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Thursday, June 05, 2008

Pam Karlan & Hills on local government in Alabama

My old undergraduate debate coach, Pam Karlan, has taken me to task on Balkinization for criticizing the plaintiffs’ position in Riley v. Kennedy. On style and tone, I concede the debate to her hands down: I am abashed to say that she rightly reproaches me for accusing the civil rights bar of “ignorance” of local government law. That was an arrogant and silly word for me to use, knowing, as I do, that Pam and her co-counsel have a passionate interest and comprehensive knowledge of local voting systems. I've already apologized to Sam Heldman for the use of the term, so I’ll apologize again to Pam, and turn to the substance of our disagreement.

I think that the Voting Rights Act inadequately takes into account, and may even impede, the long-term improvement of the Southern system of local government. The dysfunctional essence of this Southern system is the pervasive state supervision of local government. Moreover, this centralization is no accident: Centralization in the South is a vestige of the Redemption movement’s efforts to disenfranchise black voters. Moreover, centralization is racially discriminatory not only in purpose but also in effect. Simply put, black voters would be better served if counties like Montgomery and Mobile (in which 40% of the county commissioners are black) had more power and the state legislature (in which roughly 20% of the legislators are black) had less. Likewise, Black voters would have more power if the ten councilors of the City of Birmingham (seven of whom are black) had more power.

How does the plaintiffs’ view of the Voting Rights Act arguably get in the way of this goal of decentralization in Riley? That’s a long story, to follow the jump. But here’s the essence: By insulating from state court invalidation the Alabama legislature’s local law regulating elections in a single county, section 5 of the VRA would diminish the capacity of the Alabama supreme court to enforce one of the few provisions in the state constitution curbing piecemeal state control over individual counties – control that is racist in origin and harmful to minority voters in effect. I do not know whether the benefits of protecting elections in Mobile County outweigh the marginal benefits of curbing such county-specific legislation throughout the state. But I do know that the VRA has no mechanism for weighing these benefits. To this extent, the VRA preclearance doctrines are indifferent to the long-term structural reform of local government.

Here, in a somewhat over-simplified nutshell, are the facts of Riley. In 1985, a state senator elected from Mobile County proposed, and the state legislature enacted, a bill authorizing special elections to fill vacancies only on the Mobile County Commission. The state supreme court struck the law down under Article IV, section 105 of the state constitution, which bars the state legislature from enacting “local laws” (e.g., laws applicable to a single county) on topics already covered by “general laws” (i.e., applicable to all of the counties in the state). But (to simplify a bit) the three-judge panel in Riley held that, because the state legislature’s local law had already been “precleared” by the federal government pursuant to section 5 of the Fourteenth Amendment, the state court could not enforce the restriction on local legislation.

The Alabama supreme court’s enforcement of Article IV, section 105 of the state constitution is a means by which the state legislature can be forced to legislate more generally on election law. In effect, it is a “fish-or-cut-bait” measure: It requires the legislature either to (a) forego general laws altogether and pass local laws for each of Alabama’s counties or (b) forego local laws and instead enact a general local government code applicable throughout the state. The hope is that, because (a) is simply too onerous, the state legislature will instead choose (b). Think of such constitutional provisions as a sort of “equal protection clause” for local governments: By barring individual legislators from controlling their particular counties, the restriction on local legislation will theoretically induce the state legislature to turn over power to counties more generally, benefitting white and black counties alike.

Of course, the particular state law authorizing elections in Mobile did benefit local black voters. But the general practice of governing Alabama in this ad hoc way hurts them. Yes, Mobile gets its local special election. But Montgomery and other localities with significant Black populations get nothing. And they will continue to get nothing so long as they are governed as fiefdoms of state legislators using a system of government that is inefficient and, in its origins, deeply racist. By striking down the local law, the Alabama Supreme Court was taking a modest step towards undermining this system of ad hoc centralized government – a system that has its origins in a racist effort to dilute black votes. By pre-clearing the local law and thereby freezing it into place, the Voting Rights Act deprived the state court of a mechanism by which to induce the state legislature to legislate more generally.

To this extent, I suggest that the Voting Rights Act might hurt Black interests in the long run.

What does Pam say in response? She seems to be dismissive about the problems with the Alabama system of centralized supervision of counties through local legislation. She describes the system with matter-of-fact indifference as follows:

“Under Alabama law, a locality can’t manage its own affairs on a question like this: state law determines how vacancies are to be filled. What happened in 1985 is something that happens all the time in Alabama: the state legislators from a particular jurisdiction enact legislation responsive to that jurisdiction’s needs. (That’s why, for example, the Alabama House has “county legislation committees” made up of local legislators to pass local bills).”

