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:
- The president, president-elect, vice president, and immediate past president;
- One governor from each of the sixteen State Bar districts set forth in Bylaw 5.04;
- Three additional governors from State Bar District Eight;
- One African-American lawyer elected as described in Bylaw 5.06;
- The Chairperson of the Young Lawyer Section; and
- 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 “d
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