Voting Rights Act in the crosshairs: Supreme Court expected to rule this month
by Tim Lockette
Jun 09, 2013 | 6375 views |  0 comments | 244 244 recommendations | email to a friend | print
A voter at the Calhoun County Health Department studies her choices during a recent election. (Anniston Star photo by Bill Wilson)
A voter at the Calhoun County Health Department studies her choices during a recent election. (Anniston Star photo by Bill Wilson)
It took Carolyn Henderson two months and 30 seconds to change the name of the polling place at Bynum School.

When the city Oxford decided to turn the school into Bynum Community Center, county officials had to go to the federal government to get permission to make the name change in the county’s election records. Henderson, the county registrar, said it took at least two months to get the approval. After that, it took Henderson 30 seconds to enter the change into the county’s computers, making the change official.

"We don't make any changes until we hear from the Justice Department," Henderson said.

For nearly 50 years, this is how Alabama's state and local officials have operated. Under the Voting Rights Act of 1965, any change to the electoral process — from the drawing of congressional districts to a name change at a single rural polling place — has required approval from the federal government. The same is true across the Deep South, where state governments, for a century after the Civil War, used bureaucratic tricks to deny African-Americans the vote.

But that could change very soon. Earlier this year, the U.S. Supreme Court heard arguments in a lawsuit by Shelby County's government, whose leaders are seeking release from the preclearance requirement. The move could reshape Alabama's political landscape and a ruling in the case is expected this month -- maybe as soon as Monday.

A history of discrimination

To understand the Voting Rights Act of 1965, one must go back to 1865 — the year the South lost the Civil War and the 15th Amendment granted black men the right to vote. In the century that followed, white political leaders in the South found new ways to block the African-American vote. Poll taxes, literacy tests and education requirements — enforced with grandfather clauses and loopholes meant to exempt poor whites — effectively blocked black voters from the polls. (Alabama's $1.50 poll tax, long unenforceable, remains in the state Constitution despite an attempt to repeal it in 2012.)

The Voting Rights Act banned those practices. The bill, passed in response to the 1965 Selma-to-Montgomery march and other civil rights protests, also set up a system of "preclearance" by which state and local governments were required to seek federal approval for all changes to voting practice. The goal was to keep discriminatory practices from creeping back into the system.

Preclearance wasn't required everywhere — just in places with a history of discriminatory voting practices. That includes a band of Southern states stretching from South Carolina to Texas, as well as Alaska and Arizona. The preclearance requirement also applies to some counties in other states, including some outside the South.

That requirement, in Section 5 of the Voting Rights Act, has long irked some leaders in affected states, who say it's not fair to apply these requirements in perpetuity to only one part of the country.

“We felt like we were guilty by association,” said Hoyt Sanders, mayor of Pinson, the only place in Alabama where the preclearance rule doesn’t apply.

Pinson, a town of about 7,000 people in Jefferson County, sought exemption from Section 5 and got it in 2012. Before that, the town was spending $10,000 to $20,000 per year on paperwork related to annexations, which was the primary source of city growth, Sanders said. He said the city spent about $40,000 making its case for an exemption to Section 5.

Exceptions like Pinson’s are rare, and the town’s history didn’t hurt its case. The city was incorporated in 2004, and therefore couldn’t be tied to pre-1965 abuses. The Justice Department never found an objection to its annexation efforts, Sanders said. While “white flight” suburbs sprung up around major cities after the civil rights era, Sanders says pre-incorporation Pinson was one of the oldest settlements in Jefferson County.

“We’re sort of like Glencoe,” Sanders said, referring to the Etowah County town near Gadsden. “We were here and the city grew out to meet us.”

Officials in neighboring Shelby County went a step further than Pinson, filing a federal suit and asking the court to completely overturn Section 5. In legal briefs, Shelby County argued that the South has changed, and that the conditions that brought about the 1965 law are no longer in place. The Star’s attempts to reach Shelby County Attorney Frank “Butch” Ellis for comment were unsuccessful Friday.

