Hall et al v. State of Louisiana et al

Filing 173

RULING AND ORDER dismissing Plaintiff Kenneth Hall and Intervenor-Plaintiff Byron Sharper's claims under Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c, WITHOUT PREJUDICE to Hall's right to request leave of C ourt to re-urge such claims should the United States Congress pass into law a new coverage formula that includes the State of Louisiana, the Parish of East Baton Rouge, or the City of Baton Rouge as a covered jurisdiction; denying as MOOT Plaintiff K enneth Hall's Application for a Three-Judge Court (Doc. 71 ); and denying as MOOT Plaintiff Hall's Motion for Preliminary Injunction to Enforce Section 5 of the 1965 Voting Rights Act (Doc. 102 ). Signed by Chief Judge Brian A. Jackson on 9/27/2013. (SMG) Modified to edit links on 9/27/2013 (SMG). Modified to edit text on 9/27/2013 (SMG).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

KENNETH HALL

CIVIL ACTION

VERSUS
STATE OF LOUISIANA, ET AL.

NO.: 12-00657-BAJ-RLB

RULING AND ORDER
Before the Court is Plaintiff Kenneth Hall’s Application for a Three-Judge
Court (Doc. 71), requesting this Court to petition the Chief Judge of the United States
Court of Appeals for the Fifth Circuit to empanel a three-judge court, pursuant to 28
U.S.C. § 2284, to hear Plaintiffs claims under Section 5 of the Voting Rights Act of
1965. The motion is unopposed. Oral argument is not necessary. The Court has
jurisdiction pursuant to 28 U.S.C. 1331.
Also before the Court is Plaintiff Hall’s Motion for Preliminary Injunction
to Enforce Section 5 of the 1965 Voting Rights Act (Doc. 102), seeking an order
from this Court granting his request for a preliminary injunction against Defendants,
pursuant to Section 5 of the Voting Rights Act of 1965. Defendant Tom Schedler
opposes the motion. (Doc. 107.) Defendants the City of Baton Rouge and the Parish
of East Baton Rouge also oppose the motion. (Doc. 109.) Oral argument is not
necessary. The Court has jurisdiction pursuant to 28 U.S.C. 1331.

I.

Plaintiff Kenneth Hall’s Allegations
Plaintiff Kenneth Hall1 (“Hall”) filed this lawsuit2 pursuant to the Civil Rights

Act of 1871, as amended, 42 U.S.C. §§ 19833 (“Section 1983”), 1986; Section 2 of the
Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973; Section 5 of the Voting Rights
Act of 1965, as amended, 42 U.S.C. § 1973c; the First Amendment to the United States
Constitution, U.S. CONST. amend. I; the Fourteenth Amendment to the United States
Constitution, U.S. CONST. amend. XIV, § 1; the Fifteenth Amendment to the United
States Constitution, U.S. CONST. amend. XV, § 1, and “the democratic principles of
majority rule and individualist egalitarianism of the United States Constitution”4

1

On May 1, 2013, Byron Sharper was added as an Intervenor-Plaintiff in this matter. (Doc. 127.)
Subsequently, Sharper filed a Complaint (Doc. 128) and a Supplemental Complaint (Doc. 133). As
discussed below, this Ruling and Order shall also apply to Sharper’s Section 5 claims.
2

Hall’s original complaint was filed as a class action. (Doc. 1.) Subsequently, Hall filed Plaintiff’s
Motion to Certify Case as a Class Action (Doc. 58), which was denied as premature, without prejudice
to Hall’s right to re-file the motion, if necessary, after the Court issues its rulings on the pending
dispositive motions. (Doc. 172.)
3