Pam is certainly correct that Alabama notoriously governs its counties through state legislation: There are over 600 amendments to the state constitution, and roughly 70% of them apply to a single county. This centralization of power is typical of the South. For instance, the South remains the only region of the nation in which “Dillon’s Rule” – the doctrine requiring narrow judicial construction of local governments’ powers – predominates. The South is also a region in which it is routine for state legislative delegations to govern the counties from which they are elected by proposing bills that apply only to those counties.

But this centralized system of state government is hardly something to be accepted with indifference. It is, in part, the product of white supremacists’ efforts to deprive black voters of political power in Alabama between 1874 and 1901. White supremacists wanted to suppress county power because “Radical” – meaning Black Republican – voters dominated certain counties like Montgomery, Wilcox, and Dallas. This practice of stripping local governments of power to deprive black voters of power was typical of the Redemptionists throughout the South. Because state legislative districts tend to be large enough that the white majority can out-vote the Black minority, it makes sense for a racial majority to concentrate power over counties in the state legislature. Allowing state legislative delegations to control counties is a time-honored southern strategy for diluting Black voting strength.

Amazingly, Pam conjectures that the ban on local laws in the 1901 Constitution was somehow inspired by racism – but all she can offer to support this contention is the well-known fact that the 1901 Constitution was generally an effort by white supremacists to suppress the Black vote. Pam overlooks the actual facts: White supremacists at the 1901 convention quite deliberately deprived county governments of autonomy as a means by which to disenfranchise Black voters and other “radicals.” In response to a proposal to give the General Assembly the power to confer “home rule” on counties, opponents decried county officials as incompetent and “radical” – thinly veiled code words for “black.” Walter L. Fleming, Civil War and Reconstruction in Alabama 742-43 (The Reprint Co. 1978) (1905). As the federal district court observed in Knight v. Alabama, 458 F.Supp.2d 1273, 1284-85 (N.D.Ala.2004), “[t]his general hostility to home rule in the 1901 Constitution, as well as the 1875 Constitution, was motivated at least in part by race: 'white control of the state government ... is an important fall-back provision for guaranteeing the maintenance of white supremacy in majority black counties. And so it's important not to have too much power in the hands of the counties, or to make sure that the power ... that is at the local level is in safe, that is, Democratic and white hands'" (quoting plaintiffs' expert witness deposition).

Of course, the utility of Alabama’s limit on local laws depends on how vigorously the state supreme court would enforce the rule. The Alabama supreme court has been struggling for decades to determine whether or not to put teeth into the rule. It is tough for a state court to face down the state legislature, and, as a general matter, state courts have done a mediocre job of enforcing bans on special legislation. The Court took a tough stand in Peddycoart v. City of Birmingham, 354 So.2d 808 (Ala. 1978), prohibiting a special immunity rule only applicable to Birmingham. But, in Baldwin County v. Jenkins, 494 So.2d 584 (Ala.1986) backed off, weakening the provision of the state constitution by allowing local laws on the same subject covered by general laws if the former were contained in the same "general" laws as the latter. As the four dissenters noted in Baldwin County, the state legislature engaged in an "obvious ploy" to get around Peddycoart -- by putting language in the "general" statute authorizing local laws for county commission elections.

Which brings us to Stokes v Noonan, 534 So.2d 237 (Ala.1988). Citing Peddycoart, Stokes struck down a "pure" local law -- thus helping minority voters (see Premise (1) above). But Stokes distinguished rather than overruled Baldwin County, inspiring a dissent from Justice Maddox and opening the way for the transparent ploy of the state legislature to authorize local laws on county elections in a general law. Pam is correct that the Alabama legislature has not authorized broad county elections, as the state constitution would seem to require: It escaped through the Baldwin County loophole.

But I still say that, in the long run, having the Alabama Supreme Court struggle to strengthen the rule against special legislation is a good thing for minority voters. Maybe next time, the court will overrule Baldwin County and return to Peddycoart. By allowing the state legislature to enact piecemeal election laws, freeze them in place through the preclearance mechanism, and thus resist any further review of the state legislative mechanism, the three-judge panel eroded this capacity for the normal state institutions to pry the state legislature’s hands off of the counties.

Pam writes that “section 5 doesn’t ask the abstract sort of question Rick wants to debate.” That’s precisely my point: The VRA is indifferent to long-term considerations of governmental structure. Pam writes that “[t]he reason the question is posed in the context of specific changes in individual jurisdictions is precisely because the question can’t be answered, at least not accurately, as an abstract matter.” But how does she know? Has she considered the possibility that, by strongly enforcing a ban on local legislation, a state court might force the state legislature to stop using local laws and instead generally delegate power over elections to counties? Maybe it would be better to force that state senator from Mobile to propose a bill allowing every county to replace commissioners through election. Maybe such generalized decentralization would actually produce more elections responsive to black interests in the long run.

