Tuesday’s U.S. Supreme Court ruling in a case brought by Shelby County basically puts on hold a federal Voting Rights Act requirement stating that Alabama and other states and jurisdictions federally pre-clear any changes that impact minority voting.
One veteran of Alabama voting rights litigation called that pre-clearance requirement, also known as Section 5, a powerful weapon for civil rights advocates.
But Montgomery attorney David Boyd also said those who feel their voting rights are being infringed upon will still be able to file suit under the Voting Rights Act or under the equal protection clause of the U.S. Constitution’s 14th Amendment.
“It’s not like their quiver is empty,” Boyd said.
However, Jerome Gray, the former field director of the state’s largest black political action group, the Alabama Democratic Conference, said filing suits can be too expensive for many individuals and groups to file. Gray also said many majority-white governing bodies may well be be tempted now to take steps to reduce black voting impact on elections and the numbers of blacks on those governing bodies.
“Part of the problem is whites still in so many instances want to maintain control and many times they don’t care how they get it or how they keep it,” said Gray, who in years past has negotiated Voting Rights Act settlements that have led to large numbers of blacks being elected from single member districts to city councils, school boards and county commissions around the state. Those governing bodies formerly had at large election systems in which few blacks or none at all could be elected, Gray said. The Supreme Court ruling, by a 5-4 majority, could tempt some of these governing bodies to seek a return to the at-large system, he added.
According to the AP, the Shelby County suit challenged the constitutionality of both Section 5 and the formula in Section 4 that determined what states and jurisdictions were covered by Section 5. In its ruling, the high court declared Section 4 formula unconstitutional partly because it was out of date and did not reflect current and vastly improved voting conditions in states it has kept under the pre-clearance requirement.
“The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years,” the high court said. “Yet the Act has not eased [Section] 5’s restrictions or narrowed the scope of [Section] 4’s coverage formula along the way. Instead those extraordinary and unprecedented features have been reauthorized as if nothing has changed, and they have grown even stronger.”
The court said Congress could craft a new formula, but in effect, no voting changes are subject to pre-clearance until that new formula is made law. Some coming changes include Alabama’s new voter identification law which requires a photo ID.
“I can certainly see why there are two strongly divergent views of the impact of the decision,” said David Boyd, who has represented state and local governments in Voting Rights Act cases and currently is defending the state against a suit filed under the Voting Rights Act that challenges its takeover of the Birmingham school system. “Certainly if you’re on the civil rights advocate side, you hate to lose what has been an enormously effective tool over the past…almost 50 years now to keep discriminatory voting practices out of the system.
“The reason that Section 5 was thought to be needed was that there were certain aggressive lawmakers in certain states who would try to stay one step ahead of the court decisions and [when] one discriminatory related device was invalidated, they would erect some new barrier and that was the whole reason for doing,” Boyd said. “But my goodness, it been decades and decades and decades and when you look at the voter registration [numbers] now and the power that African-American voters and officeholders have, it’s virtually inconceivable to me that there could possibly be a return to that kind of mischief. It just doesn’t to me make common political sense to think that that kind of activity could take place.”
Gray said he wasn’t holding his breath on Congress revising the formula to reflect new conditions and determine what states and jurisdictions should be covered by pre-clearance requirements.
“I don’t see them doing anything anytime soon, not with that crowd they got up there now, especially in the House, you know,” Gray said.
Even though individuals or groups could file suit to challenge a discriminatory voting-related change put into effect by a governing body, Gray said that was easier said than done.
“The whole thing about going into court is that it’s an expensive venture and it’s time-consuming…and these governing bodies know that,” Gray said.
The Voting Rights Act stemmed in large part from a voting rights struggle that took place in Alabama in the 1960s. Justice Ruth Bader Ginsburg, in her dissent from Tuesday’s high court ruling, said the “Bloody Sunday” beatings of Civil Rights marchers that took place in Selma on March 7, 1965 “served as the catalyst for the VRA’s enactment.”
At that time, in a number of counties around Alabama, laws and procedures kept all but a small number of eligible blacks from being registered voters. In the Belt County of Lowndes, where blacks made up the overwhelming majority, no blacks were on the voting rolls at the start of 1965, the year the Voting Rights Act was signed into law. Citing a brief history of the law, Ginsburg noted that in the five years after the act’s passage, Alabama, Mississippi, Georgia, Louisiana, North Carolina and South Carolina saw nearly as many blacks registered “as in the entire century before 1965.”
In its opinion, the Supreme Court included a chart that showed black voter registration at 19 percent in Alabama in 1965. In 2004, that percentage was nearly 73 percent, almost equal with the white percentage.
The Voting Rights Act has been renewed several times since 1965, most recently in 2006, when it was extended for 25 years.
The act has also sought to preemptively protect black voting rights, and that’s where Section 5 comes in. According to the Department of Justice website, Section 5 of the act has put on hold “election practices or procedures in certain states, until the new procedures have been subjected to review, either after an administrative review by the United States Attorney General, or after a lawsuit before the United States District Court for the District of Columbia. This means that voting changes in covered jurisdictions may not be used until that review has been obtained.” About 15,000 to 24,000 voting-related changes go to each year to the attorney general, and most are routinely approved.
Because Alabama is one of several Southern states that are covered entirely by the Voting Rights Act, any and all voting-related changes in the state, from the moving the location of a polling place, to the change in the date of an election, to changes in voter eligibility laws, have undergone federal review. Parts of other states, including some outside the South, also have followed the same procedure because they too, were covered by Section 5.