE AT NYU IRELL & MANELLA LLP

SCHOOL OF LAW 1800 Avenue of the Stars

161 Avenue of the Americas, Suite 900

12th Floor Los Angeles, California 90067

New York, NY 10013 (310) 277-1010

(212) 998-6730

Counsel for Amicus Curiae The Brennan Center for Justice at

NYU School of Law

April 2, 2007 * Counsel of Record

TALL AR EIR eT Sc a SAD SE SSE

TABLE OF CONTENTS

Page

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INTEREST OF THE BRENNAN CENTER.......0..........:20000 1

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SERIO RTT ETT NTT Ne TN 4

I. THE RULE PROPOSED BY PETITIONERS

AND THE UNITED STATES SERIOUSLY

THREATENS CONGRESS’S PURPOSE TO

ENSURE ACCESS TO JUSTICE IN CASES

SEEKING TO VINDICATE THE

FUNDAMENTAL RIGHT TO VOTE..................... 4

A. The Purpose of the Fee-Shifting

Statutes Is to Guarantee that Important

Rights, Including the Fundamental

Right to Vote, Are Vindicated ...................... 5

B. In Voting Rights Cases, Preliminary

Injunctions Often Are Both Necessary

and Sufficient to the Vindication of

Important and Fundamental Rights............... 9

Cc. It Is Often Impossible or Impractical to

Secure Final Relief on the Merits in

Py Ce IG scccccecctesessscsccneticnscnsnsens 15

D. Petitioners’ and the United States’

Proposed Rule Would Frustrate the

Purpose of the Fee-Shifting Statutes in

Voting Rights Cases and Is Contrary

To Congressional Intent......................s00000 19

ee icctsinicrnsscncsniennsisnseennssatestnpatsiiientitabinsieniogin 25

ii

TAB F O S

Page

Cases

Arroyo v. Tucker,

Fe Os CU, Fe ne Be BP ccccscnrcseccccncecensnntnasenntnanae 8

Baker v. Carr, .

ee PTT csenscicnistetininsiitncitianiantntnenmnaniantiandnimin 5, 12

Brown v. Chote,

ee eee TECTED A ieesccneiniasttnctiaeicainsiebuadseipiaaiadinidatiian 7

Buckhannon Bd. & Care Hon.e, Inc. v. W. Va. Dep't of

Health & Human Resources,

a IT tintcicitasinicciicscncininicidisdaisicinaiisindee 9, 13, 15, 16

Burdick v. Takushi,

SU OUI icin iene ibd 5

Bush v. Gore,

Ie Ue SI scssniceiciasicieietinitcipa iedaabhashdhieitlashchaansiniabiiadiadhiniiints 11

Copeland v. Marshall,

ee tis CAME I iccicsssissinnsensenininidsencettiieaeisiaiceitaapin 5

Cornman v. Dawson,

Be Bo MI: GO GA By Fi iirc cccccscctnsnccnccsscssnconseseesensees 9

Cripps v. Seneca County Bd. of Elections,

629 F. Supp. 1335 (N.D. Ohio 1985) «2.0.2.0... eeeeeeeseeeeeees 8

Democratic Nat’l Comm. v. Republican Nat'l Comm.,

BK EE Ee ee 1]

Florida Democratic Party v. Hood,

342 F. Supp. 2d 1073 (N.D. Fla. 2004) oo... cece eeceeeeeees 8

iil

Page

Friends of the Earth, Inc., v. Laidlaw Environmental

Servs., Inc.

TTR: WINUUIT TUNING ieeiclectacheeieicahlinicaeiai 12

Green Party v. N.Y. State Bd. of Elections,

eee Cee GI octecenienniteccncsicnsiccniettninmeteninniintinns 7

Hensley v. Eckerhart,

a Iai titeciidinsennsisionnneasiiitinnnienansiinieiitinienjastinanes 4

Herron v. Koch,

523 F. Supp. 167 (E._D.N.Y. 1981)............cccccsssosscsecssscsesees 9

Hewitt v. Helms,

ee SUT ciciisnsereistiinineitiasaistioneinniaiiingsciaiatiiin 13

Illinois Bd. of Elections v. Socialist Workers Party,

SE SIT Lacisicciecinigigianipiilesisilitedenhiistanniiontlosdiniansaipuibiaiens 5

Independence Party v. Graham,

es CI cetriniinscninncitnsecinsindeinstiniiniseninaiin 12

League of Women Voters v. Cobb,

447 F. Supp. 2d 1314 (S.D. Fla. 2006)... ecceeeeeees 7

Lewis v. Continental Bank Corp.,

a EIT iishinnsiceniecicnctssanselenetninecteliieniniidgneiniin 11, 12

Maher v. Gagne,

I TTT sssisscinccciiineioiiettsiniinineraiteitegsiaaibbiinacidiaiil 15, 16

Murphree v. Winter,

589 F. Supp. 374 (S.D. Miss. 1984) .0..........ccceececeeceeeeeeeeeees 9

Nat'l Black Police Ass’n v. D.C. Bd. of Elections &

Ethics,

iS pf ll I oe 17

iV

New York v. County of Del.,

82 F. Supp. 2d 12 (N.D.N.Y. 2000)..........c.cccccscssesserceesessees 8

New York v. County of Schoharie,

82 F. Supp. 2d 19 (N.D.N.Y. 2000)............cccesesceseeseeeceeeees 8

Northcross v. Memphis Bd. of Educ.,

a a citiiiiaicniiiitehiintsesananinguiantensnnttanimenin 4

Palmetto Props. v. County of DuPage,

ee Rt | 13,17

Piggie Park Enters., Inc.,

Ee Ee 4

Pitts v. Black,

No. 84-5270, 1984 U.S. Dist. LExis 23331 (S.D.N.Y.

