Court Upholds Voting Rights Act Preclearance Requirement

Shelby County, Alabama v. Holder
 

On May 18, 2012, the U.S. Court of Appeals in Washington rejected a constitutional challenge to the Voting Rights Act (VRA). Under section 5 of the VRA, changes in voting procedures in a “covered” jurisdiction cannot be made without authorization by the federal court in the District of Columbia or the U.S. Attorney General. When the VRA was originally enacted, legislative hearings showed that the Justice Department's efforts to eliminate discriminatory practices with individual court cases were thwarted. As soon as one discriminatory practice was proven to be unconstitutional, a new one would be substituted requiring another round of lengthy and time consuming litigation. The 1965 Act included special preclearance provisions targeted at states where the potential for discrimination was the greatest. Six southern states are covered, as are a number of counties in other states. 

Section 5 was extended for 25 years in 1982. In 2006 the Fannie Lou Hamer, Rosa Parks and Coretta Scott King Voting Rights Act Reauthorization and Amendments extended section 5 for 25 more years. A number of pending cases challenge the constitutionality of Section 5. The key question in these cases is whether contemporary voting discrimination is pervasive enough to justify Section 5's preclearance requirements and whether individual enforcement actions available under Section 2 provide an adequate remedy for violations of the VRA. 

In a 2009 case, Northwest Austin Municipal Utility District No. 1 v. Holder, Chief Justice John Roberts expressed deep skepticism about the validity of Section 5. He viewed the VRA as a substantial encroachment on state sovereignty and a significant departure from a federal system of co-equal states. Robert's opinion identified two questions about Section 5’s continued constitutionality: whether the burdens it imposes on covered jurisdictions are justified by current conditions and whether the scope of its geographic coverage is sufficiently related to the problem it targets. 

Shelby County filed suit in Washington contending that section 5 is unconstitutional because it is no longer "congruent" and "proportional" to the discrimination it seeks to cure. After reviewing the legislative record the Court of Appeals, in a 2-1 decision, affirmed the trial court's finding that evidence of discrimination developed during Congressional hearings was more than adequate to justify a continuation of Section 5’s preclearance requirements. 

The evidence on which Congress relied included thousands of pages of testimony, reports, and data regarding racial disparities in voter registration, voter turnout, and electoral success; the nature and number of Section 5 objections; judicial preclearance suits and Section 5 enforcement actions; successful Section 2 litigation; the number of justice department information requests; reports from federal election observers; and evidence of racially polarized voting. 

Congress found that while “first generation barriers” such as flagrant efforts to deny access to the polls that were pervasive in the 1960s have diminished, “second generation barriers” such as vote dilution prevents minority voters from fully participating in the electoral process. The methods may be more subtle now but the effect and results are the same. The record also contains examples of overt hostility to black voting power by those who control the electoral process. 

To support the requisite showing that the VRA's geographic coverage is sufficiently related to the problem it targets, the record should contain evidence showing the formula focuses on jurisdictions with the most serious problems. The Court found adequate evidence including a study of Section 2 cases between 1982 and 2004 that compared covered and noncovered jurisdictions. The "Katz study" showed that racial discrimination in voting was concentrated in the jurisdictions singled out for preclearance. 

Voting rights remain the subject of continuing conflict and controversy. One of the Section 5 cases will eventually reach the Supreme Court. The dissent in this case and the decision in Northwest Austin Municipal Utility District present the distinct possibility of a Supreme Court decision holding voting discrimination has diminished to the extent that Section 5 is no longer justified; Section 2 provides an adequate remedy for voting discrimination. This would be a bold step, ignoring the mountain of evidence that Congress amassed, but Chief Justice Roberts seems to believe racial discrimination is no longer a problem.

About the Author

Leland Ware, a member of the Board of the Southern Regional Council, is Louis B. Redding Chair and Professor for the Study of Law and Public Policy at the University of Delaware.He is the author of numerous publications, and he served as co-editor of the recently-published volume, Choosing Equality: Essays and Narratives on the Desegregation Experience.

Atlanta's Continuing Struggle for a More Representative Judiciary

Interview with Charles S. Johnson, May 9, 2012

Who wears the robe matters.

 If you care about a fully-functioning judiciary - a judiciary that reflects the diversity of the community it serves - get involved.

