Bryan Stevenson knows that when most people take the 40-minute tree-lined drive from Birmingham, heading south on Interstate 65 to the sliver of the city and other bedroom communities that sit inside Shelby County, Ala., they probably look around and see something akin to living, breathing Southern progress.
After all, Stevenson notes, Shelby County and its network of small towns -- burgeoning suburban bedroom communities with names like Columbiana, Calera, Chelsea and Indian Springs Village -- may owe the construction of their major roadways, bridges and industries to the free, all-black prison labor system that operated in the area well into the 1950s. But neither Shelby County’s new communities nor its history-seeped towns had the kind of violent civil rights struggles that helped Birmingham earn its notorious nickname, “Bombingham.” Much of Shelby County may have grown through waves of white flight from Birmingham’s integrated schools and neighborhoods and growing poverty, but there’s little public talk today of racism or efforts to keep neighborhoods segregated, Stevenson said. People live in places as integrated as their pocketbooks and personal preferences allow.
But the tree-lined drive from Birmingham to Shelby County is still a part of a much longer road, one that has brought the Alabama community to the Supreme Court today and to the center what civil rights advocates say is one of the most important legal battles over minority voting rights in decades.
On Wednesday, Shelby County will ask the Supreme Court to overturn Section Five of the Voting Rights Act, a measure that civil rights advocates have called the “hammer” and “heart” of federal efforts to protect minority voting rights from a constantly-evolving series of suppressive tactics. The Project on Fair Representation, a conservative Washington, D.C.-based legal organization, state officials and other right-leaning think tanks and respected legal observers are assisting in Shelby County's suit.
In some ways the dispute that the Supreme Court will hear today is a bigger and much more consequential version of related disagreements that play out across the country every day and in nearly every public opinion poll, said Kareem Crayton, a professor at the University of North Carolina, Chapel Hill’s School of Law who studies race, voting and the policy. There are at least two, if not more, widely divergent views of American race relations, the state of equality and opportunity in the United States, Crayton said.
One says racism and discrimination are old and fully handled business. The other says the work of ameliorating institutional inequality is more like an ongoing project that must be monitored and, in some areas of the country, seriously intensified. On Wednesday these two views will head to court.
“It would not be an overstatement to say that in this particular dispute, the health and legitimacy of our democracy are on the line,” Crayton said.
Section Five of the Voting Rights Act gives the federal government the authority to pre-approve any changes to voting policy or procedure in Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. It also covers certain counties in California, Florida, New York, North Carolina and South Dakota, and some communities in Michigan and New Hampshire.
The law was first passed in 1965. And since that time, those areas of the United States with a documented history of discriminatory election practices -- such as administering literacy and civics tests to people attempting to register to vote, refusing to offer multilingual ballots or translators or redrawing district lines in ways that reduce the influence of minority voters -- have received the legal equivalent of reminder notices that these activities are illegal. In some cases, the federal government has even issued all-out stop orders. Under Section Five, communities and states where less than half of the eligible minority populations are registered to vote or participate in elections have operated under a sort of federal special watch program. (A program's whose list of locations has expanded over time.)
In these places, if election officials want to do something as small as move a polling location or change its hours, or as large as require voters to provide specific forms of identification, they must first run the plan by federal officials inside the Department of Justice or a federal three-judge panel.
“Just like a lot of places in this country, people haven’t really understood the ongoing legacy of Jim Crow or how it compromised the opportunities of African-Americans to grasp political, social or economic opportunities," said Stevenson, director of Equal Justice Initiative of Alabama, a private, nonprofit legal organization that assists the state’s poor, incarcerated and condemned.
“Now, that failure lies at the heart of Shelby County’s pretty outrageous case,” he said.
To be clear, Shelby County officials and the team of ideologically driven legal advisors behind them say they have no interest in curtailing the ability of the state’s growing black and Latino populations to vote. Shelby is a modern, right-leaning place. In Shelby County, the median income sits around $69,000, $20,000 more than the rest of the state. Some of its communities rank among the 100 most affluent in the United States. Many Shelby County residents work in the area’s growing biomedical, aeronautical and other tech and scientific research industries. But, the plaintiffs argue, when Congress renewed Section Five of the Voting Rights Act in 2006 for 25 years, they failed to account for current conditions.
Edward Blum, a visiting fellow at the conservative Washington, D.C.-based American Enterprise Institute and director of The Project on Fair Representation, is arguing the case on behalf of Shelby County before the Supreme Court. Blum has been central to efforts to overturn Section Five, with his project also bringing a Texas case attempting to limit federal election oversight to the Supreme Court in 2009. The court decided not to rule on the larger constitutional questions in that case and issued a more limited decree.
The court affirmed that states and communities that can prove no history of discriminatory election activity in the last 10 years can apply for a “bail-out” from the program. In fact, the Austin, Texas utility district at the center of Blum’s 2009 case, and many other areas, have been approved and removed from the federal oversight program carved out in Section Five. Shelby County and all of Alabama, for that matter, have never applied.
But, Chief Justice John Roberts and the court’s only African-American member, Justice Clarence Thomas, have both expressed open concerns about whether states covered by Section Five were being treated fairly and the scope of racial progress in these areas really considered.
In 2009, while Blum was still working on the Texas case, he read a story about voting matters in Shelby County. He contacted the long-serving Shelby County attorney, Butch Ellis, and found an open ear. Later, when Blum was looking for another case to take to the Supreme Court, Shelby County agreed.
Ellis, who did not respond to a request for comment, recently told The Birmingham News that he does not object to the principles behind the Voting Rights Act. But, he says he takes issue with the fact that taxpayers in Shelby and other affected communities are forced to finance hours of extra staff work and legal fees to obtain federal approval for voting changes.