BC ee henicnecntindicunssesnnunneciseninetenpinmanmemmen 9

Puerto Rican Org. for Political Action v. Kusper,

350 F. Supp. 606 (N.D. Ill. 1972), aff'd, 490 F.2d 575

SEITTEL: CITED ieiinctstaiiasiusinemactenainitsisiiadsintptiiaauntintsbaneiapgenbitnnion 8

Sandusky County Democratic Party v. Blackwell,

Pe 10, 17

Spencer v. Pugh,

es ee Cle ig CO cinccesiesersansstoniennsnccesinseseneine 11

Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist.,

ee Pee icinncteinscicenepescedilenniescnssntiancnnesbuiciniin 13, 18

Torres v. Sachs,

Bee Ws I, Fe I Wo BPD vcsccccscsescescecscnssessnscnsscees 8

Torres v. Sachs,

See eae ae em 5

Vv

United States v. Berks County,

250 F. Supp. 2d 525 (E.D. Pa. 2003)............cccsceseeeees 8,14

Weinstein v. Bradford,

GED GE, B67 CaF ain sccvcscnsressevsnensesiinainnniaiaaiidaiia 12

Statutes

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Other Authorities

Se. Be. TARP. BOD. PR BTIS CAG FD ecescocvcsvcnescmnsensnssiiteiansnnsmeasemensigs 4

Proceedings in the Supreme Court of the United States in

Memory of Justice Brennan,

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Rules 7

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INTRODUCTION

Amicus curiae, the Brennan Center for Justice at New

York University School of Law (the “Brennan Center” or

“Amicus”) respectfully submits this brief in support of the

Respondents, and urges this Court to affirm the decision of

the United States Court of Appeals for the Eleventh Circuit.

The parties have consented to the filing of this brief, and their

written consent is lodged herewith.'

INTEREST OF THE BRENNAN CENTER

Named fcr late Associate Justice William J. Brennan, Jr.,

the Brennan Center is a not-for-profit, non-partisan public

policy and law institute that focuses on issues of democracy

and justice. Dedicated in 1995 on Justice Brennan’s 89th

birthday, the Brennan Center was founded by scores of the

Justice’s former law clerks and the Brennan family and close

friends as a living monument to the legacy of Justice Bren-

nan. The Brennan Center frequently represents the indigent

in litigation before federal and state courts. One of the stated

missions of the Brennan Center is to help “ensure that low-

income people have access to effective, enduring, and unre-

stricted legal assistance in civil cases.”

The Brennan Center also helps protect the right of

American citizens to vote and to have their votes counted un-

der fair standards in free and open elections. The Brennan

Center engages in research, legislative drafting and counsel-

ing, and public education on a wide range of issues related to

voting rights and elections. It also litigates voting rights mat-

ters in the federal courts, where preliminary injunction pro-

ceedings can play the decisive role in enabling citizens to cast

ballots and to have their votes counted.

' Counsel for the parties did not author, in whole or in part, any portion of

this brief. No person or entity, other than Amicus and its counsel, made

any monetary contribution to the preparation or submission of the brief.

2

Because of the limited public and foundation funding

available, the extent to which the Brennan Center will be able

to represent clients in need will be affected by a limitation on

the availability of attorneys’ fees. As explained below, given

the crucial role that preliminary injunction proceedings play

in voting rights litigation, the ability of the Brennan Center to

continue to litigate such cases may be adversely affected by

any limitation on the availability of attorneys’ fees for suc-

cessful prosecution of a preliminary injunction. Such a limi-

tation would also create perverse incentives for plaintiffs un-

necessarily to expend resources in continuing litigation—even

after obtaining appropriate relief—only to preserve their abil-

ity to recover statutory attorneys’ fees. The Brennan Center

has a strong interest in this case.

SUMMARY OF ARGUMENT

Fee-shifting statutes, like the one at issue in this case,

were enacted by Congress to guarantee that important and

fundamental rights could be vindicated in the federal courts.

By allowing reasonable attorneys’ fees to a prevailing plain-

tiff, fee-shifting statutes ensure that those without means will

have meaningful access to justice in order to protect their

rights in court.

Cases seeking to vindicate the right to vote and to politi-

cal speech and participation lie at the very heart of the in-

tended reach of the fee-shifting statutes. But Petitioners and

the United States propose a rule that would undermine the

effectiveness of Congress’s scheme with respect to cases aris-

ing in the election context. They ask the Court to adopt a

rigid rule that a party who successfully obtains a preliminary

injunction cannot, without going on to obtain a final “judg-

ment on the merits,” qualify as a prevailing party for the pur-

pose of a fee-shifting statute. In voting cases, however, a

preliminary injunction is often not a prelude to some final re-

lief, but instead represents all or a substantial part of the relief

sought by a litigant. Indeed, often a preliminary injunction is

the only relief that can be secured before the election itself

3

renders the case moot. In short, and as set out below in more

detail, voting rights cases are a perfect example of why the

rule proposed by Petitioners and the United States gives an

unduly narrow meaning to the term “prevailing party,” is in-

consistent with this Court’s cases construing the term, and is

fundamentally unjust. The Court should reject that proposed

rule and affirm the judgment below.