“Section 1983 imposes liability on anyone who, under color of state law, deprives a person ‘of any
rights, privileges, or immunities secured by the Constitution and laws.’ [T]his provision safeguards
certain rights conferred by federal statutes.” Blessing v. Freestone, 520 U.S. 329, 340 (1997) (citing
Maine v. Thiboutot, 448 U.S. 1 (1980)).
While it is not clear from Hall’s pleadings, it appears that Hall’s Section 1983 claims include: (1)
a Section 1983 claim that the 1993 Judicial Election Plan violates the First Amendment’s guarantee of
freedom of speech, made applicable to the States by the Equal Protection Clause of the Fourteenth
Amendment; (2) a Section 1983 claim that the 1993 Judicial Election Plan violates the Equal Protection
Clause of the Fourteenth Amendment; (3) a Section 1983 claim that the 1993 Judicial Election Plan
violates the Due Process Clause of the Fourteenth Amendment; (4) a Section 1983 claim that the 1993
Judicial Election Plan violates the Fifteenth Amendment; (5) a Section 1983 claim that the 1993 Judicial
Election Plan violates Section 2 of the Voting Rights Act of 1965; (6) a Section 1983 claim that the 1993
Judicial Election Plan violates Section 5 of the Voting Rights Act of 1965; and (7) a Section 1983 claim
that the 1993 Judicial Election Plan violates the “democratic principles of majority rule and
individualistic egalitarianism” related to the “one person, one vote” principle of the Equal Protection
Clause of the Fourteenth Amendment.
4

While it is not clear which Constitutional Amendment or federal statute Hall is referencing, it
appears that the reference to the “democratic principles of majority rule and individualistic
2

against Defendants the State of Louisiana, Governor Piyush Jindal5, Attorney General
James D. Caldwell6, Secretary of State Tom Schedler7, the City of Baton Rouge, the
Parish of East Baton Rouge, the City Court of Baton Rouge, Mayor Melvin Holden8, the
Louisiana House of Representatives9, the Louisiana Senate10, Judge Laura Davis11,
Judge Suzan Ponder12, and Judge Alex Wall.13 (Docs. 1, 13, 74, and 76.) Hall alleges
that the current judicial election plan, enacted by the Louisiana State Legislature in

egalitarianism” is related to the “one person, one vote” principle of the Equal Protection Clause of the
Fourteenth Amendment of the U.S. Constitution.
5

Defendant Piyush “Bobby” Jindal is sued in his official capacity as the Governor of the State of
Louisiana.
6

Defendant James D. “Buddy” Caldwell is sued in his official capacity as the Attorney General
of the State of Louisiana.
7

Defendant Tom Schedler is sued in his official capacity as the Louisiana Secretary of State.

8

Defendant Melvin “Kip” Holden is sued in his official capacity as the Mayor of the City of Baton

Rouge.
9

The Louisiana House of Representatives is sued by and through Charles E. “Chuck” Kleckley,
in his official capacity as Speaker of the Louisiana House of Representatives, and Walt Leger, III, in his
official capacity as Speaker Pro Tempore of the Louisiana House of Representatives.
10

The Louisiana Senate is sued by and through John A. Alario, Jr., in his official capacity as
President of the Louisiana Senate, and Sharon Weston Broom, in her official capacity as President Pro
Tempore of the Louisiana Senate.
11

Hall originally sued Defendant Laura Davis in her individual and official capacities as a Judge
on the City Court of Baton Rouge. However, during the May 31, 2013 hearing on Davis, Ponder, and
Wall’s Motion to Dismiss (Doc. 99), the Court dismissed Hall’s claims pursuant to 42 U.S.C. § 1983 and
Section 2 of the Voting Rights Act of 1965 against Davis in her individual capacity.
12

Hall originally sued Defendant Suzan Ponder in her individual and official capacities as a Judge
on the City Court of Baton Rouge. However, during the May 31, 2013 hearing on Davis, Ponder, and
Wall’s Motion to Dismiss (Doc. 99), the Court dismissed Hall’s claims pursuant to 42 U.S.C. § 1983 and
Section 2 of the Voting Rights Act of 1965 against Ponder in her individual capacity.
13

Hall originally sued Defendant Alex “Brick” Wall is his individual and official capacities as a
Judge on the City Court of Baton Rouge. However, during the May 31, 2013 hearing on Davis, Ponder,
and Wall’s Motion to Dismiss (Doc. 99), the Court dismissed Hall’s claims pursuant to 42 U.S.C. § 1983
and Section 2 of the Voting Rights Act of 1965 against Wall is his individual capacity.
3

