RILEY, GOVERNOR OF ALABAMA v. KENNEDY et al.

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406 OCTOBER TERM, 2007
Syllabus
RILEY, GOVERNOR OF ALABAMA v. KENNEDY et al.
appeal from the united states district court for the
middle district of alabama
No. 07–77. Argued March 24, 2008—Decided May 27, 2008
Section 5 of the Voting Rights Act of 1965 (VRA) requires “covered juris
dictions” to obtain preclearance from the District Court for the District
of Columbia or the Department of Justice (DOJ) before “enact[ing] or
seek[ing] to administer” any changes in their practices or procedures
affecting voting.
Alabama is a covered jurisdiction. As of its November 1, 1964 cover
age date, state law provided that midterm vacancies on county commis
sions were to be filled by gubernatorial appointment. In 1985, the state
legislature passed, and the DOJ precleared, a “local law” providing that
Mobile County Commission midterm vacancies would be filled by special
election rather than gubernatorial appointment. In 1987, the Governor
called a special election for the first midterm opening on the Commission
postpassage of the 1985 Act. A Mobile County voter, Willie Stokes,
filed suit in state court seeking to enjoin the election, but the state trial
court denied his request. Although Stokes immediately appealed to the
Alabama Supreme Court, the special election went forward and the win
ner took office. Subsequently, however, the Alabama Supreme Court
reversed the trial court’s judgment, finding that the 1985 Act violated
the State Constitution.
When the next midterm Commission vacancy occurred in 2005, the
method of filling the opening again became the subject of litigation. In
2004, the state legislature had passed, and the DOJ had precleared, a
law providing for gubernatorial appointment as the means to fill county
commission vacancies unless a local law authorized a special election.
When the vacancy arose, appellee voters and state legislators (herein
after Kennedy) filed suit against the Governor in state court, asserting
that the 2004 Act had revived the 1985 Act and cured its infirmity under
the Alabama Constitution. Adopting Kennedy’s view, the trial court
ordered the Governor to call a special election. Before the election took
place, however, the Alabama Supreme Court reversed the trial court’s
order, holding that the 2004 Act did not resurrect the 1985 Act. The
Governor therefore filled the vacancy by appointment, naming Commis
sioner Chastang to the open seat. Kennedy then commenced this suit
in Federal District Court. Invoking § 5 of the VRA, she sought declar
atory relief and an injunction barring the Governor from filling the

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Commission vacancy by appointment unless and until Alabama gained
preclearance of the Stokes and Kennedy decisions. A three-judge Dis
trict Court granted the requested declaration in August 2006. It deter
mined that the “baseline” against which any change should be measured
was the 1985 Act’s provision requiring special elections, a measure both
precleared and put into “force or effect” with the special election in
1987. It followed, the District Court reasoned, that the gubernatorial
appointment called for by Stokes and Kennedy ranked as a change from
the baseline practice; consequently, those decisions should have been
precleared. Deferring affirmative relief, the District Court gave the
State 90 days to obtain preclearance. When the DOJ denied the State’s
request for preclearance, Kennedy returned to the District Court and
filed a motion for further relief. On May 1, 2007, the District Court
vacated the Governor’s appointment of Chastang to the Commission,
finding it unlawful under § 5 of the VRA. The Governor filed a notice
of appeal in the District Court on May 18.
Held:
1. Because the District Court did not render its final judgment until
May 1, 2007, the Governor’s May 18 notice of appeal was timely. Under
§ 5, “any appeal” from the decision of a three-judge district court “shall
lie to the Supreme Court,” 42 U. S. C. § 1973c(a), but the appeal must
be filed within 60 days of a district court’s entry of a final judgment,
see 28 U. S. C. § 2101(b). Kennedy maintains that the District Court’s
August 2006 order qualified as a final judgment, while the Governor
maintains that the District Court’s final judgment was the May 1 order
vacating Chastang’s appointment. A final judgment “ends the litiga
tion on the merits and leaves nothing for the court to do but execute
the judgment.” Catlin v. United States, 324 U. S. 229, 233. The
August 2006 order declared that preclearance was required for the
Stokes and Kennedy decisions, but left unresolved Kennedy’s demand
for injunctive relief. An order resolving liability without addressing a
plaintiff ’s requests for relief is not final. See Liberty Mut. Ins. Co. v.
Wetzel, 424 U. S. 737, 742–743. Pp. 418–420.
2. For § 5 purposes, the 1985 Act never gained “force or effect.”
Therefore, Alabama’s reinstatement of its prior practice of gubernato
rial appointment did not rank as a “change” requiring preclearance.
Pp. 420–429.
(a) In order to determine whether an election practice constitutes
a “change” as defined in this Court’s § 5 precedents, the practice must
be compared with the covered jurisdiction’s “baseline,” i. e., the most
recent practice both precleared and “in force or effect”—or, absent any
change since the jurisdiction’s coverage date, the practice “in force or

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408 RILEY v. KENNEDY
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effect” on that date. See Young v. Fordice, 520 U. S. 273, 282–283.
Pp. 420–422.
(b) While not controlling here, three precedents addressing § 5’s
term of art “in force or effect” provide the starting point for the Court’s
inquiry. In Perkins v. Matthews, 400 U. S. 379, the question was what
practice had been “in force or effect” in Canton, Mississippi, on that
State’s 1964 coverage date. A 1962 state law required at-large elec
tions for city aldermen, but Canton had elected aldermen by wards in
1961 and again in 1965. This Court held that the city’s 1969 attempt to
move to at-large elections was a change requiring preclearance because
election by ward was “the procedure in fact ‘in force or effect’ in Can
ton” on the coverage date. Id., at 395. Similarly, in City of Lockhart
v. United States, 460 U. S. 125, the question was what practice had been
“in force or effect” in Lockhart, Texas, on the relevant coverage date.
The city had used a “numbered-post” system to elect its city council for
more than 50 years. Though the numbered-post system’s validity
under state law was “not entirely clear,” id., at 132, “[t]he proper com
parison [wa]s between the new system and the system actually in effect
on” the coverage date, “regardless of what state law might have re
quired,” ibid. Finally, in Young v. Fordice, the question was whether
a provisional voter registration plan precleared and implemented by
Mississippi election officials, who believed that the state legislature was
about to amend the relevant law, had been “in force or effect.” See 520
U. S., at 279. As it turned out, the state legislature failed to pass the
amendment, and voters who had registered under the provisional plan
were required to reregister. This Court held that the provisional plan
was a “temporary misapplication of state law” that, for § 5 purposes,
was “never ‘in force or effect.’ ” Id., at 282. Young thus qualified the
general rule of Perkins and Lockhart: A practice best characterized as
nothing more than a “temporary misapplication of state law” is not “in
force or effect,” even if actually implemented by state election officials,
520 U. S., at 282. Pp. 422–424.
(c) If the only relevant factors were the length of time a practice
was in use and the degree to which it was implemented, this would be
a close case under Perkins, Lockhart, and Young. But an extraordinary
circumstance not present in any past case is operative here, impelling
the conclusion that the 1985 Act was never “in force or effect”: The Act
was challenged in state court at first opportunity, the lone election was
held in the shadow of that legal challenge, and the Act was ultimately
invalidated by the Alabama Supreme Court. These characteristics
plainly distinguish this case from Perkins and Lockhart, where the state
judiciary had no involvement. The prompt legal challenge and the
State Supreme Court’s decision also provide strong cause to conclude