ARGUMENT

I. THE RULE PROPOSED BY PETITIONERS

AND THE UNITED STATES SERIOUSLY

THREATENS CONGRESS’S PURPOSE TO EN-

SURE ACCESS TO JUSTICE INCLUDING IN

CASES SEEKING TO VINDICATE THE FUN-

DAMENTAL RIGHT TO VOTE

In this case, Petitioners and the United States as amicus

curiae have proposed a rigid and unjust rule, inconsistent with

the language and purpose of the statute at issue and with this

Court’s cases, which would significantly undermine the con-

gressionally mandated recovery of attorneys’ fees in civil

rights cases. It would thus lessen the ability of persons whose

rights have been violated to have access to the courts. The

Brennan Center has a significant interest in this case, includ-

ing as it relates to the judicial enforcement of the right to vote

and the related rights of political speech and participation.

Cases arising in the election context are a perfect example of

why the rule proposed by Petitioners and the United States

gives an unduly narrow meaning to the term “prevailing

party,” is inconsistent with this Court’s cases construing the

term, and is fundamentally unjust.

Given the timeline in which such cases are litigated—a

timeline that is typically out of a plaintiff's hands—it is often

impossible to obtain a full “judgment on the merits” that

would resolve a controversy over how an election is to pro-

ceed. Relatedly, a final “judgment on the merits” may prove

impossible to achieve due to events beyond a plaintiff's con-

trol. Instead, preliminary injunctive relief is often the critical

4

tool used by litigants to vindicate their own and others’ right

to vote in free and fair elections. Indeed, because of the firm

deadlines necessarily involved in such cases (most obviously,

the election itself, but also voter registration deadlines, print-

ing of the ballots, certification of the election, etc.), prelimi-

nary injunctions are often the only way to ensure that this

most fundamental of our rights is vindicated. To effectuate

Congress’s intent in enacting the fee-shifting statutes, there-

fore, this Court should affirm that plaintiffs prevailing on a

preliminary injunction are entitled to their attorneys’ fees as

“prevailing parties,” at least in the absence of a subsequent

ruling that the preliminary injunction was wrongfully granted.

A. The Purpose of the Fee-Shifting Statutes Is to

Guarantee that Important Rights, Including the

Fundamental Right to Vote, Are Vindicated

Congress enacted fee-shifting statutes like the one at issue

in this case in part to “ensure ‘effective access to the judicial

process’ for persons with civil rights grievances.” Hensley v.

Eckerhart, 461 U.S. 424, 429 (1983) (quoting H. R. REP. No.

94-1558, p. 1 (1976)). To promote the “vigorous enforcement

of modern civil rights legislation,” Congress directed that

civil rights litigants should not by their lack of resources “be

deterred from bringing good faith actions to vindicate the fun-

damental rights” behind the civil rights statutes. H. R. REP.

No. 94-1558, at 6; S. Rep. No. 94-1011, at 4-5; see generally

Northcross v. Memphis Bd. of Educ., 412 U.S. 427, 428

(1973) (per curiam); Newman v. Piggie Park Enters., Inc.,

390 U.S. 400, 402-03 (1968) (holding that “one who succeeds

in obtaining an injunction under [the Civil Rights Act of

1964] should ordinarily recover an attorney’s fee”’).

Congress recognized that such “private attorneys general”

often “cannot afford legal counsel.” H.R. REP. No. 94-1558,

p. 1 (1976). The fee-shifting statutes “cloak[ the civil rights

plaintiff] in a mantle of the public interest,” H.R. REP. No.

94-1558, at 6, and guarantee that publicly held rights are vin-

dicated even where public servants are unable or unwilling to

5

protect them. Moreover, as federal courts have recognized,

fee awards in civil rights litigation also “promote[ ] the[ |]

continued existence” of public interest firms, and “help[ ] as-

sure the continuing availability of the services to those most

in need of assistance.” Torres v. Sachs, 538 F.2d 10, 13 (2d

Cir. 1976); see also Copeland v. Marshall, 641 F.2d 880, 899

(D.C. Cir. 1980) (“Full fee awards to public interest law firms

help finance their work. . . .”).

Congress particularly sought to ensure that litigants who

secure their fundamental right to vote by private litigation are

able to seek their attorneys’ fees, both to encourage the judi-

cial vindication of such rights and to ensure that those without

the means to otherwise litigate such rights are able to do so.

“It is beyond cavil that ‘voting is of the most fundamental

significance under our constitutional structure.’” Burdick v.

Takushi, 504 U.S. 428, 433 (1992) (quoting Illinois Bd. of

Elections v. Socialist Workers Party, 440 U.S. 173, 184

(1979)). Congress has enacted numerous statutes protecting

the rights of citizens to vote, including the rights of citizens to

vote in elections free from invidious discrimination; at the

same time, it has mandated that “prevailing parties” in judi-

cial “actions or proceedings” regarding civil rights generally

and voting rights in particular are entitled to seek their attor-

ney’s fees. See 42 U.S.C. §§ 1973(e) and 1988.

