President Lyndon B. Johnson presents one of the pens used to sign the Voting Rights Act of 1965 to James Farmer, director of the Congress of Racial Equality on Aug. 6, 1965. The Voting Rights Act was unlike any other law in the way that it singled out for pre-emptive enforcement specific places deemed to have a history of discrimination.
Blum started searching for a jurisdiction that could be a plaintiff in a case challenging the constitutionality of the preclearance statute, eventually settling on a municipal utility district outside Austin, Texas, in which the board is publicly elected. The Supreme Court, in Northwest Austin Municipal Utility District Number One v. Holder, ruled in 2009 that the district was entitled to an exemption from preclearance, but it avoided addressing the constitutionality of the provision and its most recent authorization.
“When that was the outcome,” Blum said, “it became apparent to me and others that we were going to need to pursue finding a new jurisdiction and coming at this from a slightly different way than the first go-round.”
Blum spends between 15 and 20 hours a week reading news articles and regulatory filings related to race-based legislation, as well as the Justice Department’s preclearance denial letters. He is the engine behind an affirmative-action case, Fisher v. Texas, that the justices also will rule on this term.
When he noticed that some annexations by the city of Calera, Ala., had been denied because they diluted the power of minority voters, he called the city attorney to find out why. The attorney was Ellis, who also happened to represent Shelby County.
“We talked about our mutual hope that the court would end Section 5 and, failing to do so, that perhaps Shelby County might be the next plaintiff that would bring a challenge,” Blum said.
Ellis had grown up on a dairy farm just a mile from his law office in the Shelby County seat of Columbiana. Back then, the county, which lies southeast of Birmingham, was almost exclusively dairy, cotton and soybean farms. In the years since, its population has exploded from just more than 30,000 in 1960 to nearly 200,000 in 2010, with most residents commuting to professional jobs within its borders. “I don’t think we have a single dairy farm left in the county now,” Ellis says.
Although Ellis considers himself a “strong proponent and believer in the Voting Rights Act,” he thinks that for the most part, Shelby County has changed with the times. Its largely white population routinely elects black candidates, he says, so he wonders why it should have to ask the federal government for permission before moving a polling location from one church to another across the street.
“I’ve seen what has happened over the past 48 years and I’ve seen, without question, substantial changes,” Ellis said. “And I’ve had a chance to absorb the changes, which of course are not unique to Shelby County but throughout the South and throughout the covered jurisdictions” — those subject to preclearance.
Shelby County has asked the high court to consider why Congress reauthorized the preclearance provision through 2031 without updating the formula that defines which jurisdictions are covered — it was last revised in 1975, based on numbers from elections in 1964, 1968 and 1972. In its initial filing, the county noted that even though the justices declined to address the overall statute in the Northwest Austin case, they nevertheless acknowledged that the Voting Rights Act’s “preclearance requirements and its coverage formula raise serious constitutional questions.”
The justices are unlikely to dodge the question a second time.
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