The Tennessee Secretary of State appealed the fee award to the Sixth Circuit. Tennessee argued that the grant of the preliminary injunction was an interlocutory order and that the voter rights groups therefore could not be prevailing parties. The appellate court disagreed, holding that the voter rights groups were the prevailing parties by obtaining their preliminary injunction victory, even though plaintiffs voluntarily dismissed the case shortly after the law was repealed.
The appellate court found that voters who were registered during the preliminary injunction period could not be “unregistered” when the injunction expired, making the lower court’s injunction order final. The court also held that when a preliminary injunction is granted at the district court level and not challenged on appeal, the case’s procedure and record are “enduring enough to support prevailing-party status.”
The dissenting opinion argued that the majority broke with the Supreme Court precedent in Buckhannon Board & Care Home Inc. v. West Virginia Department of Health & Human Services, where plaintiffs were deemed not entitled to an attorney fees award because the defendants only invalidated the challenged law. Further, the dissenting opinion argued that in instances where “a state-defendant voluntarily repeals the statute before a merits decision,” organizations should not be entitled to fees.
Enormous Expense of Voting Rights Litigation
The Sixth Circuit’s holding highlights the tremendous expense and resources that are needed to pursue voting rights cases, especially when a claimant needs to marshal substantial evidence to prove a widespread constitutional or statutory violation, explains Allegra Hardy-Lawrence, Atlanta, GA, cochair of the ABA Litigation Section’s Minority Trial Lawyer Committee. The ability to recover legal fees and court costs make the investment worthwhile, she adds. “The fee-shifting provisions of our civil rights laws allow individuals and civic groups to mount legal challenges to unlawful election practices with the confidence that, in success, their enormous investment is somewhat recoverable,” she continues. Hardy-Lawrence points out that the Sixth Circuit’s decision is compatible with practical reality because so few cases are litigated to final judgment.
Encouraging Attorneys to Take on Voting Rights Litigation
Although the state of Tennessee, rather than individual clients or corporations, was required to pay the imposed fees, the Sixth Circuit encouraged more voter rights litigation with its decision, observes John S. Austin, Raleigh, NC, cochair of the Litigation Section’s Professional Liability Committee. Although the state was required to pay fees as part of the court’s decision, the fees do not “punish the State, but encourage attorneys to represent and defend citizens’ civil rights,” Austin clarifies.
Recovery of a litigation investment may be necessary to protect essential rights. “Section 1988 allows for discretionary granting of fees and costs because civil rights cases are not easy or profitable, but must be taken on to ensure all of our fundamental rights continue; so when a party has met the legal standards to be granted fees and cost, it should stand,” asserts Griselda Vega Samuel, Chicago, IL, cochair of the Section’s Diversity, Equity & Inclusion Committee.