Fifteenth Amendment Claim Against West Virginia State Bar's Reserving Board Seat for an "African-American Lawyer" Can Go Forward

An opinion Wednesday by Chief Judge Thomas Kleeh (N.D. W. Va.) in Foundation Against Intolerance & Racism, Inc. v. Pickens deals with a rule of the West Virginia state bar, which is organized as a government agency under the control of the state supreme court. The rule provides,

The Board of Governors [of the state bar] shall consist of the following twenty-five voting members and one non-voting member:

1. The president, president-elect, vice president, and immediate past president;
2. One governor from each of the sixteen State Bar districts set forth in Bylaw 5.04;
3. Three additional governors from State Bar District Eight;
4. One African-American lawyer elected as described in Bylaw 5.06;
5. The Chairperson of the Young Lawyer Section; and
6. The Dean of the West Virginia University College of Law, as a non-voting member.

The long opinion focuses mostly on procedural matters, but it also concludes that "The Fifteenth Amendment applies to State Bar elections because the elections are state-sanctioned and involve public issues":

The Fifteenth Amendment provides, in pertinent part, "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." It is "simple in command," "comprehensive in reach," "[f]undamental in purpose and effect," and "self-executing in operation[.]" In analyzing whether the Fifteenth Amendment is implicated in an election, "[t]he vital requirement is State responsibility — that somewhere, somehow, to some extent, there be an infusion of conduct by officials, panoplied with State power, into any scheme by which" individuals are "denied voting rights merely because" of their race or color. "The Amendment grants protection to all persons, not just members of a particular race." …

By statute, the State Bar is "a part of the judicial department of the state government[.]" By statute, the State Bar is an administrative agency of the State Supreme Court. Defendants are tasked with enforcing the State Bar Bylaws, which are promulgated by the State Supreme Court. The Bylaws provide that only African Americans may vote in the election for the African-American Board seat. Certainly, assuming that FAIR's allegations are true, this is a situation where "somewhere, somehow, to some extent," there was an "infusion of conduct by officials, panoplied with State power," into a scheme by which individuals were denied voting rights merely because of their race.

The Court's ruling is supported by Supreme Court precedent indicating that the Fifteenth Amendment applies to elections for seats on boards of state agencies. In Rice v. Cayetano (2000), a Hawaii law limited who could vote in an election for the governing authority of a state agency known as the Office of Hawaiian Affairs. The right to vote was limited to "Hawaiians," which was defined as "those persons who are descendants of people inhabiting the Hawaiian Islands in 1778."  The plaintiff, who was a Hawaiian citizen lacking the requisite ancestry to be considered "Hawaiian," challenged the provision, and the Supreme Court found that the election limitation violated the Fifteenth Amendment.

The Fifteenth Amendment also applies to elections with far less state involvement than what has been alleged here. For instance, the Supreme Court has found that pre-primaries run by self-governing private groups may implicate the Fifteenth Amendment. In Terry v. Adams (1953), the Jaybird Democratic Association, a private group whose membership was limited to white voters, conducted "pre-primary" elections.  Candidates who were successful in the pre-primary elections did not automatically enter the local Democratic primaries, but they "nearly always [did] so," and they almost always "won without opposition" in those primaries and in the general elections. The Jaybirds contended that their elections were not regulated by the state, so they fell outside the Fifteenth Amendment's purview. The Supreme Court, however, disagreed, finding that the elections were an unlawful attempt to duplicate election processes in order to defeat the purpose of the Fifteenth Amendment.  Here, taking FAIR's allegations as true, the level of state involvement far exceeds the level of state involvement found to violate the Fifteenth Amendment in Terry.

As the parties have discussed, the Fifteenth Amendment applies to, but is not limited to, "any election in which public issues are decided or public officials selected." "All citizens, regardless of race, have an interest in selecting officials who make policies on their behalf, even if those policies will affect some groups more than others." Based on the explicit state involvement here, the Court believes it unnecessary to analyze whether "public issues" or "public officials" are implicated in a State Bar election. Regardless, the Court would find that they are.

The regulation of the legal profession on behalf of the State Supreme Court is a matter that concerns public issues. All West Virginia attorneys, including Member A and Member B, have an interest in the selection of Board members who make policies on their behalf. The State Bar is not a private club. It is the state agency that regulates the practice of law in West Virginia. All licensed attorneys in good standing must be members. The State Bar's self-described purposes include "protect[ing] the interests of the public" and "improv[ing] the relations between the public and the bench and the bar[.]"The citizens of West Virginia have an interest in the selection of the Board members, whose policies may affect them. For these reasons, the Court finds that State Bar elections are elections "in which public issues are decided." …

Joshua P. Thompson and Samantha R. Romero (Pacific Legal Foundation) and Martin P. Sheehan (Sheehan and Associates, PLLC) represent plaintiff.