1993, dilutes and diminishes the voting rights of African American voters in the City
of Baton Rouge, in violation of the U.S. Constitution and the Voting Rights Act of 1965.
Hall further alleges that the judicial election plan, codified at La. R.S. § 1(4)(a)(b)(c),
which divides the City of Baton Rouge into two election Sections (Sections 1 and 2) and
five election Divisions (Divisions A, B, C, D, and E)14, impermissibly dilutes the votes
of African Americans, who now make up 54.3% of the total City population.15
According to Hall, the current Judicial Election Plan discriminates against
African Americans because African American voters, who make up the majority of
Section 1 and the City population, are only allotted two judges, while White voters,
who make up the majority of Section 2 but a minority of the City population, are
allotted three judges. Hall further alleges that the Defendants’ refusal to reapportion
the City Court judges and/or redraw the geographic boundaries of the Divisions in
accordance with the City of Baton Rouge’s 2010 Census demographic data is an
intentional attempt to dilute the votes of African Americans.
Accordingly, Hall seeks a ruling and judgment declaring, inter alia, that the
1993 Judicial Election Plan violates: (1) the First Amendment’s guarantee of freedom
of speech, made applicable to the States by the Equal Protection Clause of the

14

Under the current Judicial Election Plan, the City of Baton Rouge is divided into two judicial
election sections: Section 1 and Section 2. Each Section then divided into multiple Divisions. Section
1 is divided into Divisions B and D, and Section 2 is divided into Divisions A, C, and E. Each Division
elects one judge to the City Court of Baton Rouge.
15

Hall also points the Court to the United States Census Data, which indicates that the total
population of Whites, not Hispanic or Latino, in the City of Baton Rouge decreased from 118,429 or 53.9%
in the year 1990 to 86,679 or 37.8% in the year 2010. (Doc. 1, ¶¶ 19-21.)
4

Fourteenth Amendment; (2) the Equal Protection Clause of the Fourteenth
Amendment; (3) the Due Process Clause of the Fourteenth Amendment; (4) the
Fifteenth Amendment; (5) Section 2 of the Voting Rights Act of 1965; (6) Section 5 of
the Voting Rights Act of 1965; and (7) the “democratic principles of majority rule and
individualistic egalitarianism” related to the “one person, one vote” principle of the
Equal Protection Clause of the Fourteenth Amendment. Further, Hall requests an
injunction forbidding Defendants from enforcing the 1993 Judicial Election Plan,
including enjoining Defendants from “calling, holding, supervising, or certifying” any
future elections. Hall also seeks a ruling and judgment holding Defendants liable
under Section 1983, and granting him attorney’s fees, pursuant to 42 U.S.C. § 1988.
II.

Plaintiff Hall’s Motions for a Three-Judge Court and a
Preliminary Injunction
As to Plaintiff Kenneth Hall’s Application for a Three-Judge Court (Doc. 71),

Hall alleges that Defendants failed to obtain federal preclearance for the current
Judicial Election Plan, in violation of Section 5 of the Voting Rights Act. Specifically,
Hall claims that Defendants failed to submit for review and approval by the United
States Department of Justice or the United States District Court for the District of
Columbia: (1) the City of Baton Rouge’s conversion from plurality to majority vote; (2)
creation of the Divisions; (3) creation of additional judgeships; (4) changes in the
judge’s terms of office; (5) changes in judge qualifications; and (6) the City of Baton
Rouge’s annexations; thereby rendering those alleged “voting changes” legally
unenforceable. Accordingly, Hall requests this Court to petition the Chief Judge of the
5

Fifth Circuit to empanel a three-judge court, pursuant to 28 U.S.C. § 2284, to hear
Plaintiffs claims under Section 5 of the Voting Rights Act.16 The motion is unopposed.
As to Plaintiff Hall’s Motion for Preliminary Injunction to Enforce Section 5 of
the 1965 Voting Rights Act (Doc. 102), Hall seeks an order from this Court enjoining
Defendants from enforcing “voting changes” that allegedly have not been precleared,
as required by Section 5 of the Voting Rights Act. Specifically, Hall requests an order

16

28 U.S.C. § 2284 states:

(a)

A district court of three judges shall be convened when otherwise required by Act
of Congress, or when an action is filed challenging the constitutionality of the
apportionment of congressional districts or the apportionment of any statewide
legislative body.

