County That Gutted The Voting Rights Act Won't Be Paid For Its Effort

It's been more than two years since the Supreme Court dealt a major blow to the Voting Rights Act of 1965, and the case is still moving through the courts. But hopefully not for much longer.

On Tuesday, the U.S. Court of Appeals for the D.C. Circuit declined to award the winner in that case, Alabama's Shelby County, more than $2 million in attorney fees from the loser in that case, the United States.

Under federal law, plaintiffs who help enforce civil rights laws through successful lawsuits are generally entitled to reimbursement of the fees they paid their attorneys. The rationale is that discrimination is ugly, litigation to root it out is expensive, and the bad actors who perpetrate it should pay for that effort.

But the federal appeals court found that the Alabama county didn't quite meet the criteria.

"Shelby County's problem here is not that this lawsuit may have upset some observers," wrote Judge Thomas Griffith. "We find Shelby County not entitled because its lawsuit did not enforce compliance with the [Voting Rights Act] and because Congress did not intend to use fees to encourage the invalidation of the Act's provisions."

In other words, they're not entitled to anything because they didn't sue to protect citizens from voting discrimination. They sued because they didn't like the law that protects citizens from voting discrimination, and the law wasn't designed to award those who undermine it.

Richard Hasen, a law professor at the University of California, Irvine, who specializes in election law, called the county's position in the fees request "chutzpah."

Let's backtrack a bit: Shelby County filed suit against the federal government because officials sought to free themselves of the onerous requirements the Voting Rights Act imposed on their efforts to change the county's voting procedures.

The gist of the county's challenge was that it no longer believed voting discrimination within its boundaries was so rampant that the law should subject it to "preclearance" -- the process of asking the Justice Department or a special federal court in Washington, D.C., for permission every time a "covered" jurisdiction enacts new election rules.

That requirement, Shelby County argued, was unconstitutional because it exceeded Congress' authority and infringed on the county's prerogatives to decide its own election rules. Think of the argument as states' rights vs. voting rights.

Five justices of the Supreme Court bought it. In Shelby County v. Holder, they struck down the key provision of the Voting Rights Act that brought the county and other jurisdictions with a history of discrimination under the supervision of the federal government.

Once free from the burden of preclearance, you'd think Shelby County would go away happy that it won a big Supreme Court case. Instead, the county asked a lower court to award it $2 million to pay for litigation expenses. After all, it won a case under an important federal statute, right?

Well, no.

The D.C. Circuit explained that an entity like Shelby County "can only receive fees if it also shows that it is entitled to them, meaning that its victory in court helped advance the rationales that led Congress to create" the possibility of an award of attorney fees.

Here, the rationale of Congress was simple: The Voting Rights Act exists to safeguard the "voting guarantees" of the 14th and 15th Amendments, not to allow a county government to bring a lawsuit that narrows its protections.

"I find nothing at all difficult about the question whether the County is even eligible for fees," Circuit Judge David Tatel wrote, adding that he wouldn't even engage in a lengthy constitutional discussion. To him, it was clear that the 14th and 15th Amendments "protect not state autonomy, but rather individual rights against State denial or invasion."

So Shelby County is not entitled to any money, despite winning big at the Supreme Court. In this small respect, it seems that justice prevailed.