In doing so, Congress recognized the important role of the

courts in enforcing constitutional provisions and statutes that

guarantee equal voting rights and in ensuring that entrenched

interests will not lock up the political system against the

popular will.’

? For example, in this Court’s memorial proceedings for Amicus’s name-

sake, Justice Brennan, the late Chief Justice Rehnquist noted the unique

role of courts in election-related cases when discussing Justice Brennan’s

foundational decision in Baker v. Carr, 369 U.S. 186 (1961). Specifically,

the late Chief Justice noted that before Baker v. Carr,

“(mJalapportionment of State legislatures [ ] had been considered political

questions . . . and while the Federal courts thus declined to address the

6

The general policies animating fee-shifting statutes are

particularly apt, and indeed often magnified, in voting rights

cases. Voting rights plaintiffs frequently will not have suffi-

cient means or monetary incentive to pursue litigation seeking

to vindicate their right to vote by retaining paid counsel. The

lack of a market in votes or of serious financial injury from

denial of the franchise means that significant monetary dam-

ages are generally unavailable to a voting rights plaintiff.

Accordingly, unlike in many other types of litigation in which

there exists an independent economic reason to bring suit,

such as the availability of quantifiable monetary damages or

the need to protect existing business interests, voting rights

plaintiffs, like other civil rights plaintiffs, often lack the abil-

ity to negotiate terms of retention of counsel in the absence of

a fee-shifting statute. The fee-shifting statutes thus play a

critical role in promoting access to justice for citizens seeking

to vindicate their right to vote.

Compounding the difficulties in obtaining access to jus-

tice in voting rights cases in the absence of fee-shifting stat-

utes is the fact that voting rights litigation, even at the pre-

liminary injunction stage, is complex, time-consuming, and

resource-draining. Accordingly, despite efforts to encourage

private lawyers to represent indigent clients, public interest

groups, such as Amicus the Brennan Center, still handle a

great bulk of this type of litigation.’ A rule like that proposed

problem, State legislatures were also unwilling to act, because those who

benefited from the existing electoral system were the ones who were mak-

ing the law.” Chief Justice Rehnquist noted that Baker “took the first step

in the direction of the now well-accepted practice of one person, one vote

and in so doing changed the nature of American politics forever.” Pro-

ceedings in the Supreme Court of the United States in Memory of Justice

Brennan, 523 U.S. v, xlvii (1998) (Remarks of the Chief Justice).

> While the national major political parties often have both the incentive

and resources to litigate election-law disputes, their own partisan interests

may not coincide with the public interest, and voters may not find their

interests aligned with either major political party, or indeed any political

party. The Brennan Center has in the past represented minor parties trying

7

by Petitioners and the United States, which as explained be-

low would greatly affect voting rights litigation, would there-

fore seriously undercut the ability of citizens to vindicate this

important right in federal court.

B. In Voting Rights Cases, Preliminary Injunctions

Often Are Both Necessary and Sufficient to the

Vindication of Important Rights

Denial of the right to vote in a free and fair election con-

stitutes an immediate, irreparable harm. See, e.g., Charles H.

Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1355 (11th

Cir. 2005); Montano v. Suffolk County Legislature, 268 F.

Supp. 2d 254, 260 (E.D.N.Y. 2003). Preliminary injunctions

therefore have played, and likely will continue to play, a vital

role in vindicating this fundamental right. Indeed, in many

voting rights and election-related cases, the decision on a pre-

liminary injunction often will entirely resolve a discrete con-

troversy over a question at issue and the relief to which a

party is entitled, such as whether a particular election will go

forward, whether an election already held was legitimate,

whether voters or classes of voters will be permitted to vote

and have their votes counted fairly, and whether candidates or

issues will be on a ballot for a particular election at all. For

this reason, the rule proposed by Petitioners and the United

States—that a preliminary injunction does not represent suffi-

cient relief to justify prevailing party status—is simply incor-

rect as to these types of cases.

For instance, in Brown v. Chote, 411 U.S. 452 (1973), a

unanimous Court upheld a preliminary injunction that re-

quired the State to allow an indigent candidate for the U.S.

House of Representatives to put his name on the ballot with-

out paying a filing fee. /d. at 455-57. The relief ordered by

to gain access to the electoral system, see e.g., Green Party v. N.Y. State

Bd. of Elections, 389 F.3d 411 (2d Cir. 2004), as well as nonpartisan

groups challenging laws that benefit political parties, see, e.g., League of

Women Voters of Fla. v. Cobb, 447 F. Supp. 2d 1314 (S.D. Fla. 2006).

8

the preliminary injunction completely resolved a discrete con-

troversy—whether the candidate could be on the ballot. See

also Cripps v. Seneca County Bd. of Elections, 629 F. Supp.

1335, 1344 (N.D. Ohio 1985) (granting preliminary injunc-

tion compelling certification of an independent candidate for

inclusion on the general election ballot).

