Thompson v. Attorney General

129 F. Supp. 3d 430, 2015 U.S. Dist. LEXIS 120676, 2015 WL 5254150

• Court: District Court, S.D. Mississippi
• Decided: September 9, 2015
• Docket: Cause No. 3:15-CV-620-JEG-DPJ-CWR-FKB
• Status: Published

Opinions

MEMORANDUM OPINION AND ORDÉR

PER CURIAM:

Before the Court is the plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction. Docket - No. 3. After considering the briefing and argument of counsel, we conclude that the motion must be denied as to the claim under , § 5 of the Voting Rights Act of 1965.

I. Factual and Procedural History

Rickey Thompson became a Justice Court Judge in Lee County, Mississippi, in January 2004. He was- the first elected African-American Justice Court Judge in Lee County

In May 2015, the Mississippi Supreme Court determined that Thompson had repeatedly engaged in misconduct and ordered him removed from office. Miss. Comm’n on Judicial Performance v. Thompson, 169 So.3d 857 (Miss.2015) (“Thompson III”); see also Miss. Comm’n on Judicial Performance v. Thompson, 972 So.2d 582 (Miss.2008) (“Thompson I”); Miss. Comm’n on Judicial Performance v. Thompson, 80 So.3d 86 (Miss.2012) (“Thompson II”). Under a Mississippi statute, Thompson’s removal made him ineligible to ever again be a Judge in Mississippi. Miss.Code Ann. § 9-19-17.¹

The Mississippi Supreme Court’s ruling went into effect on August 13, 2015. By then, however, Thompson had already won his reelection campaign in the Lee County Democratic Party primary.² On August 4, 2015, he received 55% of the vote in a race against four other candidates. Because the district is a majority African-American district, and in Mississippi the vast majority of African-Americans vote for Democratic candidates,: the parties in this lawsuit have assumed that Thompson will win the general election in November if his name appears on the ballot.³

Thompson’s primary victory presented the Lee County Democratic Party- and the Lee County Election- Commission with a dilemma. ’ If- the Mississippi Supreme Court’s decision had in fact rendered Thompson ineligible to again serve as Judge, per § 9-19-17, then the Democratic Party could not certify Thompson as its nominee as a matter' of law, and the Election Commission would not be able to place his name on the ballot.

The Lee County Democratic Party sought advice from the Mississippi Attorney General’s Office. That, office recommended that the Party follow § 9-19-17 and select a different candidate to stand for the general election.

Thompson and co-plaintiff Rencie Fells, a voter in Thompson’s district, filed this suit on August 21, 2015. They claim that § 9-19-17 violates the Voting Rights Act of 1965, the Fourteenth Amendment to the United States Constitution, and Section 171 of the Mississippi Constitution. They seek to enjoin enforcement of § 9-19-17, which if enjoined would allow the Lee County entities to place Thompson’s name on the general election ballot.⁴

The Lee County Democratic Party was supposed to select its nominee on September 1, 2015. It agreed to delay its decision so that this Court could take up the motion at an evidentiary hearing on September 4. The hearing was held, and the Court now rules as follows.

II. Legal Standard

To receive a preliminary injunction, the movant must show. “(1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable harm- if the injunction is not granted; (3) that the threatened injury outweighs any harm, that the injunction might cause to, the defendant; and (4) that the injunction will not disserve the public interest.” Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 288 (5th Cir.2012) (citation omitted). “Each of these factors presents a mixed question of fact and law.” Id. (citation omitted).

“A preliminary injunction is an extraordinary remedy. It should only be granted if the movant has clearly carried the burden of persuasion on all four ... prerequisites.” Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir.1985).

III. Discussion

A. Substantial Likelihood of Success on the Merits

“To assess the likelihood of success on the merits, we look to standards provided by the substantive law.” Janvey v. Alguire, 647 F.3d 585, 596 (5th Cir.2011) (quotation marks and citation omitted).

