Bobby Lee Harris, a former city councilman in Alabaster, Ala. ("the heart of Shelby County"), says he is a classic example of why Section 5 of the Voting Rights Act is still necessary.
Harris was a councilman as council elections approached in 2000. He realized that a black person would not be able to win in his district after district lines had been redrawn in 1996 to include a white bedroom suburb of Birmingham. He asked the Alabaster city attorney if the new map had ever been submitted to the U.S. Department of Justice for preclearance since all of Alabama was a jurisdiction covered by Section 5′s preclearance requirement. The attorney said no.
"I said it must be precleared or I may not get a chance to be elected," recalled Harris. The attorney agreed with Harris that the map should be submitted.
The Justice Department rejected the new map, but because preclearance had been sought so close to the election and state law prohibited rescheduling it, the election went forward. The votes cast from the new community would be deducted from the final tally. Harris had lost re-election until the votes from the newly added community were subtracted. All of the deducted votes had been cast for Harris’ white opponent.
Harris’ experience and numerous other experiences became part of a large body of evidence on which Congress relied when it reauthorized Section 5 and its Section 4(b) coverage formula in 2006, according to the amici supporting the United States, Harris and others who intervened to defend the act.
More than two dozen amicus briefs have been filed on the side of the United States and the defendant intervenors in an organized and thorough effort to refute the main arguments against the constitutionality of Section 5 by Shelby County and its supporters.
Reflecting the high stakes in the case, they were filed on behalf of such civil rights legends as U.S. Rep. John Lewis (D-Ga.), leaders of the House and Senate, political scientists, jurisdictions that have successfully "bailed out" of Section 5 coverage, some of the states that are still covered by Section 5, constitutional law scholars, bar associations, historians, social scientists, and Latino, Asian American, Native American and Alaskan Native organizations.
There is even an unusual brief submitted by former Republican Attorney General Dick Thornburgh and former career Justice Department officials specifically attacking two amicus briefs on the Shelby County side, one from former Republican officials who served in the civil rights division of the Justice Department.
One amicus brief flagged as particularly important to the act’s defense comes from political scientists and law professors providing empirical evidence to counter Shelby County’s claim that the act has addressed institutionalized race discrimination in Alabama and other jurisdictions, and if any residual effects remain, they are not qualitatively or quantitatively different from discrimination in noncovered jurisdictions.
"First, as measured by the data in this Brief, Alabama ranks among the nation’s most discriminatory states by almost every metric," writes Anita Earls of the Southern Coalition for Social Justice. "Across all varieties of institutional measures to restrict voting rights, states that are fully covered by Section 5 are more than twice as likely as noncovered states to adopt policies that make voting more difficult for citizens. Fully covered states are more likely to employ a combination of these restrictive measures, which amplifies the disqualification effect on voters."
New York Solicitor General Barbara Underwood drafted an amicus brief for the covered and partially covered states of New York, California, Mississippi and North Carolina refuting the arguments that the preclearance process is extremely burdensome and intrusive on state sovereignty.
"The materials necessary for DOJ’s limited Section 5 review are ordinarily both readily accessible and easy to assemble," she writes. The Justice Department, she adds, has administered the process with flexibility and has responded to states dealing with crises, such as Hurricane Katrina, and other unusual circumstances.
The bail-out and bail-in provisions adapt the coverage of Section 5 to current conditions, the brief argues in response to claims that the coverage formula is outdated.
U.S. Representative James Sensenbrenner, (R-Wis.) and his Democratic and Republican colleagues who led the 2006 reauthorization in the House lay out in their amicus brief how Congress built a record that justified the act’s reauthorization. Shelby County and its supporters contend as one of their main arguments that the congressional record of ongoing discrimination was inadequate.
"The House Judiciary Committee alone conducted twelve hearings and heard from forty-six witnesses representing a breadth of interests ranging from federal and state executive officials to civil rights leaders," wrote Stanford Law’s Pamela Karlan for the congressmen. "The Committee’s record totaled over 12,000 pages. The Senate Judiciary Committee held nine hearings and also heard from forty-six witnesses, creating a combined record of over 15,000 pages. The extensive record provides detailed evidence of Congress’s thorough reconsideration of the Act and confirms the clear need for reauthorization. Congress approved the twenty-five-year extension by wide margins of 390-33 in the House and 98-0 in the Senate."
And, as if to reinforce his House colleagues’ brief and to return the warning shot about the constitutionality of Section 5 that the justices gave Congress in a 2009 voting rights act decision, Senate Majority Leader Harry Reid (D-Nev.) said his amicus brief had two purposes. First, it "seeks to ensure that the Court does not reduce Congress’s longstanding authority to combat racial discrimination in voting by adopting a constricted view of the authority granted to Congress by the Fourteenth and Fifteenth Amendments," wrote Marc Elias of Perkins Coie.
"Second, Amicus seeks to remind the Court that Section 5 passed the Senate unanimously, with no members from covered states voting against, and that unanimous ratification deserves great respect in light of Congress’s relative institutional competence — as an elected branch, unlike the Court — to judge what is necessary to prevent racial discrimination in election practices."
Other amicus arguments include a brief on behalf of election law scholars arguing that Congress has separate and independent authority under the elections clause to adopt Section 5 for state laws concerning federal elections. That authority, they contend, is a narrow and clear basis for rejecting the constitutional challenge.
A brief by the Brennan Center for Justice examines the history of the 15th Amendment, which, it argues, supports special deference to Congress’ findings and its legislative authority to protect the right to vote from racial discrimination. The Constitutional Accountability Center and constitutional law scholars argue the plain language and original meaning of the enforcement clauses of the 13th, 14th and 15th amendments give Congress broad powers to prevent racial discrimination in voting.
And briefs by Latino, Asian American, Native American and Alaskan Native and tribal organizations offer the justices examples of ongoing attempts to restrict and dilute their right to vote.
Marcia Coyle can be contacted at email@example.com.