Will the Last African-American Judge in Fulton County Please Turn out the Lights?

There is a startling transition occurring on the Fulton County (Georgia) Superior Court benches:  African-American Judges are becoming a dying breed.  What was once a court that was representative of the most populous county in Georgia with the best and the brightest minority judges has now become a place where non-diverse gubernatorial appointees dominate the judiciary.   Could we soon see the last African-American judge ever to sit on the bench in Fulton County?  

 In 1988, six (6) of the 137 Superior Court judges in the 45 judicial circuits in Georgia were African American.  That was the same year that state Representative Tyrone Brooks took on the State Board of Elections to challenge the at large majority vote method of electing superior court judges, the failure of the state to obtain preclearance from the United States Department of Justice for newly created judgeships and the county-wide method of electing state court judges under Section 2 and 5 of the Voting Rights Act.  Representative Brooks, who is not an attorney, recognized that the disparity in the racial composition of the judiciary needed legal redress.  Led by ACLU lawyer Laughlin McDonald and a team of lawyers, Representative Brooks, as the lead Plaintiff, litigated the matter in the federal courts for more than six (6) years.   Brooks v. State Bd. of Elections, 775 F. Supp. 1470 (S.D. Ga. 1989) aff'd sub nom. Brooks v. Georgia State Bd. of Elections, 498 U.S. 916, 111 S. Ct. 288, 112 L. Ed. 2d 243 (1990) and aff'd sub nom. Georgia State Bd. of Elections v. Brooks, 498 U.S. 916, 111 S. Ct. 288, 112 L. Ed. 2d 243 (1990).

 

This historic lawsuit was the catalyst that changed the landscape of the judiciary in Fulton County and across the state of Georgia.  Former Governor Zell Miller who was in office at the time of the lawsuit strongly believed in the validity of a settlement agreement that was brokered by federal Judge Anthony Alaimo.  The agreement would have mandated the appointment of a minimum number of African-American judges, required the state to maintain a racially diverse judiciary and provided the federal court with continuing jurisdiction over enforcement of the terms of the settlement agreement.  In exchange, the state would be allowed to fill the judicial positions that were vacant but “frozen” due to the litigation.  While the District Court in Brooks ultimately rejected the settlement agreement, Governor Miller decided to “do the right thing” and appointed several outstanding African-American males and females to the Fulton County Superior and State court benches.  For the first time in Georgia history, the judiciary began to fully reflect the diversity of the most populous county in the state.

That has all changed.  Based upon the 2010 census, Fulton County is 44% African American.  Fulton County saw the last African-American female Judge appointed to the Superior Court bench in 1996 by Governor Miller.  Governor Barnes appointed the last African-American male to the Fulton County Superior Court bench in 2002. By 2002, eight (8) of the 18 judges on the Fulton County Superior Court were African American.  That figured represented 44% of the bench. Today, only six (6) out of the twenty (20) judges are African American, which is only 30% of the bench.  

In less than fifteen (15) years, the pattern of gubernatorial appointments to the Fulton County bench has wiped out the gains African Americans achieved after Brooks.  Since 2002, every African-American judge that has either resigned or retired from the Fulton County Superior Court and been replaced by gubernatorial appointment has been replaced by a white appointee.  In Fulton County, the racial makeup of the highest trial court bench no longer reflects a “racially diverse judiciary that is reasonably representative of the population…” as envisioned by the parties involved in the Brooks litigation.

Like the Superior Court, Fulton County State Court has also seen a reduction in the number of African-American judges.  There has only been one African-American male appointed to the bench and that was in 2005.  No other African Americans have been appointed to any Fulton state court vacancy since that time. 

Fulton County Superior Court is the largest and most powerful trial court in the state.   Because the State Capitol is in Fulton County, constitutional challenges and appeals from state agency decisions are heard in the Superior Court.  In addition, emergency hearings and/or stays of executions in death penalty matters are decided in Fulton County Superior Court.  While the Georgia Constitution provides for an elected judiciary,  the overwhelming majority of judges in the state, including, Fulton County Superior Court, reach the bench through gubernatorial appointment.  In the past eight years, not one African-American attorney has been appointed to the Fulton County Superior Court bench. 