(b)

In any action required to be heard and determined by a district court of three
judges under subsection (a) of this section, the composition and procedure of the
court shall be as follows:
(1)

Upon the filing of a request for three judges, the judge to whom the
request is presented shall, unless he determines that three judges are
not required, immediately notify the chief judge of the circuit, who shall
designate two other judges, at least one of whom shall be a circuit judge.
The judges so designated, and the judge to whom the request was
presented, shall serve as members of the court to hear and determine
the action or proceeding.

(2)

If the action is against a State, or officer or agency thereof, at least five
days’ notice of hearing of the action shall be given by registered or
certified mail to the Governor and attorney general of the State.

(3)

A single judge may conduct all proceedings except the trial, and enter all
orders permitted by the rules of civil procedure except as provided in this
subsection. He may grant a temporary restraining order on a specific
finding, based on evidence submitted, that specified irreparable damage
will result if the order is not granted, which order, unless previously
revoked by the district judge, shall remain in force only until the hearing
and determination by the district court of three judges of an application
for a preliminary injunction. A single judge shall not appoint a master,
or order a reference, or hear and determine any application for a
preliminary or permanent injunction or motion to vacate such an
injunction, or enter judgment on the merits. Any action of a single judge
may be reviewed by the full court at any time before final judgment.
6

(1) voiding, as illegal, the City Court of Baton Rouge’s November 6 and December 8,
2012 elections; (2) decertifying the qualifying results for the November 6 and December
8, 2012 elections; (3) invalidating commissions to any and all of the winning
candidates; (4) enjoining Defendants from further administering or implementing
voting changes concerning the City Court of Baton Rouge elections; and (5) further
requiring Defendants to take corrective action to resolve the alleged underlying Section
5 violations by ordering Defendants to file a declaratory judgment action seeking
Section 5 preclearance within 30 days of an order from this Court, or to hold a new
election within 120 days for all judicial positions in Divisions A, B, C, D, and E that use
the unprecleared annexations.
In opposition, Defendant Schedler argues that a retroactive injunction is not
warranted. Schedler further argues that he is not a proper party to this litigation, that
Hall has failed to demonstrate a substantial likelihood of success on the merits, and
that Hall has failed to demonstrate that he would suffer irreparable injury in the event
the November 6 and December 8, 2012 elections are upheld. Thus, Schedler contends
Hall’s motion should be denied.
In further opposition, Defendants City of Baton Rouge and Parish of East Baton
Rouge argue that all voting changes enacted subsequent to the effective date of Section
5 of the Voting Rights Act have been precleared.17 Thus, Hall cannot demonstrate a

17

Defendants the City of Baton Rouge and the Parish of East Baton Rouge’s memorandum in
opposition erroneously states, “[i]n his prior attempt to enjoin the Baton Rouge City Court elections,
Plaintiff failed to prove that any voting changes affecting the election of Baton Rouge City Court Judges
that were enacted subsequent to the effective date [sic] Section 5 of the Voting Rights [sic] of 1965 have
not been precleared.” However, the record indicates that at the conclusion of the Court’s hearing on
7

likelihood of success on the merits of his Section 5 claims, and his motion for a
preliminary injunction should be denied.
III.

The Court’s Hearing on the Applicability of Shelby County v.
Holder to Hall’s Voting Rights Claims
Following the United States Supreme Court’s opinion in Shelby County,

Alabama v. Eric H. Holder, Attorney General, et al., 133 S. Ct. 2612 (2013) (“Shelby
County”), the Court ordered the parties to submit memoranda regarding the
applicability of Shelby County to Hall’s claims under the Voting Rights Act.18 (Doc.
148.) In response, Plaintiff Hall19 and Defendants Schedler, the City of Baton Rouge
and the Parish of East Baton Rouge, Jindal and Caldwell20, the Louisiana House of
Representatives and the Louisiana Senate, and Davis, Ponder, and Wall each
submitted memoranda. See Docs. 156, 152, 153, 154, 157, and 158, respectively.
During the July 26, 2013 hearing on the matter, counsel for Hall and counsel for

Hall’s initial request for a preliminary injunction, this Court concluded that “Plaintiff satisfactorily
demonstrated a likelihood of success on the merits of the underlying claims. However, the Court further
concludes that the Plaintiff failed to prove a substantial threat of irreparable injury if a preliminary
injunction is not granted.” (Doc. 45, pp. 1-2.)
18

