Last month, the Alabama State Conference of the NAACP brought suit against the State of Alabama asserting that the current process through which appellate judges are elected (via state-wide, at-large elections) dilutes the voting power of African Americans-resulting in courts composed of all white judges. Law Review member, Lindsey Catlett has written an article outlining the case, including the preconditions the Plaintiff must prove to meet its burden under Article 2 of the Voting Rights Act of 1965.


To view the PDF version of Catlett’s article, click here.  To read the plain text please see below.

NAACP Brings Suit Against State of Alabama

Alleging Violations of the Voting Rights Act of 1965

Lindsey Catlett[1]

On September 7, 2016, the Alabama State Conference of the National Association for the Advancement of Colored People (“NAACP”) filed suit[2] in the United States District Court for the Middle District of Alabama.[3] The suit named the State of Alabama, and John H. Merrill[4] as defendants.[5] Plaintiffs[6] seek both declaratory[7] and injunctive[8] relief for alleged violations of §2 of the Voting Rights Act[9] (“the Act”).[10]

The Voting Rights Act was enacted in 1965[11], nearly one-hundred years after the adoption of the Fifteenth Amendment.[12] Despite the Fifteenth Amendment’s guarantee of the right to vote regardless of race or color, acts of violence and institutional practices such as Jim Crow Laws deprived many African-Americans of the right to vote.[13] The Act was signed in to law on August 6, 1965,[14] and its constitutionality was challenged in the United States Supreme Court shortly thereafter. In South Carolina v. Katzenbach the Supreme Court affirmed the constitutionality of the Voting Rights Act and found that it was a “valid means” for ensuring the enforcement of the Fifteenth Amendment.[15]

Section Two of the Voting Rights Act is the point of focus in the NAACP’s current claims against the state of Alabama.[16] Section 2 prohibits practices or procedures which deny or abridge the right of any citizen to vote based on race or color.[17] The Act states that a violation of such prohibition may be established by proof that a class of citizens protected by the Act “ha[s] less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”[18] One circumstance that the Act recommends looking to for proof of such violation is the extent to which members of the protected class have been elected to office in the state.[19]

The NAACP claims in its complaint that all nineteen judges who compose Alabama’s Supreme Court, Court of Criminal Appeals, and Court of Civil Appeals are white.[20] This is the case despite the fact that, according to Plaintiffs, approximately one-quarter of Alabama’s population are African-American.[21] The members of all three of the courts in question are elected through at-large elections that encompass the entire state of Alabama.[22] Through this system, the plaintiffs allege that not once in the last twenty-one years has an African-American been elected to one of the three courts.[23]

The specific practice or procedure that the NAACP alleges violates the Voting Rights Act is the practice of electing these nineteen justices in state-wide at-large elections.[24] The complaint argues that the at-large election dilutes the voting power of African-Americans in Alabama.[25] Plaintiffs request that the court declare such at-large elections to be in violation of the Voting Rights Act and enjoin further use of the at-large elections.[26]

The preconditions that the plaintiffs will need to prove in order to successfully argue their claim of voter dilution under Section 2 of the Voting Rights Act were articulated in Thornburg v. Gingles.[27] Thornburg was a 1986 case challenging legislative apportionment in North Carolina.[28] The Supreme Court held that plaintiffs must prove (1) the minority group is “sufficiently large and geographically compact to constitute a majority in a single-member district”; (2) the minority group is “politically cohesive”; (3) usually the majority votes as a bloc so as to enable it to defeat a minority’s preferred candidate.[29]

In addition, the Thornburg opinion holds that “electoral devices, such as at-large elections, may not be considered per se violative of Section 2. Plaintiffs must demonstrate that, under the totality of the circumstances, the devices result in unequal access to the electoral process.”[30] The plaintiffs will need to not only present evidence on the specific three pre-conditions, but also on the effect the totality of the circumstances has on the electoral process. It should be noted that, as clarified in an amendment to the Voting Rights Act in 1982,[31] intent is not an element of a claim under Section 2 of the Voting Rights Act.[32]

While Thornburg involved legislative apportionment,[33] claims concerning state judicial elections are also within the broad scope of the Voting Rights Act.[34] This fact was made clear in Chisom v. Roemer.[35] In Chisom, the United States Supreme Court ruled that a case brought by African-American voters in Louisiana regarding the election of state supreme court judges was within the purview of the Act[36] and remanded the case to be heard by the District Court for the Eastern District of Louisiana.[37] Based on the Chisom precedent, the NAACP’s current allegations against Alabama are justiciable as claims under the Voting Rights Act.

This is not the first time that Alabama has been involved in claims seeking to interpret and apply the Voting Rights Act. As recently as 2013, Shelby County, Ala. v. Holder was heard and decided by the United States Supreme Court.[38] Shelby County brought suit against the U.S. Attorney General regarding preclearance requirements that were set forth under the Act.[39] The requirements mandated that certain covered jurisdictions had to demonstrate that any proposed change to a voting law was not discriminatory.[40] The Supreme Court, on appeal, held that the Voting Rights Act provision in question was unconstitutional.[41] This ruling was a milestone in voting rights cases and reversed the Supreme Court’s ruling in South Carolina v. Katzenbach.[42] The Court in Katzenbach held that the additional requirements for covered jurisdictions were necessary to carry out the Fifteenth Amendment because those jurisdictions had a past of failing to provide the protections granted by the Fifteenth Amendment.[43] The Shelby County decision, however, held that while the preclearance provisions met the tests and burdens in effect at the time of Katzenbach, they no longer met the current burdens and were unconstitutional.[44]

The claims set forth in NAACP v. Alabama build on decades of Voting Rights Act case law and have the potential to change the shape of judicial elections in the state of Alabama. The Cumberland Law Review will follow this case as it progresses through the federal court system, and will continue to provide updates here. For more information on the Voting Rights Act and its application in American case law, please see Volume 45 No. 2 of the Cumberland Law Review.

