Opposition Brief — Riley v. Plump (No. 07-1460)

No. 07-1460

In the

Supreme Court of the Anited States

¢

HONORABLE BOB RILEY, as Governor of the

State of Alabama,

Appellant,

V.

FRED L. PLUMP,

Appellee.

¢

On Appeal from the United States District Court

for the Middle District of Alabama

.

BRIEF OF GOVERNOR BOB RILEY IN OPPOSITION TO

APPELLEE’S MOTION TO DISMISS OR AFFIRM

e

Troy King

Attorney General

James W. Davis

Counsel of Record

Margaret L. Fieming

Misty S. Fairbanks

Asst. Attorneys General

STATE OF ALABAMA

Attorney Generals Office

11 South Union Street

Montgomery, AL 36130

August 4, 2008 (334) 242-7300

S oneniaiinenichiabaeieia

TABLE OF CONTENTS

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1. The evolution of the facts since Governor

Riley filed his Jurisdictional Statement

demonstrates the burden Section 5 places

on covered States, and by extension, on

our Federal system of government....................

2. Governor Riley’s appeal is timely. ....................cceen. 6

3. Section 5 does not reach a return to a

coverage-date practice Ss

4. The unchallenged back-to-back elections

in Jefferson County in 1982 were a

“temporary misapplication of state law.’

such that the practice of special clections

was never “in force or effect.” ........... 9

5. The District Court improperly skipped to

the merits, thereby creating an additional

basis for vacating and remanding the

judyment below 1]

CONCLUSION l

—_—— .

APPENDIX

Letter from Christopher Coates, Acting

Chief, Voting Section to Ala. Att’y Gen. Troy

King and Ala. Ass’t Att’y Gen. Misty S.

ER CUUEORY TO, DMID 0.05.50... c.ccncvssnecncnnansnccsoscovenss

Working, et al. v. Jefferson County Election

Commission,

eee. eee CR. Gums BO, ZOGS) on vccccccccenccese

Letter from Christopher Coates, Acting

Chief, Voting Section to Ala. Att’y Gen. Trov

NN EE NOI ono cain ssediv caves. ysccedanesesucevseneveiues

Complaint in Powell v. Alabama, Case No.

2:08-cv-01345-LSC (N.D. Ala., pending) ................

111

TABLE OF AUTHORITIES

Cases

Catlin v. United States,

ee ee ee NIN iste bisnnsa kid bcndivassdonncitaimacandiesioaes 7

City of Lockhart v. United States,

AGO U.S. 125 (1988)......cccccccccccosecccscscecesscesecsscsseees 10

Idlewild Liquor Corp. v. Epstein,

ee ee Fe I hsv ocec skoda wkdaenvasnadacesvoaniandndaws 7-8

Moses H. Cone Memorial Hosp. v. Mercur}

Const. Corp.,

ee erates th ouickens aaaicnsesuaneasens 7

Peddycoart v. City of Birmingham,

rete He Se EG, BEES sonido ducicnscovnnssacevsscsatactins 4

Perkins v. Matthews,

I er te A Ie Bac ccaccens sss cavcaubensdke ceasetieakecen 10

Riley v. Kennedy,

653 U.S. CRY Zi De? ci ctkcliad ras passim

Spector Motor Service, Inc. v. McLaughtiin,

ee eS, CRI on oh ve dawn ecdavesccanadesserauieciveactaeeciee

Stokes v. Noonan,

ee PO te ee CU, PUMPED oo dacicdeckscracneseccnosncesascecanes Z

Working, et al. v. Jefferson County Election

Cioommtssion,

So. 2d ___ (Ala. June 30, 2008) ..........

passim

Young v. Fordice,

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Constitutional Provisions

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Statutes and Acts

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PEs Fae FO. I Foie visvdnvcnsteasdsdincncaens

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Voting Rights Act

UES OR Ee ae TE AP re ee

Section 2

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Section 5

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passim

Liat ap aera 6

saicges passim

Other Authorities

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Ne au cusuuecdacdncdcusandevascucccsens

Complaint in Powell v. Alabama, Case No.

2:08-cv-01345-LSC (N.D. Ala., pending) .............

Letter from Ala. Att'y Gen. Troy King to

Chief, Voting Section (February 4, 2008)............

Letter from Christopher Coates, Acting

Chief, Voting Section to Ala. Att’y Gen. Troy

King and Ala. Ass’t Att’y Gen. Misty S.

gE EN Ae S| re

Letter from Christopher Coates, Acting

Chief, Voting Section to Ala. Att'y Gen. Troy

Teen nc. cenauschanccccadectscuccacncacncs

Letter from Ala. Atty Gen. Troy King to

Chief, Voting Section (July 28, 2008)

(Working Supreme Court submission) ................

Letter from Ala. Att'y Gen. Troy King to

Chief, Voting Section (July 28, 2008)

(Working trial court submission).......... pi ccuceoninen

eed 3

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BRIEF IN OPPOSITION

Governor Riley’s Jurisdictional Statement sought

to emphasize the similarities between the present

case and the then-pending appeal in Riley ov.

Kennedy, Case No. 07-77. After the Jurisdictional

Statement was filed, this Court issued its narrowly

tailored decision, Riley v. Kennedy, 553 U.S. ___

(May 27, 2008), and the Alabama Supreme Court

issued a decision of some import, Working, et al. v.

Jefferson County Election Commission, ___ So. 2d

(Ala. June 30, 2008). Working triggered additional

key events, which are discussed below. Still, § 5

itself, as well as substantial federalism concerns,

compel resolution of this appeal in Governor Riley’s

favor.

1. The evolution of the facts since Governor

Riley filed his Jurisdictional] Statement

demonstrates the burden Section 5 places on

covered States, and by extension, on our

Federal system of government. These facts

spring from the Alabama Supreme Court’s decision

in Working, et al. v. Jefferson County Election

Commission, __ So. 2d ___, 2008 WL 2569255 (Ala.

June 30, 2008), reprinted at Appendix 6a. The

litigation presented a state court challenge to the

Jefferson County local law at issue here, Act No. 77-

784.

Litigants (including Governor Riley) challenged

the state-law validity of a special election called by

local officials pursuant to the Act No. 77-784. The

trial court held that state law required a special

election; the Alabama Supreme Court reversed,

ruling that Governor Riley's appointment was valid,

and the special election invalid. See Appendix at

32a-41a.

Governor Riley had argued in state court that Act

No. 77-784 violated §105 of the Alabama

Constitution. His argument was predicated on the

authority of Stokes v. Noonan, 534 So. 2d 237 (Ala.

1988), one of the decisions at the heart of the Riley

appeal and a decision on which the Governor relied

in appointing Commissioner Bowman. Citing the

principle that courts should avoid constitutional

questions if the matter may be decided on other

grounds,! the Alabama Supreme Court resolved

Working on statutory grounds, holding that Act No.

2007-488 (reprinted at J.S. Appx. 51a) had repealed

the Jefferson County local law. See Appendix at 32a-

39a. The Court did not hold that Act No. 77-784 was

constitutional, nor did it question its holding in

Stokes; the Court simply affirmed Governor Riley’s

position on grounds different from those advanced by

him.

The Alabama Supreme Court thus ruled that the

Governor’s appointment was proper, but for a

different reason than was offered by the Governor

and that was considered by the District Court in this

case. Nonetheless, the difference in reasoning does

not defeat the Governor's appeal for three reasons.

First, the Working decision, issued in June 2008,

does not change the fact that Governor Riley made

the appointment at issue here in November 2007,

some seven months earlier, because Alabama

' Cf. Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101,

105 (1944) (“If there is one doctrine more deeply rooted than

any other in the process of constitutional adjudication, it 1s that

we ought not to pass on questions of constitutionalty ... unless

such questions are] unavoidable’)

Supreme Court precedent compelled the

appointment.2 The circumstances that gave rise to

this htigation and appeal take the preclearance

question here presented outside the normal confines

of § 5 analysis within which the Plaintiff attempt to

box it, e.g., M.D.A. at 26-27.

Second, the Alabama Supreme Court’s notation of

§ 105’s “direct[ion that] the judicial branch . . . decide

disputes under that provision” was made in the

course of the Court’s conclusion that the voter

plaintiffs before it had standing. See Appendix at

20a-21la, n. 8. The Court was explaining that this

provision undercuts any suggestion that its resolving

the dispute would be contrary to the Separation of

Powers concerns that animate the standing doctrine.

Id. The Court was not, as Plump suggests, M.D.A. at

13, 29 n.12, rebuking the Governor for interpreting

the law, as is required, in the performance of his

function of implementing the law.

Third, the Alabama Supreme Court explicitly

stated that it was not addressing the constitutional

issue, preferring instead to resolve the litigation on

statutory grounds. See Appendix at 32a. Given that,

it is not for Plump to suggest that the Court

2 It is because Governor Riley made the appointment based on

his understanding of Alabama Supreme Court precedent that

USDOJ's letter requesting more information was misguided in,

for example, requesting “[a] detailed description of the efforts

. made ... to secure the views of the public... . regarding

whether the voting change is retrogressive,’ see Letter from

Christopher Coates, Acting Chief, Voting Section to Ala. Att’y

Gen. Troy King and Ass’t Atty Gen. Misty S. Fairbanks (May 8,

2008), Appendix at 4a, and unreasonable in requesting various

information on Jefferson Country elections “in which an African-

American candidate participated from 1997 to present,’ td.,

Appendix at 3a.

4

implicitly rejected the constitutional challenge. See

M.D.A. at 29 (emphasizing that the Working Court

had referred to Act No. 77-784 as a “preexisting local

law”). Nor are Pump’s contentions about the impact

of Peddycoart v. City of Birmingham, 354 So.2d 808

(Ala. 1978), M.D.A. at 28, n.11, on the constitutional

analysis of any relevance. Governor Riley disagrees

with Plaintiffs assessment of the import of

Peddycoart, and he made his State law argument to

the Alabama Supreme Court, which chose not to

address the subject.

That said, the Working decision triggered several,

additional new facts relevant to this appeal. The

Alabama Supreme Court’s statutory holding was

based on enforcement of two new provisions of Act

No. 2007-488, specifically new Ala. Code § 11-3-1(b)

and (f). For good reason, those provisions had not

been submitted for preclearance at the time that the

Working Court ruled.