The order further required the parties to address the applicability of Shelby County to
Intervenor-Plaintiff Sharper’s claims under the Voting Rights Act. (Doc. 148.)
19

Plaintiff Hall’s memorandum was jointly submitted by Hall and Intervenor-Plaintiff Sharper.
(Doc. 156.)
20

In response to the Court’s order, Defendants Jindal and Caldwell filed a document entitled,
“Memoranda [sic] Regarding the Applicability of the Ruling in Shelby County v. Holder to Plaintiff
Kenneth Hall’s and Intervenor Plaintiff Byron Sharper’s Claims Under the Voting Rights Act of 1965.”
(Doc. 154.) However, contrary to the title of the document, Defendants Jindal and Caldwell only filed
one memorandum into the record.
8

Defendants Jindal, Caldwell, the Louisiana House of Representatives, and the
Louisiana Senate presented oral argument to the Court.21
After hearing the parties’ arguments on the matter and reviewing the Supreme
Court’s opinion in Shelby County, Hall’s claims under Section 5 of the Voting Rights
Act, and the parties submissions, the Court concludes that Shelby County renders
Hall’s Section 5 claims a nullity, thus rendering Hall’s motions moot.
IV.

Analysis
A.

Sections 4 and 5 of the Voting Rights Act of 1965

Section 5 of the Voting Rights Act prevents certain “covered” jurisdictions from
implementing any change to voting practices or procedures unless and until the
jurisdiction demonstrates to federal authorities that the change “neither has the
purpose nor will have the effect of denying or abridging the right to vote on account of
race or color.” 42 U.S.C. § 1973c. Section 4(b) of the Voting Rights Act establishes the
formula by which federal authorities determine which jurisdictions are subject to
Section 5’s preclearance requirements. As originally enacted, a jurisdiction was
“covered” under Section 4(b) if it maintained a voting test or device as of November 1,
1964, and had less than 50% voter registration or turnout in the 1964 presidential
election.22 42 U.S.C. § 1973b. The jurisdictions originally covered by this formula were
21

Counsel for Defendants Schedler, the City of Baton Rouge, the Parish of East Baton Rouge,
Davis, Ponder, and Wall chose not to present oral argument to the Court.
22

A voting “test or device” was defined by statute as a requirement that a person “(1) demonstrate
the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational
achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove
his qualifications by the voucher of registered voters or members of any other class.” 42 U.S.C. §
1973b(c).
9

Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. Certain
political subdivisions (usually counties) in Arizona, Hawaii, Idaho, and North Carolina
also qualified for coverage. Since that time, the list of “covered” jurisdictions has
expanded to include the states of Alaska, Arizona, and Texas, and additional counties
in California, Florida, New York, North Carolina, and South Dakota. 28 C.F.R. Pt. 51,
App.
B.

Procedural History of Shelby County

In 2010, plaintiff Shelby County, Alabama, a jurisdiction covered by Section 4(b),
filed suit against defendant United States Attorney General Eric. H. Holder, Jr.,
seeking a declaratory judgment that Sections 4(b) and 5 of the Voting Rights Act are
facially unconstitutional.

It also sought a permanent injunction against their

enforcement.23 Subsequently, the United States District Court for the District of
Columbia denied Shelby County’s motion for summary judgment, and granted
summary judgment to the Attorney General. Shelby County v. Holder, 811 F. Supp.
2d 424 (D.D.C. 2011). The United States Court of Appeals for the District of Columbia
Circuit affirmed the decision of the District Court. Shelby County v. Holder, 679 F.3d
848 (D.C. Cir. 2012). In response, Shelby County filed a petition for writ of certiorari,
which was granted by the Supreme Court on November 9, 2012. Shelby County v.
Holder, 133 S. Ct. 594 (2012).

23

Specifically, Shelby County alleged that Section 4(b)’s coverage formula and Section 5’s
preclearance obligation for covered jurisdictions exceeded Congress’ enforcement authority under the
Fourteenth and Fifteenth Amendments, and violated the principle of “equal sovereignty” embodied in
the Tenth Amendment and Article IV of the United States Constitution.
10

C.