[1] Candidate for Juris Doctor, May 2018, Cumberland School of Law.

[2] Complaint at 1, NAACP v. Alabama, No. 2:16-cv-731 (M.D. Ala. Sept. 7, 2016).

[3] The Middle District of Alabama has authority to hear the case pursuant to 28 U.S.C. §1343(a) which states in part:

The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person . . . to redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.

28 U.S.C. §1343(a)(3).

[4] John H. Merrill is the Secretary of State of Alabama, and in that position is Alabama’s Chief Election Officer under Alabama state law which states, “The Secretary of State is the chief elections official in the state and shall provide uniform guidance for election activities. The Secretary of State is granted rule making authority for the implementation of Chapter 2 under the Alabama Administrative Procedure Act.” Ala. Code §17-1-3(a).

[5] Complaint at 4, NAACP v. Alabama, No. 2:16-cv-731.

[6] Plaintiffs include not only the NAACP but also Sherman Norfleet, a voter in Perry County, Alabama; Clarence Muhammad, a registered voter in Jefferson County, Alabama; Curtis Travis, a registered voter in Tuscaloosa County, Alabama; and John Harris, a registered voter in Lee County, Alabama.

[7] Black’s Law Dictionary defines a declaratory judgment as, “A binding adjudication that establishes the rights and other legal relations of the parties without providing for or ordering enforcement.” Black’s Law Dictionary 846 (7th ed. 1999).

[8] Black’s Law Dictionary defines an injunction as, “A court order commanding or preventing an action. To get an injunction, the complainant must show that there is no plain, adequate, and complete remedy at law and that an irreparable injury will result unless the relief is granted.” Black’s Law Dictionary 788 (7th ed. 1999).

[9] §2 of the Voting Rights Act states:

No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this title, as provided in subsection (b).

52 U.S.C. §10301(a).

[10] Complaint at 14, NAACP v. Alabama, No. 2:16-cv-731.

[11] Terrye Conroy, The Voting Rights Act of 1965: A Selected Annotated Bibliography, 98 L. Libr. J. 663, 664 (2004).

[12] The Fifteenth Amendment, ratified in 1870, states, “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, color, or previous condition of servitude. The Congress shall have the power to enforce this article by appropriate legislation.” U.S. Const. amend. XV, §§1–2.

[13] See, e.g., Jimmie Lee Jackson, Encyclopedia of Alabama (July 13, 2015),; Guinn v. United States., 238 U.S. 347 (1915); Lane v. Wilson, 307 U.S. 268 (1939); Gomillion v. Lightfoot, 364 U.S. 339 (1960).

[14] Terrye Conroy, The Voting Rights Act of 1965: A Selected Annotated Bibliography, 98 L. Libr. J. 663, 664 (2004).

[15] South Carolina v. Katzenabch, 383 U.S. 301, 337 (1966).

[16] Complaint at 2, NAACP v. Alabama, No. 2:16-cv-731.

[17] Voting Rights Act, supra note 8.

[18] 52 U.S.C. §10301(b).

[19] Id.

[20] Complaint at 1, NAACP v. Alabama, No. 2:16-cv-731.

[21] Id. Complaint at 6, NAACP v. Alabama, No. 2:16-cv-731 (quoting the 2010 U.S. Census which found that 24.7% of Alabama’s voting-age population were African American. U.S. Census Bureau, 2010 Census Redistricting Data, Public Law 94-171, Summary File, Hispanic or Latino, and Not Hispanic or Latino by Race for the Population 18 Years and Over, tbl. P4.).

[22] Complaint at 2, NAACP v. Alabama, No. 2:16-cv-731. The statutes governing appellate and supreme court elections in Alabama do not specify that the elections have to be “at-large.” See Ala. Code §17-14-6 (1975); Ala. Code §17-14-9 (1975).

[23] Complaint at 2, NAACP v. Alabama, No. 2:16-cv-731.

[24] Id.

[25] Id. at 1.

[26] Id. at 14.

[27] Thornburg v. Gingles, 478 U.S. 30 (1986).

[28] Id. at 34–35.

[29] Id. at 50–51.

[30] Id. at 46.

[31] See Richard A. Williamson, The 1982 Amendments to the Voting Rights Act: A Statutory Analysis to the Revised Bailout Provisions, William and Mary Faculty Publications. Paper 456, 62 (1984).

[32] See Thornburg, 478 U.S. at 62.

[33] Id. at 34.

[34] See Chisom v. Roemer, 501 U.S. 380 (1991).

[35] Id.

[36] Id. at 403-404.

[37] Id. at 404.

[38] Shelby Cnty. v. Holder, 133 S. Ct. 594 (2012) (granting petition for a writ of certiorari).

[39] Id. at 2621–22.

[40] Id. at 2615.

[41] Id. at 2631.

[42] Compare Shelby Cnty., 133 S. Ct. at, 2631 with Katzenbach, 383 U.S. at 308.

[43] Katzenbach, 383 U.S. at 315–18.

[44] Shelby Cnty., 133 S. Ct. at 2631.

For more information, please see this Jurist article or an article from here.


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