Thompson v. Attorney Gen. of Miss.

129 F.Supp.3d 430

Rickey THOMPSON; Rencie Fells, Plaintiffs

v.ATTORNEY GENERAL OF the State of MISSISSIPPI; Lee County Democratic Party Executive Committee; Lee County Election Commission, Defendants.

Cause No. 3:15–CV–620–JEG–DPJ–CWR–FKB.

United States District Court, S.D. Mississippi, Northern Division.

Signed Sept. 9, 2015.

Jim D. Waide, III, Waide & Associates, P.A., Tupelo, MS, for Plaintiff.

MEMORANDUM OPINION AND ORDER

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 ingenious 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, or 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 new 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...