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that, in the § 5 context, the 1985 Act was never “in force or effect.” A
State’s highest court is unquestionably “the ultimate exposito[r] of state
law.” Mullaney v. Wilbur, 421 U. S. 684, 691. And because the State
Supreme Court’s prerogative to say what Alabama law is merits respect
in federal forums, a law challenged at first opportunity and invalidated
by Alabama’s highest court is properly regarded as null and void ab
initio, incapable of effecting any change in Alabama law or establishing
a voting practice under § 5. There is no good reason to hold otherwise
simply because Alabama’s highest court did not render its decision until
after an election was held. To the contrary, practical considerations
sometimes require courts to allow elections to proceed despite pending
legal challenges. Cf. Purcell v. Gonzalez, 549 U. S. 1, 5–6 (per curiam).
Ruling otherwise would have the anomalous effect of binding Alabama
to an unconstitutional practice because of the state trial court’s error.
The trial court misconstrued the State’s law and, due to that court’s
error, an election took place. That sequence of events, the District
Court held, made the 1985 Act part of Alabama’s § 5 baseline. In es
sence, the District Court’s decision gave controlling effect to the errone
ous trial court ruling and rendered the Alabama Supreme Court’s cor
rections inoperative. That sort of interference with a state supreme
court’s ability to determine the content of state law is more than a hypo
thetical concern. The realities of election litigation are such that lower
state courts often allow elections to proceed based on erroneous inter
pretations of state law later corrected on appeal. The Court declines
to adopt a rigid interpretation of “in force or effect” that would deny
state supreme courts the opportunity to correct similar errors in the
future. Pp. 424–428.
(d) Although this Court’s reasoning and the facts of this case should
make the narrow scope of the holding apparent, some cautionary obser
vations are in order. First, the presence of a judgment by Alabama’s
highest court invalidating the 1985 Act under the State Constitution is
critical here. The outcome might be different were a potentially unlaw
ful practice simply abandoned by state officials after initial use in an
election. Cf. Perkins, 400 U. S., at 395. Second, the 1985 Act was chal
lenged the first time it was invoked and struck down shortly thereafter.
The same result would not necessarily follow if a practice were invali
dated only after enforcement without challenge in several previous elec
tions. Cf. Young, 520 U. S., at 283. Finally, the consequence of the
Alabama Supreme Court’s Stokes decision was to reinstate a practice—
gubernatorial appointment—identical to the State’s § 5 baseline. Pre
clearance might well have been required had the court instead ordered
the State to adopt a novel practice. Pp. 428–429.
Reversed and remanded.

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410 RILEY v. KENNEDY
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Ginsburg, J., delivered the opinion of the Court, in which Roberts,
C. J., and Scalia, Kennedy, Thomas, Breyer, and Alito, JJ., joined.
Stevens, J., filed a dissenting opinion, in which Souter, J., joined, post,
p. 429.
Kevin C. Newsom argued the cause for appellant. With
him on the briefs were Troy King, Attorney General of
Alabama, and Margaret L. Fleming, James W. Davis, and
Misty S. Fairbanks, Assistant Attorneys General, Matthew
H. Lembke, John C. Neiman, Jr., and Scott Burnett Smith.
Pamela S. Karlan argued the cause for appellees. With
her on the brief were Edward Still, Amy Howe, Kevin
Russell, Sam Heldman, Jeffrey L. Fisher, and Thomas C.
Goldstein.
Kannon K. Shanmugam argued the cause for the United
States as amicus curiae supporting appellees in part. On
the brief were Solicitor General Clement, Acting Assistant
Attorney General Becker, Deputy Solicitor General Garre,
Eric D. Miller, Diana K. Flynn, Gregory B. Friel, and
Sarah E. Harrington.*
*Briefs of amici curiae urging reversal were filed for the State of Flor
ida et al. by Bill McCollum, Attorney General of Florida, Gene C. Schaerr,
and Steffen N. Johnson, and by the Attorneys General for their respective
States as follows: Talis J. Colberg of Alaska, James D. Caldwell of Louisi
ana, Kelly A. Ayotte of New Hampshire, Gary K. King of New Mexico,
Henry D. McMaster of South Carolina, Lawrence E. Long of South Da
kota, and Bob McDonnell of Virginia; for the Project on Fair Representa
tion by Bert W. Rein; for Former State Court Justice Charles Fried et al.
by H. Christopher Bartolomucci; and for Abigail Thernstrom et al. by
Keith A. Noreika.
Briefs of amici curiae urging affirmance were filed for the American
Civil Liberties Union et al. by Laughlin McDonald, Neil Bradley, and
Steven R. Shapiro; for the Lawyers’ Committee for Civil Rights Under
Law by Jonathan E. Nuechterlein, Daniel S. Volchok, and Jon M. Green
baum; and for the NAACP Legal Defense and Educational Fund, Inc., by
Kristen Clarke, Theodore M. Shaw, Jacqueline A. Berrien, Debo P. Adeg
bile, and Ryan P. Haygood.

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Opinion of the Court
Justice Ginsburg delivered the opinion of the Court.
This case presents a novel question concerning § 5 of the
Voting Rights Act of 1965. The setting, in a nutshell: A cov
ered State passed a law adopting a new election practice,
obtained the preclearance required by § 5, and held an elec
tion. Soon thereafter, the law under which the election took
place was invalidated by the State’s highest court on the
ground that it violated a controlling provision of the State’s
Constitution. The question presented: Must the State ob
tain fresh preclearance in order to reinstate the election
practice prevailing before enactment of the law struck down
by the State’s Supreme Court? We hold that, for § 5 pur
poses, the invalidated law never gained “force or effect.”
Therefore, the State’s reversion to its prior practice did not
rank as a “change” requiring preclearance.
I
The Voting Rights Act of 1965 (VRA), 79 Stat. 437, as
amended, 42 U. S. C. § 1973 et seq., “was designed by Con
gress to banish the blight of racial discrimination in voting,
which ha[d] infected the electoral process in parts of our
country for nearly a century.” South Carolina v. Katzen
bach, 383 U. S. 301, 308 (1966). In three earlier statutes,
passed in 1957, 1960, and 1964, Congress had empowered the
Department of Justice (DOJ or Department) to combat vot
ing discrimination through “case-by-case litigation.” Id.,
at 313. These lawsuits, however, made little headway.
Voting-rights suits were “unusually onerous to prepare” and
the progress of litigation was “exceedingly slow,” in no small
part due to the obstructionist tactics of state officials. Id.,
at 314. Moreover, some States “resorted to the extraordi
nary stratagem of contriving new rules of various kinds for
the sole purpose of perpetuating voting discrimination in the
face of adverse federal court decrees.” Id., at 335.

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The VRA reflected Congress’ determination that “sterner
and more elaborate measures” were needed to counteract
these formidable hindrances. Id., at 309. Sections 4 and 5
impose the most stringent of the Act’s remedies. Under
§ 4(b), as amended, a State or political subdivision is a so
called “covered jurisdiction” if, on one of three specified cov
erage dates: (1) it maintained a literacy requirement or other
“test or device” as a prerequisite to voting, and (2) fewer
than 50% of its voting-age citizens were registered to vote
or voted in that year’s Presidential election. 42 U. S. C.
§ 1973b(b). Section 4(a) suspends the operation of all such
“test[s] or device[s]” in covered jurisdictions. § 1973b(a).
Section 5 requires covered jurisdictions to obtain what has
come to be known as “preclearance” from the District Court
for the District of Columbia or the DOJ before “enact[ing] or
seek[ing] to administer” any alteration of their practices or
procedures affecting voting. § 1973c(a).
A change will be precleared only if it “neither has the pur
pose nor will have the effect of denying or abridging the
right to vote on account of race or color, or [because of mem
bership in a language minority group].” Ibid. An election
practice has the “effect” of “denying or abridging the right
to vote” if it “lead[s] to a retrogression in the position of
racial [or language] minorities with respect to their effective
exercise of the electoral franchise.” Beer v. United States,
425 U. S. 130, 141 (1976). See also Young v. Fordice, 520
U. S. 273, 276 (1997); 28 CFR § 51.54 (2007). As amended
in 2006, the statute defines “purpose” to include “any dis
criminatory purpose.” 120 Stat. 581, codified at 42 U. S. C.
§ 1973c(c).
Congress took the extraordinary step of requiring covered
jurisdictions to preclear all changes in their voting practices
because it “feared that the mere suspension of existing tests
[in § 4(a)] would not completely solve the problem, given the
history some States had of simply enacting new and slightly

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different requirements with the same discriminatory effect.”
Allen v. State Bd. of Elections, 393 U. S. 544, 548 (1969). By
putting the burden on covered jurisdictions to demonstrate
that future changes would not be discriminatory, § 5 served
to “shift the advantage of time and inertia from the perpe
trators of the evil to its victims.” Katzenbach, 383 U. S.,
at 328.
Sections 4 and 5 were originally scheduled to lapse once a
covered jurisdiction complied with § 4(a)’s ban on the use of
tests and devices for five years. See 79 Stat. 438. Finding
continuing discrimination in access to the ballot, however,
Congress renewed and expanded §§ 4 and 5 on four occasions,
most recently in 2006.1 Sections 4 and 5 are now set to ex
pire in 2031, see 42 U. S. C. § 1973b(a)(8), but a covered ju
risdiction may “bail out” at any time if it satisfies certain
requirements, see § 1973b(a)(1).
II
The voting practice at issue in this litigation is the method
used to fill midterm vacancies on the Mobile County Commis
sion, the governing body of Mobile County, Alabama. Com
posed of three members elected by separate districts to
four-year terms, the Commission has the power to levy
taxes, make appropriations, and exercise other countywide
executive and administrative functions. See Ala. Code § 11–
3–11 (1975).
We set out first, as pivotal to our resolution of this case, a
full account of two disputes over the means of filling midterm
vacancies on the Commission. The first occurred between
1985 and 1988; the second began in 2004 and culminates in
the appeal now before us.
1 See Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting
Rights Act Reauthorization and Amendments Act of 2006, 120 Stat. 577;
Voting Rights Act Amendments of 1982, 96 Stat. 131; Voting Rights Act
Amendments of 1975, 89 Stat. 400; Voting Rights Act Amendments of
1970, 84 Stat. 314.

