Alabama Challenges Department Of Justice Over Key Voting Rights Law

Alabama's Epic Challenge To Voting Rights

By Joan Biskupic

CALERA, Ala., June 4 (Reuters) - Four years ago, in this small city of gentle hills, tall oaks and nine stoplights, an invisible line was drawn a few miles north of the center of town. It stretched up beyond Highway 22 and looped west across Interstate 65, sweeping in recent housing developments, the brown-brick Concord Baptist Church and a new Wal-Mart. The narrow five-square-mile rectangle enlarged Voting District 2.

It also radically changed the district's racial mix. The expansion brought in hundreds of white voters, cutting the proportion of black registered voters to one-third from more than two-thirds. The city, which said it had to redraw its district map to account for a population increase and land annexations, contended the new boundaries would not discriminate against blacks.

The U.S. Department of Justice was not persuaded. In a tersely worded, three-page letter emailed to the Calera city attorney on Aug. 25, 2008, it voided the new map.

The letter set off a chain of events resulting in what could be the most important challenge in years to the 1965 Voting Rights Act. A lawsuit later brought by Shelby County, where Calera is situated, seeks to strike down the law's requirement that Alabama and other states with a history of discrimination obtain federal approval for any changes to districting and ballot rules. They argue that this federal "preclearance" obligation, mandated by Section 5 of the Voting Rights Act, is an outdated, unfair and unconstitutional relic of an Old South that no longer exists.

Now Shelby County v. Holder is poised to reach the U.S. Supreme Court. Last month a federal appeals court in Washington rejected the claim and upheld the Section 5 preclearance requirement, saying Congress had enough evidence of recent racial discrimination to justify reauthorizing the law when it did so in 2006. Racial discrimination in voting is "one of the gravest evils that Congress can seek to redress," U.S. Appeals Court Judge David Tatel declared for the court majority.

But Chief Justice John Roberts of the U.S. Supreme Court appears ready to re-examine the preclearance rule, which covers all or part of 16 states, most of them in the South. I n deciding another case three years ago, he wrote: "Things have changed in the South." He suggested that the provision may no longer be needed.

As events in Calera show, however, whether the law is unnecessary is far from obvious.


Like many places in the Old South, Calera and surrounding Shelby County witnessed dark chapters of racial violence after the Civil War. Lynching continued into the early 1900s. In Calera, older residents still recall poll taxes and Dairy Queen drinking fountains marked "whites" and "colored." As recently as 1999 a large Confederate flag hung in the entrance to the Shelby County Historical Society Museum, according to Bobby Joe Seales, society president, who said he removed the flag that year when he took office.

But Calera has changed. Thanks partly to spillover from bedroom communities in Birmingham to the north, its population has more than doubled in the last decade to 11,700. A city once known for its rail hub and lime manufacturing now boasts a growing service and retailing sector. Blacks continue to make up slightly more than a fifth of the population, but neighborhoods are much less clearly defined by race.

Recently, as he drove a visitor around new subdivisions off Highway 31, Calera's 41-year-old mayor, Jon Graham, pointed out houses owned by blacks alongside others owned by whites. "We see no difference in skin color in Calera," he said.

The mayor, who has close-cropped brown hair and an open boyish face, said the city was not trying to reduce black voter strength when it redrew District 2 in 2008. To the contrary, he said, thanks to increased integration, it would have been hard to draw a majority-black district without creating wildly gerrymandered lines.

"Integration has been effective," said Graham, who in addition to his civic duties operates an auto-parts shop. "It's hard to take this city and dissect it and come up with one true, heavily populated minority district."


In rejecting Calera's new districts, the Justice Department claimed that the city had not adequately tracked black population nor properly apprised the department of some 177 land annexations. Its letter to the city stated th a t basic information from the city about its voting-age population and racial makeup was "unreliable."

Lawyers for the city disagreed and thought they could persuade federal authorities to accept the new map. Plus, they had a city council election scheduled for the next day, which they believed could not be postponed under state law. So on Aug. 26, 2008, Calera went to the polls.

The outcome only proved the problem. Ernest Montgomery, the District 2 representative a nd the only African American on the five-member city council, was voted out.

The Justice Department swiftly blocked certification of the election results, a nd Montgomery kept his seat pending a new vote.

In an interview at the New Mount Moriah Missionary Baptist Church that he has attended since childhood, Montgomery, a 55-year-old machinist with a reserved manner, said he believed some whites voted for his opponent simply based on the color of his skin. He did not feel the redrawn district had been "intentionally stacked." But, he added, "I know others in the community thought so."

His pastor, Harry Jones, 48, is one of them. "The only African American that we had in there got the short end of the stick," he said.

After a year of negotiation, Calera decided to get rid of its five-district map entirely and created six "at large" council seats that would be filled by members elected by the city as a whole. In a new election in 2009, Montgomery won one of them.


