The state of Alabama, along with many other southern states (and some other random states like New Hampshire), are subject to Section 5 of the Voting Rights Act, which requires the state to obtain pre-clearance from the Department of Justice before it implements any changes to its voting procedures from the procedures in place in 1964. Since well before the passage of the Act, Alabama has had a statute that gives the governor the authority to appoint county commissioners to fill vacant county commission seats. In 1985, Mobile passed a local ordinance requiring vacant seats to be filled by special election, rather than by appointment. After that ordinance was passed, Mobile sought and obtained from the Department of Justice pre-clearance of the new voting procedure, i.e., election rather than appointment of commissioners. Because Mobile’s ordinance conflicted with the state statute, however, the ordinance violated the state constitution, which has a provision rendering unconstitutional any local ordinance that conflicts with state law. In 1985, the Alabama Supreme Court therefore struck down Mobile’s ordinance as unconstitutional. Pursuant to the state statute, the governor then appointed a commissioner to fill the seat. Importantly, the state did not seek pre-clearance for its renewed enforcement of the state statute.

Fast forward twenty years. A commission seat again becomes vacant in Mobile, and the governor appoints a commissioner pursuant to the state statute. Plaintiffs file a lawsuit in federal district court in Alabama claiming that the state was required to pre-clear the change from the Mobile ordinance back to enforcement of the state statute. The failure to seek such pre-clearance, according to the plaintiffs, violated Section 5. To make a long story less long, a three-judge district court agreed. Alabama then sought pre-clearance from DOJ for approval of the preexisting state statute. DOJ denied pre-clearance, and essentially told the state that it had to comply with the local ordinance that the Alabama Supreme Court had found unconstitutional.

The legal issues in the case are pretty complicated (and I have left out a lot of information related to those issues), but I think the policy implications are worth discussion. Alabama has been subject to Section 5 since the passage of the Voting Rights Act more than forty years ago. During that period, minority representation in elected government positions has soared, very probably due in large part to the Voting Rights Act. According to the state’s opening brief, black voting registration increased from below 20% in 1965 to close to 73% by 2004. In 1964, there were “few, if any, black elected officials in Alabama,” but there are now “approximately 750 black elected officials in Alabama” which represents nearly a quarter of all county commissioners and nearly a quarter of the current members of the Alabama legislature. This progress is laudable, and in fact puts Alabama ahead of many other states in terms of minority voting. Nonetheless, there certainly is an argument that continued enforcement of the Voting Rights Act is necessary to provide some assurance that states will not regress back to 1965 numbers. Section 5’s pre-clearance requirement strikes me as a vital part of that statutory scheme. Under Section 5, the Department of Justice reviews any changes to voting procedure proposed by a state in order to determine whether the change has the purpose or effect of “denying or abridging the right to vote on account of race or color . . . .” Many changes in voting procedure—for instance redistricting, forms of elections, and voter identification laws—all require preclearance by DOJ to ensure that the change will not have the effect of abridging the right to vote.

At the same time, this case put the state of Alabama in a somewhat impossible situation. The Department of Justice essentially told the state of Alabama that it had to comply with a statute that its own supreme court had told it violated the state constitution and could not be enforced. In other words, DOJ wanted the state to hold a special election under an unconstitutional statute. If Alabama had held such an election, arguably it could hae been subject to contempt proceedings for violating the order of the Alabama Supreme Court. On the other hand, the governor’s appointment of a commissioner had been vacated by the three-judge district court. In effect, the three-judge district court held that the Alabama Supreme Court’s decision that the ordinance was unconstitutional required “preclearance” by the Department of Justice, essentially giving Department of Justice officials the authority to override a decision by a state supreme court that a state ordinance violates its own constitution. Something about that strikes me as not exactly right. In the end, I am conflicted on this one, but I do think giving DOJ officials that sort of authority over state supreme courts should (and will) give the Supreme Court pause.