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A
Alabama is a covered jurisdiction with a coverage date of
November 1, 1964. See 30 Fed. Reg. 9897 (1965). As of
that date, Alabama law provided that midterm vacancies on
all county commissions were to be filled by gubernatorial
appointment. See Ala. Code § 12–6 (1958). The relevant
provision was later recodified without substantive change as
Ala. Code § 11–3–6 (1975), which stated:
“In case of a vacancy, it shall be filled by appointment
by the governor, and the person so appointed shall hold
office for the remainder of the term of the commissioner
in whose place he is appointed.”
In 1985, however, the state legislature passed a “local law”
providing that any vacancy on the Mobile County Commis
sion occurring “with twelve months or more remaining on
the term of the vacant seat” would be filled by special elec
tion rather than gubernatorial appointment. 1985 Ala. Acts
no. 85–237 (1985 Act).2 The DOJ precleared this new law in
June 1985.
The first midterm opening on the Commission postpassage
of the 1985 Act occurred in 1987, when the seat for District
One—a majority African-American district—became vacant.
In accord with the 1985 Act, the Governor called a special
election. A Mobile County voter, Willie Stokes, promptly
filed suit in state court seeking to enjoin the election. The
1985 Act, he alleged, violated Art. IV, § 105, of the Alabama
Constitution, which provides that no “local law . . . shall be
2 Under the Alabama Constitution, a “general” law is “a law which in
its terms and effect applies either to the whole state, or to one or more
municipalities of the state less than the whole in a class.” Art. IV, § 110.
A “special or private” law is a law that “applies to an individual, associa
tion or corporation.” Ibid. A “local” law is “a law which is not a general
law or a special or private law.” Ibid. The 1985 Act was a local law
because it applied only to Mobile County; the remainder of the State con
tinued to be governed by Ala. Code § 11–3–6 (1975).

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enacted in any case which is provided for by a general law.”
On Stokes’s reading, the 1985 Act conflicted with § 105 be
cause the Act addressed a matter already governed by Ala.
Code § 11–3–6.
The state trial court rejected Stokes’s argument and en
tered judgment for the state defendants. Stokes immedi
ately appealed to the Alabama Supreme Court and sought
an order staying the election pending that court’s decision.
The requested stay was denied, and the special election went
forward in June 1987. The winner, Samuel Jones, took office
as District One’s Commissioner in July 1987. Approxi
mately 14 months later, however, in September 1988, the
Alabama Supreme Court reversed the trial court’s judgment.
Finding that the 1985 Act “clearly offend[ed] § 105 of the
[Alabama] Constitution,” the court declared the Act unconsti
tutional. Stokes v. Noonan, 534 So. 2d 237, 238–239.
The Alabama Supreme Court’s decree cast grave doubt on
the legitimacy of Jones’s election and, consequently, on his
continued tenure in office. The Governor, however, defused
any potential controversy by immediately invoking his au
thority under Ala. Code § 11–3–6 and appointing Jones to
the Commission.
B
The next midterm vacancy on the Commission did not
occur until October 2005, when Jones—who had been re
elected every four years since 1988—was elected mayor of
the city of Mobile. Once again, the method of filling the va
cancy became the subject of litigation. In 2004, the state
legislature had passed (and the DOJ had precleared) an
amendment to Ala. Code § 11–3–6 providing that vacancies
on county commissions were to be filled by gubernatorial
appointment “[u]nless a local law authorizes a special elec
tion.” 2004 Ala. Acts no. 2004–455 (2004 Act). When the
2005 vacancy arose, three Mobile County voters and Ala
bama state legislators—appellees Yvonne Kennedy, James
Buskey, and William Clark (hereinafter Kennedy)—filed suit

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against Alabama’s Governor, Bob Riley, in state court. The
2004 Act’s authorization of local laws providing for special
elections, they urged, had revived the 1985 Act and cured its
infirmity under § 105 of the Alabama Constitution. Adopt
ing Kennedy’s view, the state trial court ordered Governor
Riley to call a special election.
While the Governor’s appeal to the Alabama Supreme
Court was pending, Mobile County’s election officials ob
tained preclearance of procedures for a special election,
scheduled to take place in January 2006. In November 2005,
however, the Alabama Supreme Court reversed the trial
court’s order. Holding that the 2004 Act “provide[d] for pro
spective application only” and thus did not resurrect the 1985
Act, Alabama’s highest court ruled that “Governor Riley
[wa]s authorized to fill the vacancy on the Mobile County
Commission by appointment.” Riley v. Kennedy, 928 So. 2d
1013, 1017. Governor Riley promptly exercised that author
ity by appointing Juan Chastang.
The day after the Alabama Supreme Court denied rehear
ing, Kennedy commenced the instant suit in Federal District
Court. Invoking § 5, she sought declaratory relief and an
injunction barring Governor Riley from filling the Commis
sion vacancy by appointment unless and until Alabama
gained preclearance of the decisions in Stokes and Kennedy.
As required by § 5, a three-judge District Court convened to
hear the suit. See 42 U. S. C. § 1973c(a); Allen, 393 U. S.,
at 563.
In August 2006, the three-judge court, after a hearing,
granted the requested declaration. The court observed first
that for purposes of § 5’s preclearance requirement,
“[c]hanges are measured by comparing the new challenged
practice with the baseline practice, that is, the most recent
practice that is both precleared and in force or effect.” 445
F. Supp. 2d 1333, 1336 (MD Ala.). It then determined that
the 1985 Act’s provision requiring special elections had been
both precleared and put into “force or effect” with the special

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election of Jones in 1987. It followed, the District Court
reasoned, that the gubernatorial appointment called for by
Stokes and Kennedy ranked as a change from the baseline
practice; consequently “the two [Alabama Supreme Court]
decisions . . . should have been precleared before they were
implemented.” 445 F. Supp. 2d, at 1336.
Deferring affirmative relief, the District Court gave the
State 90 days to obtain preclearance of Stokes and Kennedy.
445 F. Supp. 2d, at 1336. Without conceding that preclear
ance was required, the State submitted the decisions to the
DOJ. Finding that the State had failed to prove that the
reinstatement of gubernatorial appointment would not be
retrogressive, the Department denied preclearance. See
App. to Motion to Dismiss or Affirm 2a–8a. “The African-
American voters of District 1,” the DOJ explained, “enjoy
the opportunity to elect minority candidates of their choice”
under the 1985 Act. Id., at 6a. A change to gubernatorial
appointment would be retrogressive because it “would trans
fer this electoral power to a state official elected by a state
wide constituency whose racial make-up and electoral choices
regularly differ from those of the voters of District 1.”
Ibid.
After the State unsuccessfully sought DOJ reconsidera
tion, Kennedy returned to the District Court and filed a mo
tion for further relief. On May 1, 2007, the District Court
ruled that “Governor Bob Riley’s appointment of Juan Chas
tang to the Mobile County Commission . . . was unlawful
under federal law” and vacated the appointment. App. to
Juris. Statement 1a–2a. Governor Riley filed a notice of ap
peal in the District Court on May 18, 2007, and a jurisdic
tional statement in this Court on July 17, 2007. In Novem
ber 2007, we postponed a determination of jurisdiction until
our consideration of the case on the merits. 552 U. S. 1035.
In the meantime, a special election was held in Mobile
County in October 2007 to fill the vacancy resulting from

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the District Court’s order vacating Chastang’s appointment.3
Chastang ran in the election but was defeated by Merceria
Ludgood, who garnered nearly 80% of the vote. See Certi
fication of Results, Special Election, Mobile County (Oct. 16,
2007), http://records.mobile-county.net/ViewImagesPDFAll.
Aspx?ID=2007081288 (as visited May 22, 2008, and available
in Clerk of Court’s case file). Ludgood continues to occupy
the District One seat on the Commission. Her term will
expire in November 2008.4
III
Before reaching the merits of Governor Riley’s appeal, we
first take up Kennedy’s threshold objection. The appeal,
Kennedy urges, must be dismissed as untimely.
Section 5 provides that “any appeal” from the decision of
a three-judge district court “shall lie to the Supreme Court.”
42 U. S. C. § 1973c(a). Such an appeal must be filed within
60 days of the District Court’s entry of a final judgment.
See 28 U. S. C. § 2101(b). Kennedy maintains that Governor
Riley’s May 18, 2007 notice of appeal came too late because
the District Court’s August 2006 order qualified as a final
judgment. If Kennedy’s characterization is correct, then
Governor Riley’s time to file an appeal expired in October
2006, and his appeal must be dismissed. But if, as Gover
nor Riley maintains, the District Court did not issue a
final judgment until the order vacating Chastang’s appoint
3 The District Court denied the Governor’s motion to stay its judgment
pending this appeal. See App. 7.
4 Regardless of the outcome of this litigation, the method for filling fu
ture midterm vacancies on the Commission appears to have been settled.
In 2006, the Alabama Legislature enacted a new measure providing that,
on a going-forward basis, vacancies on the Commission will be filled by
special election. See 2006 Ala. Acts no. 2006–342. The DOJ precleared
the statute in July 2007. The passage of this law does not render this
case moot: If the Governor prevails in his appeal, Chastang may seek
reinstatement to the Commission to serve out the remainder of the term
ending in November 2008. See Brief for United States as Amicus Curiae
5, n. 1.