Similarly, courts have granted preliminary injunctions to

ensure compliance with the Voting Rights Act, 42 U.S.C. §§

1973, et seq., and the Help America Vote Act (“HAVA”), 42

U.S.C. §§ 15301 et seg., to prevent hostile and unequal treat-

ment of minority voters at the polling place or ensure that per-

sons are not unlawfully prohibited from casting ballots. See,

e.g., Florida Democratic Party v. Hood, 342 F. Supp. 2d

1073, 1081 (N.D. Fla. 2004) (injunction enforcing HAVA

requirement that voters be given provisional ballots); United

States v. Berks County, 250 F. Supp. 2d 525, 526 (E.D. Pa.

2003) (injunction to prevent intimidation of Spanish-speaking

voters by poll workers). Each of these preliminary injunc-

tions governed the conduct of a specific upcoming election

and resolved the controversy over how that election would go

forward.

Preliminary injunctions have opened the polls in specific

elections to the disabled pursuant to the requirements of the

Americans with Disabilities Act, 42 U.S.C. § 12131, et seq.

See, e.g., New York v. County of Del., 82 F. Supp. 2d 12, 19

(N.D.N.Y. 2000); New York v. County of Schoharie, 82 F.

Supp. 2d 19, 26 (N.D.N.Y. 2000). They have also guaranteed

non-English speaking citizens their right to vote before spe-

cific elections. See Puerto Rican Org. for Political Action v.

Kusper, 350 F. Supp. 606, 611-12 (N.D. Ill. 1972) (granting

preliminary injunction giving Spanish-speaking Puerto Rican

U.S. citizens voting information and voting assistance in

Spanish), aff'd, 490 F.2d 575, 580 (7th Cir. 1973); see also

Torres v. Sachs, 381 F. Supp. 309, 313 (S.D.N.Y. 1974) (not-

ing earlier preliminary injunction granting similar relief);

Arroyo v. Tucker, 372 F. Supp. 764 (E.D. Pa. 1974) (noting

temporary restraining order granting similar relief). And resi-

9

dents of federal lands have used preliminary injunctions to

vindicate their right to vote in non-federal elections. See

Cornman v. Dawson, 295 F. Supp. 654, 659-60 (D. Md.

1969) (noting earlier preliminary injunction granted to permit

residents of federal lands within the state to be registered in

the county voter registry).

Preliminary injunctions have permitted pretrial prisoners

to vote by absentee ballot. See Murphree v. Winter, 589 F.

Supp. 374, 380, 382 (S.D. Miss. 1984). They have prevented

officials from barring homeless persons from registering to

vote. See Pitts v. Black, No. 84-5270, 1984 U.S. Dist. LExis

23331 (S.D.N.Y. Sept. 25, 1984).

Preliminary injunctive relief has also enforced Section 5

of the Voting Rights Act, 42 U.S.C. § 1973c, by preventing

cities from unlawfully increasing the number of seats on a

city council. Herron v. Koch, 523 F. Supp. 167 (E.D.N.Y.

1981).

For the most part, these decisions have completely re-

solved a discrete controversy regarding how an election will

go forward, and represented a “judicially sanctioned change

in the legal relationship” between the citizen-plaintiffs and the

government-defendants. Buckhannon Bd. & Care Home, Inc.

v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604

(2001). The change in relationship is the direct result of a

court order enforceable through the contempt power of a fed-

eral court and therefore bears a “judicial imprimatur.” Id. at

605 (emphasis in original). Thus, the party obtaining such an

injunction is a “prevailing party” entitled to fees.

Given the nature of elections themselves, with a set dead-

line, evolving facts, and an often-changing regulatory scheme,

there is frequently no other way for a plaintiff challenging an

electoral rule to obtain the relief sought—for instance, the op-

portunity to cast a meaningful vote in a particular election—

than by way of preliminary injunctive relief. Indeed, and con-

trary to the theoretical musings of the United States in its

amicus brief that plaintiffs “have substantial control over the

timing of requests for preliminary relief’ (Brief of United

10

States at 10), voting rights plaintiffs are often forced by the

conduct of the relevant government officials to seek relief on

an expedited basis on the eve of an election. They do not

have “control over the timing of [such] requests” and would

prefer not to have to resort to legal action in the first place.

An example of a case where plaintiffs did not have “sub-

stantial control over the timing of” the request for a prelimi-

nary injunction is Sandusky County Democratic Party v.

Blackwell, 387 F.3d 565 (6th Cir. 2004). There, the Sixth

Circuit addressed the reach of the then-newly effective Help

America Vote Act in the context of an appeal from a prelimi-

nary injunction entered against the defendant, Ohio’s Secre-

tary of State. The defendant did not issue regulations and

guidelines announcing how the State would comply with

HAVA until September 16, 2004, just a month and a half be-

fore the November 2, 2004, presidential election. Sandusky

County Democratic Party v. Blackwell, 339 F. Supp. 2d 975,

979 (N.D. Ohio 2004), aff'd in part and rev'd in part by 387

F.3d 565. On September 27, 2004, plaintiffs filed a complaint

and request for a preliminary injunction requiring the Secre-

tary to revise the adopted regulations and guidelines in a

manner consistent with HAVA. Sandusky County, 387 F.3d

at 570. The district court granted a preliminary injunction on

October 14, 2004, and defendant filed a notice of appeal to

the Sixth Circuit the next day. /d. at 571. The Sixth Circuit

then affirmed in part and reversed in part on October 26,

2004—a week prior to the election—holding in part that the

state was required by HAVA to permit voters to cast provi-

sional ballots and defendant was not permitted to allow poll

workers to refuse provisional ballots based on their own on-

the-spot determinations that a particular voter was not in the

correct precinct or was otherwise ineligible to vote. /d. at

574-75.