Ellis didn’t quantify those costs or describe what efforts the county will make to ensure that any changes to voting policies or procedures in the future do not negatively affect minority voters if Section 5 is overturned.
One could argue that Ellis is simply a proponent of states’ rights. So is Blum. And Blum plans to argue that since the share of black Shelby County residents registered to vote and who regularly do so sit at or near parity with the area’s black population, the rationale behind Section Five no longer holds. There is no reason to treat Alabama any different than Ohio or Pennsylvania, he’ll argue.
With African-Americans holding a proportional share of the Alabama legislature’s seats and a black president serving his second term in the White House, America’s problems with race and elections have been resolved, Blum appears to believe, based on his past record and statements. So, as he will likely contend, there is no basis for Section Five to apply anywhere.
That argument is akin to claiming that a needed medication has produced some healing so all patients should discontinue all treatment, said Ryan Haygood, a lawyer with the NAACP Legal Defense Fund. The fund is the leading civil rights legal-action agency behind such landmark cases as Brown v. Board of Education, which ultimately lead to school integration. Haygood is also part of the team that will face Blum in court Wednesday. Haygood and other civil rights lawyers will try to defend Section Five from what he says is a serious, but likely unsuccessful, attack.
What the Supreme Court will consider when oral arguments begin Wednesday is whether state sovereignty should be given greater legal weight than the right of individuals to vote, said Haygood.
Both Shelby County and Alabama were the subject of a federal block on voting-related changes and named parties in a federal civil rights suit in 2008, when 180 of the state’s counties and municipalities refused to alter their at-large election districts. The absence of distinct geographic districts –- which often cluster voters by both race and class –- made it virtually impossible for the state’s growing black and Latino populations to ever win city-wide elections for seats on hundreds of county commissions and city councils, school boards and water districts, Haygood said.
“Shelby County was and is the very kind of place for which the Voting Rights Act was written,” he said. “So, it’s pretty unbelievable that this case has come from this community.”
Of course, Shelby County is not alone.
In the last 10 years, Alaska officials have been forced to back away from a plan to relocate a polling site serving an overwhelmingly Native American group of voters. The proposed voting site sat 70 miles from the original location and was accessible only by boat and airplane. And when Congress gathered information and testimony on efforts to limit the influence of minority voters in 2006, they found so many similar cases in Alaska and across the country that these examples made up most of the 16,000-page record that was later compiled.
Anyone willing to look will see there is plenty of reason to be concerned about Shelby County and every community that is currently covered by Section Five, said Matt Barreto, a University of Washington political scientist.
Barreto is also part of the group of academics who compiled a range of federal data on Section Five and non-Section Five communities in 2008, 2010 and, where available, 2012. They submitted a document to the Supreme Court to share their findings: multiple indicators of vast socioeconomic disparities and racially polarized voting in communities covered by Section Five. In most cases, those disparities have shrunk since 1965, but they remain far larger than they do in other states and communities, according to their report. The same can be said about employment discrimination claims and attitudes about immigration and race.
When the Voting Rights Act was passed in 1965, many of the voters who were plainly excluded and faced danger if they tried to vote were African-American. A smaller number were Mexican Americans living in Southwestern states. Today, the country’s population is changing, and so too are the tactics used to limit the influence of minority voters, Barreto said.
Just last year, the Mexican American Legal Defense Fund (MALDEF) won a legal dispute with the state of Texas over proposed election districts. Texas won four new Congressional seats, almost entirely due to growth in its Latino population. State officials working to draw new district lines complied with the letter of the Voting Rights Act by creating new districts, including at least one where Latinos would make up the majority of voters and therefore stand a better chance of being able to elect and send their candidate of choice to Congress. But, in a series of emails between state staff working to draw new district lines, it became clear that the new districts were actually designed to violate the spirit of the Voting Rights Act.
State officials drew a new “minority majority” district in such a way that voters with Spanish surnames who do not often vote were concentrated in one district and those with Spanish surnames who have a record of voting frequently were pushed into predominantly white and Republican voting zones.
Section Five and other sections of the Voting Rights Act helped federal officials and MALDEF to halt the plan.
When the two sides line up in front of the Supreme Court this morning, Jerome Gray, 74, likely won’t have a seat inside. Most of the tickets for a dedicated seat in the courtroom’s gallery have been claimed. But, he will be outside talking and listening, if a feed can be found, with other people who know what it means to live in an Alabama where the Voting Rights Act, and in particular Section Five, remain needed, he said.
Gray was born and raised in Alabama and spent 27 years serving as the field director of the Alabama Democratic Conference, an independent political organization affiliated with the Democratic Party. (Gray also served as a state campaign official for Barack Obama’s 2008 campaign.)
Gray’s work put him in close contact with election officials, politicians and minority voters around the state. And, in these last six years since he retired, the action has not stopped, he said.
In 2008, Gray was involved in the suit against 180 Alabama counties. Last year, the problem came even closer to home. Gray, a long-time active voter, discovered that a new county election official had removed his name and about 500 others from the voter rolls in Evergreen, Ala., the small 4,000-person town and boyhood home to which Gray retired. The most recent census found that the city is 63 percent black, but the majority of the city council’s seats are held by white politicians who live in largely white sections of town.
“Listen, it’s plain to see that when Shelby County decided to take up this fight, they didn’t ask anybody who would be in a position to know if there are still real problems,” he said.
When the Justice Department became aware of Evergreen’s changed voter rolls and new district lines, which the city council had also failed to submit for approval, it used Section Five to stop the town’s planned August 2012 county elections. Federal officials asked the town for more information.
Elections have not been held.