The Supreme Court’s Opinion

On June 25, 2013, the Supreme Court issued its opinion declaring Section 4(b)
of the Voting Rights Act unconstitutional. Shelby County v. Holder, 133 S. Ct. 2612
(2013). In a five to four opinion, the Court reversed the District of Columbia Circuit’s
decision, and held that the Section 4(b) “coverage formula” could not be used as a basis
for subjecting jurisdictions to preclearance by federal authorities. Id. at 2631. The
Court reasoned that Congress’ failure to update Section 4(b)’s coverage formula when
it reauthorized the Voting Rights Act in 2006, left the Court “with no choice but to
declare § 4(b) unconstitutional.” Id. According to the Court, “[t]he formula in that
section can no longer be used as a basis for subjecting jurisdictions to preclearance.”
Id. The Court made clear, however, that its decision, “in no way affects the permanent,
nation-wide ban on racial discrimination in voting found in § 2.” Id.
As it relates to Section 5, the Court stated, “[w]e issue no holding on § 5 itself,
only the coverage formula.” Id. However, as a result of the Court’s opinion, the Voting
Rights Act no longer has a formula by which federal authorities may determine which
jurisdictions are subject to preclearance under Section 5. Id. at 2633, n.1 (Ginsburg,
J., dissenting) (“The Court purports to declare unconstitutional only the coverage
formula set out in § 4(b) . . . But without that formula, § 5 is immobilized.”).

11

D.

The Applicability of Shelby County to Hall’s Claims Under
the Voting Rights Act

In their submissions to the Court, and during the Court’s July 26, 2013 hearing
on the matter, counsel for all parties agreed that Shelby County does not affect Hall’s
claims under Section 2. Thus, Hall’s Section 2 claims are not at issue.
As it relates to Hall’s claims under Section 5, during the hearing, counsel for
Hall conceded that Sections 4 and 5 must be read together. Counsel for Hall also
acknowledged that Shelby County “immobilized” Section 5.24 Counsel contended,
however, that Shelby County should not be applied retroactively. Specifically, counsel
for Hall argued that any pending Section 5 claims based on actions that allegedly
occurred before Congress’ reauthorization of the Voting Rights Act in 2006 are
unaffected by Shelby County.
A review of the record reveals that Hall’s Section 5 claims are based on actions
that allegedly occurred between 1982 and 2012. As noted above, Hall concedes that
any Section 5 claims based on actions that allegedly occurred after Congress’
reauthorization of the Voting Rights Act in 2006 are a nullity.

Thus, the only

remaining issue for the Court is whether Shelby County also nullified Hall’s Section
5 claims based on actions that allegedly occurred before Congress’ reauthorization of
the Voting Rights Act in 2006.

24

In their memorandum to the Court, Hall and Intervenor-Plaintiff Sharper further concede,
“until new section 4 criteria are adopted by Congress[,] Louisiana is not presently a covered jurisdiction.”
(Doc. 156, p. 3.)
12

In support of his argument, Hall cites Chevron Oil Co. v. Huson, 404 U.S. 97
(1971) for the proposition that the Court must apply a balancing test to determine
whether to apply the Supreme Court’s holding in Shelby County retroactively.25 Hall
further argues that when the Chevron Oil test is applied to the instant matter,
retroactive application is not warranted.
The Court notes, however, that the Chevron Oil test was overruled by the
Supreme Court in Harper v. Virginia Dep’t of Taxation, 509 U.S. 86 (1993), in which
the Court held:
When this Court applies a rule of federal law to the parties before it, that
rule is the controlling interpretation of federal law and must be given full
retroactive effect in all cases still open on direct review and as to all
events, regardless of whether such events predate or postdate our
announcement of the rule.
Id. at 97. In Harper, the Court further opined that when it does not “‘reserve the
question whether its holding should be applied to the parties before it’ . . . an opinion
announcing a rule of federal law . . . must be ‘read to hold . . . that its rule should apply
retroactively to the litigants then before the Court.’” Id. at 97-98 (quoting James B.
Beam Distilling Co. v. Georgia, 501 U.S. 529, 539 (1991). The Fifth Circuit has

