Forty-eight years ago, SPLC founder Morris Dees stood at the Alabama Capitol at the end of the Selma-to-Montgomery voting rights march and heard Dr. Martin Luther King Jr. speak on the importance of the vote in democracy. In his view, Section 5 of the Voting Rights Act of 1965 — the section that contains extra voting rights protections that apply mainly to the South — is still necessary.
I’ve lived in Alabama my entire life and have practiced civil rights law here for more than 40 years. I know the state and its people. And I know its history – the good, the bad, and the ugly. When I travel outside the state, I’m often amazed, though, at the naïveté and even hypocrisy of some of the people I meet. So many assume that rank bigotry is confined to the South. So many are blind to the pervasiveness of structural racism in other parts of the country. When I hear people say things that suggest that their region is somehow so different from my own, I can get a little angry, to be honest. Call it my Southern pride.
That’s why it pains me to conclude that Section 5 of the Voting Rights Act of 1965 – the section that contains extra voting rights protections that apply mainly to the South – is still necessary. It would be a mistake for the Supreme Court to rule that Section 5 has run its course because the South, particularly my home state, is still different in a fundamental way that goes to the heart of our democracy.
Section 5 was enacted because Congress concluded that prior anti-discrimination laws were not strong enough to overcome the resistance of state and local officials determined to deny African Americans the ability to exercise the right to vote. Those officials were concentrated in the South. All too often, they would play games with the Justice Department, adopting new discriminatory voting schemes as soon as old ones were challenged.
Section 5 put an end to the game playing. It requires jurisdictions with a history of egregious voter discrimination – jurisdictions like Alabama – to submit proposed voting changes to the Justice Department or a federal court for review before the changes can be implemented. Section 5 does not prohibit voting changes. It simply provides protections against changes that are discriminatory. Section 5 does not require covered jurisdictions to forever submit proposed changes to the Justice Department. Those with a ten-year clean bill of health can avail themselves of the “bailout” provisions and remove themselves from Section 5’s coverage.
The issue, then, of whether Section 5 has run its course turns on the question of whether jurisdictions with ugly histories of voter discrimination that are not prepared to prove that they have clean records in recent years – jurisdictions like Alabama – are now just as trustworthy as those without similar histories. The answer, I’m afraid, is that they’re not.
The stark degree of racially polarized voting in the South gives me much pause. In the last presidential election, a healthy 40 percent of the white voting public crossed the racial divide and voted for a black president. In the Southern states covered by Section 5, the figure was much lower. In my home state of Alabama, for example, the figure was a paltry 15%. In Mississippi, the figure was even lower – 10%. Something in the South is different.
The racial polarization in the presidential election was not unusual for my home state. In the history of voting in Alabama, not a single black candidate has been able to defeat a white incumbent or win an open seat in a statewide race. In majority white local jurisdictions, black political success is still rare. Today, for example, not a single black sheriff or probate judge serves in a predominantly white Alabama county. As a result of the high degree of white racial bloc voting, black office holders in Alabama are confined almost exclusively to minority districts created as a result of lawsuits like the one I filed in 1970 to ensure that black voters are not completely subsumed by majority white districts hostile to their interests.
The fact that voting is racially polarized does not mean that only racists can win elections in Alabama. My state has seen many progressive white office holders over the years. But, in a democracy, elected officials tend, over time, to be responsive to the interests of the electorate. And in the state of Alabama, the electorate is still highly polarized along racial lines. That polarization distorts the political process in ways that retard the growth of multiracial coalitions and give the majority the ability to dominate the minority. Given Alabama’s racial history and its reality of racially polarized voting today, the potential for electoral game playing still exists. It’s that potential that Section 5 was designed to address.
On March 25, 1965, forty-eight years ago today, I was at the Alabama Capitol at the end of the great Selma-to-Montgomery voting rights march. As I listened to Dr. King speak less than a few steps from the spot where Jefferson Davis took the oath as president of the Confederacy, I was filled with great hope that one day my state would put its past behind it and enter a new era of multiracial brotherhood. Dr. King said it would not be long. I still have hope.