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The Shelby County case was officially initiated in April 2010, but the real story begins in the 1980s. Then, it what is known as the Dillard case, several blacks challenged the method of at-large elections for county commissioners in Alabama. Shelby County was not an original defendant, but eventually became one. The lower court found that Alabama would often resort to the at-large method to discriminate against blacks. Shelby County eventually signed a consent decree and moved to a single-member district scheme which guaranteed a black-majority district.
In 2008, Calera, a city partially in Shelby County, annexed 177 properties. They then redistricted the town without receiving pre-clearance under Section 5 of the VRA since they are a political subdivision within a covered state. The practical effect of the annexation and redistricting was to eliminate that sole black-majority district which was created under the Dillard solution. In the 20 years under that system, a black councilman had been elected while in the first election afterwards, a white won the election. The DOJ objected and, as part of another consent decree, they removed their objections to the annexation, but objected to the redistricting plan.
As a result of the actions by the DOJ, Shelby County filed suit alleging that the federal government’s actions now make them ineligible for a Section 5 bail-out. Hence, in April 2010 they filed suit against the DOJ and Eric Holder with a facial challenge to the Voting Rights Act. They claim: “It is no longer constitutionally justifiable for Congress to arbitrarily impose on Shelby County and other covered jurisdictions disfavored treatment by forcing them to justify all their voting changes to federal officials…” The County cites the fact that from 1965 to 2010, 682 pre-clearance submissions were sent to the DOJ by the county or subdivisions of the county. The County itself submitted 69 changes. Since 1965, the DOJ has had only FIVE objections (the current case being one of them).
At the trial level, Judge Bates (a Bush appointee) did not side with the county in whole. Looking at the history of discrimination in the county and the current situation, he ruled that both the formula used for determining coverage and pre-clearance were constitutional. However, he said there were enough troubling qualifications in the record and relied heavily on the Supreme Court’s Northwest Austin opinion.
Appealing directly to the DC Circuit, that court recently ruled on the appeal by the county thus setting up the likelihood the Supreme Court will take this case. In an opinion by Justice Tatel for a 2-1 majority, they decided that although Sections 4 and 5 of the VRA were constitutional, there were issues that called out for resolution that were beyond their scope, again echoing the words of John Roberts in the Northwest Austin decision. He stated: “it authorizes federal intrusion into sensitive areas of state and local policymaking that imposes substantial federalism costs…” The analysis boiled down to the reauthorization of the VRA in 2006 and whether Congress sufficiently determined if the formula used to determine coverage was the correct way to go given these “federalism costs.” They came to the conclusion that they had to defer to the Congressional findings. But, a close reading of their opinion also calls into question those very findings.
Most importantly, they developed a standard for deference to congressional findings. By borrowing the analytical framework used in 14th Amendment jurisprudence, they applied the “congruent and proportional standard.” The congruency aspect is not at issue here. However, the proportional aspect certainly is the issue. Judge Stephen Williams summarized it best when he questioned why voter ID laws pending in South Carolina and Texas which are similar to the voter ID laws of Indiana should be treated any differently than the treatment Indiana received. Of course, the argument is that Indiana did not have a history of systematic discrimination. Conversely, this line of thinking leads one to the belief that racial discrimination in voting is specific only to the south.
In essence, this case may come down to the deference the Supreme Court will pay to congressional findings in general, and more specifically to the 2006 findings regarding reauthorization of the VRA for 25 years. Since they seriously questioned Congress’ actions and intimated that Congress should act to change the formula in light of their Northwest Austin decision, Congress failed to act. As a result, most experts believe this is the perfect facial challenge to the law that Roberts anticipated when he wrote an 8-1 majority opinion in 2010.
This is the basic problem- applying 1965 criteria to the south in 2012. The government has two lines of defense- the congressional findings and authority angle, and the fact that a bail-out is offered. However, that bail-out option is legal Catch-22 for most jurisdictions.
The courts and the DOJ use ten main criteria to determine if a bail-out is permissible. The first three have a clear connection to the reasoning behind the VRA in the first instance: the racial disparities in registration and turn out, the number of minority elected officials, and the presence of racially polarized voting. However, the seven other criteria are solely dependent on the legislation itself. They are: (1) objections to changes by the DOJ, (2) more information requests from the DOJ in response to proposed changes, (3) the number of judicial pre-clearance suits brought against the area, (4) Section 5 enforcement actions brought against the area, (5) Section 2 litigation, (6) whether federal election officials have been dispatched to oversee elections, and (7) the deterrent effect of Section 5. Just looking at (6) above reveals a problem. The Justice Department rarely, if ever, dispatches officials for oversight in elections in non-covered areas. Therefore, currently covered areas are targeted and enforcement of that target, whether any wrongdoing is discovered or not, is then used as statistical cover to keep the jurisdiction under the yoke of the DOJ. All anyone has to do is file a suit against a covered jurisdiction and that area receives a black eye in the eyes of the Justice Department. Hence, because of the apparatus set up by the Justice Department under the Act, it is a self-fulfilling statistical prophecy of racial discrimination.