The Sandusky County case is a recent example of how

voting rights cases involving preliminary injunctions often

proceed. Facts on the ground begin to develop at a rapid pace

as an election becomes imminent. Local officials may issue

11

regulations and directions for how a particular election is to

go forward just weeks before an election. Such circum-

stances, completely beyond the control of the average voter,

may necessitate litigation by a candidate, a voter or a class of

voters who would be disenfranchised or otherwise adversely

affected by the officials’ actions. All of this litigation, includ-

ing possible proceedings in the Courts of Appeals and even

before the Justices of this Court necessarily must be resolved

by a date certain: the election. See, e.g. Democratic Nat'l

Comm. v. Republican Nat'l Comm., 543 U.S. 1304 (Nov. 2,

2004) (Souter, Circuit Justice); Spencer v. Pugh, 543 U.S.

1301 (Nov. 2, 2004) (Stevens, Circuit Justice). Similarly,

controversies concerning whether and how to count certain

votes must be resolved before the date an election must be

certified. See, e.g., Bush v. Gore, 531 U.S. 98, 110-111

(2000).

C. It Is Often Impossible or Impractical to Secure Fi-

nal Relief on the Merits in Voting Rights Cases

A preliminary injunction is sometimes the only relief

practical or even possible in voting rights cases. A. particular

issue may have relevance only for one election, so that the

election itself moots the plaintiff's stake in a dispute. Even if

the case is not technically moot, in the interest of preserving

judicial resources—and indeed, those of the litigants on both

sides of the dispute—it is not in the public interest to demand

litigation to final judgment in every case.

In certain election cases where a preliminary injunction is

obtained, it may not be possible for the plaintiffs to obtain a

final “judgment on the merits” beyond the relief requested by

preliminary injunction. Because each election is a singular

event involving candidates, issues, and conditions that may

never recur again, mootness is a very real possibility for any

litigation around election season. A case becomes moot, of

course, when the parties no longer “‘have a personal stake in

the outcome of the lawsuit.’*” Lewis v. Continental Bank

12

Corp., 494 U.S. 472, 478 (1990) (quoting Baker v. Carr, 369

U.S. 186, 204 (1962)).

In any constitutional challenge to state regulations or stat-

utes, a case may become moot after a preliminary injunction

through the voluntary conduct of state actors, who may alter

or rescind laws such that “the allegedly wrongful behavior

could not reasonably expected to recur.” Friends of the

Earth, Inc., v. Laidlaw Environmental Servs., Inc., 528 U.S.

167, 189 (2000) (internal quotation marks omitted). This

danger is especially acute with respect to the laws governing

elections, which have been subject in recent years to fre-

quently changing federal and state regulatory schemes; regu-

lations or procedures put in place for one election season may

not last past that election. The changes in regulations or pro-

cedures may result from decisions made prior to that election,

new technological developments, newly elected officials, or

from officials’ rational responses to preliminary injunctions.

Regardless of the reason, a plaintiff who achieves a prelimi-

nary injunction vindicating her voting rights in a particular

election may not be able to obtain further judicial relief if her

case is mooted by a change in the applicable rules or proce-

dures governing subsequent elections.

In addition, the singularity of elections will often place

particular litigants outside of the exception for disputes that

are “capable of repetition, yet evading review.” Lewis, 494

U.S. at 481. A particular candidate, ballot initiative sponsor,

voter, or even class of voters, will often have no “‘reasonable

expectation that [they] would be subject to same action

again.”” Jd. (quoting Weinstein v. Bradford, 423 U.S. 147,

149 (1975)); see, e.g., Independence Party v. Graham, 413

F.3d 252, 256 (2d Cir. 2005) (where preliminary injunctive

“relief granted in the district court . . . was limited in its appli-

cability to” specific primary election which had passed, ap-

peal from it was moot and no exceptions to mootness doctrine

applied). A voter who complains of a registration application

that government officials initially refused to process before an

election, for instance, will likely be registered for subsequent

13

elections. A candidate who complains of a ballot qualifica-

tion procedure may not have any intention of running for of-

fice again. Once their cases become moot, these plaintiffs

who obtained preliminary injunctions would be unable to se-

cure final judgment, and under the rule proposed by Petition-

ers and the United States, unable to receive attorneys’ fees as

a prevailing party—despite the fact that they secured all the

relief they sought.

