Posted on February 21, 2013
On February 27, the U.S. Supreme Court will hold oral arguments in the case of Shelby County v. Holder, reviewing the constitutionality of Section 5 "preclearance" provisions of the Voting Rights Act. A largely overlooked part of the case is the fact that Section 5 was the reason that Calera, a growing city in Alabama's Shelby County just south of Birmingham, adopted one of the fair voting systems we recommend to uphold voting rights.
Grounded in the 14th and 15th amendments to the Constitution, Section 5 requires that states and jurisdictions with a history of discriminatory voting laws (covered jurisdictions) "preclear" any changes to their election laws with either the Department of Justice or a panel of judges in Washington D.C. The new laws can then only go into effect if the covered jurisdiction can demonstrate that the voting rights of racial minorities will not be adversely affected by the proposed changes. Preclearance is effective for stopping the most discriminatory laws from even going forward, as over 99% of DOJ reviews result in preclearance.
Soon, the Supreme Court will consider whether counties like Shelby still deserve this oversight. Defenders of these provisions have done a remarkable job assembling and making arguments that Section 5 is absolutely appropriate - and that the Court should respect the other branches of government, given that Congress overwhelmingly extended Section 5 protections (including securing unanimous support in the Senate) in a 2006 bill signed into law by George W. Bush. We anticipate that the weight of evidence will result in the Court upholding Section 5 as constitutional - just as D.C. Circuit Court did, and as the Supreme Court has done in previous challenges in 1966, 1973, 1980, and 1999.
The case stems from events in Calera, a city in Shelby County where Section 5 played a key role. In elections prior to 2008, Calera elected its city council from single member districts, including one district in which the African American population was large enough to elect a candidate of choice. Here's how Ari Berman tells it in important new article in the Nation about the challenge to the Voting Rights Act:
Calera, a once-sleepy town from which the lawsuit stems, is fifty-five miles north of Selma. Best known for its Heart of Dixie Railroad Museum, Calera became the fastest-growing city in the state over the past decade....
Before local elections in 2008, Calera redrew its city boundaries. The black voting-age population had grown from 13 percent in 2004 to 16 percent in 2008, but the new maps eliminated the City Council's lone majority-black district, represented by Ernest Montgomery since 2004. The city decreased the black voting-age population in Montgomery's district from 71 to 30 percent by adding three overwhelmingly white subdivisions while failing to include a large surrounding black neighborhood.
A day before the election, the Justice Department objected to the change. Calera could have preserved the majority-black district, the city's demographer told Washington, but the City Council chose not to. Calera held the election in defiance of Justice Department orders, and Montgomery lost by two votes....
The Justice Department negated the election results and, after a year of negotiations, Calera moved from single-member districts to an at-large election system for the City Council. Montgomery was easily elected under the new system, winning the largest number of votes of any candidate, while his opponent from 2008 received the second-fewest. After the two elections, "I realized how important Section 5 is," Montgomery said.
Berman's account glosses over one key detail: the role of fair voting. Montgomery did not win in an at-large election held with winner-take-all rules. Instead, Calera entered into a consent decree with the Department of Justice to adopt a fair voting system that greatly expanded the number of voters well-positioned to elect someone. In this alternative to winner-take-all, every voter cast one vote in the election for six seats.
Here's why the change was so important in Calera. Under winner-take-all at-large elections, voters have a number of votes equal to the number of seats being elected, which guarantees that a slim numerical majority can control 100% of the seats on the body being elected. Under the one vote system adopted by Calera, six council seats were elected, and each voter cast one potent vote, ensuring that each candidate must be elected by a smaller distinct bloc of voters, instead of one majority voting bloc electing every candidate.
Sometimes misleadingly called "limited voting" due to voters having fewer votes than seats, the system in fact means "expanded democracy" because it increases the number of voters able to elect a candidate. Like-minded voters in the majority are likely to elect most seats - but not all seats. That's how, grounded in strong support in the African American community, Ernest Montgomery could regain his seat in November 2009 earning nearly 20% of all votes cast, more than any other candidate. He was re-elected in August, 2012, finishing third in another race for six seats, this time with 13%.
Fair voting has been used throughout Alabama to settle cases brought under the Voting Rights Act. In fact, Calera is only partly in Shelby County; it is also partly in Chilton County, the Alabama County which has become famous for using another version of fair voting for electing its county commission and school board since 1988 -providing fair representation for both those in the majority and minority.
Without Section 5, Thompson would have lost that 2008 election, and the only recourse for voting rights advocates would have been to mount a lawsuit under Section Two of the Voting Rights Act - an expensive proposition. Because fair voting empowers minority voting groups, including racial minority voting blocs, Section 5 preclearance prevents opponents from repealing it where doing so would undermine the voting power of racial minorities. For example, in 1999, the Department of Justice declined preclearance for New York City's attempt to repeal the use of choice voting in its 32 local school board elections that had by far the more representative elected officials in the City.
Today, Beaufort County (NC) also uses the one vote system due to an agreement to settle a Section 2 lawsuit, and it also has boosted opportunities for African American candidates who are candidates of choice. It also has provided a fair balance of partisan representation, with Republicans today having four seats and Democrats three. Instructively, Beaufort County opponents of fair voting have noted that switching away from fair voting would be easier if the Voting Rights Act did not prevent them from effectively disenfranchising racial minorities. Such actions could be far more widespread in the hundreds of jurisdictions using single member district systems where redrawn districts could weaken minority voting rights.
No matter what happens in the Shelby County case, we should think about how we can provide fair representation for all, shifting toward a paradigm of open access to voting and electoral systems that always guarantee fair representation for all segments of society. If fair voting were the norm rather than the exception, we wouldn't need the courts and DOJ to step in to stop unfair district plans if we didn't rely on winner-take-all systems that are not designed to be fair to those in the minority.
We're not sanguine about our elected officials rushing to change the rules that elected them, but it's time for the nation to reach consensus that all of us deserve a fair chance to have a seat at the table of representation - indeed, that "representative democracy" requires such an outcome to be worthy of the name.
To see how fair voting could look in your state in congressional elections, visit our map of fair voting plans for all 50 states at FairVoting.US.