25

In Chevron Oil, the Supreme Court set out the following factors:

First, the decision to be applied nonretroactively must establish a new principle of law,
either by overruling clear past precedent on which litigants may have relied, or by
deciding an issue of first impression whose resolution was not clearly foreshadowed.
Second, it has been stressed that ‘we must . . . weigh the merits and demerits in each
case by looking to the prior history of the rule in question, its purpose and effect, and
whether retrospective operation will further or retard its operation.’ Finally, we have
weighed the inequity imposed by retroactive application. . . .
Chevron Oil Co., 404 U.S. at 106-107 (citations omitted).
13

affirmed that Harper is the law, resulting in the retroactive application of judicial
decisions in all cases still open on direct review.26
When the Supreme Court issued its opinion in Shelby County, it did not
expressly indicate whether its decision should be applied retroactively. However,
under the prevailing rules governing the application of judicial decisions, the Court’s
opinion “is properly understood to have followed the normal rule of retroactive
application.” Harper, 509 U.S. at 97. In sum, because the Supreme Court did not state
a contrary intention in Shelby County, the general rule that a rule of law set out by the
Court must be given retroactive effect in cases that are still under direct review
applies.27
In accordance with this general rule, the Supreme Court’s holding invalidating
Section 4(b) and immobilizing Section 5 “must be given full retroactive effect” in the
instant matter.

Thus, the Supreme Court’s holding in Shelby County must be

retroactively applied to all of Hall’s Section 5 claims, including those claims that are
based on actions that allegedly occurred before Congress’ reauthorization of the Voting
Rights Act in 2006.

26

Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278, 282 (5th Cir. 1999) (“[o]f course,
Supreme Court decisions apply retroactively and prospectively to all cases on direct appeal whenever
applied to the litigants before the Court.” (citing Harper, 509 U.S. at 97)).
27

The Court further notes that the retroactive application of judicial decisions is a longstanding
maxim. “The general principle that statutes operate prospectively and judicial decisions apply
retroactively [has] been followed by the common law and the Supreme Court’s decisions ‘for near a
thousand years.’” Hulin v. Fibreboard Corp., 178 F.3d 316, 329 (5th Cir. 1999) (quoting Kuhn v.
Fairmont Coal Co., 215 U.S. 349, 372 (1910)).
14

In sum, as a result of Shelby County, the Voting Rights Act no longer has a
formula by which federal authorities may identify the jurisdictions that are subject to
preclearance under Section 5, thereby eliminating the requirement that Defendants
in this matter obtain preclearance. Because the Supreme Court’s holding in Shelby
County must be applied retroactively to “all events, regardless of whether such events
predate or postdate” the Court’s holding, Section 5 no longer offers Hall a remedy for
Defendants’ alleged failure to obtain preclearance. Accordingly, all of Hall’s Section
5 claims must be dismissed. Further, all of Intervenor-Plaintiff Sharper’s Section 5
claims must also be dismissed.
V.

Conclusion
Accordingly,
IT IS ORDERED that Plaintiff Kenneth Hall’s claims under Section 5 of the

Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c are DISMISSED, without
prejudice to Hall’s right to request leave of Court to re-urge such claims should the
United States Congress pass into law a new coverage formula that includes the State
of Louisiana, the Parish of East Baton Rouge, or the City of Baton Rouge as a covered
jurisdiction.
IT IS FURTHER ORDERED that Intervenor-Plaintiff Byron Sharper’s claims
under Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c are
DISMISSED, without prejudice to Sharper’s right to request leave of Court to re-urge
such claims should the United States Congress pass into law a new coverage formula

15

that includes the State of Louisiana, the Parish of East Baton Rouge, or the City of
Baton Rouge as a covered jurisdiction.
IT IS FURTHER ORDERED that Plaintiff Kenneth Hall’s Application for
a Three-Judge Court (Doc. 71) is DENIED AS MOOT.
IT IS FURTHER ORDERED that Plaintiff Hall’s Motion for Preliminary
Injunction to Enforce Section 5 of the 1965 Voting Rights Act (Doc. 102) is
DENIED AS MOOT.
Baton Rouge, Louisiana, this 27th day of September, 2013.

______________________________________
BRIAN A. JACKSON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

16