Opinion
CIVIL ACTION NO: 04-0085, SECTION: "J"(5)
January 20, 2004
ORDER AND REASONS
Before the Court is Plaintiffs' Motion to Convene Three-Judge Panel (Rec. Doc. 6). Plaintiffs request that a three-judge panel be convened to preside over their claim arising under § 5 of the Voting Rights Act of 1965, and the Voting Rights Amendments of 1982, 28 U.S.C. § 2284 and 42 U.S.C. § 1973c. On January, 16, 2004, this Court conducted oral argument on Plaintiffs' motion. Upon consideration of the arguments and memoranda submitted by counsel, the complaint, and the applicable law, the Court concludes that Plaintiffs' request should be DENIED.
Background
The facts underlying the instant lawsuit involve a special election to elect a new mayor for the City of Kenner. This special election became necessary when the former Mayor, Louis Congemi, was elected to the Jefferson Parish Council. Mayor Congemi forwarded his prospective resignation to the office of the secretary of state on December 15, 2003, to become effective midnight, December 31, 2003. The letter was received by the secretary of state on December 15, 2003 and, pursuant to state law, the resignation became irrevocable as of that date. Pursuant to the city charter, councilman-at-large Dominic Weilbaecher was appointed acting mayor, effective January 1, 2004.The Secretary of State advised the Kenner City Council of its obligation. to call a special election with ten (10) days of the date of Mayor Congemi's resignation, or by December 29, 2003. Subsequent to his letter of resignation, but before actually leaving office, then Mayor Congemi issued a proclamation on December 22, 2003, calling a special primary election for March 9, 2004, and if necessary, a general election for April 17, 2004. The qualifying dates were set for January 28, 2004 through January 30, 2004.
The ten day period does not include weekends or holidays.
Thereafter, on December 29, 2003, the Kenner City Council voted 4-3 in favor of a motion calling a special election for September 18, 2004, with the general election to be held November 2, 2004. The qualifying dates are August 4, 2004 through August 6, 2004.
On December 31, 2003, on his second to last day in office, Mayor Congemi issued a second proclamation re-affirming the special election dates in March and April.
After becoming Acting Mayor, on January 8, 2004, Dominick Weilbaecher issued his own proclamation confirming the September and November election dates in accordance with the earlier action by the Council.
Subsequently, at the request of the Secretary of State, the Attorney General of Louisiana issued an opinion finding that the proclamation issued by Mayor Congemi complied with the mandatory requirements of the Kenner City Charter and the state election code by calling the special election for the next regularly scheduled election dates, March 9, 2004 and April 17, 2004.
The plaintiffs argue that Mayor Congemi and the Secretary of State violated applicable state law and the Kenner City Charter in calling the special election en those dates. Specifically, plaintiffs contend that under Section 3:06 of the Keener City Charter, upon resignation of the mayor, the city council shall call an election within ten 12: days of the date of the position becoming vacant to elect a new mayor. If the city council fails to act within that time period, the acting mayor is required to do so within two (2) days thereof. Thus, Mayor Congemi was net authorized pursuant to the Kenner City Charter to issue the proclamation.
The plaintiffs argue that the proclamation issued by Mayor Congemi and the affirmation of that proclamation by the Attorney General and Secretary of State constituted a change in a "standard, practice or procedure with respect to voting" which requires "preclearance" pursuant to Section 5 of the Voting Rights Act. Plaintiffs argue that a three-judge panel must be invoked to address the preclearance issue.
On the other hand, the opponents argue that what is being alleged by plaintiffs is merely a failure to follow existing state procedures and nor a "change" in a standard, practice, or procedure subject co preclearance under § 5. Accordingly, the opponents argue a three-judge panel is not necessary.
The "opponents" here are not the named defendants because plaintiffs have sued only Acting Mayor Weilbaecher and the City of Kenner, and both the acting mayor and the majority of the current City Council are on the same side of this issue as are the plaintiffs. At the oral arguments on this motion, counsel for several other interested parties appeared, including counsel representing the current Police Chief, Nick Congemi (an announce candidate for Mayor). Chief Congemi's counsel contends there is no justifiable "case or controversy" because all of the named plaintiffs and named defendants are on the "same side" of the case. The Court advised that it would realign the parties as necessary in order to resolve this case on its merits.
