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U.S. Justice Department in tug of war with Alabama Supreme Court over Voting Rights Act enforcement

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The U.S. Department of Justice Civil Rights Division has requested the Alabama Attorney General "inform us of the action the State of Alabama plans to take" regarding Riley v. Kennedy, a 2005 decision of the Alabama Supreme Court, that was not submitted to the Justice Department for "pre-clearance" under the Voting Rights Act until ordered to do so by a federal court.

Under the Voting Rights Act, certain states and jurisdictions with a historical record of discrimination must submit changes to their election laws to the U.S. Justice Department for prior approval. Alabama has made the required submissions for new legislation but has failed to submit state court decisions that effect election laws.

At issue is the power of the Governor to fill a vacancy on the Mobile County Commission. The election of Commissioner Sam Jones as Mayor of Mobile created a vacancy on the Commission. Although the Legislature had changed the law to provide for special elections in the event of vacancies, and obtained Justice Department approval for the new law, the Alabama Supreme Court decided the Governor had the power to make an appointment to fill the vacancy.

Three state legislators then filed suit in federal court to force a special election. A three-judge federal panel ordered the Alabama Supreme Court decision to be reviewed by the Justice Department. Following submission of the Alabama court case the Justice Department found, "The transfer of electoral power...appears to diminish the opportunity of minority voters to elect a representative of their choice."

Further, the Justice Department stated: "We have received no indication that the voters of District 1 would have selected the particular individual selected by the Governor. Under these circumstances, the state has failed to carry its burden of proof that the change is not retrogressive."

Now the Alabama Attorney General needs to decide to order a special election in compliance with the Voting Rights Act, seek reconsideration by the U.S. Attorney General, or seek declaratory judgment from the U.S. District Court in the District of Columbia.

The attorney for the three legislators seeking a special election, Ed Still, summarized the dispute. "Each time the Legislature has acted to provide for special elections to fill vacancies, the Alabama Attorney General has submitted the act and obtained preclearance. In contrast, the Alabama Attorney General has now belatedly submitted the Alabama Supreme Court decisions for preclearance-only after being ordered to do so by the District Court."

The U.S. Supreme Court decided in a 1982 case, Hawthorn v. Lovorn, that state court decisions were covered under the Voting Rights Act and that state courts had an obligation to comply with federal law.

Violence in Selma, Alabama, against civil rights protestors seeking an end to voting discrimination, led to the 1965 passage of the Voting Rights Act. Now, forty years later, the voting rights battle has shifted from Alabama's streets to federal courtrooms but the struggle continues.

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Michael Richardson is a freelance writer based in Boston. Richardson writes about politics, law, nutrition, ethics, and music. Richardson is also a political consultant.

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