Governor Deal appointed his white male Executive Counsel who was allowed to submit an application for the Fulton County Superior Court appointment to the Judicial Nominating Commission (JNC) after the deadline had expired.   Deal’s appointee replaced Judge Michael Johnson, an African-American male. Deal’s second Fulton County appointment was another white male who replaced Judge Marvin Arrington, an African-American male in 2012. 

But Governor Deal is only continuing a trend that began with Governor Perdue.  Under Governor Perdue, each time a judge on the Fulton County bench has retired or resigned, a white male or female judge was appointed as their replacement.  In 2004 Governor Perdue appointed a white male former Republican state representative to replace a female judge.  Another white male who had previously served as chairman of the Fulton County Republican Party was appointed by Governor Perdue in 2005.  Another white male was appointed to the Superior Court bench in 2006 by Governor Perdue to replace Judge Gino Brogdon, an African-American male. In 2009, Governor Perdue appointed a white female to a newly created judgeship.    The judiciary in Georgia is nonpartisan, however, in Fulton County, the pattern of Republican judicial appointments of predominately white males clearly reflects the truth of the political axiom that “elections have consequences”.  If the trend in judicial appointments continues, we will see the last African American on the Fulton County Superior Court in the next few years. 

But Fulton County is not an anomaly.  The DeKalb County State Court is another example of the lack of African-American judicial appointees to the bench.  An African-American male has never been appointed to that court and there has never been more than one appointed African-American female jurist on the court at any given time.

What is happening in DeKalb County, Fulton County and across the state is a microcosm of what is happening across the country at the federal level.  The history of judicial appointments to the Northern District Court of Georgia is a case in point.  Since the courts’ inception in 1848, out of the thirty five (35) judges appointed to the Northern District of Georgia, only three have been African-American.  Each judge was appointed only after the retirement of the active African-American judge:  Judge Horace Ward, a 1979 Carter appointee, assumed senior status in 1993 and was succeeded in 1994 by Judge Clarence Cooper.  After Judge Cooper took senior status, he was succeeded by Judge Steve C. Jones, who was recently appointed by President Obama.  In sum, since 1848 there has only been one African-American male federal judge actively serving on a full time basis at any given time in the Northern District of Georgia. There has never been an African-American female appointed to Georgia’s federal district or appellate courts.      

 

Appointments to the federal court are made by the President.  Traditionally, the identification of District Court appointees has been left to determination of the elected representatives from the President’s party.  However, what has occurred is that Georgia’s Republican Senators – who are not of the President’s party – have blocked these nominees by concerted and determined inaction.   In recent years, several exemplary African-American lawyers and jurists have seen their nominations and potential nominations for federal court appointments in Georgia stalled in the Senate or withdrawn without explanation.  Currently, two seats on the Northern District bench remain unfilled because Georgia senators will not allow consideration of the President’s nominees. 

When the stalled federal appointment process first came to light, leading members of the organized Black bar brought the matter to the public’s attention.  Yet, when the White House recently asked a group of lawyers to come to Washington to address the logjam of the federal judicial appointments, not one African-American attorney from Georgia was asked to participate in the meeting.  Most notably missing from the invitees were women of any race. Instead, white male attorneys and an African-American minister were invited to speak to the President and the Georgia senators.   The vacancies on the Northern District bench have been identified as judicial emergencies.  There is an urgency to resolve this issue as Judge Charles Pannell of the District Court for the Northern District of Georgia recently announced that he will take senior status in January, 2013.

The issues regarding diversity in the federal justice system are not limited to the makeup of the bench.  There was a recent article in the National Law Journal entitled “Statistics show no progress in federal law clerk diversity” written by Todd Ruger (May 2, 2012).  In that article, Mr. Ruger pointed out that there are few minority federal law clerks and a decline in that number is expected in the coming years.  African Americans clerking for federal appellate judges dropped from 3.5 percent to 2.4 percent in just four (4) years.  While the United States Supreme Court Justices refuse/decline to release statistics on the racial makeup of their clerks, if the statistics for clerks for federal judges are any indication, it is probably just as abysmal.  The judges ventured the all-too-familiar excuse that the lack of minority law clerks, an issue first identified in 1988, stems from difficulty in recruiting minority applicants.  However, given the wealth of minority talent graduating from law schools, that explanation rings hollow.  The lack of African-American federal law clerks represents a failure in the fight to increase diversity in the justice system and things have gotten worse over the past twenty three (23) years.  Of greatest concern is that the dearth of African- American clerks can be correlated to the lack of African American appointments to the federal bench.  Federal clerkships are a well-recognized springboard to judicial appointments.