1. Section 5 of the Voting Rights Act

The plaintiffs first contend that § 9-19-17 is invalid because it was never precleared under § 5 of the Voting Rights Act. Indeed there is no dispute that Mississippi neither sought nor received preclearance of § 9-19-17 before it was enacted in 1980.

a. Substantive Law

“The Voting Rights Act implemented Congress’ firm intention to rid the country of racial discrimination in voting.” Hathorn v. Lovorn, 457 U.S. 255, 268, 102 S.Ct. 2421, 72 L.Ed.2d 824 (1982) (quotation marks and citation omitted). It was “a response to the unremitting and ingeiiious defiance of the command of the Fifteenth Amendment for nearly a century by State officials in certain parts of the Nation.” McCain v. Lybrand, 465 U.S. 236, 243, 104 S.Ct. 1037, 79 L.Ed.2d 271 (1984) (quotation marks and citation omitted).

Section 5 of the Act — the preclearance requirement — prohibited “covered” jurisdictions from changing their voting laws, practices, or procedures unless the jurisdiction submitted the proposed change to the United States Department of Justice and received the Department’s approval or non-objection. Id. at 244-45, 104 S.Ct. 1037; Clark v. Roemer, 500 U.S. 646, 649, 111 S.Ct. 2096, 114 L.Ed.2d 691 (1991). Alternatively, a jurisdiction could seek preclearance from the United States District Court for the District of Columbia. 52 U.S.C. § 10304(a).

Section 5 requires preclearance whenever a covered jurisdiction “shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, do procedure with respect to voting different' from that in force or effect” when the Act was applied to that jurisdiction. Id. It was “a process aimed at preserving the status quo until the Attorney General or the courts have an opportunity to evaluate, a proposed change.” Young v. Fordice, 520 U.S. 273, 285, 117 S.Ct. 1228, 137 L.Ed.2d 448 (1997) (citation omitted).

Mississippi was a covered jurisdiction from 1965 to 2013. E.g., id. at 275, 117 S.Ct. 1228 (“The question before us is whether § 5 of the Voting Rights Act ... requires preclearance of certain changes that Mississippi made in its voter registration procedures....”); Allen v. State Bd. of Elections, 393 U.S. 544, 548 n. 3, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969) (“Both States involved in these cases [Mississippi and Virginia] have been determined to be covered by the Act.”); Connor v. Waller, 421 U.S. 656, 656, 95 S.Ct. 2003, 44 L.Ed.2d 486 (1975) (applying § 5 of the Voting Rights Act to pew Mississippi statutes); Hathorn, 457 U.S. at 265, 102 S.Ct. 2421 (“Respondents do not dispute that the change in election procedures ordered by the Mississippi courts is subject to preclearance under § 5,”).

The preclearance requirement was very strict. “[M]inor, as well as major, changes require[d] preclearance.” Young, 520 U.S. at 284, 117 S.Ct. 1228 (citation omitted). The jurisdiction had the burden to prove that the proposed change was “not motivated by a discriminatory purpose and will not have an adverse impact on minority voters.” McCain, 465 U.S. at 247, 104 S.Ct. 1037 (citations omitted). It did not “matter for the preclearance requirement whether the change works in favor of, works against, or is neutral in its impact upon the ability of minorities to vote.” Young, 520 U.S. at 284, 117 S.Ct. 1228 (citation omitted). The preclearance submission also had to be specific. There was a “presumption that any ambiguity in the scope of the preclearance request must be construed against the submitting jurisdiction.” Clark, 500 U.S. at 659, 111 S.Ct. 2096.

The punishment for not preclearing the proposed change was severe: the new law was simply “not effective” until it was “cleared pursuant to § 5.” McCain, 465 U.S. at 245, 104 S.Ct. 1037 (quotation marks, citation, and brackets omitted). “If voting changes subject to § 5 have not been precleared, § 5 plaintiffs are entitled to an injunction prohibiting the State from implementing the changes.” Clark, 500 U.S. at 652-53, 111 S.Ct. 2096 (collecting cases); see also Young, 520 U.S. at 291, 117 S.Ct. 1228 (remanding “with instructions for the District Court to enter an order enjoining further use of Mississippi’s unprecleared changes' as appropriate”). Perhaps because the stakes were so high, Mississippi had on occasion resubmitted its proposed voting changes to- the Department'of Justice when the State was “confused” about whether certain changes were properly precleared, E.g., Dupree v. Moore, 831 F.Supp. 1310, 1315 (S.D.Miss.1993) vacated on other grounds in Lamar Cnty. Bd. of Educ. & Trustees v. Dupree, 514 U.S. 1059, 115 S.Ct. 1684, 131 L.Ed.2d 550 (1995).

