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Benjamin Little v. Troy King et al

January 20, 2011


The opinion of the court was delivered by: Garland, Circuit Judge:

Three-Judge Court


Before: GARLAND, Circuit Judge, and ROBERTS and BATES, District Judges.

Memorandum Opinion for the Court filed by Circuit Judge GARLAND.


Plaintiff Benjamin Little brings this action under the Voting Rights Act of 1965 (VRA), 42 U.S.C. § 1973 et seq. He seeks a declaratory judgment that § 5 of the VRA requires preclearance of Alabama Act No. 95-648, which mandates the disclosure of campaign contributions to state judges and requires judicial recusal under specified circumstances. ALA. CODE § 12-24-1, -2. Little also seeks to enjoin Alabama Attorney General Troy King from enforcing the Alabama Act until it is precleared.

The plaintiff has named both Attorney General King and United States Attorney General Eric Holder as defendants. Each defendant asks the court to dismiss the plaintiff's complaint as against him. In the alternative, Attorney General King requests that we transfer the case to the United States District Court for the Middle District of Alabama, pursuant to 28 U.S.C. § 1404(a). For the reasons that follow, we grant Attorney General Holder's motion to dismiss and grant Attorney General King's motion to transfer the remainder of the case to Alabama.


Section 5 of the Voting Rights Act bars certain covered jurisdictions, including Alabama, from enacting or administering "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting," different from that in effect on November 1, 1964, without first: (1) obtaining a declaratory judgment from the District Court for the District of Columbia that the change "neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color," or (2) submitting the change to the United States Attorney General and receiving no objection within 60 days. 42 U.S.C. § 1973c; see Morris v. Gressette, 432 U.S. 491, 495 (1977). If a covered jurisdiction enacts or administers a change in voting procedures without obtaining preclearance in one of these two ways, the Attorney General may sue to enjoin enforcement of the change until the necessary review occurs. 42 U.S.C. § 1973j(d). A private litigant may also bring such a suit. See Allen v. State Bd. of Elections, 393 U.S. 544, 554-57 (1969); see also Lopez v. Monterey Cnty., 519 U.S. 9, 20 (1996). These so-called "coverage suits" are heard by three-judge district courts, see Allen, 393 U.S. at 563, which may only determine whether § 5 applies to the contested change and whether its approval requirements have been satisfied -- not whether the procedure has a discriminatory purpose or effect, id. at 555 n.19. See Lopez, 519 U.S. at 23; Perkins v. Matthews, 400 U.S. 379, 384-85 (1971); Reaves v. U.S. Dep't of Justice, 355 F. Supp. 2d 510, 514 (D.D.C. 2005) (three-judge court). "If a voting change subject to § 5 has not been precleared, § 5 plaintiffs are entitled to an injunction prohibiting implementation of the change." Lopez, 519 20; see also Allen, 393 U.S. at 572.*fn1

The Alabama State Legislature passed Alabama Act No. 95-648 in 1995. See ALA. CODE § 12-24-1, -2. The Act requires an Alabama state court judge to disclose campaign contributions and to recuse from a case when a party, the party's attorney, attorneys in practice with the attorney, or their employees have contributed over a specified amount to the judge. Id. It further mandates that the Alabama Supreme Court issue rules requiring attorneys of record in all proceedings to disclose the amount of contributions given to the presiding judge(s) by the attorneys, their clients, other attorneys in practice with the attorneys, and any employees acting at the attorneys' direction. Id. § 12-24-2(b).

In 1996, the Alabama Attorney General submitted the Act to the United States Department of Justice for preclearance under § 5 of the VRA, 42 U.S.C. § 1973c. See Compl. ¶ 22. The Department requested additional information from the State, saying that it was unable to conclude that the Alabama Act did not have the purpose and would not have the effect of abridging the right to vote on account of race, color, or membership in a language minority. Id. ¶ 23 (citing Letter from Deval Patrick, Assistant U.S. Attorney, to Jeff Sessions, Alabama Attorney General (May 13, 1996)). The Alabama Attorney General did not supplement his initial submission and instead withdrew his request for preclearance, concluding that the Act was not subject to the review provisions of § 5. Id. ¶ 24 (citing Letter from Jeff Sessions to Deval Patrick (May 20, 1996)). In response, the Department of Justice maintained that the Alabama Act was subject to § 5 and should be submitted for review. Id. ¶ 25 (citing Letter from Deval Patrick to Jeff Sessions (July 23, 1996)). Although the State did not re-submit the Act for preclearance, the Justice Department did not sue Alabama to enjoin its enforcement. In the ensuing years, the Alabama Supreme Court has not adopted rules requiring disclosure of campaign contributions, and the Act has not been implemented or enforced. Id. ¶ 39.

On July 19, 2010, plaintiff Little -- a citizen and resident of the State of Alabama --filed the instant action against Alabama Attorney General King and United States Attorney General Holder in their official capacities. Little's complaint seeks a declaration that the Alabama Act is covered by § 5 and an injunction to bar the Alabama Attorney General from enforcing the Act without preclearance. The complaint names Attorney General Holder as a "nominal defendant." Compl. ¶ 12.

On July 21, 2010, the plaintiff's motion to convene a three-judge district court was granted. Thereafter, Attorney General Holder moved to dismiss the plaintiff's claims against him on the ground, inter alia, that he is not a proper defendant. Attorney General King moved to dismiss the complaint on several grounds, including that venue is improper in the District of Columbia. In the alternative, Attorney ...

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