LITTLE v. KING et al

MOTION for Three-Judge Court

D.D.C.July 19, 2010

\\\DC - 090334/008003 - 3117720 v2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________________ ) BENJAMIN LITTLE, ) ) Plaintiff, ) ) v. ) Case No. ) (Three-Judge District Court Requested) TROY KING, in his official capacity as Attorney General for the State of Alabama, ) ) ) Defendant, ) ) and ) ) ERIC HOLDER, in his official capacity as Attorney General of the United States, ) ) ) Nominal Defendant. ) ) ________________________________________ ) APPLICATION FOR THREE-JUDGE COURT Pursuant to the § 5 of the Voting Rights Act, 42 U.S.C. § 1973c(a), Plaintiff, Benjamin Little, respectfully applies for an order to convene a three-judge district court to hear and determine whether Alabama Act No. 95-698 requires preclearance before it can be enforced. WHEREFORE, Plaintiff requests that this Court enter an Order to convene a three-judge district court. Case 1:10-cv-01216-RWR Document 2 Filed 07/19/10 Page 1 of 9 \\\DC - 090334/008003 - 3117720 v2 Respectfully submitted, /s/ ______________ John C. Keeney, Jr. (D.C. Bar #934307) Shardul Desai (D.C. Bar # 990299) HOGAN LOVELLS US LLP 555 Thirteenth Street, N.W. Washington, D.C. 20004-1109 Telephone: (202) 637-5600 Facsimile: (202) 637-5910 Email: john.keeney@hoganlovells.com shardul.desai@hoganlovells.com Attorneys for Plaintiff Benjamin Little Dated: July 19, 2010 Case 1:10-cv-01216-RWR Document 2 Filed 07/19/10 Page 2 of 9 \\\DC - 090334/008003 - 3117720 v2 CERTIFICATE OF SERVICE I hereby certify that on this 19th day of July, 2010, I served a copy of the foregoing by first-class, certified mail to the following: Troy King Attorney General for the State of Alabama Office of the Attorney General 500 Dexter Avenue Montgomery, AL 36130 Defendant Eric Holder Attorney General of the United States United States Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530-0001 Nominal defendant __________/s/_______________________ Shardul Desai (D.C. Bar 990299) Attorneys for plaintiff Benjamin Little HOGAN LOVELLS US LLP 555 Thirteenth Street, N.W. Washington, D.C. 20004-1109 Telephone: (202) 637-5600 Facsimile: (202) 637-5910 E-mail: shardul.desai@hoganlovells.com Case 1:10-cv-01216-RWR Document 2 Filed 07/19/10 Page 3 of 9 \\\DC - 090334/008003 - 3117720 v2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________________ ) BENJAMIN LITTLE, ) ) Plaintiff, ) ) v. ) Case No. ) (Three-Judge District Court Requested) TROY KING, in his official capacity as Attorney General for the State of Alabama, ) ) ) Defendant, ) ) and ) ) ERIC HOLDER, in his official capacity as Attorney General of the United States, ) ) ) Nominal Defendant. ) ) ________________________________________ ) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S APPLICATION FOR THREE-JUDGE COURT 1. Section 5 of the Voting Rights Act of 1965, as amended, (“VRA”), 42 U.S.C. § 1973c, prohibits the enforcement in any jurisdiction covered by Section 4(b) of the Act, 42 U.S.C. § 1973b(b), of any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that enforced or in effect on the date used to determine coverage, until preclearance is obtained. 2. Section 5 specifically states that “[a]ny action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Case 1:10-cv-01216-RWR Document 2 Filed 07/19/10 Page 4 of 9 \\\DC - 090334/008003 - 3117720 v2 Title 28 and any appeal shall lie to the Supreme Court.” 42 U.S.C. § 1973c(a); see also Allen v. State Board of Elections, 393 U.S. 544, 563 (1969). 3. In LaRouche v. Fowler, 152 F.3d 974, 982 & n.6 (D.C. Cir. 1998), aff’d, 524 U.S. 1035 (2000), the United States Court of Appeals for the District of Columbia Circuit held that a three-judge panel is required unless Plaintiff’s § 5 claim is “wholly insubstantial” or completely “without merit.” 4. The State of Alabama is a covered jurisdiction within the meaning of § 5 of the VRA. It has continuously been listed as a covered jurisdiction since November 1, 1964. 28 C.F.R. Part 51, Appendix. 