Discussion
Changes in voting procedures by covered jurisdictions are governed by § 5 of the Voting Rights Act, 42 U.S.C. § 1973c. Lopez v. Monterey County, 519 U.S. 9, 11, 117 S.Ct. 340, 343 (1996). § 5 is designed to prevent covered jurisdictions from enacting or administering changes in voting procedures that nave a discriminatory purpose or effect. Id. § 5 applies to any attempt by a covered jurisdiction 10 enact or administer such a change in voting practice or procedure that is different from that in force on the date of the commencement of § 5 coverage. Id. at 19, 117 S.Ct. at 346-47. § 5 "freez[es] election procedures in the covered areas unless the changes can be shown to be nondiscriminatory. " Reno v. Bossier Parish School Bd., 520 U.S. 471, 477, 117 S.Ct. 1491, 1497 (1997). However, § 5 applies only to certain states and their political subdivisions. Id. Louisiana, and its political subdivisions, have been subject to the provisions or § 5 since November 1, 1964. 28 C.F.R. app. § 51.
A covered jurisdiction nay not implement any change without administrative preclearance by the Attorney General of the United States, or judicial preclearance by the United States District Court for the District of Columbia. 28 U.S.C § 1973c; Reno, 520 U.S. at 477-78, 117 S.Ct. at 1497. No new voting practice or procedure is enforceable unless preclearance has been previously granted.Lopez, 519 U.S. at 20, 117 S.Ct. at 347. If a voting change subject to § 5 has not been precleared, a private plaintiff is entitled to an injunction barring the implementation of such a change.Id. However, "once a covered jurisdiction has complied with these preclearance requirements, § 5 provides no further remedy."Id. at 23, 117 S.Ct. at 348.
The issue of whether the § 5 preclearance requirements have been met must be resolved by a three-judge panel. 28 U.S.C. § 1973c;United States v. Saint Landry Parish School Bd., 601 F.2d 859, 862-63 (5th Cir. 1979). The Supreme Court in Lopez stated that a three-judge panel is to consider only the following issues: (1) whether § 5 covers a contested change; (2) whether § 5's approval requirements have been satisfied; and (3) if the requirements have not been satisfied, what temporary remedy, if any, is appropriate. 519 U.S. at 23, 117 S.Ct. at 349. The goal of a three-judge panel convened under § 5 is "to ensure that the covered jurisdiction submits its election plan to the appropriate federal authorities for preclearance as expeditiously as possible." Id. at 24, 117 So. Ct. at 349. However, under 29 U.S.C. § 2284 (b)(1), the single-judge district court to whom the three-judge panel request is made has the authority to determine if such a panel is required. Saint Landry, 601 F.2d at 863. Such a panel is not required if a plaintiff's § 5 claim is "wholly insubstantial or completely without merit." Id.
In Saint Landry, the court explained that "one would not normally conclude that a state `enacts or administers' a new voting procedure every time a state official deviates from the state's required procedures." Id. at 364. "We do not mean to intimate that state officials are free to violate approved state procedures and conduct in an election in a discriminatory manner." Id. "All we are saying is that this abuse is not one that § 5 was designed to alleviate."Id.
At the oral argument on January 16, 2004, the counsel for plaintiffs in the present case admitted that the only "change of procedure" alleged under § 5 is that Mayor Congemi issued the proclamation calling for a special primary election on March 9, 2004, rather than allowing the Kenner City Council to do so, as it was clearly authorized to do pursuant to the City Charter. Counsel for plaintiffs admitted that the March 9, 2004 election date was not a "change" under state law. In fact, according to plaintiffs' complaint they explain that the selection of dates for special elections is done according to L.P.S. 18:602(2)(a). Thus, although the election date was set by Mayor Congemi, rather than by the City Council, the date itself was not a "change."
"Plaintiffs also cite and rely on Justice Department regulations which provide in 2S C.F.R. § 51.17(a) that "the conduct of a special election . . . is subject to the preclearance requirement to the extent chat the jurisdiction makes changes in the practices or procedures to be followed." Subsection (b) further provides that "any discretionary setting of the date for a special election . . . is subject to the preclearance requirement." However, the special election in this case was not discretionary, but rather pursuant to established state law and the City Charter. Plaintiffs' real complaint is not that the state law or City Charter were changed, but simply that they were not followed in this instance.
The purpose behind the requirements of § 5 is to prevent the implementation of discriminatory voting plans and procedures. The Fifth Circuit has clearly held that § 5 is not invoked every time a state official deviates from the state's required procedures. Accordingly, it appears that Plaintiffs' § 5 claim is "wholly insubstantial and completely without merit." There is no need to convene a three-judge panel at this time.
Conclusion
Plaintiffs' request to convene a three-judge panel pursuant to § 5 of the Voting Rights Act and 28 U.S.C. § 2284 must be denied because their § 5 claim is clearly without merit. This does not mean that the plaintiffs are without a remedy for the alleged violations of state law. On the contrary, state law provides an adequate remedy in state courts. In fact, Acting Mayor Weilbaecher had already filed a state court suit challenging the legality of the March/April election dates, on virtually the same grounds as argued by the plaintiffs in this case.
Therefore;
It is HEREBY ORDERED that Plaintiffs' request that a three-judge panel be convened to preside over their claim arising under § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, is DENIED.