On January 13, the first court decision reimposing preclearance requirements since the U.S. Supreme Court’s 2013 decision in Shelby County v. Holder was issued for a small Alabama town in Allen v. City of Evergreen. In Shelby County, the Supreme Court found unconstitutional a coverage formula that required nine states (including Alabama) and parts of seven others to get prior approval of any changes in their voting laws from a federal court in Washington, D.C. or the Justice Department.
Citing constitutional violations in election practices, a federal judge in Alabama granted federal oversight of elections in the town of Evergreen (pop. 3,944) and imposed a preclearance requirement until 2020 for certain voting changes. The private plaintiffs claimed that the town’s redistricting plan for the town council and “the adoption by defendants of a new system for determining which registered voters were eligible to vote” in municipal elections violated Section 2 of the Voting Rights Act (VRA). But rather than having to get preapproval for all voting changes, the town will only have to get approval for any redistricting changes as well as any changes in the method of city elections or the “standards for determining which registered voters are eligible” to vote.
The reimposition of a preclearance requirement was obtained by the plaintiffs under Section 3 of the VRA, which allows a court to require preclearance if it finds a constitutional violation of voting rights. Section 3 has almost never been used, but it has been cited in the recent lawsuits that the U.S. Justice Department has filed against North Carolina and Texas over their voter ID laws. DOJ is demanding that the courts reimpose preclearance requirements on both states because it claims that the implementation of voter ID laws is evidence of discriminatory conduct. Both states have already held local and state elections utilizing those laws without any problems.
Courts normally render a judgment in Section 2 cases in which the court remedies the particular problem that violated the law, and the court has certainly done so in the Evergreen case. What is odd about the court order, however, is that one would think that the additional Section 3 preclearance requirement would only be implemented if there is evidence that the jurisdiction targeted by the lawsuit has exhibited a pattern of discrimination and/or trying to evade prior court decrees. Here, the court did not cite any such specific evidence in its order, and according to data from the Department of Justice’s own website, no objection was ever filed in the entire history of Section 5 from 1965 to 2013 over any prior voting change made by Evergreen.
Nonetheless, this case does show that there is no need to reimpose Section 5’s blanket coverage on all of Alabama (which hasn’t had an objection in 20 years) or the other states that were covered by this antiquated law. If and when a court finds specific evidence that a particular jurisdiction needs to be monitored, it can impose such a requirement for the limited amount of time it is needed. As this case demonstrates, Section 3 is more than adequate to remedy any problem.