USDOJ responded to news of the Working

decision by declaring that a submission—filed

months earlier as a result of the District Court's

decision in this case—could not be reviewed until

Plump asserts that the State “has expressly refused” to

submit provisions. See M.D.A. at 2: see also id. at 11-12, n.6. In

fact, prior to the Working Court's decision, no change with

respect to Ala. Code § 11-3-1(f had been identified, and, in any

event, it would have been premature to make any submission

concerning the interaction between Ala. Code § 11-3-1() and

Ala. Code § 1-3-l(b) before the latter subsection was

independently ready for submission The preclearance

submission concerning other portions of Act No. 2007-488 made

clear that Ala. Code §11-3-l(b) was not appropriate for

submission—at that time—because_ th Legislature was

considering repealing the relevant change Letter from Ala

Att'y Gen. Troy King to Chief, Voting Section (February 4

2008) at 1-2

Ala. Code § 11-3-1(b) was submitted. Letter from

Christopher Coates, Acting Chief, Voting Section to

Ala. Att’y Gen. Troy King (July 22, 2008); see

Appendix at 42a. Ala. Code § 11-3-1(b), as well as

Ala. Code § 11-3-1(f) and non-certification of the

February 5, 2008 special election, have now been

submitted. Letter from Ala. Att'y Gen. Troy King to

Chief, Voting Section (July 28, 2008) (Working

Supreme Court submission).

Additionally, the Working Court’s enforcement of

new Ala. Code §11-3-1(b) means Commissioner

Bowman’s appointment is cut short, and an election

is to be held this November to select someone to

serve out the remainder of Larry Langford’s term

(that is, until November 2010). Appendix at 39a-40a.

The Alabama Supreme Court remanded the case to

the trial court “to enter an appropriate order

declaring that the required election is to be placed on

the November 2008 general election ballot.” Jd. at

40a. The normal qualification deadlines and party

primaries had already passed. After a hearing, the

trial court enterec' an order concerning the election

details at 5:55 p.m. on Friday, July 25, 2008. On

Monday, July 28, 2008, the State submitted the

changes within the scope of §&5 embodied in that

order for preclearance. Letter from Ala. Att'y Gen.

Troy King to Chief, Voting Section (July 28, 2008)

(Working trial court submission)

The next dav, counsel for Plump filed a

Complaint in federal court on benalf of Doris Powell.

Powell v. State of Alabama. Case No. 2:08-cv-01345-

LSC (N.D. Ala., pending). See Appendix at 46a. The

Complaint seeks a declaratory judgment that

preclearance of new Ala. Code § 11-3-1(b) and (f) and

the non-certification of the February 5, 2008 special

6

election are required. Jd. at 52a. (Powell knew the

preclearance submission had made; she referred to

it. Id. at 50a.) Powell also seeks an injunction

preventing the defendants, absent preclearance, from

failing to certify the special election results and from

going forward with the November election of a new

County Commissioner. /d. at 52a-53a.

In sum, the Governor’s appointment, which he

believed to be compelled by Alabama Supreme Court

precedent, has been met with two §5 challenges

(Plump and Powell) and has resulted in three

preclearance submissions-—~so far.

2. Governor Riley’s appeal is timely. Plump

argues that the District Court’s order should be

construed an interlocutory, requiring that any notice

of appeal be filed within 30 days, not 60 days. See 28

U.S.C. § 2101. The order was not final, Plump

argues, because the District Court did not address

the single-judge claims raised under §2 and the

Thirteenth, Fourteenth, and Fifteenth Amendments

and because the relief was uncertain. M.D.A. at 17-

25. Plump further suggests that the stays entered by

the District Court and this Court have somehow

undermined any finality that the order would have

otherwise achieved. M.D.A. at 23-25.

As to the unaddressed claims, Governor Riley

pointed out to the District Court that it had not

spoken to these claims, see J.S. Appx. 25a, and it did

not respond. While never specifically invoking Rule

54(b) or its key language. the District Court

encouraged a prompt appeal and consolidation with

tiley. Specifically, in both the Judgment and the

Amended Judgment, the District Court said: “The

clerk of court is DIRECTED to enter this document

on the civil docket as a final judgment pursuant to

Rule 58 of the Federal Rules of Civil Procedure so

that appeal may be taken and the case consolidated

with Kennedy v. Riley, O7-77, if the U.S. Supreme

Court deems consolidation appropriate.” See J.A.

Appx. 13a, 17a.

Paradoxically, the District Court would have

punished the Governor for an immediate appeal.

The Amended Judgment provided that “the Jefferson

County Commission seat currently occupied by

General George F. Bowman shall be vacated on

February 5, 2008 without further order of this court”

if the Governor notified the ourt of an intent to

“immediately appeal” or ut the Governor failed to

timely notify the court of his intentions. J.S. Appx.

l7a. The only way to keep the Governor’s

appointment from being vacated in February was for

the State to seek preclearance, id., which it did.

As to the curious nature of the judgment, the

contingent relief left nothing for the court to do—the

hallmark of a final judgment. See Catlin v. United

States, 324 U.S. 229, 233 (1945). Indeed, the District

Court ensured that any of the various contingencies

would operate automatically, without the court’s

further involvement.

As to the stays issued by this Court and the

District Court, litigants often seek stays pending

appeal, without thereby undercutting their ability to

pursue the appeal.

Finally, while it was unclear in late January

which—if any—remedy would materialize, it was

clear that Governor Riley was “effectively out of

court.” See Moses H. Cone Memortal Hosp.

Mercury Const. Corp., 460 U.S. 1, 10 (1983). Accord,

Idleuild Liquor Corp. v. Epstein, 370 U.S. 713, 715

n.2 (1962). Since then, Governor Riley has filed two

notices of appeal — covering the entire range of dates

on which the District Court’s judgment might have

become final. This Court’s stay order is the only

reason that the Governor’s appointment has not been

vacated. On balance, then, this Court should

conclude that the District Court’s order has achieved

finality and that Governor Riley’s appeal is timely.

3. Section 5 does not reach a return to a

coverage-date practice.’ The plain text of 42

U.S.C. §1973c requires preclearance of a practice or

procedure that affects voting if it is different from

the practice or procedure in. place on the

jurisdiction’s coverage date. On November 1, 1964,

Alabama’s coverage date, vacancies on the Jefferson

County Commission were filled by gubernatorial

appointment. The Governor's appointment is a

return to the coverage-date practice, and § 5's text

therefore does not require preclearance.

Plump contends that gubernatorial appointment

is not a return to the coverage date practice because

of allegedly different rules for when the appointee’s

term ends. M.D.A. at 29-31. Under the 1964

practice, Plump argues, the Governor’s appointee

served for the entire unexpired term if the vacancy

occurred within six months of the next general

election. See Ala. Act 57-429.° Under the current

+ This argument is equally valid whether the return comes as a

result of a legislative repeal or a court's declaration that a

statute is unconstitutional Whatever effect the Alabama

Supreme Courts reasoning in Working may have on the

Governors remaining arguments, the coverage-date argument

remains very much in play

‘Governor Riley does not concede that the 1957 statute is the

proper “baseline” There was no evidence in the District Court

practice, the appointee serves for the entire

unexpired term if the appointment occurs later than

“30 days before the closing of party qualifying.” Ala.

Code § 11-3-1(b).

Two points are particularly relevant. First, the

issue of how the vacancy is filled is a separate

“standard, practice, or procedure” from how long the

new Commissioner will serve. In both cases—in

1964 and today—vacancies are filled by

appointment. That is the only practice at issue in

this case. If, in 1964, the appointee would serve a

shorter or longer term than under the 2008 practice,

that is @ separate practice meriting a separate § 5

consideration.

Second, and in the alternative, under both the

1957 local law and the practice sought to be enforced

today, the Governor has the authority to appoint and

his appointee would face election in November 2008.

Even under Plump’s argument that the practices can

be combined, the State seeks to return to a coverage

date practice, and that practice is not subject to the

plain text of § 5.

4. The unchallenged back-to-back elections in

Jefferson County in 1982 were a “temporary

misapplication of state law,” such that the

practice of special elections was never “in

force or effect.” No citizen stepped forward to

challenge the local law when it was implemented in

1982. The next vacancy did not occur until] 2001, and

it was filled by gubernatorial appointment.

that Act No. 57-429 was ever once enforced Kven taking

Plump’s position as correct, though, the text of § 5 does not

reach the return to gubernatorial appointment

10

As this Court noted of the facts in Riley, “[ilf the

only relevant factors were the length of time a

practice was in use and the extent to which it was

implemented, [Riley] would be a close case falling

somewhere between the two poles established by our

prior decisions.” Riley, 553 U.S. at __.. At one pole

lie Perkins v. Matthews, 400 U.S. 379 (1971), and

City of Lockhart v. United States, 460 U.S. 125

(1983); in each of those cases, a practice that was

unauthorized by state law was nonetheless “in force

or effect” for purposes of § 5 because it was in effect

on the coverage date designated by the statute. At

the other pole lies Young v. Fordice, 520 U.S. 273

(1997); there, a voter registration practice was not

“in force or effect,” even though it was precleared and

used before being abandoned as a “temporary

misapplication of state law.” This case likewise falls

between the two poles, though, admittedly, it is a

little further from Young than Riley was, given the

absence of an early legal challenge and the length of

time between its only use and its abandonment.

Ultimately, though, the relevant length of time is

the period during which the practice of special

elections was actually used, not how long it was on

the books. Vacancies are infrequent. Here, there

was none between the back-to-back use in 1982 and

the non-use in 2001. This case is thus closer to

Young (a temporary misapplication of State law)

than Perkins and Lockhart (where the State was

required to keep a coverage-date practice in place).

Moreover, as noted in the Jurisdictional Statement,

there is reason to believe that one of the 1982 special

elections may have been held in violation of § 5, JS

at 32, n.15; that election ought not be able to

establish the § 5 baseline

li

5. The District Court improperly skipped to the

merits, thereby creating an additional basis for

vacating and remanding the judgment below.

Plump never addresses the Governor’s argument

that the District Court erred in skipping to the

merits, when there was only a motion for

preliminary injunction pending. This argument

stands un-rebutted as grounds to vacate and remand

for further consideration.

CONCLUSION

This Court should note jurisdiction, and either

reverse the District Court or vacate and remand for

further proceedings in light of the Riley decision, the

evolving facts, and the District Court’s improper

jump to the merits. In the event the case is

remanded, the Governor respectfully requests that

this Court keep its stay in place pending any

subsequent appeal and final decision by this Court.

Respectfully submitted,

Troy King

Attorney General

James W. Davis

Counsel of Record

Margaret L. Fleming

Misty S. Fairbanks

Asst. Attorneys General

STATE OF ALABAMA

Attorney General's Office

11 South Union Street

Montgomery, Al 36130

August 4, 2008 (3:34) 242-7300

APPENDIX

la

U.S. Department of Justice

Civil Rights Division

Voting Section - NWB

950 Pennsylvania Avenue, NW

Washington, DC 20580

CC:TFM:DJ

DJ 166-012-2 May 8, 2008

2008-157

The Honorable Troy King

Attorney General

Misty S. Fairbanks, Esq.