Furthermore, a rule precluding the award of fees in elec-

tion-related cases would create “inefficiency because plain-

tiffs who have succeeded on the merits [of a preliminary in-

junction] would be encouraged to rush forward with poten-

tially unnecessary litigation, solely to preserve their entitle-

ment to fees.” Palmetto Props. v. County of DuPage, 375

F.3d 542, 550 (7th Cir. 2004); see also Lewis, 494 U.S. at 480

(warning against unnecessary litigation solely to preserve eli-

gibility for fee awards). Furthermore, given the uncertainty

as to whether government officials will change their conduct

in reaction to a court ruling on a preliminary injunction, these

inefficiencies would be increased as plaintiffs would have in-

centives to take actions to assure that their claims remain liti-

gable rather than resolve issues with the defendants in order

to preserve their right to fees. Creating such an incentive to

continue to litigate a case after plaintiffs have vindicated their

rights would not further the purpose of the fee-shifting stat-

utes, but rather are not meant to encourage litigation as such,

but are meant to encourage the vindication of federal rights.

See Hewitt v. Helms, 482 U.S. 755, 761 (1987) (a “judicial

decree is not the end but the means” to “some action (or ces-

sation of action) by the defendant that the judgment pro-

duces”). Encouraging litigants to continue litigating a case

only to preserve an entitlement to attorneys’ fees would also

be inconsistent with this Court’s assertion in Buckhannon that

it has “avoided an interpretation of the fee-shifting statutes

that would have ‘spawn[ed] a second litigation of significant

dimension.’” Buckhannon, 532 U.S. at 609 (quoting Tex.

14

State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S.

782, 791 (1989)).

Similarly, the United States’ repeated suggestion that at-

torneys’ fees should not be available because “[p]arties that

wish to convert a preliminary injunction into a full-blown

merits determination may seek to do so under Federal Rule of

Civil Procedure 65(a)(2)” is unpersuasive. (Brief of United

States at 7, 19, 20, 25.) The suggestion reflects a lack of fa-

miliarity with the real world of litigation in the district courts,

where voting rights proceedings must be brought before busy

district judges who are unlikely to be able to clear their con-

gested calendars on short notice for “a full-blown merits” trial

just because a particular plaintiff “wish[es]” it (and wishes it

just to retain the right to attorneys’ fees, no less). Under the

time pressure in which preliminary injunctions arise in many

types of cases, including in voting rights cases, it is often im-

possible to hold “a full-blown merits” trial, even if a judge’s

calendar were clear. In any event, a prudent district judge

may reasonably find, under many circumstances, that the in-

terests in issuing a prompt order outweigh the interest in hold-

ing a “full-blown merits” trial. See, e.g., Berks County, 250

F. Supp. 2d at 527 (“The Court held a hearing on March 13,

2003 and has expedited the issuance of this Memorandum and

Order [on March 18, 2003] so as to give the parties as much

time as possible to prepare for the May 20, 2003 primary

election.”).

D. Petitioners’ and the United States’ Proposed Rule

Would Frustrate the Purpose of the Fee-Shifting

Statutes in Voting Rights Cases and Is Contrary To

Congressional Intent

Because cases arising in the election context are fre-

quently resolved by preliminary injunction and are often im-

practical or impossible to litigate through to final judgment,

the rule proposed by Petitioners and the United States would

seriously jeopardize the availability of fees in voting rights

15

cases. This in turn would discourage their litigation, contrary

to the intent of Congress in enacting fee-shifting statutes.

As explained above, preliminary injunctions play 2 cru-

cial and sometimes decisive role in resolving controversies -

regarding the rights of citizens to vote in a free election.

Thus, were the Court to strip litigants of the ability to obtain

fees for vindicating the right to vote in hard-fought prelimi-

nary injunction proceedings, it would seriously threaten the

ability of plaintiffs to recover fees in whole classes of voting

rights litigation, where litigants succeed in protecting the right

to vote in particular elections. Without the ability to recover

fees for voting rights matters, public interest firms and pro

bono attorneys would have to be even more selective than

they already are in allocating their resources and deciding

which cases to pursue. They would be less likely to pursue

cases where the law is unclear, even if the public would bene-

fit by a judicial ruling on the scope of a citizen’s rights. The

Court should not go down this path.

This Court last addressed the question of the proper con-

struction of the term “prevailing party” in its decision in

Buckhannon, 532 U.S. at 598. A preliminary injunction gov-

ering how an election will be conducted or determining

whether citizens will be permitted to meaningfully cast a vote

at all meets the terms of that decision. It is a “judicially sanc-

tioned change in the legal relationship” of the citizen-

plaintiffs and the government-defendants. /d at 604. The

change in relationship is the direct result of an injunction en-

forceable through the contempt power of a federal court and

therefore bears a “judicial imprimatur.” Id. (emphasis in

original). Thus, the party obtaining such an injunction is a

“prevailing party” entitled to fees.

Petitioners and the United States, however, ask the Court

to depart from the statutory text and statements of legislative

purpose and instead graft onto these touchstones of positive

law a judicially created requirement of “final judgment on the

merits.” As to the language of the statute, this Court has

clearly declared: “Nothing in the language of § 1988 condi-

16

tions the District Court’s power to award fees on full litiga-

tion of the issues ...” Maher v. Gagne, 448 U.S. 122, 129

(1980) (emphases added) (upholding fees where plaintiffs set-

tled and obtained a consent decree). Indeed, on this point, the

Court in Maher was unanimous. See id at 134 (Powell, J.,

joined by Burger, C.J., and Rehnquist, J., concurring) (agree-

ing with conclusion that “the award of attorney’s fees under §

1988 does not require an adjudication on the merits of the

constitutional claims”).

