CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 9/15/2023 1

Customary Right of Appointment 

Holley v. City of Roanoke 

(W. Harold Albritton, M.D. Ala. 3:01-cv-775) 

A federal complaint challenged a refusal by a city council to reappoint a board-of-education member in violation of a customary 

practice in which each member of the council named the board 

member for the council member’s district. A three-judge district 

court was appointed to hear a claim that the alleged change in practice violated section 5 of the Voting Rights Act. After a hearing, the 

court dismissed the section 5 claim because it concerned appointment rather than voting. The original district judge dismissed other 

claims because the evidence was that the deviation from custom 

was motivated by policy disagreements rather than by race. A remaining claim was dismissed voluntarily. 

Subject: Voting irregularities. Topics: Section 5 preclearance; 

three-judge court; equal protection. 

On June 25, 2001, plaintiffs filed a federal challenge in the Middle District of 

Alabama to a refusal by Roanoke’s city council to reappoint Cheryl Sims to 

the city’s board of education in violation of a customary practice in which 

each member of the council named the board member for the council member’s district.1

 The plaintiffs were Sims, the council member who selected her, 

the county commissioner whose district included the board-of-education 

district at issue, and three additional voters.2

 The defendants were the city, its 

mayor, and the three council members who voted to block Sims’s reappointment.3

 With their complaint, the plaintiffs filed a motion for a temporary restraining order, a preliminary injunction, and the designation of a 

three-judge district court to decide their claim that the change in procedure 

violated section 5 of the Voting Rights Act.4

On July 2, at the request of Judge W. Harold Albritton, the circuit’s chief 

judge designated a three-judge court.5 Added to the court were local Judge 

1. Complaint, Holley v. City of Roanoke, No. 3:01-cv-775 (M.D. Ala. June 25, 2001), D.E. 

1; Holley v. City of Roanoke, 162 F. Supp. 2d 1335, 1337 (M.D. Ala. 2001). 

2. Complaint, supra note 1, at 5; Holley, 162 F. Supp. 2d at 1338; Holley v. City of Roanoke, 149 F. Supp. 2d 1310, 1312 (M.D. Ala. 2001). 

3. Complaint, supra note 1, at 5–6; Holley, 162 F. Supp. 2d at 1338; Holley, 149 F. Supp. 

2d at 1312. 

4. Motion, Holley, No. 3:01-cv-775 (M.D. Ala. June 25, 2001), D.E. 2; see Voting Rights 

Act of 1965, Pub. L. No. 89-110, § 5, 79 Stat. 437, 439, as amended, 52 U.S.C. § 10304 (requiring preclearance of changes to voting procedures in jurisdictions with a certified history 

of discrimination and requiring that preclearance disputes be heard by a three-judge district 

court). 

On June 25, 2013, the Supreme Court declined to hold section 5 unconstitutional, but the 

Court did hold unconstitutional the criteria for which jurisdictions require section 5 preclearance. Shelby County v. Holder, 570 U.S. 529 (2013). 

5. Designation Order, Holley, No. 3:01-cv-775 (M.D. Ala. July 2, 2001), D.E. 11. 

Tim Reagan interviewed Judge Albritton for this report by telephone on June 18, 2013. 
Customary Right of Appointment 

2 Federal Judicial Center 9/15/2023 

Myron H. Thompson and Tampa Circuit Judge Charles R. Wilson.6 That 

same day, Judge Albritton set the matter for hearing on July 11.7

On July 3, however, the three-judge court ordered the parties to brief the 

court by July 9 on whether section 5 applied to the case so that the court 

could determine whether to proceed with a hearing before the three-judge 

court.8 After briefing, including on the defendants’ motion to dismiss the action, the three-judge court decided to proceed with a two-day hearing beginning on July 11.9

 Judge Wilson traveled to Montgomery for the hearing.10 On 

July 12, the court dismissed the section 5 claim because the allegations concerned appointment rather than voting.11

On July 16, Judge Albritton denied the plaintiffs immediate injunctive relief, finding that the plaintiffs’ “evidence, unchallenged and taken as true for 

purposes of this motion, tends to show not that the Defendants changed any 

existing practice because of [the council member’s] race, but rather because 

they disagreed with Plaintiff Sims’ vocal support of continued federal court 

supervision over the Roanoke City School System.”12 Judge Albritton also 

declined jurisdiction over the plaintiff’s state claims, finding that “these 

claims raise complex issues of state law.”13

After additional briefing, Judge Albritton dismissed, on September 21, 

many of the plaintiffs’ claims, but he declined to dismiss a claim against the 

city for a possible unconstitutional deviation from the custom of allowing 

each council member to select one member of the board of education.14

On January 24, 2002, Judge Albritton granted the plaintiffs a voluntary 

dismissal.15

6. Designation Order, supra note 5. 

7. Order, Holley, No. 3:01-cv-775 (M.D. Ala. July 2, 2001), D.E. 12. 

8. Order, id. (July 3, 2001), D.E. 13. 

9. Order, id. (July 9, 2001), D.E. 19; Minutes, id. (July 24, 2001), D.E. 26 (single-judge 

hearing); Minutes, id. (July 24, 2001), D.E. 25 (three-judge hearing). 

10. Interview with Hon. W. Harold Albritton, June 18, 2013. 

11. Holley v. City of Roanoke, 149 F. Supp. 2d 1310 (M.D. Ala. 2001); Holley v. City of 

Roanoke, 162 F. Supp. 2d 1335, 1337 (M.D. Ala. 2001). 

12. Opinion, Holley, No. 3:01-cv-775 (M.D. Ala. July 16, 2001), D.E. 24. 

13. Order, id. (July 16, 2001), D.E. 23; see Holley, 162 F. Supp. 2d at 1337. 

14. Holley, 162 F. Supp. 2d at 1342–43. 

15. Order, Holley, No. 3:01-cv-775 (M.D. Ala. Jan. 24, 2002), D.E. 37.