Assistant Attorney General

11 South Union Street

Montgomery, Alabama 36130

Dear Attorney General King and Ms. Fairbanks:

This refers to the change in the procedure for

filling vacancies on the Jefferson County

Commission from special election to gubernatorial

appointment, for Jefferson County, Alabama,

submitted to the Attorney General pursuant to

Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c.

We received your submission on March 19, 2008.

Our analvsis indicates that the information

sent is insufficient to enable us to determine that the

proposed change dves not have the purpose and will

not have the effect of denying or abmdging the nght

2a

me

to vote on account of race, color, or membership in a

language minority group, as required under Section

5. The following information is necessary so that we

may complete our review of your submission:

1. The factual basis for the State or county’s

determination that the proposed change will not

result in a retrogression of the effective exercise of

the electoral] franchise by the African-American

voters of Jefferson County Commission District No.

a;

2. A special clection was held for Jefferson

County Commission, District 1 on February 5, 2008.

Please provide any documents, including any

analysis or reports that have been done discussing

whether Mr. Bowman was the candidate of choice for

African-American voters in that special election. For

this election, please also provide the following:

(a) the number of votes each candidate

received by precinct;

(b) the total number of persons who voted and

the number of African-American persons who

voted, by precinct, if that information is

available;

(c) if a breakdown by race or ethnicity is not

available as indicated in paragraph (b) above,

copies of the actual voter sign-in sheets for

each precinct located in whole or in part

within Jefferson County for this election; and

(d) the number of registered voters, by race or

ethnicity and precinct, at the time of the

election.

3. Please provide any documents, including

any analysis or reports that have been done

discussing whether there is racially polarized voting

in Jefferson County.

4. Please provide election returns by voting

precinct for all state, county, municipal, and school

district elections in which Jefferson County was

included in whole or in part and in which an African-

American candidate participated from 1997 to the

present. For each election, please indicate the

following:

(a) the office sought (indicate the

incumbent(s), if any, their races, and whether

incumbency was by election or appointment);

(b) each candidate’s name and race or

ethnicity;

(c) the number of votes each candidate

received by precinct:

(d) the total number of persons who voted and

the number of African-American persons who

voted, by precinct, if that information is

available;

(e) if a breakdown by race or ethnicity is not

available as indicated in paragraph (d) above,

copies of the actual voter sign-in sheets for

each precinct located in whole or in part

within Jefferson County for each election: and

(f) the number of registered voters, by race or

ethnicity and precinct. at the time of the

election.

(g) for early and absentee voting, if possible,

an identification of the precinct in which early

Aa

and/or absentee voters would have voted on

election day.

(h) if possible, this information should be

provided in electronic format, either Excel or a

delimited text file. If a delimited text file,

please specify the common delimiter used.

5. The precinct boundaries used for the

elections for which election return and _ voter

registration data is requested. If possible, this

should be in electronic form. It will expedite our

review if we receive this information in “Shape file

format,” including all three types of files that form

components of this format: .shp. .shx, and .dbf files.

6. A detailed description of the efforts, both

formal and informal, made by the county or the State

to secure the views of the public, including members

of the minority community, regarding whether the

voting change is_ retrogressive. Describe the

substance of any comments or suggestions received,

indicate the names and daytime telephone numbers

of the persons making the comments or suggestions,

and explain the State or county’s response, if any.

The Attorney General has sixty davs to

consider a completed submission pursuant to Section

5. This sixty-day review period will begin when we

receive the information specified above. See

Procedures for the Administration of Section 5 of the

Voting Rights Act (28 C.F.R. § 51.37). However, if no

response is received within sixty davs of this request,

the Attorney General may object to the proposed

change consistent with the burden of proof placed

upon the submitting authority. See 28 C.F.R.

§§ 51.40 and 51.52(a) and (c)

Sa

Changes which affect voting are legally

unenforceable unless Section 5 preclearance has

been obtained. Clark v. Roemer, 500 U.S. 646 (1991);

28 C.F.R. § 51.10. Therefore, to enable us to meet

our responsibility to enforce the Voting Rights Act,

please inform us of the action the State of Alabama

plans to take concerning this matter. If you have

any questions, you should call Donald Jacobsen (202-

305-8299) of our staff. Refer to File No. 2008-1576 in

any response to this letter so that your

correspondence will be channeled properly.

Since the Section 5 status of this change is at

issue in Plump v. Riley (Civ. Act. No. 07-1014, M.D.

Ala. (three-judge court)) and Working v. Jefferson

County, (No. 08-cv-900316, 10th Jud. Cir., Ala.), we

are providing a copy of this letter to the court and

counsel of record in those cases.

Sincerely,

/s/ Timothy Mellett

for

Christopher Coates

Acting Chief, Voting Section

REL: 06/30/08

[Notice concerning reporting typographical or other

]

errors omitted.|

SUPREME COURT OF ALABAMA

OCTOBER TERM, 2007-2008

1070850

Patricia Working et al.

Vv.

Jefferson County Election Commission et al.

1070893

Governor Bob Riley, in his official capacity

Ve

Jefferson County Election Commission et al.

1070917

George F. Bowman

Vv.

State of Alabama ex rel. Fred L. Plump and

William A. Bell, Sr.

Appeals from Jefferson County Circuit Court

(CV -08-900316)

PER CURIAM.

These appeals arise from challenges to the

attempts to fill the district 1 seat on the Jefferson

County Commission left vacant when Commissioncr

Larry Langford was elected mayor of the City of

Birmingham in October 2007. The trial court held

that the vacant seat was to be filled by a special

election rather than by gubernatorial appointment.

For the reasons stated herein, we reverse the trial

court's judgment.

|. Facts, Procedural Background. and

Applicable Statutes

On October 9, 2007, Larry Langford, the

member of the Jefferson County Commission

representing district 1, was elected mayor of the City

of Birmingham. He thereafter resigned his seat on

the Jefferson County Commission. On October 29,

2007, the Jefferson County Election Commission,

pursuant to Act No. 784, Ala. Acts 1977,! adopted a

resolution calling for a special election to fill the seat

vacated by Langford. The resolution set the special

election for February 5, 2008 -- the date of Alabama's

presidential-preference primaries. Fred L. Plump.

George F. Bowman, and William A. Bell, Sr., were

among those who qualified to run for the district 1

seat on the county commission.

The Alabama Legislature enacted Act No. 784 effective May

25, 1977, as a local law that purported to authorize a special

election to fill a vacancy on the Jefferson County Commission

caused by death. resignation mpeachment roeanyv cause

except normal expiration of terms.” § 1, Act No 784

Sa

On November 21, 2007, Governor Bob Riley

appointed George F. Bowman to fill the vacant

district 1 seat on the Jefferson County Commission.

The Governor's appointment was made pursuant toa

general law, § 11-3-1(b), Ala.Code 1975.2

2 Section 11-3-1(b) now provides

Unless a local law authorizes a_ special

election, any vacancy on the county

commission shall be filled by appointment by

the Governor. If the appointment occurs at

least 30 days before the closing of party

qualifying as provided in Section 17-13-5, the

person appointed to the vacated office shall

only serve until seven days after the next

general election following the appointment as

provided herein. The person so appointed to

fill the vacancy shall meet the residency

requirements in subsection (a), and shall hold

office from the date of appointment until the

eighth day following the next general election.

If the original term in which the vacancy

occurred would not have expired on the eighth

day following the next general election after

the appointment, the person elected at the

election required by operation of this

subsection shall serve for a period of time

equal to the remainder of the term in which

the vacancy was created. Thereafter. clection

for the county commission seat shall be as

otherwise provided by law.

The emphasized language, however, was first included in this

statutory scheme effective in 2004. See Act No. 2004-455, Ala

Acts 2004. The substance of the first sentence, without the

emphasized language, was part of the Alabama Code prior to

the enactment of Act No. 784 in 1977. Until September 1, 2007,

it was codified as § 11-3-6, Ala.Code 1975. Effective September

1, 2007, the entire provision, including the emphasized

language and additional language. was renumbered by Act No

2007-4588 as § 11 l(b)

Va

On January 31, 2008, Patricia Working and

Rick Erdemir filed a complaint for declaratory relief

in the Jefferson Circuit Court, naming as defendants

the Jefferson County Election Commission and its

individual members, namely Jefferson County

Probate Judge Alan King, Jefferson County Sheriff

Mike Hale, and Jefferson County Circuit Clerk

Anne-Marie Adams. Among other things, they

alleged that they were residents and taxpayers in

Jefferson County and that the special election was

unauthorized and unconstitutional because, they

said, Act No. 784, Ala. Acts 1977, violated § 105 of

the Alabama Constitution of 1901,° and that, even if

Act No. 784 was not unconstitutional and authorized

the special election, the date set by the Election

Commission for the special election was incorrect.

Accompanying the complaint were an application for

a temporary restraining order and a motion for a

preliminary injunction.

On February 1, 2008, the Jefferson Circuit

Court conducted an expedited hearing in which it

noted the absence of potentially interested parties

Section 105 provides

“No special, private, or local law, except a law

fixing che time of holding courts, shall be

enacted in any case which is provided for by a

general law, or when the relief sought can be

viven by any court of this state; and the

courts, and not the legislature, shall judge as

to Whether the matter of said law is provided

for bv a general law, and as to whether the

relief sought can be given by amy court; nor

shall the legistature indirectly enact any such

special, private, or local law by the partial

repeal of a general law”

10a

and issued an order holding that it would not have

subject-matter jurisdiction until the attorney general

was served with a copy of the complaint pursuant to

Ala.Code 1975, § 6-6-227. It further stated that the

matter would be held under submission until the

plaintiffs had complied with § 6-6-227. Subsequent to

the entry of that order, the attorney general was

served with a copy of the complaint and filed an

answer stating that he was entitled to be heard on

the issue of the constitutionality of Act No. 784, and

that because Act No. 784 is unconstitutional, the

circuit court should enjoin the Election Commission

from canvassing the votes and certifying the results

of the special election. In addition, on February 6,

2008, Plump filed a motion to intervene as a

defendant, which the court later granted.‘

The special election was held on February 5,

2008. On February 12, Floyd McGinnis filed a

“Joinder of Verified Complaint” and, with Working

and Erdemir, amended the complaint to add Bell as

a defendant. McGinnis, Working, and Erdemir

(collectively referred to as “the Working plaintiffs”)

each filed a verification in support of the amended

complaint.