In Anniston, City Manager Don Hoyt said he doesn’t see a need to escape Section 5.

“It’s not a problem unless the jurisdiction really has the intent to dilute the minority vote or else just doesn’t care” about how districts are drawn, he said.

Race is still clearly a live issue in Anniston’s politics. Former Anniston Mayor Gene Robinson, who is white, stirred controversy in 2008 when he announced that he’d bought into “black corruption” to get elected. In 2012, then-councilman Ben Little, who is black, objected to new ward lines that moved a polling place from the Mental Health Center to Anniston Country Club. The ward lines got Justice Department approval eight months later, less than two weeks before city elections.

Shifting burden

Some supporters of the Shelby County position are reluctant to predict the effect an overturning of Section 5 will have on Alabama's politics.

"I couldn't begin to speculate on that," said Edward Blum, director of the Project on Fair Representation, which assisted Shelby County with its case. Blum has written in the past that the districting requirements under the Voting Rights Act tend to favor incumbents.

Cumberland Law School adjunct professor Raymond Johnson said that if the court overturns Section 5, it would immediately shift the burden, in voting rights cases, to the voters. When districts or voting rules change, he said, voters who see an adverse racial effect from those changes will have to make their case in federal court, instead of seeing an automatic federal review.

"Going to court is a costly venture," he said.

Alabama still sees plenty of controversy about the racial effects of its voting laws. In recent years, the Republican-dominated Legislature has redrawn state district maps and established a requirement to show photo ID at the polls. Both drew criticism from black leaders for their potential effects on black voters — and both required preclearance from the Justice Department.

"The end of Section 5 could lead to a worsening of the situation," Johnson said. "It would lead to retrogression."

"Retrogression" is the legal term for a reversion to pre-Voting-Rights-Act patterns of voter suppression.

The most immediate effect, Johnson said, could be in politics at the city level. Federal officials, he said, have often rejected plans by cities to switch from district to at-large elections — plans that eliminate the presence of majority-minority districts.

Not everyone sees a pattern of racial disenfranchisement in Alabama's recent actions, though. One member of the House redistricting committee, Rep. Jim McClendon, R-Springville, told The Star this week that the state's new district map actually adds one majority-black legislative district.

"There was no retrogression," he said.

Asked how many Calhoun County polling changes had been rejected by the Justice Department, Henderson, the county registrar, said she couldn't think of one rejection in the past 15 years.

Johnson said the very existence of preclearance discourages policy makers from making decisions they know will be rejected.

"I expect there would be a lot of changes that were not pursued in the past, that would be implemented" if Section 5 goes away, he said.

Decision this month

Alabama's recent history on voting rights hasn't impressed some on the Supreme Court. In oral arguments in February, Justice Elena Kagan noted that Alabama’s population is roughly one-quarter black but the state lacks a single black statewide elected official. Justice Sonia Sotomayor said Shelby County "may be the wrong party” to bring a challenge to the law. Justice Antonin Scalia, on the other hand, questioned why Section 5 should apply to some states and not to others.

The matter is probably already decided. The court historically has released its decisions in May and June — that leaves just a few weeks before a ruling in the case becomes public.

Laughlin McDonald, the Atlanta-based director of the Voting Rights Project for the American Civil Liberties Union, thinks the vote could be close. McDonald sat in on the oral arguments and came away with the impression that the justices are split nearly evenly, with Justice Anthony Kennedy as the likely swing vote.

McDonald wouldn't speculate on which side Kennedy would support, but he said the fact that the Voting Rights Act was reauthorized by Congress in 2006 will probably work in Section 5's favor.

Still, lawyers say, second-guessing the nation's highest court is a tricky thing. McDonald said he sat in on oral arguments in an earlier challenge to Section 5, filed a few years ago by a jurisdiction in Texas. In that case, too, he expected a 5-4 decision. The court had a different idea.

"That one came out 8-1," he said.

Capitol & statewide reporter Tim Lockette: 256-294-4193. On Twitter @TLockette_Star.
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