Alabama Must Face Claims of Racial Bias in Judicial Elections

ATLANTA (CN) — Alabama can be sued under the Voting Rights Act for allegedly diluting the voting power of black citizens in statewide appellate judge elections, the 11th Circuit ruled late Monday.

U.S. Circuit Judge Charles Wilson, a Bill Clinton appointee, wrote for the majority of a three-judge panel that states are not immune from lawsuits under the Voting Rights Act and found that the Alabama State Conference of the NAACP's lawsuit under Section 2 of the Act, which bars states from imposing election practices that result in racial discrimination, can move forward.

In a September 2016 complaint filed by the Lawyers' Committee for Civil Rights Under Law on behalf of the Alabama NAACP, the group alleged that black Alabama voters are not properly represented by the judges who preside over the state's highest courts.

Although a quarter of Alabama's population is black, all 19 judges on the Alabama Supreme Court, Court of Criminal Appeals and Court of Civil Appeals are white. The complaint stated that no black judges have been elected to any of those top courts in two decades and no black judicial candidate has ever won a statewide office without first being appointed by the governor.

Alabama's at-large method of election, which allows all eligible voters to vote on judicial candidates regardless of where they live in the state, allegedly makes it impossible for black voters to defeat white voting blocs by rendering black voters "ineffective electoral minorities in every election."

"A statistical analysis demonstrates that voting patterns in Supreme Court, Court of Criminal Appeals, and Court of Civil Appeals elections are racially polarized, with African-American voters consistently voting for a particular (usually African-American) candidate of choice. White bloc voting in support of their preferred candidates has repeatedly led to the defeat of candidates preferred by African-American voters," the complaint alleges. (Parentheses in original.)

In 2017, a federal judge denied the state's motion to dismiss the NAACP's complaint.

The Atlanta-based 11^th Circuit affirmed Monday in a 2-1 decision, finding that the Voting Rights Act was designed to "intrude on state sovereignty to eradicate state-sponsored racial discrimination in voting."

"Because the Fifteenth Amendment permits this intrusion, Alabama is not immune from suit under § 2 of the VRA…Indeed, ‘it is a small thing and not a great intrusion into state autonomy to require the [S]tates to live up to their obligation to avoid discriminatory practices in the election process,’” according to the ruling, which cites the 11^th Circuit’s 1984 ruling in United States. v. Marengo.

Wilson also wrote, "It is implausible that Congress designed a statute that primarily prohibits certain state conduct, made that statute enforceable by private parties, but did not intend for private parties to be able to sue states.”

Wilson was joined in the majority by Senior U.S. District Judge Roger Vinson, a Ronald Reagan appointee sitting by designation from the Northern District of Florida.

U.S. Circuit Judge Elizabeth Branch, an appointee of President Donald Trump, dissented from her colleagues, writing that “Congress did not unequivocally abrogate state sovereign immunity under Section 2 of the Voting Rights Act.”

“The text of Section 3 contemplates lawsuits by the U.S. Attorney General. And when Sections 2 or 3 are violated, the U.S. Attorney General is expressly empowered to ‘institute for the United States, or in the name of the United States, an action’ against the State,” Branch wrote.

Alabama Secretary of State John Merrill, a Republican, said in a phone interview Tuesday morning, “There was no ruling made on the merits of the case. This is simply a ruling made on the status of immunity.”

“The case is still moving forward and we expect sometime within the next six weeks, the next two months, that we're going to get a final judgment on this matter. We feel like the court will be able to rule on the law in the way the law was written and we think that will favor the state," Merrill added.

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