The conventional wisdom is that Alabama won a stunning victory last month when the U.S. Supreme Court struck down a portion of the Voting Rights Act. The reality — for both Decatur and the rest of the state — may be very different.
The Voting Rights Act of 1965 followed a long line of efforts to end voter suppression. The first such effort was the 15th Amendment, ratified in 1870: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
The amendment — which also authorized Congress to pass laws preventing voter discrimination in the states — was a failure, as were the various laws Congress attempted before 1965.
What made the Voting Rights Act of 1965 unique was its preclearance requirement. Rather than playing a losing game of whack-a-mole — with southern states erecting a new barrier to voting as soon as the previous one was blocked — the law required jurisdictions with a history of voter suppression to submit changes in voting laws or procedures to the U.S. Department of Justice before they took effect.
In the five years after the law passed, almost as many blacks registered to vote in southern states as in the century before. The number of blacks holding elected positions in southern states has increased 1,000 percent since the law passed.
The preclearance requirement in Section 5 of the Voting Rights Act applied only to voting jurisdictions described in a formula contained in Section 4(b) of the act. The formula singles out those states and jurisdictions that historically had used voting tests to suppress voter registration or turnout, including Alabama.
Last month’s Supreme Court decision, ruling in favor of Shelby County, struck down Section 4(b). Since the preclearance requirement only applies to jurisdictions described by Section 4(b), it effectively ended the preclearance requirement.
Claims of a victory for states’ rights, however, are premature.
The preclearance requirement was only one part of the Voting Rights Act, and it was more procedural than substantive. Section 2 of the law bans all states from voting practices or procedures that have the effect — regardless of intent — of discriminating against minority voters. Other sections ban particular methods of voter suppression, like poll taxes, in all states.
Alabama and other states with a history of voter suppression had to get advance clearance to change voting laws, but their changes were held to basically the same standard as changes in other states. In states not meeting the Section 4(b) formula, the Justice Department had to file suit against the state (or a city or county within the state) to invalidate a discriminatory voting law.
Indeed, several states — including Mississippi and North Carolina — requested that the court leave the preclearance requirement in place. One of their major arguments was that the administrative hurdle of obtaining preclearance for changed voting practices was far cheaper and less intrusive than defending a lawsuit brought by the Justice Department under Section 2.
“The streamlined administrative review of Section 5 is far less onerous than the intensely complex, costly and time-consuming nature of Section 2 litigation,” argued the attorneys general of Mississippi and North Carolina, “which can cost millions of dollars and hundreds of hours for states or localities to defend.”
To understand the advantages of the preclearance procedure, look at Decatur.
In 2010, a slim majority of voters approved a new form of government. Instead of a full-time mayor, the referendum adopted a state-law alternative government with a professional city manager. The state law also reduced the number of districts from five to three. While the intent of the referendum probably had nothing to do with the voting rights of black citizens, the arguable effect was to limit their ability to elect a councilman of their choice. If the number of districts drops to three, no district can have a black majority.
Does this mean the new form of government violates the Voting Rights Act? Probably, but not definitely. As the Shelby County case demonstrates, interpretations of the Voting Rights Act are in flux.
The city originally, and falsely, claimed that the Justice Department denied preclearance of the law. It then claimed it did not have enough time to obtain preclearance due to delays caused by the 2010 Census. Now it appears to be arguing that the referendum violates Section 2 of the Voting Rights Act.
The political problem with the same city officials who would be disadvantaged by the referendum being the self-anointed arbiters of whether the referendum violates federal law is obvious. The advantage of preclearance was that, while avoiding the expense of a battle in federal court, it gave the decision to legal experts at the Justice Department who were removed from local politics.
Despite the claims of Shelby County, the preclearance requirement was narrowly tailored to affect as few states as possible. It started with a baseline of states that historically suppressed the vote, but allowed them to “bail out” — as Pinson did last year — if they eliminated discriminatory practices. Other jurisdictions — such as several districts in New York — had to “bail in” when they began using discriminatory voting practices.
As Mississippi and North Carolina argued, the limitation on the preclearance requirement made the Voting Rights Act less intrusive than most remedial laws because it confined preclearance “to those regions of the country where Congress had specific evidence of voting discrimination.”
The end result of the decision — for Decatur, for Alabama and for the nation — could be more federal intrusion, not less.