Ideally, federal law and the federal courts would protect decentralization on the theory that such local laws themselves deprive blacks of the right to vote. But the Voting Rights Act has no mechanism by which to eliminate this form of racism-through-centralization: It looks to a racist baseline of centralized state government by which to assess state electoral practices. In this sense, voting rights litigation is myopic. The U.S. Supreme Court’s doctrine makes it even more so. Presley v Etowah County, 502 U.S. 491 (1992) holds that distribution of power between constituencies is not a decision “with respect to voting” covered by section 5.

Pam accuses me of not knowing the facts about Alabama. But I find this accusation a bit strange, given that she seems to be unaware of the relationship between centralization and racism in the 1901 Alabama Constitution. In the end, the VRA encourages this myopia: Why worry about centralization when federal law does nothing to address it? The real problem is not, as I initially suggested, the “ignorance” of the civil rights bar. The problem is, instead, the indifference of voting rights law to such long-term considerations.

It is not my intention to declare that more general legislation and fewer local laws would always and inevitably benefit black voters. It might be that the state court will be too wimpy in rigorously enforcing the ban on local laws for such a ban to do much good. Or it might be that the ease with which Alabama's constitution can be amended will allow the state legislature to do a constitutional end-run around even vigorous enforcement. The issue is an empirical question. I say only that this is an empirical question that the three-judge panel and voting rights litigation cannot even ask. Instead, such litigation focuses on the immediate effects of specific local laws, asking whether those effects are retrogressive. No one asks – because federal law does not allow the question to be asked – whether, by shutting off this spigot of local legislation, one might actually benefit minority voters more.

In short, decentralization may be good for black voters – but (a) only state law, not federal voting rights doctrine, can deliver decentralization and (b) in some small measure, decisions like the three-judge panel’s in Riley impedes such decentralization. These are the only very modest points I meant to convey in my original posts – and I regret that my inflammatory language obscured it.

Posted by Rick Hills on June 5, 2008 at 09:22 AM | Permalink

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Has she considered the possibility that, by strongly enforcing a ban on local legislation, a state court might force the state legislature to stop using local laws and instead generally delegate power over elections to counties? Maybe it would be better to force that state senator from Mobile to propose a bill allowing every county to replace commissioners through election. Maybe such generalized decentralization would actually produce more elections responsive to black interests in the long run.

Perhaps I misunderstand your argument, but if such generalized decentralization does not produce a bill devolving power to individual counties, then Section 5's effectiveness will have been gutted and there will be no countervailing realworld benefit, to black voters or anyone else (e.g., proponents of decentralization). Wouldn't that simply defeat the purpose of Section 5 and make it harder to sell decentralization arguments in the future, perhaps in other contexts?

Posted by: Oliphant | Jun 5, 2008 4:00:41 PM

This is exactly the dilemma: it is difficult to know how the state legislature would respond to truly vigorous enforcement of Article IV, section 105. Maybe they'd just sponsor individualized state constitutional amendments for each county, setting the terms of election in a piecemeal fashion.

But I do not think that section 5 would be gutted by a rule providing that state statutes do not become "final" baseline changes until the state supreme court has had a fair opportunity to rule on their legality. In the context of Mobile County and the Riley case, the cost of enforcing the state constitution would be that black voters in Mobile County would have to suffer being represented by Juan Chastang (a black Republican schoolteacher) between November 2005 (when Governor Riley appointed him) and October 2007 (when Merceria Ludgood defeated him in a special election). That's two years of arguably non-democratic representation -- not a trivial price to pay for enforcement of the state constitution, but hardly a "gutting" of voting rights. (The state legislature could have easily authorized special elections throughout Alabama for all county commissions and thereby reduced the delay in fair representation to a minimal amount of time).

What do black voters get in return for this cost? A chance that the state legislature will actually obey the spirit and letter of the state constitution and finally confer a general election code on all of the counties in Alabama. County "home rule" was defeated in 1901 for largely racist reasons. It seems like a worthwhile cause to try to prod the state legislature into resurrecting a rational system of local government from the wreckage of Redemption.

I take Pam's point that it is not for non-resident legal academics like myself to pronounce on what is an acceptable cost for local voters to pay to get a better chance at home rule. My only response is that voting rights litigation also deprives voters of a say at having the state constitution fairly enforced.