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ment on May 1, 2007, then the Governor filed his appeal well
within the required time.
A final judgment is “one which ends the litigation on the
merits and leaves nothing for the court to do but execute
the judgment.” Catlin v. United States, 324 U. S. 229, 233
(1945).5 The District Court’s August 2006 order declared
that the Alabama Supreme Court’s decisions in Stokes and
Kennedy required preclearance, but that order left unre
solved Kennedy’s demand for injunctive relief. We have
long held that an order resolving liability without addressing
a plaintiff ’s requests for relief is not final. See Liberty Mut.
Ins. Co. v. Wetzel, 424 U. S. 737, 742–743 (1976). See also
15B C. Wright, A. Miller, & E. Cooper, Federal Practice and
Procedure § 3915.2, p. 271 (2d ed. 1992).
Resisting the conclusion these authorities indicate, Ken
nedy maintains that the August 2006 order ranked as a final
decision for two reasons. First, she contends, that order
conclusively settled the key remedial issue, for it directed
Governor Riley to seek preclearance of the Alabama Su
preme Court’s decisions in Stokes and Kennedy. See Brief
for Appellees 26–27. This argument misapprehends the
District Court’s order: Far from requiring the Governor to
seek preclearance, the District Court expressly allowed for
the possibility that he would elect not to do so. See 445
F. Supp. 2d, at 1337 (“Defendant Riley is to keep the court
informed of what action, if any, the State decides to
take . . . .” (emphasis added)). Second, Kennedy notes that
the District Court directed entry of its August 2006 order
“as a final judgment pursuant to Rule 58 of the Federal
Rules of Civil Procedure,” ibid. See Brief for Appellees 27.
“The label used by the District Court,” however, “cannot
control [an] order’s appealability.” Sullivan v. Finkelstein,
5 Catlin and the other authorities cited in this Part interpret the mean
ing of “final decisions” in 28 U. S. C. § 1291, the statute governing appeals
from district courts to the courts of appeals. We find them instructive in
interpreting the parallel term “final” judgment in § 2101(b).

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496 U. S. 617, 628, n. 7 (1990). See also Wetzel, 424 U. S.,
at 741–743.
Because the District Court did not render its final judg
ment until May 1, 2007, Governor Riley’s May 18 notice of
appeal was timely. We therefore proceed to the merits.
IV
Prior to 1985, Alabama filled midterm vacancies on the Mo
bile County Commission by gubernatorial appointment.
The 1985 Act adopted a different practice—special elections.
That new practice was used in one election only, held in 1987.
The next year, the Alabama Supreme Court determined,
in Stokes v. Noonan, that the Act authorizing special elec
tions was invalid under the State’s Constitution. Properly
framed, the issue before us is whether § 5 required Alabama
to obtain preclearance before reinstating the practice of
gubernatorial appointment in the wake of the decision by its
highest court invalidating the special-election law.6
It is undisputed that a “change” from election to appoint
ment is a change “with respect to voting” and thus covered
by § 5. See Allen, 393 U. S., at 569–570; Presley v. Etowah
6 As framed by the District Court, the issue was whether the Alabama
Supreme Court’s decisions in Stokes v. Noonan, 534 So. 2d 237 (1988), and
Riley v. Kennedy, 928 So. 2d 1013 (2005), should have been precleared.
See 445 F. Supp. 2d, at 1336. This formulation, we conclude, misstates
the issue in two technical respects. First, § 5 requires a covered jurisdic
tion to seek preclearance of any changed “practice . . . with respect to
voting.” 42 U. S. C. § 1973c(a). The “practice” at issue here is guberna
torial appointment. That practice, and not the Alabama Supreme Court’s
interpretation of state law in Stokes and Kennedy, is the proper subject
of the § 5 inquiry. Second, as Governor Riley noted, see Brief for Appel
lant 25, if there was a change requiring preclearance, it came about as a
result of Stokes, not Kennedy. Stokes held that the 1985 Act violated the
Alabama Constitution, and the State accordingly reinstated the practice
of gubernatorial appointment with the Governor’s 1988 appointment of
Jones. Kennedy simply determined that the 2004 Act did not resurrect
the 1985 Act; that decision itself prompted no change in the State’s elec
tion practices.

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County Comm’n, 502 U. S. 491, 502–503 (1992). We have
also stated that the preclearance requirement encompasses
“voting changes mandated by order of a state court.”
Branch v. Smith, 538 U. S. 254, 262 (2003). See also
Hathorn v. Lovorn, 457 U. S. 255, 265–266, and n. 16 (1982).
The question is whether, given the circumstances here pre
sented, any “change” within the meaning of § 5 occurred in
this case.
In order to determine whether an election practice consti
tutes a “change” as that term is defined in our § 5 precedents,
we compare the practice with the covered jurisdiction’s
“baseline.” We have defined the baseline as the most recent
practice that was both precleared and “in force or effect”—
or, absent any change since the jurisdiction’s coverage date,
the practice that was “in force or effect” on that date. See
Young, 520 U. S., at 282–283. See also Presley, 502 U. S., at
495. The question is “whether a State has ‘enact[ed]’ or is
‘seek[ing] to administer’ a ‘practice or procedure’ that is ‘dif
ferent’ enough” from the baseline to qualify as a change.
Young, 520 U. S., at 281 (quoting 42 U. S. C. § 1973c).7
For the reasons that follow, we conclude that the 1985 Act
was never “in force or effect” within the meaning of § 5. At
all relevant times, therefore, the baseline practice for fill
7 By its terms, § 5 requires preclearance of any election practice that is
“different from that in force or effect on” the relevant coverage date—in
this case, November 1, 1964. 42 U. S. C. § 1973c(a). Governor Riley’s
opening brief suggested that this text could be read to mean that no pre
clearance is required if a covered jurisdiction seeks to adopt the same
practice that was in force or effect on its coverage date—even if, because
of intervening changes, that practice is different from the jurisdiction’s
baseline. See Brief for Appellant 26–27. In response, Kennedy and the
United States noted that the DOJ, see 28 CFR § 51.12 (2007), and the lower
courts to consider the question, see, e. g., NAACP, DeKalb Cty. Chapter
v. Georgia, 494 F. Supp. 668, 677 (ND Ga. 1980) (three-judge court), have
rejected this interpretation. See Brief for Appellees 47–49; Brief for
United States as Amicus Curiae 17–18. We need not resolve this dispute
because the result in this case is the same under either view. But see
post, at 431 (taking the issue up, although it is academic here).

