Bail-In of Alabama City Shows Key Part of Voting Rights Act Still Survives in Practice

[Image courtesy of townmapsusa]

When the Supreme Court struck down a key piece of the Voting Rights Act in the Shelby County case – essentially ending the requirement for certain states and localities to “pre-clear” their voting changes – supporters of the Act took heart in the fact that the VRA also includes another provision (Section 3) empowering the courts to require pre-clearance as a consequence of violations of the Act.

As we’ve seen elsewhere, the U.S. Department of Justice is betting heavily on Section 3, including requests for “bail-in” in its suits against North Carolina and Texas. But there was some question, however, if courts would be willing to enforce it. There are a small group of localities under a current Section 3 order – Charles Mix, SD and Port Chester, NY, according to Loyola Law’s Justin Levitt – but it wasn’t clear if and how Shelby County would change courts’ willingness to use Section 3.

We now know, at least, that Section 3 is still a viable remedy in some cases. Yesterday, a federal judge ordered the city of Evergreen, AL to submit some future election changes to the federal government as a consequence of VRA violations in the city. The New York Times has more:

Judge Callie V. S. Granade, of Federal District Court in Mobile, used a mechanism in the law that the Supreme Court had left untouched, Section 3, which allows jurisdictions that have intentionally discriminated against minority voters to be “bailed in” to the oversight requirements.

Relying on Section 3, Judge Granade ordered the city, Evergreen, to submit some changes in voting procedures to the Department of Justice or a federal court for review before they can go into effect.

What’s interesting in the coverage of the story is that the plaintiffs weren’t the only one applauding the ruling; the city – the defendant – actually welcomed the order as a way to resolve voting disputes more quickly:

Evergreen, an enclave of 3,900 people between Mobile and Montgomery, has a troubled history and has in recent years been found to have improperly excluded minority voters from its rolls and redrawn its district lines to concentrate black voters, who are in the majority, into just two of the five districts, limiting black voting power.

Jerome Gray, a civil rights activist in Evergreen, said the court’s order was welcome and valuable.

“It gives us at least some leverage in terms of the next couple of election cycles,” he said, “so that they can’t get away with doing things with impunity now that we don’t have Section 5,” the part of the Voting Rights Act effectively eliminated by the Supreme Court.

Judge Granade’s order applied to changes in how the Evergreen City Council is elected, how district lines are drawn and who can vote. Under Section 5, which had applied to Alabama and eight other states, mostly in the South, all changes in voting procedures, large or small, required federal permission.

A lawyer for the city, James H. Anderson, said his client had agreed to and welcomed the order. Early federal approval of voting changes, he said, could prevent later lawsuits.

The city has acknowledged flaws in its handling of voter rolls and has revised its approach to redistricting in light of an earlier court ruling.

Of course, the Evergreen bail-in doesn’t signal much of anything in terms of the likelihood of Section 3’s application to the two big statewide VRA cases currently awaiting trial. But litigants on both sides now know that bail-in has survived Shelby County not just in theory but in practice.

Stay tuned.