It’s not surprising that the most recent challenge originates in Alabama, which, more than any other state, is responsible for the passage of the VRA. LBJ announced the legislation eight days after police brutally beat civil rights activists during the 1965 “Bloody Sunday” protests in Selma. “The Voting Rights Act is Alabama’s gift to our country,” says Debo Adegbile, director-counsel of the NAACP Legal Defense Fund. Shelby County is a wealthy, white-flight exurb of Birmingham, once regarded as the most segregated city in America and known as “Bombingham” for the frequency of attacks on black citizens at the height of the civil rights struggle. (The Alabama GOP held its 2012 election night “victory party” at a gun range in Shelby County, where attendees fired away while awaiting election returns.)
Calera, a once-sleepy town from which the lawsuit stems, is fifty-five miles north of Selma. Best known for its Heart of Dixie Railroad Museum, Calera became the fastest-growing city in the state over the past decade, adding new businesses like Walmart and Cracker Barrel off the busy I-65 highway running from Birmingham to Montgomery. Before local elections in 2008, Calera redrew its city boundaries. The black voting-age population had grown from 13 percent in 2004 to 16 percent in 2008, but the new maps eliminated the City Council’s lone majority-black district, represented by Ernest Montgomery since 2004. The city decreased the black voting-age population in Montgomery’s district from 71 to 30 percent by adding three overwhelmingly white subdivisions while failing to include a large surrounding black neighborhood. A day before the election, the Justice Department objected to the change. Calera could have preserved the majority-black district, the city’s demographer told Washington, but the City Council chose not to. Calera held the election in defiance of Justice Department orders, and Montgomery lost by two votes.
A soft-spoken and civic-minded precision machinist, Montgomery grew up going to segregated schools until junior high, but he didn’t think race was as big an issue in Calera as it was in other parts of the state. That changed in 2008, when he knocked on doors in the lily-white subdivisions of his new district—which he knew well from his time on the city planning commission—and was told by residents that they were supporting his opponent, who’d lived in the town for only three years. When asked why, they couldn’t give him a good reason. Montgomery could come to only one conclusion: “they voted against me because of the color of my skin.”
Following George W. Bush’s 2004 re-election, Republican National Committee chair Ken Mehlman embarked on an ambitious effort to court minority voters, particularly African-Americans, apologizing for his party’s “Southern strategy” at the NAACP convention and trying to rebrand the GOP as “the party of Lincoln and Frederick Douglass.” But that effort collapsed in the wake of the Bush administration’s mishandling of Hurricane Katrina, which decisively turned blacks against the GOP, and its failure was codified with the election of Barack Obama, who won 80 percent of the minority vote in 2008. Instead of wooing an ever more diverse electorate, Republicans began looking for new ways to suppress its votes, as became evident following the 2010 election, when GOP state legislators introduced tough new voting restrictions in thirty-eight states. The NAMUDNO and Shelby County lawsuits prefigured this shift. “It’s at those moments when minority communities are poised to exercise their political voice that we see the most intently focused voting discrimination,” says Adegbile.
But past remains present to a disturbing degree in the South. States and counties with a history of voting discrimination in the 1960s and ’70s are still trying to suppress their growing minority vote today. Six of the nine fully covered states have passed new voting restrictions since 2010, including voter ID laws (Alabama, Mississippi, South Carolina, Texas and Virginia), limits on early voting (Georgia) and restrictions on voter registration (Alabama and Texas). But only one-third of noncovered jurisdictions passed similar restrictions during the same period. The worst of the worst actors are still those covered by Section 5.
It’s certainly true that voter suppression efforts have spread to states like Ohio, Pennsylvania and Wisconsin. If anything, though, that’s an argument for expanding the statute, not eliminating it. “It’s a unique concept to say, ‘Well, since you’re not catching everybody, you can’t catch anyone,’” says Anita Earls, a prominent civil rights lawyer and executive director of the Durham-based Southern Coalition for Social Justice.
In last year’s election cycle, the Justice Department under Section 5 opposed voter ID laws in Texas and South Carolina, early-voting cutbacks in Florida and redistricting maps in Texas. The federal courts in Washington sided with the DOJ in three of four cases, finding evidence of discriminatory effect and/or purpose, while also blocking South Carolina’s voter ID law for 2012. “One cannot doubt the vital function that Section 5 of the Voting Rights Act has played here,” Judge Bates wrote during South Carolina’s voter ID trial. “Without the review process under the Voting Rights Act, South Carolina’s voter photo ID law certainly would have been more restrictive.”
In addition to passing a raft of new voting restrictions, Republicans across the South used their control of state legislatures following the 2010 election to pass redistricting maps that have led to a resegregation of Southern politics, placing as many Democratic lawmakers into as few majority-minority districts as possible as a way to maximize the number of white Republican seats [see Berman, “The GOP’s New Southern Strategy,” February 20, 2012]. Republican leaders say they’re only following the guidelines of Section 5, but in reality they’ve turned the VRA on its head. (Most recently, on Martin Luther King Day, the GOP-controlled Virginia Senate redrew its maps to reduce Democratic seats by diluting black voting strength in at least eight districts.)
Expanding voting rights in these areas has been shaky at best. “Black voters and elected officials have less influence [in the South] now than at any time since the civil rights era,” says a 2011 report from the Joint Center for Political and Economic Studies, which points out that only 4.8 percent of Southern black state legislators serve in the majority, compared with 54.4 percent in the rest of the country. Before the 1994 election, 201 of 202 black state legislators belonged to the majority party. Following the 2010 election, only fifteen of 313 did. There are more black elected officials in the South today, but they have far less power. And without Section 5, there would also be far fewer.
In Alabama, for example, Republicans targeted nearly every white Democrat in the state legislature for extinction but preserved the twenty-seven majority-minority districts in the House (even adding one more) as well as eight in the Senate in order to clear the maps with the feds. (At the time, the head of the Senate Rules Committee, Republican Scott Beason, referred to blacks as “aborigines.”) “If there’s no Section 5, all those majority-black districts are now vulnerable,” says Jim Blacksher, a longtime voting rights lawyer in Birmingham. “And there is no question in anybody’s mind what will happen next.” He calls Section 5 “the most important sea anchor against the ongoing, uninterrupted, virulent white-supremacy culture that still dominates this state.”
The kind of postracial society that would signal Section 5’s irrelevance isn’t anywhere on the horizon. Following Obama’s re-election, white students at the University of Mississippi yelled racial slurs during an impromptu demonstration. Obama won only 10 percent of the white vote in Mississippi and 15 percent in Alabama. “Overall, Obama won about 46 percent of the white vote outside the South and 27 percent of the white vote in the South,” observes Kevin Drum of Mother Jones.
Section 5 is invoked only in the most extreme circumstances and remains an imperfect and underused remedy. From 2010 to 2011, the Justice Department has objected to only twenty-nine of 19,964 submitted voting changes. Localities with a clean record are increasingly “bailing out” from the statute. “More jurisdictions have bailed out in the three years since NAMUDNO than the total number of jurisdictions that had bailed out in the 27 years prior toNAMUDNO,” writes Gerry Hebert, a voting rights lawyer and longtime Justice Department official. “Not a single government that has sought bailout has been turned down.” Adds Sensenbrenner, “Rather than throwing Section 5 out, which allows the people who haven’t cleaned up their act to get out, why not have the people who don’t discriminate anymore utilize the procedure to bail out?”