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ing midterm vacancies on the Commission was the pre-1985
practice of gubernatorial appointment. The State’s rein
statement of that practice thus did not constitute a change
requiring preclearance.
A
We have directly addressed the § 5 term of art “in force or
effect” on three prior occasions. As will become clear, these
precedents do not control this case because they differ in a
critical respect. They do, however, provide the starting
point for our inquiry.
In Perkins v. Matthews, 400 U. S. 379 (1971), the question
was what practice had been “in force or effect” in the city of
Canton, Mississippi, on that State’s § 5 coverage date, No
vember 1, 1964. A 1962 state law required selection of city
aldermen by at-large elections rather than by ward. Can
ton, however, “ignored the mandate [of the statute] in the
conduct of the 1965 municipal elections and, as in 1961,
elected aldermen by wards.” Id., at 394. In the 1969 elec
tion, the city sought to switch to at-large elections. We held
that this move was a change requiring preclearance because
election by ward was “the procedure in fact ‘in force or ef
fect’ in Canton on November 1, 1964.” Id., at 395.
We endeavored to determine in Perkins the voting proce
dure that would have been followed on the coverage date,
November 1, 1964. Two choices were apparent: the state
law on the books since 1962 calling for at-large elections, or
the practice Canton actually used, without challenge, in
1965—election by wards. We picked the 1965 practice as
the more likely indicator of the practice Canton would have
employed had it held an election on the coverage date, just
seven months earlier. See id., at 394–395.
Similarly, in City of Lockhart v. United States, 460 U. S.
125 (1983), the question was what practice had been “in force
or effect” in Lockhart, Texas, on the relevant § 5 coverage
date, November 1, 1972. For more than 50 years, without
challenge, the city had used a “numbered-post” system to

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elect its city council. See id., at 132, n. 6.8 A group of
plaintiffs nonetheless contended that the numbered-post sys
tem was never “in force or effect” because it lacked state-law
authorization. We noted that the validity of the numbered
post system under state law was “not entirely clear.” Id.,
at 132.9 Relying on Perkins, we considered the uncertain
state of Texas law “irrelevant,” for “[t]he proper comparison
[wa]s between the new system and the system actually in
effect on November 1, 1972, regardless of what state law
might have required.” 460 U. S., at 132 (footnote omitted).
Finally, in Young v. Fordice, decided in 1997, the question
was whether a provisional voter registration plan imple
mented by Mississippi election officials had been “in force or
effect.” Believing that the state legislature was about to
amend the relevant law, the officials had prepared and ob
tained preclearance for a new voter registration scheme.
See 520 U. S., at 279. Roughly one-third of the State’s elec
tion officials implemented the plan, registering around 4,000
voters. See id., at 278, 283. As it turned out, however, the
state legislature failed to pass the amendment, and the vot
ers who had registered under the provisional plan were
required to reregister. See id., at 278. When the case
reached us, we rejected the argument that “the [p]rovisional
[p]lan, because it was precleared by the Attorney General,
became part of the baseline against which to judge whether
a future change must be precleared.” Id., at 282. Regard
ing the provisional plan as a “temporary misapplication of
8 Under the “numbered post” system, “the two commissioner posts were
designated by number, and each candidate for commissioner specified the
post for which he or she sought election.” City of Lockhart v. United
States, 460 U. S. 125, 127 (1983) (internal quotation marks omitted). It
contrasted with an alternative system “in which all of the candidates . . .
run in a single election, and the two receiving the greatest number of
votes are elected.” Id., at 127, n. 1.
9 We commented in this regard that the longevity of the numbered-post
system “suggest[ed] a presumption of legality under state law.” Id., at
132, n. 6.

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424 RILEY v. KENNEDY
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state law,” we held that, for § 5 purposes, the plan was “never
‘in force or effect.’ ” Ibid. We emphasized that the officials
who implemented the provisional plan “did not intend to ad
minister an unlawful plan” and that they abandoned it “as
soon as its unlawfulness became apparent.” Id., at 283.
We also noted that the provisional plan had been used for
only 41 days and that the State “held no elections” during
that period. Ibid.
B
Perkins and Lockhart established that an election practice
may be “in force or effect” for § 5 purposes despite its illegal
ity under state law if, as a practical matter, it was “actually
in effect.” Lockhart, 460 U. S., at 132. Our more recent
decision in Young, however, qualified that general rule: A
practice best characterized as nothing more than a “tempo
rary misapplication of state law,” we held, is not “ ‘in force
or effect,’ ” even if actually implemented by state election
officials. 520 U. S., at 282.
If the only relevant factors were the length of time a prac
tice was in use and the extent to which it was implemented,
this would be a close case falling somewhere between the
two poles established by our prior decisions. On one hand,
as in Young, the 1985 Act was a “temporary misapplication”
of state law: It was on the books for just over three years
and applied as a voting practice only once. In Lockhart, by
contrast, the city had used the numbered-post system “for
over 50 years without challenge.” 460 U. S., at 132, n. 6.
(Perkins is a less clear case: The city failed to alter its prac
tice in response to changed state law for roughly seven
years, but only a single election was held during that period.
See 400 U. S., at 394.) On the other hand, in Young no elec
tion occurred during the time the provisional registration
plan was in use, while in this case one election was held
under the later invalidated 1985 Act.
We are convinced, however, that an extraordinary circum
stance not present in any past case is operative here, impel

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ling the conclusion that the 1985 Act was never “in force or
effect”: The Act was challenged in state court at first oppor
tunity, the lone election was held in the shadow of that legal
challenge, and the Act was ultimately invalidated by the Ala
bama Supreme Court.
These characteristics plainly distinguish the present case
from Perkins and Lockhart. The state judiciary had no
involvement in either of those cases, as the practices at issue
were administered without legal challenge of any kind. And
in Lockhart, we justified our unwillingness to incorporate a
practice’s legality under state law into the § 5 “force or ef
fect” inquiry in part on this ground: “We doubt[ed] that Con
gress intended” to require “the Attorney General and the
District Court for the District of Columbia” to engage in
“speculation as to state law.” 460 U. S., at 133, n. 8. Here,
in contrast, the 1985 Act’s invalidity under the Alabama Con
stitution has been definitively established by the Alabama
Supreme Court.
The prompt legal challenge and the Alabama Supreme
Court’s decision not only distinguish this case from Perkins
and Lockhart; they also provide strong cause to conclude
that, in the context of § 5, the 1985 Act was never “in force
or effect.” A State’s highest court is unquestionably “the
ultimate exposito[r] of state law.” Mullaney v. Wilbur, 421
U. S. 684, 691 (1975). And because the prerogative of the
Alabama Supreme Court to say what Alabama law is merits
respect in federal forums,10 a law challenged at first opportu
nity and invalidated by Alabama’s highest court is properly
regarded as null and void ab initio, incapable of effecting
any change in Alabama law or establishing a voting practice
for § 5 purposes. Indeed, Kennedy and the United States
appear to concede that the 1985 Act would not have been “in
10 The dissent observes that the Alabama Supreme Court’s decision in
Stokes was not unanimous. See post, at 436–437. Like this Court, the Ala
bama Supreme Court does not shy away from revealing dissenting opin
ions. Of course, it is the majority opinion that declares what state law is.

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force or effect” had the Alabama Supreme Court stayed the
1987 election pending its decision in Stokes (or simply issued
its decision sooner). See Brief for Appellees 51; Brief for
United States as Amicus Curiae 23–24.
There is no good reason to hold otherwise simply because
Alabama’s highest court, proceeding at a pace hardly uncom
mon in litigated controversies, did not render its decision
until after an election was held. In this regard, we have
recognized that practical considerations sometimes require
courts to allow elections to proceed despite pending legal
challenges. Cf. Purcell v. Gonzalez, 549 U. S. 1, 5–6 (2006)
(per curiam) (“Given the imminence of the election and the
inadequate time to resolve the factual disputes, our action
today shall of necessity allow the election to proceed without
an injunction suspending the [challenged] rules.”).
Ruling as Kennedy and the United States urge, moreover,
would have the anomalous effect of binding Alabama to an
unconstitutional practice because of a state trial court’s
error. If the trial court had gotten the law of Alabama
right, all agree, there would have been no special election
and no tenable argument that the 1985 Act had ever gained
“force or effect.” But the trial court misconstrued the
State’s law and, due to that court’s error, an election took
place. That sequence of events, the District Court held,
made the Act part of Alabama’s § 5 baseline. No precedent
of this Court calls for such a holding.
The District Court took care to note that its decision “d[id]
not in any way undermine [Stokes and Kennedy] under state
law.” 445 F. Supp. 2d, at 1337. In some theoretical sense,
that may be true. Practically, however, the District Court’s
decision gave controlling effect to the erroneous trial court
decision and rendered the Alabama Supreme Court’s correc
tions inoperative. Alabama’s Constitution, that State’s Su
preme Court determined, required that, in the years here
involved, vacancies on the Mobile County Commission be
filled by appointment rather than special election. Nothing

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inherent in the practice of appointment violates the Fif
teenth Amendment or the VRA. The DOJ, however, found
that a change from special elections to appointment had oc
curred in District One, and further found that the change
was retrogressive, hence barred by § 5. The District
Court’s final decision, tied to the DOJ determination, thus
effectively precluded the State from reinstating gubernato
rial appointment, the only practice consistent with the Ala
bama Constitution pre-2006.11 Indeed, Kennedy’s counsel
forthrightly acknowledged that the position she defends
would “loc[k] into place” an unconstitutional practice. Tr. of
Oral Arg. 32.
The dissent, too, appears to concede that its reading of § 5
would bind Alabama to an unconstitutional practice because
of an error by the state trial court. See post, at 435. But
it contends that this imposition is no more “offensive to state
sovereignty” than “effectively requiring a State to adminis
ter a law it has repealed,” post, at 436—a routine conse
quence of § 5. The result described by the dissent, however,
follows directly from the Constitution’s instruction that a
state law may not be enforced if it conflicts with federal law.
See Art. VI, cl. 2. Section 5 prohibits States from making
retrogressive changes to their voting practices, and thus ren
ders any such changes unenforceable. To be sure, this re
sult constrains States’ legislative freedom. But the rule ad
vocated by the dissent would effectively preclude Alabama’s
highest court from applying to a state law a provision of
the State Constitution entirely harmonious with federal law.
That sort of interference with a state supreme court’s ability
to determine the content of state law, we think it plain, is a
burden of a different order.
This burden is more than a hypothetical concern. The re
alities of election litigation are such that lower state courts
11 As earlier noted, see supra, at 418, n. 4, the Alabama Legislature
modified the relevant state law in 2006 by adopting special elections on a
going-forward basis.