Things might have ended there. But in 2008 a Washington, D.C.-based conservative advocate named Edward Blum was trolling the Justice Department website for potential voting-rights test cases. The Calera letter, which was posted on the site, ca u ght his eye.

Blum picked up the phone and called Frank "Butch" Ellis, the lawyer for Calera and for Shelby County. Ellis, who had been working as a municipal lawyer in central Alabama for 40 years, was as frustrated as Blum was with the federal preclearance requirement.

Blum told Ellis he already was busy with a Section 5 challenge involving an Austin, Texas, water district that was working its way up through the courts but said he was always on the lookout for other opportunities. The men agreed to stay in touch. "We felt that the Justice Department was stuck in a 1960s time warp," Blum said.

A former investment banker, Blum had been challenging race-based policies since 1992, when he lost an election for Congress in a racially drawn Houston district. His case against Texas officials over the line-drawing went all the way to the U.S. Supreme Court, and in 1996 the court ruled the district unconstitutional. Since then Blum, thin, angular, with a formal presence, has sought out government programs that he believes wrongly use racial criteria. Now 60 and a visiting fellow at the American Enterprise Institute, Blum raises money through his foundation, the Project on Fair Representation, to hire lawyers to challenge racial redistricting, affirmative action and other such policies.

In the Austin water district case, Blum thought he had found the perfect plaintiff for an attack on Section 5. But when the U.S. Supreme Court decided the case in 2009, it punted on the big constitutional issue - whether Congress had enough evidence of discrimination to justify reauthorizing the law. It said the water district was exempt from Section 5 based on its clean voting-rights record.

Blum was in the courtroom when the decision was announced, and his heart sank. "I was waiting for a few key words, and I didn't get them," he said. Yet Roberts's opinion for the court offered him some hope when it suggested the South had changed.


In frustration, Blum reached out again to Butch Ellis in Shelby County. The two men commiserated over their disappointment. Blum said he thought Shelby County could bring a stronger case against Section 5 than the Austin water district. After all, Calera's conflict with the Justice Department meant the county did not have a clean voting-rights record so its argument could not get tossed out on the same technicality.

Ellis, a 72-year-old county lawyer who grew up on a nearby dairy farm, said he supports the overall principles of the Voting Rights Act and its provision allowing people to sue for intentional discrimination. But the Section 5 preclearance obligation, he said, unnecessarily covers the smallest electoral change, even moving a polling place across the street.

"It had its time. Its time has come. And it's gone," he said. Ellis said racial tensions had faded in Shelby County, one of the more prosperous and highly educated in Alabama. He boasted that any visitor to the county would observe black and white children playing together.

Realizing that a big constitutional challenge would need major legal firepower, Blum connected Ellis to the prominent Washington, D.C., lawyer Bert Rein, whose firm, Wiley Rein, has handled cases for Blum since the mid-1990s. Rein is representing the plaintiff in another high-profile lawsuit tha t Blum coordinated, a challenge to affirmative action at the University of Texas, to be heard by the Supreme Court this autumn.


In April 2010, Shelby County filed a lawsuit against the Justice Department at the U.S. District Court in Washington, taking direct aim at Section 5. The suit argued that Congress when reauthorizing the law in 2006 did not have enough evidence to justify its continuation or the places covered.

When NAACP Legal Defense Fund lawyer Ryan Haygood in New York saw the lawsuit he immediately realized its importance. But he also thought Blum had picked a problematic plaintiff. The Calera, Shelby County, election in which the only black candidate lost, he said, proved how the law protects racial minorities. "They absolutely chose the wrong venue for the proposition that Section 5 has outlived its usefulness," Haygood said, adding flatly, "See Ernest Montgomery."

Haygood flew out to Calera and met with council member Montgomery, pastor Jones, and other African Americans at the New Mount Moriah church. They agreed to intervene in the case on the side of the Justice Department, arguing that Section 5 is still vital to minority voting rights. The NAACP defense fund would represent them.

Last year the district court ruled against Shelby County. Judge John Bates, a George W. Bush appointee, said Congress had extensive evidence of recent voting abuses in Alabama, such as "reports of voting officials closing doors on African-American voters." He noted that Calera's redistricting plan would have eliminated the sole majority-black district. Last month, the U.S. Court of Appeals for the D.C. Circuit upheld the district court ruling.

Rein, representing Shelby County, said he planned to file an appeal this summer.

Montgomery, who attended segregated schools until junior high, said his elderly parents were nervous about his becoming part of the national case. They remembered how, in their day, blacks who took a stand were threatened, harassed or worse. "I know we've gone a long way," said Montgomery, "but we have a long way to go." (Reporting by Joan Biskupic; Editing by Amy Stevens)

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