Following a bitter legal battle before the U.S. Supreme Court over the scope of the Voting Rights Act, the challengers are again fighting the federal government — this time over legal fees.

In June, a divided Supreme Court sided with Shelby County, Ala., in striking down a key section of the voting rights law. Shelby County’s lawyers from Wiley Rein now want a federal trial judge to order the government to pay more than $2 million in attorney fees and litigation costs.

The Justice Department opposes the request. In court papers filed on Dec. 6, lawyers for the government argued the government was immune to a fee award — and, even if it wasn’t, Shelby County’s lawsuit didn’t include the type of claims that would trigger the voting rights law’s fee-shifting provision.

“The thrust of Shelby County’s lawsuit was to vindicate States’ rights, not to protect federal voting rights,” Avner Shapiro, an attorney in the voting section of the Justice Department’s Civil Rights Division, wrote in the government’s brief.

Ryan Haygood, director of the NAACP Legal Defense and Educational Fund’s Political Participation Group, called Wiley Rein’s fee request “absurd.” The Legal Defense Fund argued in the Supreme Court alongside the government in support of the Voting Rights Act.

“The statute was designed to provide for fees for those seeking to enforce the guarantees provided by civil rights statutes, and not those who, as the plaintiffs did here, cause them to fall,” Haygood said.

The Supreme Court, in a 5-4 decision, struck down Section 4 of the Voting Rights Act. The provision laid out the formula for determining which jurisdictions were required to seek approval from the Justice Department or a federal court before changing how they ran elections.

Under the voting rights law, a party who sued to enforce the “voting guarantees” of the 14th or 15th amendments could seek legal fees if they won.

Shelby County’s lawyers, led by Bert Rein, who argued in the high court, contend that their constitutional challenge did fall under the 14th and 15th amendments. The county’s goal, they said, was to enforce the ability of local officials to make changes to electoral procedures that would “best permit its citizens to exercise” their voting rights.

In a Nov. 4 court filing, Wiley Rein and Justice Department lawyers agreed the fee request “appears to present novel legal issues.” U.S. District Judge John Bates will first decide whether Shelby County’s lawyers are entitled to fees before looking at how much compensation would be appropriate. Shelby County seeks $10,000 in litigation costs.


Rein, a founding partner of Wiley Rein and lead counsel for Shelby County, said in an interview last month that Shelby County met the requirements for claiming fees. The county sued, he said, “to protect the right of Shelby and its citizens’ right to put in place procedures it thinks will protect everyone’s right to vote.”

Rein said he would respond in court to the government’s opposition to the fee request. He called the dispute a “significant issue.”

Justice Department lawyers argued in court papers that Shelby County — despite prevailing in the high court — is not entitled to fees. The federal government is immune to fee awards unless a statute says otherwise, they said, and the Voting Rights Act didn’t include language waiving that immunity.

Besides the immunity issue, the Justice Depart­ment challenged Shelby County’s claim that its case was aimed at enforcing voting rights. “This assertion mischaracterizes Shelby County’s case as well as the basis for the Supreme Court’s decision in its favor,” DOJ’s lawyers wrote in their brief.

The government said parties that prevail in challenging the enforcement of protected voting rights could collect fees only if they proved the government’s position was “frivolous, vexatious, or harassing in nature.”

Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute, said he thought the fee fight would come down to the immunity issue. Shapiro wrote Cato’s amicus brief supporting Shelby County’s constitutional challenge.

“The immunity questions are very difficult and technical to sort through,” he said. “I’m sure this court’s ruling won’t be the last on it.”

If Shelby County wins on immunity, Shapiro said, the county should recover its fees. “They prevailed in a case involving interpretations of the 14th and 15th amendments,” he said.

Contact Zoe Tillman at Mike Scarcella contributed to this report.