On February 13, 2008, the Working plaintiffs

filed a notice of appeal to this Court from the trial

*Plump, a resident of district 1, is a plaintiff in a federal action

challenging Governor Riley's appointment of Bowman to fill the

district 1 vacancy on the Jefferson County Commission; that

action is based on § 5 of the Voting Rights Act of 1963, 42

U.S.C. § 1973c (2000) and is presently pending remmew by the

United States Supreme Court

lla

court's February 1, 2008, order and, specifically, its

effective denial of a temporary restraining order and

a preliminary injunction by holding the case “under

submission.” On February 14, 2008, this Court

granted an emergency motion filed by the Working

plaintiffs, enjoining the Election Commission from

certifying the results of the special election until

further order of this Court. On February 20, 2008,

this Court issued an order noting that it appeared

the statutory. notice requirements pertaining to the

attorney gencral had been met, remanding the cause

to the trial court for a ruling on the merits of the

Working plaintiffs’ claims, and maintaining in place

the injunction prohibiting the certification of the

results of the February 5 special election pending

further order of this Court. (Case no. 1070693.)

On February 21, 2008, the defendants moved

to dismiss the action on the bases, among others,

that the Working plaintiffs lacked standing to pursue

their claims because, as was undisputed, Working

and Erdemir did not actually reside in district 1 of

Jefferson County and McGinnis had not suffered a

sufficient, particularized injury. On February 27,

2008, Plump filed an answer to the complaint and a

third-party complaint asserting a quo warranto

action as a relator for the State against Bowman. See

Ala.Code 1975, § 6-6-597.

On February 28, 2008, Governor Riley filed a

motion, which was later granted, to intervene as a

plaintiff. Also on February 28, the Working plaintiffs

filed a second amended complaint, among. other

things, adding a claim that the Election Commission

was required by Act No. 2007-488 to hold an election

at the November 2008 general election to fill the

|2a

district 1 vacancy and that its refusal to do so was a

violation of plaintiff McGinnis's right to vote in such

an election.

On March 6, 2008, Bell filed, and on March 9,

2008, the trial court granted, a motion to join and to

amend Plump's third-party quo warranto complaint

against Bowman. The amended _ third-party

complaint alleged that Bell was entitled to hold the

office of County Commissioner for district 1 based on

the result of the special election and that Bowman

was unlawfully holding that office. Specifically, Bell

and Plump alleged:

“Governor Riley did not have

the authority to appoint George

Bowman to the District 1 seat because

it is clear that a general state statute,

Act 2007-488 codified at § 11-3-1(b),

that begins ‘Unless a local law

authorizes a special election, allows

local laws on the same _ subject to

coexist without violating § 105 of the

Alabama Constitution. Baldwin

County 3 Jenkins, 494 So.2d 584

(Ala.1986).”

After conducting a hearing, the tmal court

issued a final judgment. In its judgment, the trial

court held that the Working plaintiffs lacked

standing to pursue their claims. As to the merits of

the litigation, the trial court determined that the

local law on which the special election was based, Act

No. 784, Ala. Acts 1977, did not conflict with the

general law. § 11-3-1(b). and theretore did not wiolate

Ss 105 ot the Alabama Constitution of 1901, because

l3a

of the proviso at the beginning of § 11-3-1(b) allowing

local laws to authorize special elections to fill

vacancies on county commissions. Finally, the trial

court held that the Election Commission had sct the

special election for the correct day.

Consistent with the foregoing determinations,

the trial court specifically ruled that Governor

Riley's appointment of Bowman to the district 1 seat

for the Jefferson County Commission’ was

unauthorized and that, when the final results of the

election of February 5, 2008, are certified by the

Election Commission, the winner of the election will

be entitled to hold the office of Jefferson County

commissioner for district 1.

The Working plaintiffs, the Governor, and

Bowman each appeal.

Il. Subject-Matter Jurisdiction

We are presented with two issues pertaining

to subject-matter jurisdiction. These itmclude the

standing of the Working plaintiffs to pursue their

claims and the potential effect of § 17-16-44,

Ala.Code 1975.

A. The Standing of the Working Plaintitfs

In the tmal court, the Working plaintiffs

asserted that they have standing to bring their

claims in this case based on their status as residents

and taxpayers of Jefferson County whose taxes go to

14a

the general fund of the County.’ They alleged that

their status in this regard gives them standing to

challenge the expenditure of moneys from the

general fund for conducting an election not

authorized by law.

In their February 21 motion to dismiss, the

Election Commission and Sheriff Hale argued to the

trial court that the Working plaintiffs did not have

standing to pursue their claims because (1) Working

and Erdemir were not residents or voters of district 1

and (2) McGinnis, although a district 1 voter, had

“not stated or shown with particularity the injury in

fact necessary to grant him standing to challenge the

constitutionality of 1977 Ala. Act No. 784."6 The

motion to dismiss did not specifically address the

Working plaintiffs’ status as taxpayers of Jefferson

> They also note that, as residents of Jefferson County, they will

be governed by the winner of the election in his capacity as a

member of the Jefferson County Commission. In addition,

McGinnis notes his status as a voter in district 1 and, further,

seeks the right to participate in the election of a county

commissioner that, he asserts, should be scheduled for

November 2008 tn keeping with § 11-3-1(b), Ala.Code 1975.

6 In their motion to dismiss, the Election Commission and

Sheriff Hale also argued, and the trial court subsequently

found, that because plaintiffs Working and Erdemir did not

have standing, the court lacked subject-matter jurisdiction over

the case as originally filed, and therefore the amendment by

which McGinnis joined the action as a plaintitf “cannot relate

back to the filing of the original complaint, because there is

nothing ‘back’ to which to relate.” Because of our disposition of

the issue of the Working plaintiffs’ standing as taxpavers, we

need not address the issue whether McGinnis's soinder of the

complaint related back to the date of the filing of the criginal

complaint or, if it did not, whether the trial court nonetheless

acquired subject-matter jurisdiction over McGinnis's claims as

of the date they were filed

Sa

County or whether that status contributed to their

standing to obtain the relief they sought.

In proposed conclusions of law submitted to

the trial court in preparation for the final hearing

and in arguments presented at that hearing, the

Working plaintiffs reasserted their position that

their status, particularly as taxpayers, gave them

standing to pursue their claims. As noted, however,

in its final judgment, the trial court ruled against the

Working plaintiffs on the issue of standing.

Specifically, it held that because neither Working nor

Erdemir were residents of district 1 they did not

suffer a Jegal] injury as a result of the special election.

Among other things, it agreed with the Election

Commission and Sheriff Hale that McGinnis lacked

standing because he “had not stated or shown with

particularity [an] injury in fact.” The trial court did

not directly address the issue of taxpayer standing.

On appeal, the Working plaintiffs again assert

their status as residents and taxpayers of Jefferson

County and again contend that that status gives

them standing to pursue this case. In response, the

Election Commission and Sheriff Hale urge this

Court to uphold the trial court's ruling as to standing

on the same grounds cited in the trial court's opinion;

they make no substantive argument as to the issue of

taxpayer standing.

We note at the outset of our analysis that the

fact that neither the defendants nor the trial court

has directly addressed the Working plaintiffs’

argument as to the issue of taxpayer standing does

not provide us with a reason to conclude, by default,

that such standing exists. Standing is a component of

16a

a court's subject-matter jurisdiction and, as such, is

not subject to waiver. See Waite v. Waite, 959 So.2d

610, 613 (Ala.2006); RLI Ins. Co. v. MLK Ave. Redev.

Corp., 925 So.2d 914, 918 (Ala.2005). See also United

States v. Hays, 515 U.S. 737, 742 (1995).

Whether a party has standing “turns on

‘whether the party has been injured in fact and

:

whether the injury is to a legally protected right’” so

as “ ‘to ensure that he will vigorously present his

case.” ’ State v. Property at 2018 Rainbow Drive, 740

So.2d 1025, 1027-28 (Ala.1999). This Court has said

that a party has standing where, among other

things, there is “an actual, concrete and

particularized ‘injury in fact’ -- ‘an invasion of a

legally protected interest. ” Alabama _ Alcoholic

Beverage Control Bd. v. Henri-Duval Winery, LLC,

890 So.2d 70, 74 (Ala.2003) (relied upon in Town of

Cedar Bluff v. Citizens Caring for Children. 904

So.2d 1253 (Ala.2004)). We conclude that the

Working plaintiffs had standing to bring their

claims.

“In a long line of decisions this Court has

recognized the right of a taxpayer to challenge,

either as unconstitutional or as not conforming to

statute, the expenditure of public funds by county

officers.” Zeigler v. Baker, 344 So.2d 761, 763

(Ala.1977) (quoted with approval in Henson v.

HealthSouth Med. Ctr., 891 So.2d 863, 866

(Ala.2004)). See also Alabama State Florists Ass'n,

Inc. v. Lee County Hosp. Bd., 479 So.2d 720, 722

(Ala.1985); Court of County Revenues for Lawrence

County v. Richardson, 252 Ala. 403, 412, 41 So.2d

749, 754 (1949); Revnolds v. Collier, 204 Ala. 38, 39,

17a

85 So. 465, 466 (1920). In Broxton v. Stegelman, 861

So.2d 376 (Ala.2003), this Court stated:

“(T]he right of a taxpayer to sue ‘ “ ‘is

based upon the taxpayer's equitable

ownership of such funds and their

liability to replenish the _ public

treasury for the deficiency which

would be caused by the

misappropriation.” ’ Hunt v. Windom,

604 So.2d [895] at 396-97 [ (Ala.1992) |

(quoting Zeigler v. Baker, 344 So.2d

761, 763 (Ala.1977), quoting in turn,

Fergus v. Russel, 270 Ill. 304, 314, 110

N.E. 130, 135 (1915)).”

861 So.2d at 385 (emphasis omitted).

The standing of taxpayers to challenge the

expenditure of public funds extends to funds

expended for holding elections not authorized by law.

In City of Mobile v. Mobile Electric Co., 203 Ala. 574,

578, 84 So. 816, 819 (1919), the Supreme Court held

that an election to adopt or reject a municipal

ordinance would be improper and that “the

complainant, as a taxpayer, had the right to enjoin

the same.” See also Dennis v. Prather, 212 Ala. 449,

103 So. 59 (1925) (citing City of Mobile with

approval). We also take note of the result in Petree v.

