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The Supreme Court vs. Black Voters in Alabama

by Lou Dubose

Feb 1, 2013 | Legal Affairs, Politics


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In July 2007, George W. Bush invited the families of civil rights leaders Martin Luther King Jr. and Rosa Parks to the White House Rose Garden signing of the Voting Rights 
Act. The 25-year extension of civil rights legislation enacted in 1965 passed by a 98-0 vote in the Senate and by 390-33 in the House—a rare moment of bi-partisan consensus that brought together a Republican House, a Democratic Senate, and a Republican president.

Two years later, the Supreme Court ruled on a Texas case that was filed with the specific intention of overturning Section 5 of the Voting Rights Act, which requires states with a history of voting discrimination to submit all changes in voting laws to the Justice Department, or to a three-judge panel in Washington, D.C., for preclearance.

Texas was one of the states “covered” by the act, and a small utility district north of Austin filed suit, demanding an exemption from the preclearance requirements. Because the Northwest Austin Municipal District didn’t register voters and conduct its own elections, it didn’t meet the definition of a “political subdivision.” If it had, it could have qualified for a “bailout” from preclearance.

The justices crafted a technical solution, granting the utility district the right to request a bailout but refusing to take up the constitutional challenge included in the pleadings.

The case was a stalking horse, advanced and underwritten by the Project for Fair Representation, a one-man fundraising operation founded and directed by Ed Blum, a former Houston stockbroker who is a visiting fellow at the Washington-based American Enterprise Institute. (See: “A Color-blind Crusader’s Plan to Destroy the Voting Rights Act,” Washington Spectator, November 15, 2012.)

Chief Justice John Roberts, who wrote the opinion for the 8-1 majority, stated that he will consider a constitutional challenge to the Voting Rights Act when the right case comes before the Court. Clarence Thomas, the only African-American on the Court, wrote his own concurring and dissenting opinion. Thomas agreed with the Court’s decision. But he said the Court should have addressed the constitutional question. Special protections for minority voters are no longer necessary, Thomas wrote.

On February 27, the case the two justices are waiting for comes before the Court, in another lawsuit funded by Ed Blum. This is his third trip to the Supreme Court since 2008. In October the Court heard oral arguments on another suit he promoted, challenging the use of race as an admissions criterion at the University of Texas.

Before he began working on the University of Texas case, Blum told me last October, he approached the attorney representing Shelby County, Alabama, and they agreed to collaborate.

Blum’s campaign against the Voting Rights Act was moving from a utility district in Austin to a red-dirt county situated between Birmingham and Selma.

Yet Shelby County vs. Holder seems like an odd case to advance the Roberts Court’s (and Blum’s) agenda, because in Shelby County, black elected officials are being pushed out of office by the same racial gerrymandering that once ensured that no black candidate could win an election in the Jim Crow South.

And Shelby County was one of the 189 cities, counties, and school boards in Alabama that were sued under Section 2 of the Voting Rights Act to eliminate barriers that made it impossible for blacks to win elections. Since that litigation ended—in 1988—Section 5 of the act has been used to protect those gains.

To get where it appears to be heading, the Roberts Court is going to have to overturn decisions of the D.C. district and appellate courts, declare unconstitutional an act that passed by large margins in both houses of Congress, and ignore a broader fact situation that should have black elected officials and congregations filing suit against the county rather than joining Attorney General Eric Holder as intervening defendants.

The defeat of Bobby Lee Harris in a municipal election in Alabaster, Alabama, could serve as a Continuing Legal Education course on Section 5 of the Voting Rights Act.

Harris represented Alabaster’s only African-American city council district, created in the 1980s after the Supreme Court ruled that the Alabama Legislature had “consistently enacted at-large systems for local governments during periods when there was a substantial threat of black participation in the political process.”

He became an unwitting participant in a process that would make it impossible for a black candidate to win an election in Alabaster’s black district.

“I was on the council when we finished voting on the new district lines in 1996,” Harris told me in an interview in his home.

As the 2000 election approached, Harris said, he began to understand that no black candidate could win in his newly redrawn district. White flight from the increasingly black city of Birmingham was turning the Shelby County cities on the I-65 corridor into bedroom communities for white commuters. One of those bedroom communities had been folded into his district.

Harris asked the city attorney if Alabaster’s new maps had been submitted to the Justice Department for preclearance. The attorney (whom Harris had taught in high school) said they had not and agreed that the maps should be sent to the DOJ.

In Washington, Alabaster’s new electoral district maps were rejected. Yet because city officials had filed for preclearance so late, ballots were printed and state law prevented the city from rescheduling the election. The city proceeded with the election, with an understanding that votes cast in the subdivision added to Alabaster’s black district would not count.

Nullifying the votes in the Waverly Subdivision created a real-time test of the enforcement mechanism of the Voting Rights Act. When the polls closed, Bobby Harris had lost by 387-326—until the nullified votes were subtracted from the tally. All 99 votes in the white subdivision had been cast for Harris’s white opponent.