In 2013, the Supreme Court invalidated the formula Congress had used to determine which jurisdictions were covered by § 5. Shelby Cnty., Ala. v. Holder, — U.S. -, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013). The data Congress had used to reauthorize the Act in 2006 showed “great strides” in “redressing racial discrimination and integrating the voting process.” Id. at 2626. Given the progress, Congress’s decision to use an older coverage formula, one “based on decades-old data and eradicated practices,” was irrelevant and irrational. Id. at 2627-28. The Court held that “continued reliance” on the old coverage formula was unconstitutional because Congress failed to update the formula to accurately identify those jurisdictions in need of oversight. Id. at 2629.

Shelby County did not strike down the entire Voting Rights Act. Other parts of the Act, including §§ 2 and 5, remained in effect. Id. at 2631 (“Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in § 2. We issue no holding on § 5 itself, only on the coverage formula.”). The case simply held that the old formula “can no longer be used as a basis for subjecting jurisdictions to preclearance.” Id,

But without a coverage formula, no jurisdictions are presently covered by § 5’s preclearance requirement. Id. at 2632 n. 1 (“without that formula, § 5 is immobilized”) (Ginsburg, J., dissenting). Thus, formerly covered states may now immediately “enact or seek to administer”⁵ voting laws, practices, and procedures without having to await review by the Department of Justice. E.g., League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 229 (4th Cir.2014) (finding that “North Carolina began pursuing sweeping voting reform” on June 26, 2013, the day after Shelby County was handed down); Davis v. Abbott, 781 F.3d 207, 212 (5th Cir.2015) (“The day after Shelby County came down, on June 26, 2013, then-Governor Rick Perry signed the bill repealing the 2011 plan, adopting the new Senate plan ..., and making the plan immediately effective.”).⁶

b. Analysis

The present case presents a current attempt to prohibit the administration of a law which was enacted prior to the Shelby County decision and was never precleared. We assume without deciding that § 9-19-17 was a qualification for elected office covered by § 5. And it is undisputed that § 5’s approval requirements were never met; the parties stipulated that § 9-19-17 was never submitted for preclearance.

If presented with these same facts before Shelby County, we likely would have enjoined the State from administering § 9-19-17 until the law was precleared with the federal authorities. But Shelby County declared the coverage formula unconstitutional. 133 S.Ct. at 2631. The “great strides” made towards redressing voter discrimination since enactment of the Voting Rights Act were sufficient to find the coverage formula unconstitutional. Id. at 2626. The result of Shelby County is that § 5 cannot be enforced at all, and especially not by an injunction. In essence, Mississippi and the other covered jurisdictions were granted a reprieve. They no longer have to seek preclearance for voting changes, and the record evidence indicates that the Department of Justice will no longer "provide it. See Def.’s Resp. [8], Ex. “E.”

The plaintiffs argue that Shelby County actually means, that § 5. now extends nationwide, They reason that ‘if no one is covered, everyone is covered.’ We think this result inconsistent with Shelby County. It is unlikely the Court would attempt to legislate a nationwide expansion of preclearance, which was repeatedly described as an “extraordinary” remedy justified by “exceptional conditions,” when the findings in Congress’s 2006 reauthorization were deemed too weak to support preclearance in just a handful of states and counties. South Carolina v. Katzenbach, 383 U.S. 301, 334, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966); McCain, 465 U.S. at 244, 104 S.Ct. 1037; Morris v. Gressette, 432 U.S. 491, 504, 97 S.Ct. 2411, 53 L.Ed.2d 506 (1977); Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 211, 129 S.Ct. 2504, 174 L.Ed.2d 140 (2009); Shelby Cnty., 133 S.Ct. at 2629. The plaintiffs have not pointed to any statement from the Department of Justice, or any judicial opinion, holding that Shelby County expanded the Voting Rights Act.