McMurray, 210 Ala. 639, 98 So. 782 (1923), a case in

which an appointed county superintendent of

education challenged an election that was to be held

pursuant to a local law that he contended was in

violation of Ala. Const.i901, § 175. The Court

affirmed the trial court's order overruling a

18a

demurrer’ to the complaint, which contained the

following allegations:

“(Njotwithstanding the invalidity of

said act, respondents, acting as an

election commission, [were]

threatening to and [were] about to

advertise and call a special election, to

appoint inspectors, clerks, etc., in the

various voting precincts, and_ to

purchase election supplies, all of

which [was] without warrant of law,

and it [was] alleged that the pay

vouchers for the proposed election

officers and the purchase of supplies

[would] constitute illegal claims and

expenses against the county, to the

detriment of [the plaintiff] as a

taxpayer; and that the holding of said

election [would] tend to interfere with

the proper discharge of the duties of

his office.”

210 Ala. at 640, 98 So. at 782.

Other jurisdictions also hold that a taxpayer

has standing to challenge an election paid for with

tax funds. For example, in Bulgo v. Maui County, 50

Haw. 51, 430 P.2d 321 (1967), a taxpayer challenged

the holding of an election that was based on a newly

7 The common-law “demurrer” has heen succeeded by a motion

filed pursuant to Rule 12(b)(6) seeking dismissal of a complaint

on the ground that it fails to state a claim upon which rehief

mav be granted. See Roberts v. Meeks, 397 So.2d 11%, 114

(Ala. 1981)

19a

enacted law providing for a special election to fill the

term of a county chairman-elect who dies before

assuming office. Describing the taxpayer's contention

with regard to his standing to challenge the election,

the Supreme Court of Hawaii wrote:

“Plaintiff bases his standing to

sue on the fact that he pays real

property tax to the county of Maui,

which tax goes into the county general

fund out of which the expenses of the

special elections are payable. He

claims the requested relief on the

ground that the challenged provision

is a sp.cial law, violative of Article

VII, Section 1, of the State

constitution, and, unless restrained by

the court, defendant will irreparably

damage plaintiff by illegally

expending funds raised by taxation in

holding elections under an invalid

statutory provision.”

Bulgo, 50 Haw. at 54, 430 P.2d at 324. The Court

held that this was sufficient to confer standing on

the plaintiff to pursue his challenge of the election:

“We hold that plaintiff has a

standing to sue in this case. We hase

this holding on Castle v. Secretary of

the Territory, 16 Haw. 769 { (1905) }.

Although defendant urges that Castle,

as a controlling authority on the point

at issue, has been eroded by Wilson uv.

Stainback, 39 Haw. 67 [(1951)];:

Munoz v. Commissioner of Public

20a

Lands, 40 Haw. 675 [(1951)]; Aiur

Terminal Services v. Matsuda, 47

Haw. 499, 393 P.2d 60 | (1964) ]; and

Helela v. State, 49 Haw. 365, 418 P.2d

482 [(1966)}, and should _ be

overruled, we see no reason for doing

so. Plaintiff has alleged sufficient

personal interest in the controversy to

entitle him to a day in court.”

50 Haw. at 55, 430 P.2d at 324. See also, e.g., Board

of Supervisors of Elections of Anne Arundel County v.

Smallwood, 327 Md. 220, 233 n. 7, 608 A.2d 1222.

1228 n. 7 (1992) (“[[]ndividual taxpayers in each

county also contested the proposed amendments'

validity. Individual taxpayers have standing to sue

for an injunction against submitting a proposal to

the electorate; otherwise, they would be ‘put to

wrongful expense for the publication of the

referendum and the printing of it on the ballots of

the next generai election. “6

<

Our view of the standing issue in the present case finds

further support in the fact that § 105 affirmatively directs the

judicial branch to decide disputes under that provision: “ T]he

courts, and not the lemslature, shall judge as to whether the

matter of said law is provided for by a general] law, and as to

whether the relief sought can be given by any court ” The

doctrine of standing is rooted in concerns that courts not exceed

their proper scope of authority by intruding into matters more

properly decided by another branch of government or by

citizers as part of the political process. “The power of the

yudiciary . is ‘the power to [decide] . a particular case or

controversy.” City of Daphne v. City of Spanish Fort, 853 So.2d

933, 942 (Ala.2003) (quoting -x parte Jenkins, 723 So.2d 649,

656 (Ala.1998)) (emphasis added). In Allen v. Wright, 468 US

737 (1984), the United States Supreme Court explained that

‘the several doctrines that have grown up to elaborate” the

‘case or controversy requirement, including that of standing,

“are ‘founded in concern about the proper

and properly limited -- role of the courts in a

democratic society’ Warth v. Seldin, 422 U.S.

490, 498 ... (1975)

‘All of the doctrines

that cluster about Article II] --

not only standing but

meotness, ripeness, political

question, and the lke -- relate

in part, and in_ different

though overlapping ways, to

an idea, which is more than an

intuition but less than a

rigorous and explicit theory,

about the constitutional and

prudential limits to the powers

of an unelected,

unrepresentative judi-clary in

our kind of government

Vander Jagt v. O'Neill, 226

U.S.App. D.C. 14, 26-27, 699

F.2d 1166, 1178-1179 (1983)

(Bork, J., comcurring).”

468 U.S. at 750. The Supreme Court further explained that the

standing inquiry turns on whether “adjudication is ‘consistent

with a system of separated powers and [the dispute is one]

traditionally thought to be capable of resolution through the

judicial process,’ Flast v. Cohen, 392 U.S. 83. 97 (1968).” 468

U.S. at 752. The concerns expressed in Flast v. Cohen as t

whether a court's resolution of a dispute would be “consistent

with a system of separated powers” and whether “the dispute 1s

one traditionally thought to be capable of resolution through

the judicial process” are ameliorated in this case by the

constitutional directive in § 105 fer courts to decide qisputes

arising under tnat provisi

9:

oe tee &

In the present case, it is clear that Jefferson

County incurred costs in holding the special election

for the district 1 county commission seat that it

otherwise would not have incurred in administering

the presidential-preference primary election on

February 5, 2008. Section 17-16-4, Ala.Code 1975,

provides that “|t}he State of Alabama _s shall

reimburse a county for all sums expended by the

county in payment of expenses incurred in holding

and conducting an election in which only candidates

for federal or state offices are nominated or federal or

state officials are elected."2 (Emphasis added.)

Section 17-16-2 defines, but also limits, the

“expenses for which the State must reimburse

counties:

“As used in this chapter, the term

‘expenses’ shall include the following

items, and no other:

“(1) The per diem

and mileage provided by

law for election officials.

“(2) The per diem

provided by law for the

clerk or other official

acting in his or her stead

¥ At least in regard to the payment of election expenses, the

legislature has indicated that a presidential-preference primary

is to be treated as if it were an election in which “candidates for

federal or state offices are nominated or federal or state offices

are elected.” See § i7-13-100(d) (providing that the State of

Alabama's obligation to reimburse a county for sums expended

in holding and conducting a presidential-preference primary

shall ne as provided in Section 17-16 a

23a

for handling absentee

ballots.

“(3) The costs of

ballots, supplies, and

other materials required

by law to be furnished to

election officials and

certified by the judge of

probate as chief election

official of the county. In

those counties where

electronic voting

machines are used, such

voting equipment shall

not be considered as

ballots, supplies, or

materials, as herein used.

“(4) The costs of

absentee ballots,

supphics, and other

materials required by law

to be furnished to the

official handling absentee

ballots.

“(5) The cost. of

preparing and furnishing

the lists of qualified

electors to the election

officials as required by

law.”

Ala.Code 1975, § 1 4-86-2.

24a

Even as to the specific “expenses” listed in

§ 17-16-2, however, § 17-16-4 does not obligate the

State to reimburse a county for “all sums” expended

by the county if the election is one in which

candidates or officials for other than federal or state

offices are to be nominated or elected. As to an

election “in which candidates for both federal or state

and county offices” are nominated or elected, § 17-16-

3 governs. It provides that the State of Alabama is

required to reimburse the county only “for one half of

all sums expended by the county in payment of

expenses incurred in holding and conducting” the

election. Ala.Code 1975, § 17-16-3.1°

10 Section 17-16-3 begins with the caveat “|e]xcept as provided

in Section 17-8-12.” Section 17-8-12, entitled “Compensation of

election officials,” provides:

“(a) The inspector and clerks shall

each be entitled to base compensation of fifty

dollars ($50). The compensation of the election

officials shali be paid as preferred claims, out

of moneys in the county treasury’ not

appropriated, on proper proof of service

rendered. In all counties in which the

compensation of election officials is prescribed

by local law or general law of local application

at an amount in excess of the amount

prescribed, the compensation of the election

officials shall not be decreased under this

section and the county commission may

increase the compensation so prescribed. In

those counties in which compensation of

election officials is set at an amount in excess

of five dollars ($5) per day, but less than fifty

dollars ($50) per day, the provision of the local

law or general law of local application relative

thereto 1s superseded and the compensation

prescribed herein © shall be the total

25a

a

Finally, we note that, consistent with all of the

above-discussed statutory provisions from Chapter

16, the parties stipulated as follows to the trial court:

“46. Jefferson County's General

Fund is used to pay persons to

administer elections at the direction of

the Jefferson County Election

Commission, including the February

compensation of election officials in the

counties.

“(b) In addition to the compensation

provided in subsection (a), each clerk shall be

entitled to supplemental compensation paid by

the state to ensure that the total compensation

paid to each shal] be in an amount of at least

seventy-five dollars ($75) per day, and each

inspector shal] be entitled to supplemental

compensation paid by the state in an amount

that ensures that the total compensation of an

inspector is at least one hundred dollars

($100) per day. Upon completion of a local

election school or being certified as a qualified

poll worker by the probate judge, or both, each

clerk and inspector shall be entitled to receive

an additional twenty-five dollars ($25) per day

In compensation froin the state. The increase

provided for in this subsection shall not

increase or decrease any salary supplement

paid under a local law which is in effect on

October 1, 2005. The provisions of this

subsection shail only apply to those statewide

elections for which county expenses are

reimbursed by the state as defined in Chapter

16. The provisions of this subsection shall not

apply to special county or other clections held

at any time other than at the time of holding

statewide elections.”

(Emphasis added.)

5, 2008, presidential preference

primary election. As a result of the

Election Commission's resolving to

conduct an election, monies

appropriated from Jefferson County's

General Fund pay for the printing of

ballots used during the February 5,

2008, presidential preference primary

election.”

