BY KIM CHANDLER, Associated Press
MONTGOMERY, Ala. (AP) — Racial discrimination is at the root of an at-large election system that produces all-white appellate courts in Alabama, an attorney argued Wednesday in a lawsuit challenging the system, but an opposing attorney said political party preference, rather than race, explains the outcome.
A federal judge in Montgomery heard arguments Wednesday in the 2016 lawsuit brought by the Alabama State Conference of the NAACP and several black voters. They contend the election method violates the Voting Rights Act by diluting the voting power of African Americans and preventing them from electing their preferred candidates.
The sweeping arguments covered racially polarized voting patterns, the state’s Republican shift in the mid-1990s and the strategic decision by the two black judicial candidates who have won statewide elections to not show their faces in campaign materials.
Plaintiffs’ attorneys displayed a pyramid with the faces of elected judges in Alabama. While the judges elected to lower local courts are racially diverse, the spots at the top of the pyramid — signifying the state’s most important courts— are all white.
Plaintiffs’ attorney Keith Harrison argued the system is rooted in racial discrimination and effectively creates a “color line” or “barrier” with all-white appellate courts in a state that’s 26% black.
“The color line is created by the fact that the appellate courts are elected statewide in numbered place and at-large districts. African Americans don’t have an equal opportunity to elect candidates of their choice. As a result, because we have racially polarized voting, blacks are never going to have an opportunity to elect anyone to the highest courts in the state,” Harrison said after the hearing.
Alabama’s appellate judges run in statewide partisan elections, just like the governor, attorney general and other top officials. Only two African-American judges have ever elected to the Alabama Supreme Court and none have been elected to the civil and criminal appellate courts. The state Supreme Court has been all-white for nearly 20 years.
Assistant Attorney General Jim Davis argued political party preference and political issues are the main reasons that determine who gets elected to the court. Most black candidates run as Democrats in the conservative state, he said.
“It’s not race. It’s party and it’s issues,” Davis said. “The voters in Alabama know which party is pro-life. The voters in Alabama know which party is pro-Second Amendment.”
Davis argued that evidence suggests a majority of state voters would support a black judicial candidate if he or she ran as a conservative Republican. Davis also noted that the court has not always been entirely white and black judicial candidates, “have been elected under this system.”
Harrison countered that testimony in the case indicated that the two African-American judges elected to the state Supreme Court felt the need to run “stealth campaigns” that didn’t show their faces to voters. He said minority candidates who don’t run such stealth campaigns end up losing their statewide elections.
“How racially polarized do you have to be to hide your face?” Harrison asked.
Plaintiffs have suggested Alabama should use district elections as some other states do. The state argued statewide elections are appropriate because judges should be accountable to all Alabama and not just slices of it.
The oral arguments came after a bench trial that ended in November. U.S. District Judge Keith Watkins did not indicate when he would rule.
Alabama Attorney General Steve Marshall watched the arguments in federal court, but said he could not comment on the pending case.
The Alabama lawsuit is similar to one in Texas filed on behalf of several Hispanic voters. A judge in September ruled in favor of Texas in that case, and the state said a similar result is appropriate in Alabama. Harrison said Texas is less racially polarized than Alabama because of the number of Hispanic Republicans.