Being nearly all white helped Shelby County, Alabama, lay waste to 50 years’ progress in black voting rights.
A 5-4 ruling in Shelby County v. Holder by the U.S. Supreme Court in 2013 struck down crucial parts of the Voting Rights Act of 1965. The high court found it unconstitutional to treat states differently (the coverage as laid out in the Act’s Section 4(b)) unless there was compelling evidence of racial discrimination in voting laws more recently than 1964. The court did away with the “preclearance” (Section 5) requirement that those jurisdictions submit any changes in voting regulations to the Department of Justice.
That ruling gave rise to rapid-fire legislation from Republican-dominated state legislatures across the South, legislation that civil rights organizations say aims to thwart minority voters.
Purged voter lists, moved polling places, fewer voting machines in minority precincts, an end to early voting, changes in polling hours and the ubiquitous voter ID laws are more subtle than literacy tests and poll taxes, but they appear to have been effective in reducing minority voter turnout none the less. Voter ID legislation here in Alabama requires anyone casting a ballot to present a government-issued photo ID at the polls. On the heels of that law, Republican Governor Robert Bentley opted to deal with a budget shortfall by closing drivers’ license offices in the Black Belt. Perhaps a mere coincidence, these closings (since modified to one-day-a-week operation after widespread outcry) made those official government-issued photo IDs much harder to obtain for the poor and the black and those without reliable transportation.
Such schemes in Alabama and across the South did not happen in isolation. They were the result of a very calculated effort fueled by a very shrewd man on a mission. The weapon conservative legal strategist Edward Blum chose to gut the VRA was the Shelby County (AL) Commission, a nine-member, all-Republican, all-white body in the very heart of the Heart of Dixie.
Shelby County v. Holder started with a phone call, said Shelby County Attorney Frank C. “Butch” Ellis Jr.
“I don’t remember who called me,” Ellis said. “I guess it was Edward Blum.” Ellis said the point of the call was that Blum’s Project for Fair Representation out of Arlington, Va., offered to pay all expenses for Shelby County if the county would be the plaintiff in the suit that led to the landmark Supreme Court decision. Blum is the sole member of the Project for Fair Representation, an outfit supported by contributions from conservative think tanks. It had already carved a chunk out of the VRA with the earlier Northwest Austin Municipal Utilities District No. One finding that “current burdens . . . must be justified by current needs.”
Ellis, who has been county attorney for 52 years, serves on the Alabama Ethics Commission and is a former state senator. His son, Corley Ellis, recently was appointed by Gov. Robert Bentley to a vacant state House seat. The younger Ellis had been a member of the County Commission throughout the VRA case. The governor is a Shelby County native and cousin to the senior Ellis’s wife.
Following the phone call, Ellis outlined the proposal to commissioners during subsequent work sessions, at which press attendance in recent years has been scant or non-existent.
Then, on April 26, 2010, the very last action prior to adjournment was unanimous adoption of a one-sentence resolution authorizing Ellis and County Manager Alex Dudchock “to proceed, at no cost to the county, partnering with others as deemed appropriate, for the filing of a legal challenge” to the Voting Rights Act.
Ellis said that Shelby County commissioners had grumbled for decades about the preclearance requirement (Section 5). Ellis recounted an emergency situation a few years ago that required moving a polling place across the street. The DOJ balked at expediting preclearance, he said.
“They told us we would have to reschedule the election. It was a general election, for crying out loud,” Ellis said. Although he eventually got the issue resolved, he described the DOJ attitude as “arrogant.” He estimated that handling preclearance issues has cost all of the covered state, county and local governments “a billion dollars over the years” in legal and administrative expenses.
“We were the ideal plaintiff,” Ellis said.
Shelby County is more than 90 percent white with much of its black population scattered across the suburban sprawl of the bedroom communities of North Shelby County.
Other factors, Ellis said, added to the Shelby’s ideal status as plaintiff:
- its overwhelmingly white electorate voted in 2010 to replace a white incumbent school board member with a black challenger.
- in one of the county’s smaller cities, Harpersville, a black mayor was elected by a majority white electorate.
- in Pelham, a heavily white city with at-large council elections, a black challenger defeated a white incumbent.
- The county is touted as the fastest growing with the top educational attainment and highest incomes in Alabama. It consistently has the state’s lowest unemployment rate (currently 4.2 percent).
Shelby County just does not look, statistically, like the rest of Alabama nor like the rest of the South.