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often allow elections to proceed based on erroneous interpre
tations of state law later corrected on appeal. See, e. g.,
Akins v. Secretary of State, 154 N. H. 67, 67–68, 74, 904 A. 2d
702, 703, 708 (2006) (preelection challenge rejected by a state
trial court but eventually sustained in a postelection decision
by the State Supreme Court); Cobb v. State Canvassing Bd.,
2006–NMSC–034, ¶¶ 1–17, 140 N. M. 77, 79–83 (same); Mary
land Green Party v. Maryland Bd. of Elections, 377 Md. 127,
137–139, 832 A. 2d 214, 220–221 (2003) (same); O’Callaghan v.
State, 914 P. 2d 1250, 1263–1264 (Alaska 1996) (same); Peloza
v. Freas, 871 P. 2d 687, 688, 692 (Alaska 1994) (same). We
decline to adopt a rigid interpretation of “in force or effect”
that would deny state supreme courts the opportunity to cor
rect similar errors in the future.
C
Although our reasoning and the particular facts of this
case should make the narrow scope of our holding apparent,
we conclude with some cautionary observations. First, the
presence of a judgment by Alabama’s highest court declaring
the 1985 Act invalid under the State Constitution is critical
to our decision.12 We do not suggest the outcome would be
the same if a potentially unlawful practice had simply been
abandoned by state officials after initial use in an election.
Cf. Perkins, 400 U. S., at 395. Second, the 1985 Act was
challenged the first time it was invoked and struck down
shortly thereafter. The same result would not necessarily
follow if a practice were invalidated only after enforcement
without challenge in several previous elections. Cf. Young,
520 U. S., at 283 (“[T]he simple fact that a voting practice
is unlawful under state law does not show, entirely by itself,
that the practice was never ‘in force or effect.’ . . . A State,
after all, might maintain in effect for many years a plan
12 There is no indication in the record that the Alabama Supreme Court’s
decisions in Stokes and Kennedy were anything other than reasonable and
impartial interpretations of controlling Alabama law.

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Stevens, J., dissenting
that technically . . . violated some provision of state law.”).
Finally, the consequence of the Alabama Supreme Court’s
decision in Stokes was to reinstate a practice—gubernatorial
appointment—identical to the State’s § 5 baseline. Pre
clearance might well have been required had the court in
stead ordered the State to adopt a novel practice.13
* * *
For the reasons stated, the judgment of the United States
District Court for the Middle District of Alabama is re
versed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Justice Stevens, with whom Justice Souter joins,
dissenting.
Voting practices in Alabama today are vastly different
from those that prevailed prior to the enactment of the Vot
ing Rights Act of 1965 (VRA), 79 Stat. 437, as amended, 42
U. S. C. § 1973 et seq. Even though many of those changes
are, at least in part, the consequence of vigorous and sus
tained enforcement of the VRA, it may well be true that
today the statute is maintaining strict federal controls that
are not as necessary or appropriate as they once were. The
principal events at issue in this case occurred in the 1980’s,
13 In view of these limitations, the concern expressed in Part IV of the
dissent, see post, at 437–441, is misplaced. The Alabama Supreme Court’s
historical role in administering the State’s discriminatory literacy test, the
dissent contends, “indicates that state courts must be treated on the same
terms as state legislatures for § 5 purposes,” post, at 437. But it is com
mon ground that a “change” made pursuant to a state-court order is sub
ject to § 5 scrutiny; the only question is whether the Alabama Supreme
Court’s ruling in Stokes triggered a “change” within the meaning of our
decisions. See supra, at 420–421; post, at 436. More importantly, none
of the past discriminatory actions by the state court identified in the dis
sent would have been sheltered from § 5 review by our tightly bounded
decision in this case.

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430 RILEY v. KENNEDY
Stevens, J., dissenting
when the State’s transition from a blatantly discriminatory
regime was well underway.
Nevertheless, since Congress recently decided to renew
the VRA,1 and our task is to interpret that statute, we must
give the VRA the same generous interpretation that our
cases have consistently endorsed throughout its history. In
my judgment, the Court’s decision today is not faithful to
those cases or to Congress’ intent to give § 5 of the VRA,
§ 1973c, the “broadest possible scope,” reaching “any state
enactment which altered the election law of a covered State
in even a minor way.” Allen v. State Bd. of Elections, 393
U. S. 544, 566–567 (1969). I think it clear, as the Depart
ment of Justice argues and the three-judge District Court
held, 445 F. Supp. 2d 1333 (MD Ala. 2006), that the Alabama
Supreme Court’s decision in Stokes v. Noonan, 534 So. 2d
237 (1988), caused a change in voting practice that required
preclearance.
I
Section 5 preclearance is required “[w]henever a [covered]
State . . . shall enact or seek to administer any voting quali
fication or prerequisite to voting, or standard, practice, or
procedure with respect to voting different from that in force
or effect on November 1, 1964.” 42 U. S. C. § 1973c. The
critical question in this case is whether the procedure for
selecting Mobile County Commissioners arising out of
Stokes—gubernatorial appointment—is a “change” under § 5.
As an initial matter, the language of § 5 requires that the
practice be “different from that in force or effect on Novem
ber 1, 1964.” It is undisputed that the practice in force or
effect in 1964 was gubernatorial appointment, see Ala. Code
§ 12–6 (1958); the practice of calling a special election to fill
midterm openings on the Mobile County Commission was not
1 Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights
Act Reauthorization and Amendments Act of 2006, 120 Stat. 577. The
Act passed the Senate by a vote of 98 to 0. 152 Cong. Rec. S8012 (July
20, 2006).

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Stevens, J., dissenting
introduced until the passage of Alabama Act No. 85–237
(1985 Act).
The argument that a return to gubernatorial appointment
will never require preclearance under § 5 because gubernato
rial appointment was the practice in effect in 1964 is neither
persuasive nor properly before the Court. Appellant ex
pressly abandoned any such argument in his briefs to this
Court. See Reply Brief 8 (“Our contention, as we have al
ready said, is not that the Court needs to rethink prior dicta
suggesting that, despite its language, § 5 operates like a
ratchet to subsume newly-precleared practices . . . . That
question is not before the Court, and we take no position on
it”). Further, appellant did not raise the argument in either
of his trial briefs to the District Court. Governor’s Trial
Brief in Kennedy v. Riley, Civ. Action No. 2:05 CV 1100–T
(MD Ala.); Governor’s Supp. Trial Brief in Kennedy v. Riley,
Civ. Action No. 2:05 CV 1100–T (MD Ala.).
Appellant’s decision not to challenge the preclearance re
quirement on this ground was no doubt because of the settled
law to the contrary. Reflecting the fact that Congress cer
tainly did not intend § 5 to create a “safe harbor” for voting
practices identical to practices in effect in 1964, the settled
understanding among lower courts and the Department of
Justice is that § 5 operates instead as a ratchet, freezing in
place the most recent voting practice. See Brief for United
States as Amicus Curiae 16–18 (collecting cases); 28 CFR
§ 51.12 (2007). Furthermore, Congress has reauthorized the
VRA in the face of this understanding without amending
the relevant language of § 5. See Voting Rights Act Reau
thorization and Amendments Act of 2006, 120 Stat. 577; ante,
at 413, n. 1 (describing the history of renewals and exten
sions of the VRA). Thus, the inclusion of the date 1964 in
the language of § 5 poses no obstacle to my conclusion that
Stokes—even though it returned to gubernatorial practice—
implemented a change in voting practice that required
preclearance.