As previously noted, this Court has stated that

standing “turns on ‘whether the party has been

injured in fact and whether the injury is to a legally

protected right.” State v. Property at 2018 Rainbow

Drive, 740 So.2d at 1027. On the basis of the

foregoing, we conclude that the Working plaintiffs

had standing to bring their claims

B. The Effect of § 17-16-44

Although the trial court did not address the

issue, Plump argues on appeal that the trial court

lacked subject-matter jurisdiction over all but his

and Bell's third-party quo warranto action against

Bowman on the basis of Ala.Code 1975, § 17-16-44

That statute provides

“No jurisdiction exists in or shall be

exercised by any judge or court to

entertain any proceeding for

ascertaining the legality, conduct, or

results of anv election, except so tar as

authoritv to do so shall be specially

and specifically enumerated and set

down by statute: and any injunction.

process, or order from any judge or

27a

court, whereby the results of any

election are sought to be inquired into,

questioned, or affected, or whereby

any certificate of election is sought to

be inquired into or questioned, save as

may be specially and _= specifically

enumerated and set down by statute,

shall be null and void and shall not be

enforced by any officer or obeyed by

any person. If any judge or other

officer hereafter undertakes to fine or

in any wise deal with any person for

disobeying any such _ prohibited

injunction, process, or order, such

attempt shall be null and void, and an

appeal shall he forthwith therefrom to

the Supreme Court then sitting, or

next to sit, without bond, and such

proceedings shall be suspended by

force of such appeal; and the notice to

be given of such appeal shall be 14

days.”

We disagree.

We begin by noting that § 17-16-40 prescribes

grounds for an election contest that go to the manner

in which the election was conducted and the

eligibility of a candidate to hold the office at issue,

and, in those respects, whether the particular

yutcome of the election was lawful or correct. Those

grounds are as follows:

“(1) Maleonduct, fraud, or

corruption on the part of anv

28a

inspector, clerk, returning officer,

canvassing board, or other person.

“(2) When the person whose

election to office ts contested was not

eligible thereto at the time of such

election.

“(3) On account of illegal votes.

“(4) On account of the rejection

of legal votes.

“(5) Offers to bribe, bribery,

intimidation, or other malconduct

calculated to prevent a fair, free, and

full exercise of the elective franchise.

“(6) The results of a recount

conducted under Section 17-16-20

name as a winner a person other than

the person initially certified.”

§ 17-16-40, Ala.Code 1975.

The present challenge to the February 5

election does not fall within the scope of an election-

contest statute as suggested by the grounds of

contest outlined in § 17-16-40. This conclusion

comports with even more fundamental principles

regarding the jurisdiction of our circuit courts as

courts of general jurisdiction and of equity. In King

v. Campbell, [Ms. 1060804, Nov. 30, 2007] _—s-— So.2d

(Ala.2007), this Court rehed upon. those

fundamental principles to explain the jurisdiction of

our circuit courts in relation to election challenges:

29a

“Article VI, § 142(b), Ala. Const. 1901

(Off.Recomp.), provides:

“‘b) The circuit

court shall exercise

general jurisdiction in all

cases except aS may

otherwise be provided by

law. The circuit court

may be authorized by law

to review decisions of

state administrative

agencies and decisions of

inferior courts. It shall

have authority to issue

such writs as may be

necessary or appropriate

to effectuate its powers,

and shall have such other

powers as may be

provided by law.’

“ The legislature has restricted

his jurisdiction of the circuit courts by

enacting § 17-16-44. ... In Dennis v.

Prather, 212 Ala. 449, 103 So. 59

(1925), this Court construed a

predecessor statute to § 17-16-44. This

Court noted:

‘“The general rule

without question is that

courts of equity will not

interfere by injunction

with the holding’ of

elections pohtical in

“212

30a

character, nor take

jurisdiction of a contest

after the election is held.

But this court is

commiited to the

proposition that equity

will interfere by

lnjunction to restrain

elections not authorized

by law. It will also

restrain the usurpation of

office, or the assumption

of functions of office

where no lawful office

exists.”

Ala. at 452, 103 So. at 61-62

(emphasis added). Speaking to the

predecessor to § 17-16-44, the Dennis

Court stated:

‘ Statutes restricting the

jurisdiction of courts of

equity, as defined at

common law, and

reiterated by statute in

Alabama, should be

strictly construed.

Construing this. statute

as a whole, it appears,

broadly speaking, to

cover cases Inquiring into

the validity of elections

theretofore held -- a

proceeding in the nature

of a contest of an election.

3la

whether the legality,

conduct or results of the

election be the point of

attack. We doubt if it

would include a case of

injunction against the

exercise of any form of

official power, derived

through or by virtue of an

election not authorized by

law and therefore wholiy

void. The equity

jurisdiction in such case

does not rest so much

upon matters going to the

conduct of the election,

but upon the usurpation

or abuse of official power

under color of a_ void

election.’

“212 Ala. at 452-53, 103 So. at 62

(emphasis added).”

__ So.2d at __-—- (some emphasis omitted). Thus, we

concluded in Aing, “htigation challenging the

consequences of a void election does not come within

the sweep of the limitation on _ subject-matter

jurisdiction in § 17-16-44." _s— So.2d at ___.

This principle controls in the present case. The

Working plaintiffs, the Governor and Bowman make

no challenge to the manner in which the February 5

special election was conducted or the particular

results of that clection: the challenge here is to the

very holding of the election. It is a challenge to the

32a

election as one “not authorized by law and therefore

wholly void.” The jurisdictional hmitations imposed

by § 17-16-44 therefore are not applicable.

Ill. The Validity of the February 5 Special Election

We turn now to the substantive question

presented, the validity of the February 5 special

election. Two issues are presented by the parties for

our consideration: (1) whether Act No. 784, Ala. Acts

1977, upon which the election was based, is

unconstitutional in light of the prohibition of certain

local laws imposed by § 105 of the Alabama

Constitution of 1901, and (2) whether Act No. 784

has been repealed by § 11-3-1(f). We first turn our

attention to the latter issue because an affirmative

response to it will make it unnecessary for us t¢o

address the constitutionality of a _ legislative

enactment. See generally, e.g., Lowe v. Fulford, 442

So.2d 29, 33 (Ala.1983) (“‘Generally courts are

reluctant to reach constitutional questions, and

should not do so, if the merits of the case can be

settled on non-constitutional grounds. White v. U.S.

Pipe & Foundry Co., 646 F.2d 203 (5th Cir.1981).’”

(quoting trial court's order)); Becton v. Rhone-

Poulenc, Inc., 706 So.2d 1134, 1142 (Ala.1997)

(explaining that “because we hold that [the federal

statute] does not apply under the facts of this case, it

is unnecessary for us to determine any constitutional]

issue concerning [that statute's] preemption of

Alabama's applicable statute of limitations’).

We begin our analysis with a bnief

examination of the decision of this Court in Stokes uv.

Noonan, 534 So.2d 237 (Ala.1988). At issue in Stokes

was § 11-3-6. the precursor statute to § 11-3-1(b), the

nd

nd

po

general law at issue in the present case. At the time

Stokes was decided, however, § 11-3-6 contained no

exception for local laws. It stated simply as follows

with respect to a vacancy in a county commission

seat:

“In case of a vacancy, it shall be

filled by appointment by the governor,

and the person so appointed shall hold

office for the remainder of the term of

the commissioner in whose place he is

appointed.”

This general law -was in place when the

legislature enacted Act No. 85-237, Ala. Acts 1985.

Similar to the local law at issue here, Act No. 85-237

was a local law intended to provide for filling

vacancies on a county commission of one particular

county, specifically Mobile County, by a_ special

election. Addressing the constitutionality of Act No.

85-237, the Stokes Court reasoned that

“the legislature, by enacting a general

law containing no ... provision or

exception for contrary local laws,

thereby intended that general law to

be primary and the subject subsumed

entirely by the general law. In that

situation, § 105 does’ operate to

prohibit the enactment of contrarv

iocal laws.”

Stokes, 534 So.2d at 239 (quoting Baldwin County uv.

Jenkins, 494 So.2d 584, 587 (Ala.1986)(emphasis

omitted)). On this basis. the Stokes Court declared

Act No. 85-237 to be unconstitutional.

34a

Riley v. Kennedy, 928 So.2d 1013 (Ala.2005),

dealt with the same local law as did Stokes, Act No.

85-237. By the time this Court decided Riley,

however, the legislature had amended § 11-3-6 to

add the beginning proviso “[uJnless a local law

authorizes a special election.” Act N’. 2004-455. The

plaintiffs in Ailey argued that that made all the

difference:

“Kennedy argues that Act No. 2004-

455, which amended §& 11-3-6,

Ala.Code 1975, manwvests an intent by

the legislature to cure the impediment

to the enforceability this Court found

as to Act No. 85-237 and to now give

effect to that Act and _ that,

consequently, a special election is the

proper procedure by which to fill the

vacancy created on the Mobile County

Commission by Jones's resignation.”

928 So.2d at 1016. The Court in /tiley disagreed:

“This Court has consistently held that

“statutes are to be

prospective only, unless

clearly indicated by the

legislature. Retrospectiv:

legislation is not favored

bv the courts, and

statutes will not be

construed as

retrospective unless the

langue « used in_ the

enactment of the statut:

Riley,

is so clear that there is no

other possible

construction. Sutherland

Stat. Const., § 41.04 (4th

ed 1984).”’”

928 So.2d at 1016. The Court continued:

“Here, the plain language in Act

No. 2004-455, amending § 11-3-6,

Ala.Code 1975, provides for

prospective application only, and that

language must be~ given effect

according to its terms. Nothing in the

language in_ Acet No. 2004-455

demonstrates an intent by the

legislature that the amendment of

§ 11-3-6 apply retroactively. The

argument that Act No. 2004-455

apples prospectively only is further

supported by the preamble of the Act,

which provides that the purpose of the

Act is ‘[tlo amend Section 11-3-6 of the

Code of Alabama 1975, relating to

county commissions, to authorize the

Legislature ... to provide for the

manner of filling vacancies in the

office of the county commission.’

(Emphasis added.) The language ‘to

authorize the Legislature to

provide the means by which vacancies

on the county commission are to be

filled further indicates an intention by

the lemslature that the Act is to be

prospectively applie 1 Therefore, we

hold that Act No. 2004-455 apphes

36a

prospectively only; consequently,

Governor Riley is authorized to fill the

vacancy on the Mobile County

Commission by appointment."

Riley, 928 So.2d at 1017 (most emphasis added; some

emphasis omitted).

The Election Commission and Sheriff Hale

argue that the issue in Riley was whether Act No.

2004-455 could “revive” a local act, Act No. 85-237,

which previously had been declared unconstitutional

in Stokes. Act No. 784, they point out, was at no time

before the enactment of Act No. 2004-455 judicially

declared to be unconstitutional. “It follows,”

according to the Election Commission and Sheriff

Hale, “that Act No. 77-784 does not need to be

revived. Therefore, the issue before this Court in

Riley v. Kennedy is not present in this case and the

Riley v. Kennedy decision is inapposite to this case.”

