70 The Alabama Lawyer 374 (2009). Federal Review of Voting Changes: The U.S. Supreme Court Opens the Door to Relief.

• Author: BY JOHN TANNER

The Alabama Lawyer

2009.

70 The Alabama Lawyer 374 (2009).

Federal Review of Voting Changes: The U.S. Supreme Court Opens the Door to Relief

Federal Review of Voting Changes: The U.S. Supreme Court Opens the Door to ReliefBY JOHN TANNERThe 1965 Voting Rights Act

The Voting Rights Act of 1965 armed the national government with an array of tools to end racial discrimination in voting. The Act included in Section 2 a broad ban on voting discrimination, while Section 8 provided for federal examiners to register black voters where local officials refused and Section 6 allowed federal observers to enter polling places and ensure fair treatment of minority voters. Perhaps nothing, however, has transformed the landscape of local government in Alabama more than the "pre-clearance" requirement of Section 5 of the Voting Rights Act, a temporary provision that has been extended repeatedly.(fn1)

Since 1965, every level of state and local government in Alabama and certain other states have been required to undergo federal review of every change in voting practices and procedures to ensure that the changes are free of racial discrimination, either in purpose or effect.(fn2) Until that review has been completed and pre-clearance either from the Justice Department or the U.S. District Court for the District of Columbia has been obtained, the new practice is unenforceable. That federal review has blocked some 100 voting changes in Alabama, including everything from polling place changes to municipal incorporations and annexations to redistricting plans.(fn3) This federal review requirement is largely responsible for the broad representation and participation that minority voters in Alabama enjoy today. Congress extended the Section 5 review requirement for another 25 years in 2006.

In Northwest Austin Municipal Utility District No. 1 v. Holder,(fn4) the Supreme Court has written an important new chapter in the life of the Voting Rights Act, one that holds both promise and peril for local governments. Briefly, the Northwest Austin decision creates a realistic opportunity for many local governments to obtain release from the federal review provisions of the Voting Rights Act so that they will no longer have to obtain federal clearance before moving ahead with changes in voting practice. Significantly, the Court decided the case on a novel and narrow statutory interpretation, specifically, indeed ostentatiously, to avoid ruling on whether the federal review requirement and its "substantial federalism costs" remain constitutional after more than four decades, and whether "the Act's current burdens [are] justified to meet current needs."(fn5)

Standards for Release

The Voting Rights Act is well known in Alabama election circles for its requirement for federal review of voting changes. The pre-clearance requirement does not apply nationwide, but only to certain "covered" "political subdivisions," generally an entire state or county (the unit at which voter registration is conducted). These areas were determined based on the use of a radically discriminatory voting "test or device" by local registrars, and low voter participation in the 1964, 1968 or 1972 general election.(fn6) The entire state of Alabama and each county are subject to the Voting Rights Act. All cities, school districts, municipal utility districts and other electoral entities within each county are also subject to the federal review requirements of the Act.(fn7)

The Act has always provided an escape valve, awkwardly known as a "bailout" provision, whereby a jurisdiction may file suit in the U.S. District Court for the District of Columbia and obtain judgment from a three-judged panel that federal pre-clearance of voting changes need no longer be required. Initially, however, only the entire state, in the case of Alabama, could seek such a judgment.(fn8) In 1982, Congress amended these procedures to allow counties within states subject to the review requirements to the Voting Rights Act a realistic opportunity to obtain release from federal review, to recognize and reward jurisdictions which had not used discriminatory voting practices and to create an incentive for local governments proactively to enhance voting opportunities for minority citizens.(fn9)

Section 4(b) of the Voting Rights Act(fn10) spells out the "bailout" criteria, the standards necessary to obtain such a release. Local officials as plaintiffs must establish that:

1. No "test or device," such as a literacy or moral character test, has been used in the preceding 10 years. Because such tests and devices have been outlawed since at least 1970, this should not be a barrier to bailout for any jurisdiction. 2. There have been no successful voting rights lawsuits against the...