5. Alabama Act No. 95-698 (“Alabama Act”) requires: (1) that Alabama state court judges disclose campaign contributions publicly and recuse themselves from cases where one of the parties has contributed over a certain amount of money; and (2) that all attorneys of record disclose the amount of campaign contributions given to the presiding judge (or appellate court judge) by the client, the attorney, other lawyers in practice with the attorney, and any employees acting under the direction of the attorney or acting under the direction of those in practice with the attorney. 6. State legislation affecting the election of county judges has been held by the United States Supreme Court to require § 5 preclearance before those changes can be given legal affect. See Lopez v. Monterey Cnty., Cal., 519 U.S. 9 (1996) (hereinafter Lopez I); Lopez v. Monterey Cnty., Cal., 525 U.S. 266 (1999) (hereinafter Lopez II). 7. The United States Department of Justice and the Supreme Court of Alabama have repeatedly stated that this particular Alabama Act requires preclearance. Case 1:10-cv-01216-RWR Document 2 Filed 07/19/10 Page 5 of 9 \\\DC - 090334/008003 - 3117720 v2 8. The Attorney General of Alabama (“AGA”) has repeatedly stated that the Alabama Act does not require preclearance and that the State of Alabama will enforce the Alabama Act. 9. Plaintiff seeks declaratory and injunctive relief pursuant to § 5 of the VRA to enjoin defendant the Office of the Attorney General of Alabama from enforcing the Alabama Act until preclearance is obtained. 10. Because this action is brought pursuant to 42 U.S.C. § 1973c(a), a three-judge district court is statutorily required. See Allen, 393 U.S. at 563. 11. The Section 5 preclearance claim is not “wholly insubstantial” or “obviously without merit” within the meaning of this Circuit’s test in LaRouche. Indeed, the United States Department of Justice and the Alabama Supreme Court explicitly disagree with the Attorney General of Alabama on whether the Alabama Act requires preclearance. Case 1:10-cv-01216-RWR Document 2 Filed 07/19/10 Page 6 of 9 \\\DC - 090334/008003 - 3117720 v2 For all the foregoing reasons, the Court should grant Plaintiff’s application for three- judge court. Respectfully submitted, /s/ ______________ John C. Keeney, Jr. (D.C. Bar #934307) Shardul Desai (D.C. Bar # 990299) Attorneys for plaintiff Benjamin Little HOGAN LOVELLS US LLP 555 Thirteenth Street, N.W. Washington, D.C. 20004-1109 Telephone: (202) 637-5600 Facsimile: (202) 637-5910 E-mail: john.keeney@hoganlovells.com shardul.desai@hoganlovells.com Dated: July 19, 2010 Case 1:10-cv-01216-RWR Document 2 Filed 07/19/10 Page 7 of 9 \\\DC - 090334/008003 - 3117720 v2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________________ ) BENJAMIN LITTLE, ) ) Plaintiff, ) ) v. ) Case No. ) (Three-Judge District Court Requested) TROY KING, in his official capacity as Attorney General for the State of Alabama, ) ) ) Defendant, ) ) and ) ) ERIC HOLDER, in his official capacity as Attorney General of the United States, ) ) ) Nominal Defendant. ) ) ________________________________________ ) ORDER Upon consideration of Plaintiff’s Application For Three-Judge Court and the memorandum in support thereof, it is, by the District Court for the District of Columbia, hereby: ORDERED, that Plaintiff’s Application For Three-Judge Court be, and it hereby is, GRANTED. DONE and ORDERED in Chambers this _____ day of ______________, 2010. ___________________________________________ Judge ____________________________ UNITED STATES DISTRICT JUDGE District Court for the District of Columbia Case 1:10-cv-01216-RWR Document 2 Filed 07/19/10 Page 8 of 9 \\\DC - 090334/008003 - 3117720 v2 CERTIFICATE OF SERVICE I hereby certify that on this 19th day of July, 2010, I served a copy of the foregoing by first-class, certified mail to the following: Troy King Attorney General for the State of Alabama Office of the Attorney General 500 Dexter Avenue Montgomery, AL 36130 Defendant Eric Holder Attorney General of the United States United States Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530-0001 Nominal defendant _________/s/________________________ Shardul Desai (D.C. Bar 990299) Attorneys for plaintiff Benjamin Little HOGAN LOVELLS US LLP 555 Thirteenth Street, N.W. Washington, D.C. 20004-1109 Telephone: (202) 637-5600 Facsimile: (202) 637-5910 E-mail: shardul.desai@hoganlovells.com Case 1:10-cv-01216-RWR Document 2 Filed 07/19/10 Page 9 of 9