The reasoning unanimously adopted by this

Court in Riley does not admit of the distinction urged

by the appellees. Again, as this Court stated, “the

plain language in Act No. 2004-455 . provides for

prospective application only’; ‘[|njothing in the

language in Act No. 2004-455 demonstrates an

intent by the legislature that the amendment [to the

general law] apply retroactively,’ and “the preamble

of the Act... provides that the purpose of the Act is

to authorize the Legislature by local law to

provide’ ™ for exceptions to the general law. 928 So.2d

at 101%

ey, the introductory proviso im

§ 11-3-6 -- “[u]nless a local law authorizes a special

37a

election” -- was interpreted to apply only to local laws

enacted after Act No. 2004-455. Approximately two

years after this Court's decision in Riley was issued,

the legislature, in Act No. 2007-488, reenacted the

same language -- including the aforesaid proviso --

which had been interpreted in Riley. It did so

without choosing to make any changes to it (other

than to renumber it as § 11-3-1(b)). The Working

plaintiffs, the Governor, and Bowman argue that the

meaning of this language was decided in Riley and

that this Court has now but to apply that meaning in

the present case. We agree. Other than _ the

renumbering of the section in which this language

appears, there has been no change in this language

since the decision in Riley.

Our agreement with the appellants’ position is

buttressed by long-established and fundamental

principles of statutory construction.

“(T|here exists, and has long existed,

in this state, a principle that when the

legislature readopts a code section, or

incorporates it into a subsequent

Code, prior decisions of this court

permeate the statute, and it is

presumed hat the legislature

deliberately adopted the statute with

knowledge of this court's

interpretation thereof.”

Edgehill Corp. v. Hutchens, 282 Ala. 492, 495-96, 213

So.2d 225, 227

dda), ami

28 (1968). See also, e.g., Galloway

Coal Co. v. Stanford, 215 Ala. 79, 81, 109 So. 377,

379 (1926) (‘It is a settled rule, that, in the adoption

of the Code, the Legislature 1s presumed to have

38a

known the fixed judicial construction pre-existing

statutes had received, and the substantial re-

enactment of such statutes is a legislative adoption

of that construction.’ Morrison v. Stevenson, 69 Ala.

448, [450 (1881)].”); 2B Norman J. Singer,

Sutherland Statutory Construction § 49.09 (5th

ed.1992) (compiling numerous Alabama cases to the

same effect). As the Court aptly put it in the early

case of Barnewall v. Murrell, 108 Ala. 366, 377, 18

So. 831, 836 (1895), it is “an elementary rule of

statutory construction” that, where a _ reenacted

statute has previously been construed by the courts,

it is “presumed the legisJature intended the adoption

of that construction, or [it] would have varied the

words, adapting them to a different intent.” Here,

the legislature could have “varied the words” of

former § 11-3-6 in an effort to “adapt them to a

different intent,” but did not.

In accordance with the previous decision of

this Court in Ailey v. Kennedy and based on well-

established principles of statutory construction, we

conclude that § 11-3-1(b) requires vacancies on a

county commission to be filled by gubernatorial

appointment and that the proviso at the outset of

that subsection (making an exception tor local laws

that authorize special elections) does not apply

retroactively, that is to local laws that predate the

legislature's adoption of that proviso. Act No. 784,

Ala. Acts 1977, 1s such a local law.

In 2007, the legislature added subsection (f) to

§ 11-3-1. See Act No. 2007-488, Ala. Acts 2007.

Section 11-3-1() now expressly repeals local laws in

conflict with any other provision of § 11-3-1: “Any

existing local law or portion thereof in conflict with

39a

this section is specifically repealed to the extent of

the conflict effective with the next election following

September 1, 2007.” Act No. 784, by purporting to

provide for special elections to fill vacancies on the

Jefferson County Commission, is “in conflict” with

§ 11-3-1(b), which requires vacancies to be filled by

gubernatorial appointment, with no exception for

preexisting local laws. Act No. 784, as a preexisting

local law, therefore was repealed by the legislature's

adoption of § 11-3-1(f). The trial court's validation of

the February 5 special election on the basis that it

was authorized by Act No. 784 is due to be

reversed.?!

IV. The Right to a November 2008 Election

McGinnis argues on appeal that he is entitled

to an order requiring the Election Commission to

include the county commission seat for district 1 on

the November 2008 general election ballot. In

support of this view, he cites us to the portion of § 11-

3-1(b) that provides that “[iJf the appointment [by

the Governor to fill a vacancy on a _ county

commission] occurs at Jeast 30 days before the

closing of party qualifying as provided in Section 17-

13-5,” a condition that exists in this case, “the person

appointed to the vacated office shall only serve until

seven days after the next general election following

\! The Working plaintiffs also contend that Act No. 784 violates

their equal-protection rights and that, even if Act No. 784

governed, the Election Commission set the special election on

the wrong day. Asis true of the issue of the constitutionality of

Act No. 784 in relation to § 105 of the Alabama constitution, our

holding today makes it unnecessary for us to reach these

additional issues

40a

the appointment ....” We also observe that the

penultimate sentence of § 11-3-1(b) includes a

reference to “the election required by operation of

this subsection.” Given our ruling today as to the

repeal of Act No. 784, McGinnis's understanding of

§ 11-3-1(b) as it relates to the conduct of an election

to fill the vacancy in the Jefferson County

Commission is correct.!2 McGinnis seeks a judgment

requiring that the election prescribed by § 11-3-1(b)

be placed on the November 2008 general election

ballot and “such additional orders as may be needed

to secure full and appropriate relief consistent with

the right of political parties to nominate candidates”

for that election. The trial court 1s instructed to enter

an appropmiate order declaring that the required

election is to be placed on the November 2008

general election ballot. As for the remainder of the

relief requested by the appellants, this Court is

confident that appropriate officials will take the

necessary and appropriate steps as may be called for

or allowed in any applicable provisions of Title 17,

Ala.Code 1975, and any other applicable law,

whether relating to the selection by political parties

of nominees or any other aspect of the election

process. Nothing herein shall prevent the parties

from petitioning the trial court for such further rehef

as may be necessary and appropriate to fulfill the

intent of this Court's judgment

The opposition of the Election Comm :ssicn to placing the

county commission seat on the November ballot ha beer

premised on 1 view that Act No. 781 supersedes the provision:

of the general law in th regard

4ia

V. Conclusion

For the reasons discussed, the judgment of the

trial court upholding the validity of the February 5

special election on the basis of its conclusion that Act

No. 784 authorized that election was in error. The

Governor's appointment of George F. Bowman to fill

the vacant district 1 seat on the Jefferson County

Commission was in accordance with § 11-3-1(b) and

was lawful. An election for that seat is to be held as

part of the November 2008 general election.

Accordingly, we reverse the trial court's judgment

and remand the cause before us to the trial court for

the entry of a judgment consistent with this opinion.

1070850-REVERSED AND REMANDED.

1070893-REVERSED AND REMANDED.

1070917-REVERSED AND REMANDED.

Cobb, C.J., and See, Lyons, Woodall, Stuart,

Smith, Bolin, Parker, and Murdock, JJ., concur.

42a

U.S. Department of Justice

Civil Rights Division

CC:TFM:DJ:jdh Voting Section - NWB

DJ 166-012-2 950 Pennsylvania Avenue, NW

2008-1576 Washington, DC 20530

2008-3861

July 22, 2008

The Honorable Troy King

Attorney General

State of Alabama

Alabama State House

11 South Union Street

Montgomery, Alahama 86130

Dear Attorney General King:

This refers to the procedures for filling

vacancies on the Jefferson County Commission, in

Jefferson County, Alabama, submitted to the

Attorney General pursuant to Section 5 of the Voting

Rights Act, 42 U.S.C. § 1973c. We received your

response to our May 8, 2008, request for additional

information on May 27, 2008: supplemental

information was received through July 1, 2008.

We understand that on June 30, 2008, the

Supreme Court of Alabama issued its decision in

Working v. Jefferson County Election Commission,

So.2d __, 2008 WL 2569255, which held that the

43a

county commission vacancy caused by the election of

Larry Langford as Mayor of Birmingham would be

filled initially by gubernatorial appointment, but

that subsequently, the unexpired term would be

filled by special election by the voters on the

November general election date. 2008 WL 2569255,

at *11-*12. It noted that this procedure was in

accordance with Ala. Code § 11-3-1(b). J/d., at *11.

According to our records, this change affecting voting

effectuated by Ala. Code § 11-3-1(b) has not been

submitted to the United States District Court for the

District of Columbia for judicial review or to the

Attorney General for administrative review as

required by Section 5 of the Voting Rights Act. In

fact, when the State submitted the underlying

legislative act, Act No. 2007-488, which included Ala.

Code § 11-3-1(b), for Section 5 review, it specifically

excepted Ala. Code § 11-3-1(b) from the changes for

which preclearance was being requested. Letter

from Troy King, Attorney General, and Winfield

Sinclair, Assistant Attorney General, to Chief,

Voting Section, Feb. 4, 2008, at 1.

If our information is correct, it 1s necessary

that these changes be brought before the District

Court for the District of Columbia or submitted to

the Attorney General for a determination that they

do not have the purpose and will not have the effect

of discriminating on account of race, color, or

membership in a language minority group. Changes

which affect voting are legally unenforceable unless

Section 5 preclearance has been obtained. Clark v.

Roemer, 500 U.S. 646 (1991); Procedures for the

Administration of Section 5 of the Voting Rights Act

(28 C.F.R. § 51.10).

44a

Because the change now before us and the

unsubmitted change are directly related, they must

be reviewed simultaneously. Accordingly, it would

be inappropriate for the Attorney General to make a

preclearance determination on the instant change

until the related change has been submitted for

Section 5 review. See 28 C.F.R. §§ 51.22(b) and

31.36.

Should you elect to make a submission to the

Attorney General for administrative review rather

than seek a declaratory judgment from the District

Court for the District of Columbia, it should be made

in accordance with Subparts B and C of the

procedural guidelines. At that time, we will review

all changes simultaneously; however, any

documentation previously provided need not be

resubmitted.

To enable us to meet our responsibility to

enforce the Voting Rights Act, please inform us of the

action the State of Alabama plans to take concerning

these matters. If you have any questions, you should

call Donald Jacobsen (202-305-8299) of our staff.

Refer to File Nos. 2008-1576 and 2008-3861 in any

response to this letter so that your correspondence

will be channeled properly.

Since the Section 5 status of these changes is

before the court in Plump v. Riley, No. 2:07-cv-01014-

MEF-CSC (M.D. Ala.), we are proving a copy of this

letter to the court and counsel of record in that case.