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432 RILEY v. KENNEDY
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II
Whether a voting practice represents a change that re
quires preclearance is measured against the previously pre
cleared “baseline” practice in force or effect. Young v.
Fordice, 520 U. S. 273, 282–283 (1997); Presley v. Etowah
County Comm’n, 502 U. S. 491, 495 (1992). The baseline is
the practice actually in effect immediately prior to the puta
tive change, whether or not that practice violates state law.
In Perkins v. Matthews, 400 U. S. 379 (1971), for example,
we held that the baseline practice was not at-large elections,
even though at-large elections were required by a 1962 state
statute. Because the city had never implemented that stat
ute, we held that the practice actually in force or effect on
November 1, 1964, was ward elections, despite that practice’s
illegality under state law. Id., at 394–395.
The situation was similar in City of Lockhart v. United
States, 460 U. S. 125 (1983). There we considered whether
the practice of using numbered posts for elections was in
force on the relevant coverage date and concluded that de
spite the possibility that this practice was illegal under
Texas law, the numbered-post system could serve as the
baseline. Id., at 132, and n. 6. We emphasized once again
that “[s]ection 5 was intended to halt actual retrogression in
minority voting strength without regard for the legality
under state law of the practices already in effect.” Id.,
at 133.
In Fordice, 520 U. S. 273, our most recent case deciding
whether a voting practice was a baseline under § 5, we con
cluded that the registration procedure at issue was not “in
force or effect” and therefore could not serve as the § 5 base
line. In 1994, Mississippi began modifying its registration
practices in an attempt to comply with the National Voter
Registration Act of 1993, 107 Stat. 77, 42 U. S. C. § 1973gg
et seq. In late 1994, the Mississippi secretary of state pro
posed a series of changes and assumed that the Mississippi
Legislature would adopt those changes. The secretary of

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state told at least one election official to begin registering
voters under the new plan. The proposed changes were
precleared, and about 4,000 voters were registered. The
legislature failed to adopt the proposal, however, and the
registrants were notified that they were not, as they had
thought, registered to vote in state or local elections. For
dice, 520 U. S., at 277–278. We held that the provisional reg
istration system was not the baseline because it was never
in force or effect.
An ordinary observer asked to describe voting practice in
Alabama with respect to the method of filling vacancies on
the Mobile County Commission would no doubt state that
before 1985 the practice was gubernatorial appointment, be
tween 1985 and 1988 the practice was special election, and
beginning in 1988 the practice changed to gubernatorial
appointment.
In the face of this history, the Court comes to the startling
conclusion that for purposes of the VRA Alabama has never
ceased to practice gubernatorial appointment as its method
of selecting members of the Mobile County Commission.
But under our case law interpreting § 5, it is clear that a
change occurred in 1988 when Stokes returned Alabama to
gubernatorial appointment.2 This represented a change be
cause the relevant baseline was the special election proce
dure mandated by the Alabama Legislature’s enactment of
the 1985 Act, which was precleared by the Department of
Justice in June 1985. Pursuant to that law, the Governor
called a special election when a vacancy arose in 1987. The
vacancy was filled, and the newly elected commissioner took
office in July 1987 serving, by way of his election, until Sep
tember 1988.
2 Even the majority cannot escape this conclusion, stating that “[t]he
State’s reinstatement of th[e] practice [of gubernatorial appointment] did
not constitute a change requiring preclearance.” Ante, at 422 (emphasis
added); see also, e. g., ante, at 416–417, 421–422. Of course, if there was
no change, then there was nothing to reinstate.

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434 RILEY v. KENNEDY
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It is difficult to say that the special election practice was
never “in force or effect” with a straight face. Jones was
elected and sat on the three-member Mobile County Com
mission for approximately 14 months. During those 14
months, the county commission held dozens of meetings, at
which the commission exercised its executive and adminis
trative functions. During the time he served as a result of
the special election, Jones was central to actions having a
direct and immediate impact on Mobile County. For exam
ple, at a meeting held on October 13, 1987, the commission
considered 25 agenda items, one of which was paying claims
and payrolls of over $1 million. Minutes from Meeting Oct.
13, 1987.
The differences between this case and Fordice are legion.
In holding that the provisional registration system in
Fordice did not constitute the baseline by which to measure
future practices, we emphasized that the plan was abandoned
as soon as it was clear that it would not be enacted, the plan
was in use for only 41 days, and only about one-third of the
election officials had even implemented the proposal. 520
U. S., at 283. Further, the State rectified the situation far
in advance of any elections; there was no evidence that any
one was prevented from voting because of reliance on the
rejected plan. Ibid.
Fordice was in essence a case of “no harm, no foul.” Here,
of course, the special election did take place, and the elected
commissioner held his post for 14 months, voting on hun
dreds of measures shaping the governance of Mobile County.
While the voters in Fordice could be reregistered under the
new procedures, Jones’ election to the commission and his
14-month service cannot be undone.
The majority seems to acknowledge that Fordice is distin
guishable, stating that if “the only relevant factors were the
length of time a practice was in use and the extent to which
it was implemented, this would be a close case.” Ante,
at 424. The Court relies, however, on the “extraordinary cir

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cumstance” that the 1985 Act was challenged immediately
and that the 1987 election was held “in the shadow” of that
legal challenge. Ante, at 424–425. But a cloud of litigation
cannot undermine the obvious conclusion that the special
election practice was in force or effect. That practice, there
fore, is the practice to which gubernatorial appointment
must be compared.
The majority makes much of the fact that to adopt the
view of the three-judge District Court would make the ques
tion whether a voting practice is “in force or effect” turn on
whether the circuit court happened to get the law right in
time to stop the election. Ante, at 426. But the majority’s
approach turns instead on whether Alabama possesses
highly motivated private litigants. If Stokes had not chal
lenged the election until it had already taken place (or had
failed to appeal), the election would be in force or effect
under the majority’s view. Nothing in the VRA or our cases
suggests that the VRA’s application should hinge on how
quickly private litigants challenge voting laws.
Our decisions in Perkins and Lockhart give no indication
that if a citizen in Canton, Mississippi, or Lockhart, Texas,
had challenged the legality of the ward elections or the
numbered-post system, the illegality of those practices under
state law would have been any more relevant to their status
as the relevant baselines. This case calls for nothing more
than a straightforward application of our precedent; that
precedent makes clear that the special election procedure
was the relevant baseline and that gubernatorial appoint
ment therefore represents a change that must be precleared.
III
The VRA makes no distinction among the paths that can
lead to a change in voting practice, requiring preclearance
“whenever” a State seeks to enact “any” change in voting
practice. 42 U. S. C. § 1973c. And changes to voting prac
tice can arise in at least four ways: (1) legislative enactment;

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436 RILEY v. KENNEDY
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(2) executive action; (3) judicial changes, either by a proac
tive judicial decision (e. g., redistricting) or, as in this case,
through judicial interpretation of state law; or (4) informal
abandonment or adoption by election officials.
The majority does not dispute that a change in voting
practice wrought by a state court can be subject to pre
clearance. See ante, at 420–421 (citing Branch v. Smith, 538
U. S. 254 (2003), and Hathorn v. Lovorn, 457 U. S. 255 (1982)).
But the majority falters when it treats the change effected
by Stokes differently for § 5 preclearance purposes than it
would treat a newly enacted statute or executive regulation.
The majority finds it “anomalous” that Alabama might be
bound “to an unconstitutional practice because of a state
trial court’s error.” Ante, at 426. The clear theme running
through the majority’s analysis is that the Alabama Supreme
Court is more deserving of comity than the Alabama
Legislature.
Imagine that the 1985 Act had been held constitutional by
the Alabama Supreme Court in Stokes, but that in 1988 the
Alabama Legislature changed its mind and repealed the Act,
enacting in its place a statute providing for gubernatorial
appointment. Imagine further that the Department of Jus
tice refused to preclear the practice (as it no doubt would);
if Alabama wanted to fill an open seat on the Mobile County
Commission it would have to administer its former special
election practice even though that law had been repealed.
It is not clear to me or to the United States, see Brief as
Amicus Curiae 25–27, why effectively requiring a State to
administer a law it has repealed is less offensive to state
sovereignty than requiring a State to administer a law its
highest court has found unconstitutional. The VRA, “by its
nature, intrudes on state sovereignty.” Lopez v. Monterey
County, 525 U. S. 266, 284 (1999).
The majority attempts to portray the Circuit Court
Judge’s decision as so far outside the bounds of Alabama law,