Dr. King marched in Alabama and the University of Georgia was desegregated because federal judges upheld the rule of law and enforced the Constitution.  Who wears a judicial robe matters.  The current state of the judiciary requires that our community raise its voice.  If we do not speak, who will?  “First they came for the Socialists, and I did not speak out-Because I was not a Socialist. Then they came for the Trade Unionists, and I did not speak out because I was not a Trade Unionist. Then they came for the Jews, and I did not speak out because I was not a Jew. Then they came for me and there was no one left to speak for me.”  

When the current African-American judges retire or resign, the next judicial appointments could potentially turn the bench back to the days before the Brooks litigation or worse.   The idea that the judiciary should reflect the best and brightest legal minds regardless of race will be a quaint bygone ideal.  Frederick Douglas once said:  “Power concedes nothing without a demand…”.  We must not let Representative Brook’s legacy be forgotten or erased. 

The lack of diversity in judicial appointments is a real issue; but identifying the issue is not enough.  The question we must ask is what can we do, personally and as a community.  The answer is we must speak.  This crisis on the Fulton County bench and the federal judiciary exists because of apathy and silence.  Unless the voters of this state and nation speak up to ensure that there is racial diversity amongst the law clerks and judges, the last generation of African Americans in the judiciary is now serving. We must become activists and demand that the bench reflect the community it serves.  We can do this by:  soliciting and supporting African-American attorneys who want to sit on the bench; contributing to the campaigns of African-American lawyers running for judgeships; lobbying the Governor to place more African Americans on the Judicial Nominating Commission (JNC) and to select qualified African-American candidates who are recommended by the JNC for judicial appointments; and lobbying our congressional representatives to support qualified African-American attorneys for federal court appointments. Otherwise, we will bear witness to the last African-American judge in Fulton County turning out the lights.  

   
Reverend Dr. Joseph E. Lowry, President, Coalition for the Peoples Agenda (CPA)
Representative Tyrone L. Brooks, Sr., President, Georgia Association of Black  Elected Officials (GABEO)
Reverend J. Allen Milner, Treasurer, Coalition for the Peoples Agenda (CPA)
Georgia Association of African American Attorneys (GAAAA), Charla Hall, President
Georgia Association of Black Women Attorneys (GABWA), JaDawnya Butler, President
Gate City Bar Association, L. Chris Stewart, President
Charles Johnson, Past President Gate City Bar Association
Suzanne W. Ockleberry, Past President, Georgia Association of Black Women Attorneys (GABWA)
Antonio Thomas, Past President Gate City Bar Association
Janise Miller, Past President Gate City Bar Association
Julie M.T. Walker, Past President, Georgia Association of Black Women Attorneys (GABWA)
Gary Spencer, Past President Gate City Bar Association
Charis Johnson, Past President Gate City Bar Association
Renata Turner, Past President, Georgia Association of Black Women Attorneys (GABWA)
Carla A. Ford, Past President, Georgia Association of Black Women Attorneys (GABWA)
Kim E. Anderson, Past President, Georgia Association of Black Women Attorneys (GABWA)
Tomi Wilson, Founding Member, Georgia Association of Black Women Attorneys (GABWA)
Susan Langford, Past President of Georgia Association of Black Women Attorneys (GABWA)
Paula J. Frederick, Past President of Georgia Association of Black Women Attorneys (GABWA)
Wanda Young Wilson, Founding Member, Georgia Association of Black Women   Attorneys (GABWA)
Antavius Weems, Past President, Georgia Association of African American Attorneys (GAAAA)
Brenda L.  Gardner, Past President, Gate City Bar Association
Barbara Harris, Founding Member, Georgia Association of Black Women Attorneys (GABWA)

For more information:  Contact Charles Johnson, Holland & Knight, 1201 West Peachtree Street, N.E., One Atlantic Center, Suite 2000 | Atlanta GA 30309 Phone 404.817.8530 | Fax 404.881.0470; charles.johnson@hklaw.com