Two years ago, an Alabama county succeeded in persuading the Supreme Court to strike down a major part of the federal Voting Rights Act, easing that county’s legal duties considerably, but a federal appeals court has now decided that — in one sense —  it did not actually win.

That is, the outcome in Shelby County v. Holder in 2013 did not justify giving Shelby County a right to have its attorneys’ fees paid by the federal government — the losing side, the U.S. Court of Appeals for the District of Columbia Circuit ruled on Tuesday.

The Justices’ Shelby County ruling nullified one part of the 1965 law (Section 4), and in doing so made another, even more significant part (Section 5) unenforceable — unless Congress came to the rescue, which it has not done and shows no signs of doing.

Success in that challenge, Shelby County claimed afterward, made it the “prevailing party” under a 1975 federal civil rights enforcement law; as such, it was entitled to recover its lawyers’ fees — $2 million — and $10,000 in court costs from the federal government.

A three-judge panel of the D.C. Circuit rejected the county’s claim, with each of the judges agreeing with the result but writing separate opinions with differences in reasoning.

Although the panel insisted that it was only applying Supreme Court precedents on the fee-shifting question, and was not simply reacting negatively to the result in the Supreme Court, its decision was a major application of the fee issue and thus seems likely to be challenged in the Supreme Court.

The lead opinion, by Circuit Judge Thomas B. Griffith, ruled that Shelby County was not “entitled” to a fee recovery under the law, but the other two judges said it was not even “eligible” for such an award, although those two parted ways on other points.  The others were Circuit Judge David S. Tatel and Senior Circuit Judge Laurence H. Silberman.

Judge Griffith went the furthest, declaring that Congress gave winners of civil rights lawsuits a right to have the other side pay its fees only when such a lawsuit actually promoted one of Congress’s goals when it passed a law like the Voting Rights Act.   An award of fees, the opinion noted, encourages private parties to help enforce such a law.

Shelby County could not meet that test, the Griffith opinion said. “Shelby County’s lawsuit did not facilitate enforcement of the VRA; it made enforcing the VRA’s preclearance regime impossible.”

Under the Act, state and local governments that had a history of racial bias in voting were not entitled to put into effect any changes in their voting laws or procedures unless they received official “preclearance” — a determination, required by Section 5 of the VRA, by the Department of Justice or a three-judge federal court that the changes would not harm the voting rights of minorities.

While the Supreme Court did not strike down Section 5, it ruled that the section could not be enforced under what the Court found to be an out-of-date provision in Section 4 for determining which state or local governments were covered by Section 5.   Times have changed, the Court majority declared, and so the Act had to be focused on “current needs,” not past history.

This was a significant victory in a legal campaign that had been building for several years, as the states and local governments covered by the “preclearance” duty chafed increasingly under that regime.

Conservative scholars and legal advocates had developed lawsuits specifically to test the validity of the Act, which Congress had renewed several times since 1965.

In claiming that it had “prevailed’ in the Supreme Court, Shelby County had argued in the lower courts that it actually had succeeded in protecting the proper understanding of the constitutional guarantees of voting rights under the Fourteenth and Fifteenth Amendments.  That proper understanding, it contended, was a worthy goal which entitled it to recover its fees and costs.

Judge Griffith said that the fee-shifting law, as it applied to lawsuits filed under the Voting Rights Act, was not available to all winners of such lawsuits, but instead only to those who could prove that they had earned such an award by helping Congress achieve its civil rights goals.   What Shelby County won in the Supreme Court, he wrote, ran counter to what Congress had done in creating the “preclearance” regime.

He rejected Shelby County’s argument that a ruling against it on the fee issue would be based only on the judges’ negative reaction to the victory it had won.  The panel, Judge Griffith said, was merely following the fee law as it had been interpreted and applied by the Supreme Court.

Judge Tatel, in his separate opinion, said that Shelby County’s case as it went to the Supreme Court was not aimed at all at protecting any voting guarantees under the Fourteenth and Fifteenth Amendment, but rather was designed especially to bolster “state autonomy” under the Tenth Amendment by freeing state and local governments to run their elections without having to obtain approval for their voting laws from the federal government.

Thus, Tatel wrote, the county was not even eligible to seek a fee recovery, let alone have any entitlement to it.

Judge Silberman agreed with Judge Tatel on that point, but used most of his separate opinion to challenge key points in the Griffith opinion.

Shelby County how has the option of asking the full D.C. Circuit to rehear the case en banc, and the option — now or later — to take the dispute to the Supreme Court.



Posted in Featured, Cases in the Pipeline

Recommended Citation: Lyle Denniston, When is a Supreme Court victory not a win?, SCOTUSblog (Sep. 2, 2015, 7:18 AM),