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see ante, at 426, that allowing it to effectively establish
the special election practice as a § 5 baseline would be in
tolerable. I am certain, however, that the two Alabama
Supreme Court Justices dissenting in Stokes would dis
agree. 534 So. 2d, at 239 (opinion of Steagall, J., joined
by Adams, J.). The dissenting justices argued that the 1985
Act was sufficiently “amendatory” to avoid the requirements
of Peddycoart v. Birmingham, 354 So. 2d 808 (Ala. 1978),
because it merely amended the 1957 Act creating the Mobile
County Commission. The Circuit Court Judge followed
similar reasoning, citing Alabama Supreme Court prece
dent stating that “[i]t is the duty of the courts to sustain
the constitutionality of a legislative act unless it is clear
beyond a reasonable doubt that it is in violation of the
fundamental law.” Stokes v. Noonan, No. CV–87–001316
(Mobile Cty., May 19, 1987). Nothing in the Circuit Court
Judge’s decision indicates that this case calls for anything
other than a straightforward application of our precedent.
IV
Finally, the history of the voting practices that the VRA
sought to address, especially in Alabama itself, indicates that
state courts must be treated on the same terms as state leg
islatures for § 5 purposes. Specifically, the history of Ala
bama’s voter registration requirements makes this quite
clear.3 Alabama’s literacy test originated in a constitutional
convention called in 1901 “largely, if not principally, for the
purpose of changing the 1875 Constitution so as to eliminate
Negro voters.” United States v. Alabama, 252 F. Supp.
95, 98 (MD Ala. 1966); see also M. McMillan, Constitutional
Development in Alabama, 1789–1901, pp. 217–232 (1955);
3 The NAACP Legal Defense and Educational Fund’s amicus brief pro
vides a history of the role that Alabama courts played in promoting and
retaining discriminatory voting practices.

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Hunter v. Underwood, 471 U. S. 222 (1985).4 Not wishing to
run directly afoul of the Fifteenth Amendment, delegates at
the convention devised a poll tax and a literacy test in order
to disfranchise African-Americans. The effects of the new
Constitution were staggering: In 1900, 100,000 African-
Americans were enrolled as voters in Alabama. By 1908,
only 3,742 African-Americans were registered to vote. Ala
bama, 252 F. Supp., at 99; V. Hamilton, Alabama: A Bicenten
nial History 96 (1977).5
The Alabama Constitution provided for judicial review of
contested registrar decisions, see § 186 (1901), but that re
view provision was rendered all but useless by the Alabama
Supreme Court’s adoption of both a strong presumption that
the Board of Registrars’ decisions were valid and stringent
pleading requirements. For example, in Hawkins v. Vines,
249 Ala. 165, 30 So. 2d 451 (1947), the Alabama Supreme
4 The spirit of the Constitution’s registration provision was captured by
the statement of Delegate Heflin:
“We want the white men who once voted in this State and controlled it,
to vote again. We want to see that old condition restored. Upon that
theory we took the stump in Alabama, having pledged ourselves to the
white people of Alabama, upon the platform that we would not disfranchise
a single white man, if you trust us to frame an organic law for Alabama,
but it is our purpose, it is our intention, and here is our registered vow to
disfranchise every negro in the State and not a single white man.” 3
Official Proceedings of the Constitutional Convention of the State of Ala
bama, May 21st, 1901, To September 3rd 1901, p. 2844 (1941).
5 Provisions following the lead of the 1890 “Mississippi Plan” were
enacted in other State Constitutions, with similar results. See C. Zelden,
The Battle for the Black Ballot 17–18 (2004) (describing similar changes to
registration practice in Mississippi, South Carolina, North Carolina, Loui
siana, Alabama, Virginia, Texas, and Georgia and their effects on registra
tion); C. Woodward, Origins of the New South 1877–1913, pp. 321–349
(1951) (describing effect of Mississippi Plan on the States that adopted it).
While poor white voters were also disfranchised to a significant degree,
these provisions fell most heavily on African-American voters. See id.,
at 342–343 (demonstrating that between 1897 and 1900 in Louisiana regis
tered white voters dropped by about 40,000 and registered African-
Americans dropped by approximately 125,000).

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Court rejected a petition from a denial of registration be
cause the petitioner averred that he “is a citizen of the
United States,” “is able to read and write,” and “is over the
age of twenty-one years,” rather than expressly stating that
he met those requirements at the time he attempted to regis
ter. Id., at 169, 30 So. 2d, at 455 (emphasis deleted; internal
quotation marks omitted). In Hawkins, the Alabama Su
preme Court also reaffirmed its previous holding in Boswell
v. Bethea, 242 Ala. 292, 296–297, 5 So. 2d 816, 820–821 (1942),
that the decisions of the board of registrars are “presump
tively regular and valid and the burden is on the one who
would attack the order to show error.” 249 Ala., at 169, 30
So. 2d, at 454.
Alabama’s literacy test was later amended via the “Bos
well Amendment” to include a requirement that voters dem
onstrate that they were able to “understand and explain any
article of the constitution of the United States in the English
language.” Ala. Const. § 181 (1901) (as amended in 1946 by
Amdt. 55). That amendment was held to be unconstitu
tional in Davis v. Schnell, 81 F. Supp. 872, 881 (SD Ala. 1949).
Not easily deterred, the legislature responded with a new
amendment, ratified in December 1951, which provided that
the Alabama Supreme Court would promulgate a uniform
questionnaire to be completed by all applicants. Ala. Const.
§ 181 (1901) (as amended in 1951 by Amdt. 91); see United
States v. Penton, 212 F. Supp. 193, 204, 205 (MD Ala. 1962)
(reproducing questionnaire in App. B).
During the period from 1951 to 1964, the Alabama Su
preme Court rendered the questionnaire more and more
complex. In 1960, in response to the efforts of African-
American organizations to educate voters, the questions
were arranged in different sequences for different question
naires. B. Landsberg, Free at Last To Vote: The Alabama
Origins of the 1965 Voting Rights Act 19 (2007). These new
questionnaires had the effect of blocking the registration of
thousands of African-American voters. For example, as a

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district court in Alabama found, between 1954 and 1960 only
14 African-Americans were registered to vote in Dallas
County—a county with approximately 15,000 African-
Americans. See United States v. Atkins, 323 F. 2d 733, 736
(CA5 1963). Among the African-Americans denied registra
tion were two doctors and six college graduates. Ibid.
The Alabama Supreme Court responded to the litigation
surrounding its questionnaire by drafting a new question
naire in 1964; that questionnaire had a literacy and civics test
on which questions were rotated, resulting in 100 different
forms of the test. E. Yadlosky, Library of Congress Legisla
tive Reference Service, State Literacy Tests as Qualifica
tions for Voting 19 (1965). The tests contained questions
such as “Ambassadors may be named by the President with
out the approval of the United States Senate. (True or
False),” and “If no person receives a majority of the electoral
vote, the Vice President is chosen by the Senate. (True or
False).” Ibid. (internal quotation marks omitted).6 These
tests were finally put to rest throughout the country in the
VRA, which mandates that “[n]o citizen shall be denied, be
cause of his failure to comply with any test or device, the
right to vote.” 42 U. S. C. § 1973aa.
In sum, prior to the VRA, the Alabama Supreme Court
worked hand in hand with the Alabama Legislature to erect
obstacles to African-American voting. While I do not wish
to cast aspersions on the current members of the Alabama
Supreme Court or the court that decided Stokes v. Noonan,
534 So. 2d 237, the history of the Alabama Supreme Court’s
role in designing Alabama’s literacy test provides a vivid il
lustration of why voting changes wrought by state-court de
6 Some of other questions were “Are post offices operated by the state
or federal government?,” “When residents of a city elect their officials, the
voting is called a municipal election. (True or false),” “Of what political
party is the president of the United States a member?,” and “What is the
chief executive of Alabama called?” United States v. Parker, 236 F. Supp.
511, 524, 525, 528 (MD Ala. 1964) (reproducing the questionnaire).

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cisions must be treated on the same terms as those brought
into effect by legislative or executive action.
V
There is simply nothing about this case that takes it out
side the ordinary reach of our VRA precedents. Because
the 1985 Act was precleared and put in effect during the
1987 election, the practice of special elections serves as the
relevant baseline. With the correct baseline in mind, it is
obvious that the gubernatorial appointment put in place by
Stokes is a practice “different from” the baseline. Because
gubernatorial appointment represents a change, it must be
precleared, as the three-judge District Court correctly held.
I therefore respectfully dissent.