Legal Commentary

The Court handed down Riley v Kennedy, 07-77, this week. Riley is a singularly tedious Voting Rights Act decision, and the result was predictable: 7-2 for Governor Riley, with the Court holding that the Alabama legislature's statute allowing local elections of county commissioners did not change the "baseline" of election practices when (a) the statute violated the state constitution and (b) the statute had been struck down by the state supreme court as soon as humanly possible.

An election law blog notes that my colleague Rick Pildes noted that the case illustrates the Court's trend away from the maximal enforcement of the Voting Rights Act. The same blog notes that I had earlier described the case as "trivial." (Actually, I described the plaintiffs' argument as trivial -- a bit of a difference).

But hidden in Riley is actually a larger moral: The feds should be extra-cautious about messing with state and local governments' structure. Here's the hook between this principle and the case: The Alabama Supreme Court's initial decision that the feds were being asked to veto actually advanced minority voting rights. Why? The state court had declared that the state legislature could not enact "special legislation" authorizing elections to fill vacated commission seats only in Mobile County: Instead, the court held that the state legislature would have to authorize such elections for every county in Alabama (which, indeed, the state legislature later did). This rule against special elections is a common one in state constitutions, and it serves the purpose of enhancing local autonomy by preventing state politicians from micro-managing one jurisdiction's local affairs.

Elections for every county in the state are obviously superior to elections in a single county if you are a minority voter. But the plaintiffs wanted the Feds effectively to nullify the state court's decision that bestowed this boon on minority voters because the state court's decision would prevent the election of a particular county commissioner. In other words, the plaintiffs, pursuing a short-term political advantage, would have vetoed a state constitutional doctrine that benefited minority voters over the longer term.

How could civil rights attorneys be so short-sighted? I suggest that the reason is their fundamental inexperience with local government and its peculiar issues. For the same reason, civil rights attorneys have thrown obstacles in front of annexations that simultaneously dilute minority voting strength yet increase urban tax base. In the annexation cases, it is obvious to anyone not in thrall to simplistic notions of of voting power that there is no easy answer to what will protect minority interests: Eliminate the annexation, and you give the Black majority of a declining city the dubious benefit of being captain of a sinking ship. Yet civil rights attorneys rigidly fought such annexations until the Court, in City of Richmond v. United States, 422 U.S. 358 (1975), held that such annexations could go forward so long as they maximized minority voting rights in the newly enlarged city. Riley, like City of Richmond, protects minority voters from the ignorance of civil rights lawyers.

In short, federal interference with local and state governmental structure is a dubious enterprise until the feds and their private surrogates, the civil rights bar, educates themselves about the arcane workings of non-federal government. Since this is unlikely to happen soon -- both the civil rights mentality and division of labor pose probably insuperable obstacles to structural subtlety -- one might want to limit federal interference with local structure except in the most plain cases of purposeful racial discrimination.