Posted by: Rick Hills | Jun 5, 2008 4:28:49 PM

In the context of Mobile County and the Riley case, the cost of enforcing the state constitution would be that black voters in Mobile County would have to suffer being represented by Juan Chastang (a black Republican schoolteacher) between November 2005 (when Governor Riley appointed him) and October 2007 (when Merceria Ludgood defeated him in a special election). That's two years of arguably non-democratic representation -- not a trivial price to pay for enforcement of the state constitution, but hardly a "gutting" of voting rights.

Fair enough, but what I meant by "gutting" was not the specific outcome in this case, but a hypothetical world in which that specific outcome is replicated in numerous other jurisdictions across the country at the same time. That probably was unclear.

I take your point that home rule, which was originally defeated by racists, is more democratic than federal voting rights doctrine controlled by non-resident legal academics, with their ritzy public interest law firms and fancy Supreme Court litigation clinics and posh friends on the federal judiciary.

I know that, as a matter of precedent, it is not judicially enforceable, but what do you think of the applicability of the Republican Government Clause in this case, or cases like this, and would/should it go any lengths to resolve the tension between enforcing state constitutions at the expense of democratic accountability and a rational preference for home rule over federal micro-management?

It seems to me that the abstract question left unanswered in the Voting Rights Act -- and that you and Professor Karlan appear to be debating -- is not necessarily left unanswered in the broader context of American constitutionalism.

Posted by: Oliphant | Jun 5, 2008 5:08:18 PM

I would take exception to the reference to "non-resident legal academics, with their ritzy public interest law firms and fancy Supreme Court litigation clinics and posh friends on the federal judiciary." Pam is absolutely right to point out that she has lots of ties to local political organizations. And James Blacksher is a Birmingham-based civil rights lawyer of great reknown. So anti-carpet-bagger rhetoric (against "non-resident legal academics"), I think, is inappropriate -- indeed, has a chilling sound to my ear, given how denunciations of outside agitators have been used in Alabama's history.

But your larger point remains: Should there be some sort of constitutional defense to VRA litigation based on Article IV or the Tenth Amendment or some such? (The doctrine of enumerated powers based on Boerne would be the obvious hook)

Not in my view. I see no minimally judicially manageable standard for such a limit, and, absent such a standard, how could one legitimize judicial invalidation of a federal law at the core of the federal government's role as enforcer of the 14th and 15th amendments? My former colleague, Ellen Katz, notes in her article "Reinforcing Representation," 101 Mich. L. Rev. 2341 (2003), that even the Rehnquist Court construed Congress' power to protect black voting rights extremely broadly. The conjunction of suffrage and race is one area in which constitutionally mandated federalism strikes a distinctly sour note even in the ears of those most devoted to federalism, like Justice O'Connor.

Posted by: Rick Hills | Jun 5, 2008 5:37:51 PM

Would it be fair to say, then, that your objection to Riley solely comes down to its foreclosing the possible world in which the Alabama Supreme Court has the breathing room to compel the state legislature to do the right thing without the need for federal intervention, a possible world that the VRA was designed to create? If so, that would seem to be an objection to Riley that is fully in line with the purpose of the VRA, but that foresees a future in which the VRA is rightfully obsolete.

Posted by: Oliphant | Jun 5, 2008 6:13:01 PM

how could one legitimize judicial invalidation of a federal law at the core of the federal government's role as enforcer of the 14th and 15th amendments?

Easily enough, I think - by arguing that the VRA doesn't pass Boerne's congruence and proportionality test. As I'm sure you're aware, there's a case headed to the Supremes as we speak where a Texas utility district's arguing just that. And I think your criticisms of Section 5 go a fair distance towards making that argument. Since 1982, the VRA's used a disparate impact standard. But the 14th and 15th Amendments require a showing of discriminatory intent to prove a violation, at least when facially neutral laws (which all voting laws are) are involved. I'd argue that the only way a disparate impact rule can be a legitimate use of Congress's 14th/15th Amendment enforcement power is if there's actually some sort of robust nexus between disparate effects and discriminatory intent. Section 5 was a legitimate use of Congress's enforcement power in 1965 because, at that time, many retrogressive changes in southern states - maybe most changes - were born out of discriminatory intent, and making DOJ prove discriminatory intent in order to deny preclearance would've been too onerous a burden. Today, I strongly doubt that such a nexus exists anymore, and maybe this is an absurdly quaint point, but I just don't see how we get from "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race" to barring a state from returning to gubernatorial appointment of county commissioners in cases of vacancy when it's clear as day that it's doing so for good faith reasons - here, the strictures of the state constitution. Especially when, as you point out, this ostensibly retrogressive change may help black voters in the long run.

Posted by: Asher Steinberg | Jun 6, 2008 5:59:00 PM

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