Therefore, there would seem to be a disconnect between the DOJ criteria and reality as Justice Williams noted in his dissent in the DC Court opinion. He noted that covered districts and states have higher minority registration and turn out rates in elections than many non-covered areas. A proposed change to the Section 4(b) formula was proposed in 2006, but after analysis, it found that the new formula would cover only Hawaii in full. The proposal was basically laughed out of Congress since it made it look that Hawaii was the only discriminatory state when it came to voting. Overlooked was the fact that several jurisdictions in the south would still be covered, just not entire states. Equally important and probably the greatest motivation behind rejection of the new formula is that several jurisdictions in the north and elsewhere would come under VRA pre-clearance jurisdiction.
There is no denial that racism existed in the south and that states and political subdivisions systematically and sometimes brutally repressed the black right to vote. And no one is denying that it has been totally eradicated in the south. But by the same token, this view ignores the fact that racism in voting is not intrinsic to the south. It would be a huge injustice to say that the problems the VRA sought to eradicate are unique to the south today, not to mention the fact that this raises serious constitutional issues. Currently covered jurisdictions, like Shelby County, do not deny their history, but they are certainly asking that Congress and the courts look at the present or, at least, the most recent past since 2004. Because Calera annexes 177 properties, the government assumes a racial animus.
As Justice Williams noted in his dissent, in order to satisfy the Justice Department/Court criteria, the resulting actions are usually racial gerrymandering. But, does this really eradicate discriminatory practices, or seek to achieve a color-blind society; or is it simply political “tokenism?” The latter simply cheapens the whole process. If, as the Supreme Court has asserted in the area of workplace discrimination, quotas are unconstitutional, how can racially gerrymandered districts which are quotas by any other name be any less unconstitutional?
In Alabama in 1965, only 8.7% of voting age blacks were registered to vote. By 1988, that figure had risen to 74.2% of the eligible black population. Similar increases in black registration are evident in Georgia, Louisiana and Texas. There is no doubt that the Voting Rights Act of 1965 helped achieve these successes. But it is also a fact that these figures from Alabama, Georgia, Louisiana, and Texas put some allegedly “enlightened” northern states to shame when it comes to black registration and turn out. In effect, states like Alabama and jurisdictions like Shelby County are saying the Civil War and Reconstruction days are long over, as are the days of Jim Crow. Justice Clarence Thomas, in his dissent in Northwest Austin (he dissented because he thought the VRA unconstitutional and wanted the Court to reach those issues), summarily dismissed the so-called “second generation barriers.” These are laws like voter ID, polling times and certification deadlines. Unfortunately, as long as we have an Attorney General like Eric Holder, the Justice Department will assume a racial animus in any state action in the south. Eric Holder is still fighting the Civil War and its aftermath and he is the worst of the breed of “carpetbaggers” in that he has significant power. He is also on record as stating that strengthening the Civil Rights Division of the DOJ was/is his top priority. Unlike the majority of actual southerners, Holder sees a racial motive behind anything not to his liking.
In the 1960s, South Carolina’s First Congressional District was represented by Lucius Mendel Rivers. The First District was Charleston and the surrounding area. Rivers was an avowed segregationist, if not racist. This was a man who sat in the House as a Representative from South Carolina for 29 years. Along the way, he voted against every civil rights bill and one of 99 signers of the Southern Manifesto opposing the integration of public places. He moved to have a federal judge impeached because they dared allowed blacks to vote in the Democratic primary. He attacked Truman over the racial integration of the military and Eisenhower over the integration of military bases. He once equated the education of black children with that of educating “mules.” He was an avid supporter of another segregationist- George Wallace- and Wallace asked Rivers to be his running mate, but Rivers declined. Lucius Mendel Rivers was a racist and a segregationist who won 14 terms in his district. Today, the Representative from the First District is Tim Scott, a black Republican also from Charleston. That is the reality of the south in 2012.
In all probability, if Northwest Austin is any indication, the Supreme Court will uphold the constitutionality of the Voting Rights Act of 1965, including Section 5. However, it is doubtful that Section 4- the formulaic scheme that determines who Section 5 is enforced against- will survive scrutiny. Hopefully, they will keep in mind the current state of affairs, not dwell on the past and hold states and political subdivisions slaves to the whims of the federal government. In effect, do we remove slavery and its vestiges only to replace them with another form of slavery- that of particular states to the approving hand of the federal government?