The United States argues that plaintiffs who have suc-

ceeded in securing preliminary injunctions but whose cases

are subsequently rendered moot should not be entitled to their

fees because a fee award would, purportedly, constitute a

“preliminary injunction exception to Buckhannon’s rejection

of the catalyst theory.” (Brief of United States at 30, n.11.)

This misreads Buckhannon. That judicial action may be

characterized as a “catalyst” for a change in behavior by gov-

ernment officials does not mean that the award of fees for se-

curing that judicial action is an endorsement of the specific

“catalyst theory” discussed in Buckhannon, which rested on

the lack of judicial action. Buckhannon, 532 U.S. at 605.

The catalyst theory rejected in Buckhannon would have per-

mitted the award of fees based on the voluntary change in be-

havior by government officials “where there is no judicially

sanctioned change in the legal relationship of the parties.” /d.

(emphasis added). Indeed, a final judgment and permanent

injunction compelling conduct by government officials will,

quite literally, be a “catalyst” for the government officials to

change their conduct in the sense that the change is required

by court order. The award of fees in such cases where judi-

cial action compels a change in conduct, however, cannot be

characterized as an “exception to Buckhannon’s rejection of

the catalyst theory.”

In a situation where a party prevails on a preliminary in-

junction, and the government then changes its behavior in re-

action to that judicial ruling, the change in behavior is not

“voluntary” as understood by the “catalyst theory” set forth in

17

Buckhannon. Rather, such a change in conduct clearly has

the “judicial imprimatur” missing from the rejected “catalyst

theory.” In such situations “(t]he relief . . . ultimately won,”

the preliminary injunction, “was specifically the relief... re-

quested” notwithstanding the subsequent “voluntary” mooting

of the case. Nat'l Black Police Ass’n v. D.C. Bd. of Elections

& Ethics, 168 F.3d 525, 528-29 (D.C. Cir. 1999) (awarding

attorneys’ fees to prevailing plaintiffs after successful chal-

lenge by preliminary injunction to initiative governing cam-

paign contributions, and rejecting argument that govern-

ment’s mooting of the case by repealing the initiative in re-

sponse to preliminary injunction precluded the fee award).

See also Palmetto Props., 375 F.3d at 551 (where district

court entered preliminary injunction enjoining enforcement of

statute, and city then mooted case before final judgment in

district court by repealing statute, parties are “prevailing par-

ties” entitled to fees). To condition fees on “final judgment

on the merits” would be unjust and contrary to Congress’s

intent.

As demonstrated above, preliminary injunctions play a

vital role in ensuring that all citizens have the right to vote in

a free, fair, and open election. For voting rights plaintiffs

who face impending elections, certifications, or registrations,

the preliminary injunction vindicating their rights is a clear

legal victory: it provides the very enfranchisement of which

they would otherwise have been deprived. See Sandusky

County Democratic Party v. Blackwell, 191 Fed. Appx. 397,

399-401 (6th Cir. 2006) (affirming award of attorneys’ fees to

“prevailing parties” who obtained pre-election preliminary

injunction).* The parties in such a proceeding have prevailed

* While a stipulated permanent injunction was eventually entered in the

Sandusky County case after the election, see Sandusky County Democratic

Party v. Blackwell, No. 04-5782 (order granting permanent injunction)

(Dec. 29, 2004), the rule proposed by Petitioners and the United States

would create incentives for future defendants to refuse to enter into final

settlement decrees in cases that are largely resolved by a preliminary in-

18

and have obtained all the relief that they want as to a particu-

lar election, which may be all they seek. Other plaintiffs may

have received at least “some of the relief they sought” in the

litigation in general. Tex. State Teachers Ass'n, 489 U.S. at

793 (“[Plaintiffs] prevailed on a significant issue in the litiga-

tion and have obtained some of the relief they sought and are

thus ‘prevailing parties’ within the meaning of § 1988.”). But

once an election transpires, that litigation may be impossible

or impractical to follow through to final judgment, and to re-

quire that to happen before fees will be awarded would sub-

vert Congress’s intent. In addition to prevailing on the dis-

crete controversy of how a particular election should proceed,

the successful plaintiff in such cases has fulfilled the role of

private attorney general and vindicated an important federal

interest in ensuring that our elections are legitimate and

viewed as such, and that the fundamental rights of citizens are

protected.

This Court should affirm that plaintiffs prevailing on the

difficult task of securing a preliminary injunction are indeed

entitled to their attorneys’ fees as “prevailing parties.”

junction, if the absence of a final judgment would defeat a subsequent

motion for fees.

19

CONCLUSION

The judgment of the Court of Appeals should be af-

firmed.

Respectfully submitted,

WENDY R. WEISER LAURA W. BRILL*

RENEE PARADIS JONATHAN P. STEINSAPIR

BRENNAN CENTER FOR ABIGAIL B. KRAUSER

JUSTICE AT NYU IRELL & MANELLA LLP

SCHOOL OF LAW 1800 Avenue of the Stars

161 Avenue of the Americas, Suite 900

12th Floor Los Angeles, California

New York, NY 10013 90067

(212) 998-6730 (310) 277-1010

Counsel for Amicus Curiae The Brennan Center for Justice

At NYU School Of Law

April 2, 2007 * Counsel of Record