Ken Hare In Depth: Alabama lawmakers must keep elections accessible to all

MONTGOMERY, AL (WSFA) - Alabama played a central role in the creation of the Voting Rights Act of 1965, and now it has played a central role in its evolution. But whether that evolution proves to be positive or negative depends on Congress and, here in Alabama, on the state Legislature.

My heart hopes that evolution proves to be positive. My head tells me that it is likely to be negative.  My strongest wish is that Congress and the Legislature will prove my head wrong and my heart right.

Before I suggest what I believe should happen next, some history and background.

In 1965 civil rights organizations were pushing for national legislation to ensure voting rights for blacks. Ground zero in that push that March was central Alabama. On March 7, 1965, as activists were leaving Selma to march to Montgomery, they were brutally attacked by state police and local deputies in what came to be known as "Bloody Sunday." National outcries over that attack and murders and violence against protestors fueled the passage of the Voting Rights Act later that year.

The chief enforcement mechanism in the Voting Rights Act was a provision that required preclearance by the U.S. Justice Department of most changes in election laws involving states and local governments covered by the provision because of a history of voting rights violations.  The formula covered all or parts of 15 states, including nine Southern states. Fully covered were Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. Partially covered were California, Florida, Michigan, New York, North Carolina and South Dakota.

Using a lawsuit filed in 2010 by Shelby County, Ala., as a vehicle, the Supreme Court this week overturned the formula used by the federal government to determine what jurisdictions had to seek preclearance of election law changes. The lawsuit argued that preclearance was costly and unnecessary because of progress made in allowing minority voters access to the ballot in most of the states covered by the preclearance requirement, including Alabama.

Of course, supporters of maintaining the status quo with the Voting Rights Act point out that without the act, much of that progress may never have occurred.

It is crucial to note two points: First, it is still illegal to discriminate in ballot access. Other provisions of the Voting Rights Act, as well as the U.S. Constitution, make that clear. Second, the Supreme Court did not strike down the preclearance provision -- only the outdated data and formula that determine which jurisdictions are covered. That is still significant, for two reasons: Eliminating the formula essentially makes the preclearance act moot until and unless Congress acts to replace it, and the burden of proof of discrimination shifts to those discriminated against when lawsuits are brought after the fact.

It should come as a surprise to no one -- especially to members of Congress -- that the Supreme Court ruled as it did. The court had signaled in an earlier ruling that Congress needed to address the outdated data upon which the preclearance standard was based, but Congress failed to do so.

Now the court has dumped the issue back into the lap of Congress. But it remains to be seen if Congress will have the political will to act.

Consider this: If Congress does react by rewriting the formula and updating the data upon which it is based, it essentially would be telling some states and jurisdictions that they are racist and that others are not. And that's a tough political stance for elected officials.

I suppose Congress could try to apply the requirement for preclearance to all states and local governments. While it would get around the legal problem of treating some jurisdictions differently based on outdated data, the courts could see it as overreaching -- and it would be essentially telling every jurisdiction that their elected officials are racist. I don't see that happening.

Perhaps Congress should consider rewriting the criteria based on what states and local governments do from this point forward to block access to voting. In other words, forget history and let every jurisdiction start off even, but those that are found in the future by the courts to have significant and repeated problems with discrimination affecting voting could be -- and should be -- put on a new preclearance list.

Members of Congress need to address this issue and not continue to duck it. Preclearance makes sense for repeat offenders.

But until and unless Congress acts, the responsibility to keep elections open to all shifts to state legislatures.

The Alabama Legislature has the opportunity to show the world that the state can maintain fair and unbiased access to voting for all people even without the requirement for preclearance. But it also has the opportunity to show that little has changed since 1965.

Alabama legislators must keep foremost in their minds that there still will be federal oversight. It now will come after the fact, not before. That means, for instance, that the state Legislature could conceivably adopt discriminatory laws, but it will find itself in court time and time again if it does so. That will prove costly in terms of taxpayer money, but even worse, I believe, in terms of the state's image.

Until Congress acts, the Alabama Legislature is responsible for keeping the state out of lawsuits challenging election laws as discriminatory. And the Legislature also is responsible for ensuring the state does not show the world that the racism of the 1960s still affects ballot access in Alabama.

The proof is not in what the state's elected officials say about ballot access, but in what they do with their new-found freedom. So stay tuned.


Ken Hare was a longtime Alabama newspaper editorial writer and editorial page editor who now writes a regular column for WSFA's web site. Email him at

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