“I stayed on the council for four more years,” Harris said. “Up to 2004. If it hadn’t been for Section 5, I would have been off the council in 2000.”

Harris, now 66, lost by 35 votes to a white candidate in 2004 and has since retired from electoral politics.

Eleven miles south, with a population of 11,721, Calera is smaller than Alabaster (30,799). Two days after Christmas, I met with Calera City Councilman Ernest Montgomery and the Rev. Harry Jones in the pastor’s office at Calera’s New Mount Moriah Missionary Baptist Church.

Like Bobbie Lee Harris, Ernest Montgomery was an incumbent representing the only African-American district in his city when his district lines were redrawn. Unlike Harris, Montgomery immediately recognized that the redrawing of his district lines in 2008 undermined the interests of the constituents he represented.

New electoral maps, created by consultants from the Greater Birmingham Regional Planning Commission, added several predominately white subdivisions to Calera’s black city council district.

“I told them that we didn’t like the way it was drawn,” Montgomery said. “But we were told by these professionals that there was no other way to meet the criteria that was required by law.”

Montgomery, a soft-spoken engineer who grew up in Calera, accepted the explanation of the consultants. He also believed that the Justice Department would backstop Calera’s black community, so he reluctantly signed off a plan that reduced the African-American population in his district from 69 percent to 28 or 29 percent.

“Then we voted to send it to Washington for preclearance,” he said.

In August of 2008, Montgomery was defeated by a white opponent. This is where the Calera story takes a strange turn.

Montgomery never knew until after the election that the Justice Department had refused to preclear his newly redrawn district.

“I always point this out in interviews,” Montgomery said. “I did not know. That changed everything right there. I would have thought that with the denial by the DOJ we would have at least been told, especially myself because this is my district. That I would have been told by the attorneys or the mayor. And I wasn’t.”

It was not until after he lost the election that Ernest Montgomery became a protagonist in his own story, traveling with the mayor and city attorney to Washington for meetings with Justice Department attorneys.

In Washington, the mayor and city attorneys offered to appoint Montgomery to a seat on the council, which he (and the DOJ lawyers) would not accept.

Backed into a corner by federal attorneys enforcing Section 5 of the Voting Rights Act, Calera’s City Council created six at-large districts and a cumulative voting system in which each voter casts a vote for one candidate, with the six candidates receiving the largest number of votes winning the six seats. The formula allows Calera’s African-American voters (23 percent of the overall voting population) to consolidate their support.

In a second election, precleared by the Department of Justice and held in 2009, Montgomery was elected.

In 2010, Shelby County filed suit in federal court, describing Section 5 as a federal intrusion into state issues. It is this lawsuit that will be heard by the Supreme Court at the end of this month. Montgomery learned about the County Commission’s decision to sue the Justice Department when he read it in the Birmingham News.

“As well as I know [County Commissioner] Corley Ellis—we have a friendship, not a close friendship but a friendship—I never got a heads up,” Montgomery said.

None of this is laid out in the lawsuit the Shelby County Commission filed, which is constructed on legal theories related to state sovereignty established by the Tenth Amendment. But these backstories should inform the Supreme Court’s decision.

Lawyers for the county do cite the Calera election in their complaint, claiming that because the city went ahead with its election after the attorney general objected to its new districts, Shelby County will be compelled “for the foreseeable future” to preclear its elections, which will require “significant taxpayer dollars, time, and energy.”

Montgomery, who seems impaired by a sense of decency, is reluctantly coming to terms with what appears to be a calculated consolidation of power by white elected officials.

“These are all good, honorable people,” Montgomery said.

His pastor, Rev. Harry Jones, is less forgiving.

“They’re going back to the good-old-boy system,” Jones said. “I think they would like to put us on a train and take us back to where we were 50 years ago.”

Or 65 years ago.

Corley Ellis is the Shelby County Commissioner who neglected to inform Ernest Montgomery that the county had filed suit against the Justice Department. The Shelby County lawyer who filed the suit is Corley Ellis’s father, Butch Ellis. Butch Ellis’s father was Handy Ellis, a former lieutenant governor and the chairman of the Alabama delegation at the 1948 Democratic National Convention in Philadelphia.

With Birmingham Commissioner of Safety Bull Connor, Ellis led the Dixiecrat walkout of the convention after declaring that Alabama delegates were instructed “never to cast their vote for any candidate associated with a civil rights program such as adopted by this convention.”

Faulkner’s—“The past is never dead. It’s not even past.”—has been quoted so many times that it has become an exhausted cliché.

Except in places where the New South seems incapable of escaping the Old South.

In such places, those lines are as fresh as this morning’s news.

Also in this issue: Voting Rights on the Chopping Block and Toward a More Perfect Union.

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