According to the U.S. Census, Shelby County has 208,713 residents, making it the fourth most populous in the state. Median household income is $69,723, and more than 91 percent of its residents have a high school diploma or above. Shelby’s pockets of poverty are small and mostly hidden in the lesser populated southern communities of Wilton, Montevallo and Calera or in the furthest east communities of Harpersville and Vincent.
“We had everything going for us,” Ellis said.
Shelby County, with the Blum-appointed counsel Ben W. Rein at the litigation helm and Ellis sitting second chair, launched the battle in the U.S. District Court in Washington, D.C., in April 2010. Shelby County asked for a permanent injunction prohibiting the Attorney General from enforcing Sections 4(b) and 5. Shelby County sought a declaration that the sections are unconstitutional. The coverage formula was outdated, it argued, and failed to reflect progress in minority voting and office-holding. Even if such extreme action had been warranted in 1965 when the law was passed, it no longer reflected the current situation, according to Shelby County. Nor did it address current problems, as SCOTUS had noted previously in Northwest Austin, another Blum-Rein assault on the VRA. In The Northwest Austin ruling, Chief Justice Roberts wrote for the 8-1 majority that Section 5 “imposes current burdens and must be justified by current needs.” Northwest Austin expanded the bailout provision without reaching the constitutional question. Blum described that ruling as “a chop on the log.” (To compete the analogy, SCOTUS’s later 5-4 ruling in the case threw the whole log on the fire.) Unless Congress devises a new coverage formula based on current evidence of voting discrimination, then nobody should be subject to the Section 5 “preclearance” requirement, Shelby County said. The District Court gave summary judgment to the attorney general., and Shelby County appealed.
Shelby County, backed by Blum’s Project for Fair Representation, and again with Rein heading the litigation team, appealed the district court loss to the D.C. Circuit Court of Appeals. Shelby County again claimed that Congress, in 2006, did not have the constitutional authority to reauthorize Section 5, noting that no evidence newer than 1982 had been applied to determining the political subdivisions to which Section 4(b) coverage applied. The Court of Appeals upheld the District Court’s ruling in a 2-1 decision. Its majority found that “Congress drew reasonable conclusions from the extensive evidence it gathered . . . [We] owe deference to the considered judgment of the people’s elected representatives.” The majority also pointed to the “deterrent effect” of Section 5—covered jurisdictions were less likely to adopt discriminatory voting practices if they were reasonably sure the measures would not pass muster with the DOJ.
Senior Judge Stephen F. Williams’ dissent augured well for Shelby County’s eventual success in the high court, finding the coverage criteria “defective whether viewed in absolute terms (are they adequate in themselves to justify the extraordinary burdens of Section 5?) or in relative ones (do they draw a rational line between covered and uncovered jurisdictions?) . . . Sometimes a skilled dart thrower can hit a bull’s eye throwing a dart backwards over his shoulder . . . Congress hasn’t yet proved so adept.”
Shelby County and its team then headed to the Supreme Court. We all know what happened on June 25, 2013. Chief Justice John Roberts wrote the 5-4 majority opinion, with a concurring opinion from Justice Clarence Thomas. Justice Ruth Bader Ginsburg wrote the dissenting opinion. History was made. A lifeless Voting Rights Act lay dead on the courtroom floor. Section 4(b) of the VRA sets out coverage for political jurisdictions who were naughty in 1964, Roberts wrote. His logic: In renewing the Voting Rights Act in 2006 for 25 years, Congress didn’t bother to check how well the covered jurisdictions had behaved lately. Therefore, the tedious preclearance requirements in Section 5 violated the “equal sovereignty” of those covered states and political subdivisions by forcing them to take on heavy burdens not imposed on their “un-covered” counterparts. Oh, and by the way, the VRA’s Section 2 still remained. That’s the part that says an aggrieved plaintiff can sue in federal court to fix unfair voting procedures or laws. There are two reasons that this is not a terribly practical solution to discriminatory voting laws: First, there is little case law on Section 2, and, second, the discriminatory law has to be on the books, being enforced, and causing damage the plaintiffs can point to. Then, remember, the mills of justice do indeed grind very slowly.
The right-wing states will continue to take full advantage of the Supreme Court’s decision to gut one of the signature achievements of the civil rights movement, and Shelby County, Alabama, is their hero that started it all.
Nancy Kay Wilstach is a veteran journalist whose last newspaper jobs included 25 years covering Shelby County courts, government, and politics. She lives in Montevallo, Alabama with her husband and grandson.