1 The question remains whether Shelby County applies to Mississippi’s current effort to administer § 9-19-17,:a law passed when preclearance was required but that was never precleared. In her dissent, Justice Ginsburg observed that “without [the coverage] formula, § 5 is immobilized.” Shelby Cnty., 133 S.Ct. at 2632 n. 1 (Ginsburg, J., dissenting). Later, she even more clearly stated: “The Court stops any application of § 5 by holding that § 4(b)’s coverage formula is unconstitutional.” Id. at 2648 (emphasis added). While recognizing that a dissent is not necessarily a reliable guide to a majority opinion, we think Justice Ginsburg was correct and follow her approach.' “Any” means “any.”

Though the authority on this point is limited, every court to consider the application of Shelby County in a § 5 contest has concluded that it applies to laws passed before Shelby County was decided. See King v. Lumpkin, 545 Fed.Appx. 799 (11th Cir.2013); Bird v. Sumter Cnty. Bd. of Educ., No. 1:12-CV-76, 2013 WL 5797653, at *2 (M.D.Ga. Oct. 28, 2013). And two courts have -more particularly held that Shelby County applies to-laws passed before 2006 — i.e., to laws, like § 9-19-17, enacted during a time when the coverage formula’s constitutionality was not disputed. See Hall v. Louisiana, 973 F.Supp.2d 675 (M.D.La.2013); Ford v. Strange, No. 2:13-CV-214, Docket No. 35 (M.D.Ala. Sept. 10, 2013).

“[T]he court must remember that a preliminary injunction is an extraordinary and drastic remedy which should not be granted unless the movant clearly carries the burden of persuasion.” Canal Auth. of State of Fla. v. Callaway, 489 F.2d 567, 573 (5th Cir.1974). Here, because § 5 cannot be enforced after Shelby County, and this Court cannot enjoin the state authorities from seeking to administer the provisions set forth in § 9-19-17, the plaintiffs have not-persuaded us that they have a substantial likelihood of success on the merits of this claim. And, since substantial likelihood of success is the most important element of the preliminary injunction standard, we need not consider the final three factors of the standard.⁷

2. The Plaintiffs’ Remaining Federal Claims

This three-judge panel was convened to consider the plaintiffs’ § 5 claim. See League of United Latin Am. Citizens (LULAC) of Texas v. State of Tex., 113 F.3d 53 (5th Cir.1997); 52 U.S.C. § 10304(a). While we have the authority to rule on the remaining federal causes of action, see Smith v. Clark, 189 F.Supp.2d 529, 540 (S.D.Miss.2002), we decline to do so. E.g., Clark, 500 U.S. at 649, 111 S.Ct. 2096. The District Judge originally assigned to this case will resolve these claims.

IV. Conclusion

The plaintiffs’ motion is denied with respect to the claim under § 5 of the Voting Rights Act.

1 . Section 9-19-17 reads, in its entirety, “A justice or judge removed by the supreme court or the seven-member tribunal is ineligible for judicial office, and pending further order of the court, may be suspended from practicing law in this state.” Miss.Code Ann. § 9-19-17.

2 . The parties stipulated that Thompson is an African-American voter who qualified as a Democratic candidate for Justice Court Judge, ran for the office, and won the primary election.

3 . Two candidates have qualified as independents, but at oral argument counsel for the Attorney General advised that one of the independent candidates has withdrawn from the race.

4 . Thompson has brought a separate claim under 42 U.S.C. § 1981, which is not the subject of the plaintiffs’ current motion.

5 . 52 U.S.C. § 10304(a).

6 . But see Texas v. United States, 798 F.3d 1108, 1118 (D.C.Cir.2015) (observing that, technically, “[t]he judgment in Shelby County did not issue until July 29, 2013.... ”).

7 . The Court emphasizes that the current status of § 5 does not leave an aggrieved party without recourse in an appropriate case if the State’s actions otherwise violate § 2.