45a

Sincerely,

/s/ Timothy Mellett

for

Christopher Coates

Chief, Voting Section

ec: Court and Counse!] of Record

46a

IN THE DISTRICT COURT

OF THE UNITED STATES

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DORIS POWELL,

Plaintiff,

Vv. CIVIL ACTION NO.

THE STATE OF ALABAMA;

JEFFERSON COUNTY

ELECTION COMMISSION;

ALAN KING, MIKE HALE,

and ANNE-MARIE ADAMS,

in their official capacities as

members of the Jefferson |

County Election Commission,

Defendants.

COMPLAINT

1. This is an action to enjoin violations of

Section 5 of the Voting Rights Act of 1965, as

amended, 42 U.S.C. § 1973c. This action is necessary

because the defendants are proceeding to enforce

changes in election practices which have not been

precleared under § 5 of the Voting Rights Act, 42

U.S.C. § 1973c, by either the Attorney General of the

United States or the U.S. District Court for the

District of Columbia.

47a

Parties

2. Doris Powell is an African-American citizen

of Alabama and a registered voter in Commission

District 1 of Jefferson County.

3. Defendant State of Alabama is a state that,

along with its political subdivisions, is a jurisdiction

covered under § 4 of the Voting Rights Act, 42 U.S.C.

§ 1973b, and thus may not enact or seek to

administer any change in voting practice or

procedure unless and until it receives preclearance

under § 5 of the Voting Rights Act, 42 U.S.C. § 1973c.

Congress has abrogated the Eleventh Amendment

immunity of the State of Alabama with respect to

plaintiffs claims in this action.

4. Defendant Jefferson County Election

Commission is by statute responsible for appointing

election officials and for canvassing and declaring

the results of elections for county offices. Alan King,

Probate Judge No. 1 for Jefferson County, Mike

Hale, Sheriff of Jefferson County, and Anne-Marie

Adams, Jefferson County Circuit Clerk, are the

members of the Jefferson County Election

Commission by virtue of the offices they hold. They

are sued in their official capacities.

Facts

5. The Alabama Legislature adopted Act 784

in the 1977 Regular Session (hereafter “Act 1977-

784”), providing that when a vacancy occurs on the

Jefferson County Commission, the Election

Commission of Jefferson County shall call a special

election. A copy of Act 1977-784 is attached as

Exhibit A to this complaint.

48a

6. Act 1977-784 has been precleared under §

5 of the Voting Rights Act by the Attorney General of

the United States.

7. Act 1977-784 was used to call elections in

1982 to fill two vacancies on the Jefferson County

Commission.

8. Jefferson County Commissioner Larry

Langford has been elected Mayor of the City of

Birmingham. He took office on Tuesday, 13

November 2007. He resigned his seat in District 1 of

the Jefferson County Commission, which has a

majority-black electorate.

9. The Election Commission called a special

election on the first Tuesday in February to fill the

vacancy

10. Pursuant to Act 77-784, six candidates

properly qualified to have their names placed on the

ballot for the February 5, 2008, Special Election.

Those candidates were George F. Bowman, William

A. Bell, Fred Plump, Orville Ifill, Kamu Afrika and

Eric Major.

11. The date of the February 5, 2008, Special

Klection was submitted to the United States

Department of Justice for pre-clearance' on

November 27, 2007. The United States Department

of Justice issued a “no objection” letter to the

February 5, 2008, Special Election on January 17,

2008.

12. Wilham A. Bell received slightly more

than 56% of the votes cast in the February 5, 2008,

Special Election.

13. As required by § 17-12-15, Alabama Code

(1975), the Jefferson County Election Commission

49a

was scheduled to meet at 12:00 noon on Friday,

February 15, 2008, to certify William A. Bell as the

winner of the February 5, 2008, Special Election, to

fill the vacancy in Commission District 1 on the

Jefferson County Commission.

14. On Thursday, February 14, 2008, the

Supreme Court of Alabama enjoined the Jefferson

County Election Commission from certifying William

A. Bell as the winner of the February 5, 2008,

Special Election, pending further orders of the

Supreme Court of Alabama.

15. The defendants have comphed with the

February 14, 2008, injunction of the Supreme Court

of Alabama, even though their compliance

constitutes a change in voting practice which may

not be implemented unless it receives preclearance

under § 5 of the Voting Rights Act, and even though

said change in voting practice has never been

submitted for preclearance.

16. On June 30, 2008, the Supreme Court of

Alabama held that “Act No. [1977-]784, as a

preexisting local law, . . Was repealed by the

legislature’s adoption of [Ala. Code] § 11-3-1()” in

Act 2007-488. Working v. Jefferson County Election

Comm'n, __ So.2d _, 2008 WL 2569255 (Ala., June

30, 2008) at *11.

17. The Supreme Court of Alabama further

held that § 11-3-1(b), Code of Alabama, which was

also amended by Act 2007-488, requires the vacancy

on the Jefferson County Commission to be filled, first

by gubernatorial appointment, then by a _ special

election during the November 2008 general election,

and it instructed the Circuit Court to order that a

special election to fill the vacancy on the Jefferson

50a

County Commission be placed on the November 4,

2008, election ballot. Id.

18. On July 25, 2008, the Jefferson County

Circuit Court entered an order enjoining the

certification of the February special election results,

calling a November election for the County

Commission District One seat, and setting deadlines

for party nominations and independents petitioning

for a ballot slot.

19. On July 26, Fred Plump (a party in the

Working casc) filed a motion to amend the Order of

July 25 to condition the November election on the

preclearance of the failure to certify the February

special election and § 11-3-1(b) and (f). The Circuit

Court denied that motion on July 28.

20. On July 28, 2008, the State of Alabama

made two submissions for preclearance under § 5 of

the Voting Rights Act: one letter states, “Specifically,

this submission concerns Act No. 2007-488 as it

relates to new Ala. Code §§ 11-3-1(b) & (f)” and

“Accordingly, the noncertification of the February 5

election is a new practice resulting from the

enforcement of new Ala. Code §_ 11-3-1 (f.”

Nevertheless, the State’s submission states that

Ҥ$11-3-l(b) is being implemented in Jefferson

County now .

21. The second submission letter stated, “On

remand, the trial court has entered an Order to

facilitate voting on the County Commission seat this

November. That order is the subject of this

preclearance submission.’ (Emphasis u

original.)

—

22. Neither request for preclearance has been

}

granted

Sla

23. Unless and until §§ 11-3-1(b) and 11-3-1(f)

have been precleared under § 5 of the Voting Rights

Act, Act 1977-784, the last precleared statute

prescribing the manner of filling vacancies on the

Jefferson County Commission, remains in full force

and effect.

24. However, in its submission to the

Department of Justice the State has taken the

position that, should preclearance be denied, Act

1977-784 cannot be enforced because of the stay

issued by the U.S. Supreme Court in Governor

Riley's appeal from the judgment in Plump uv. Riley,

__ F.Supp.2d __, 2008 WL 192826 (M.D. Ala., Jan.

22, 2008). The State’s position ignores this explicit

disclaimer by the Middle District Court in Plump:

“The court emphasizes that whether Act No. 77-784

is, in fact, unconstitutional under state law, and

whether positions on the Jefferson County

Commission must be filled by special election or

zubernatorial appointment under state law, are

questions we do not reach and this opinion should

not. be understood in any way as reaching.” Id. at *3.

Thus the issues presented in this action are not

pending before the U.S. Supreme Court.

25. However, the U.S. Supreme Court is in

recess and cannot be expected to act on Governor

tiley's appeal in Plump before the first Monday in

October. That will be too late to prevent the names

of candidates for the District 1 seat on the Jefferson

County Commission from being printed on the

November 4 general election ballot. That ballot must

be certified by September 15, 2008. Consequently,

only = action by this Court’ can prevent

implemeyptation of the statutory repeal of Act 1977-

52a

784 in the event that preclearance of that repeal is

not obtained before September 15.

Claims

26. Defendants are violating § 5 of the Voting

Rights Act, 42 U.S.C. § 1973c, by administering,

without preclearance, a practice different from that

in effect in 1977. The plaintiff will be harmed by the

failure to preclear the changes in election practices

before the November 2008 election, in_ that

implementation of said changes may lead _ to

retrogression of her voting strength as an African

American.

Prayer for Relief

A. The plaintiff prays that the Court promptly

will convene a three-judge court to hear and decide

this matter.

B. The plaintiff pravs that the Court will

enter a declaratory judgment that until and unless

they have received preclearance under § 5 of the

Voting Rights Act:

(1) the defendants lack the power to comply

with orders of the state courts implementing §§ 11-3-

l(b) and 11-3-1(f), Code ot Alabama, as amended by

Act 2007-488, by placing a special election for

District 1 of the Jefferson County Commission on the

November 4, 2008, general election ballot, and

(2) the defendants lack tne power to comply

with the February 14, 2008, injunction of the

Supreme Court of Alabama by refusing to certifv the

results of the February 5. 2008, special election.

C. The plaintiff pravs that the Court wall

vyrant preliminary and permanent. injunctions

prohibiting defendants from

(1) complying with orders of the state courts

implementing §§ 11-3-1(b) and 11-3-1(f), Code of

Alabama, as amended by Act 2007-488, by placing a

special election for District 1 of the Jefferson County

Commission on the November 4, 2008, general

election ballot, and

(2) complying with the February 14, 2008,

injunction of the Supreme Court of Alabama by

failing or refusing to certify the results of the

February 5, 2008.

Db. The plaintiff further pravs that the Court

will stay entry of the injunctions sought in the

preceding paragraph until September 14, 2008, the

day before the probate judge's deadline for sending

the ballot to the printers for the November 4, 2008,

general election, to provide defendants or other

appropriate officials of Jefferson County and/or the

State of Alabama an opportunity to submit and to

obtain preclearance under § 5 of the Voting Rights

Act, of §§ 11-3-1(b) and 11-3-1(9, Code of Alabama,

as amended by Act 2007-488, and defendants’ refusal

or failure to certify the results of the February 5,

2008, special election.

Kk. 6 The plaintiff prays that the Court will

order the defendants to pay their reasonable

attornevs fees, costs, and expenses.

Kk. The plaintiff prays for such other and

additional relief as the Court may deem just and

equitable.

James U. Blacksher

P.O. Box 636

Birmingham

phone 205-591-7238

fax 205-591-0709

email jblacksher@ns.

sympatico.ca

Submitted by,

s/ Edward Still

Edward Stull

Still

Kkdward Law Firm

LLC

2112 11th Avenue South

Suite 201

Srmingham AL = 35205-

2844

phone: 205-320-2882

fax: 205-449-9752

email: Still@votelaw.com

\ttorneys tor the plaintiff