Is Alabama’s judiciary too white?

Appellate judges in Alabama are elected through an 'at-large' system that critics say discriminates against black judicial candidates in a state still struggling with a racially-charged past.

For a state where about a quarter of the population is African-American, Alabama has 19 elected appellate judges, and they all look remarkably white.

The southern state has struggled to throw off a racist legacy that long predates the protests and conflict of the civil rights movement in the 1960s. One of the major clashes in that movement occurred in Selma, in 1965, when protesters marching to Montgomery for equal voting rights were beaten by state troopers. The event, which came to be known as Bloody Sunday, spurred the creation and implementation of the Voting Rights Act to allow blacks to vote unencumbered across the country.

But despite decades of work by civil rights activists, white judges have dominated the upper courts in Alabama for most of its history. On Wednesday, four African-American voters, with the help of the Alabama NAACP chapter, filed a lawsuit against the state that claims that Alabama's election system for appellate judges violates Section 2 of the Voting Rights Act by diluting the power of African-American votes.

“There have been years of minorities making strides, but the white men continue to hold disproportionate power our state,” Reverend Curtis Travis of Tuscaloosa, Ala., told ThinkProgress. “Alabama is more diverse now than ever, but our judges are not.”

The lawsuit points out that no African-American has ever won an election any of the state's three appellate courts in the past 21 years. Only three black judges have ever served on the highest bench, the Alabama Supreme Court. All three of those were appointed, not elected, during their first term, and only two were able to win reelection afterwards. Since 1994, every African-American running for any of the three courts has been defeated by a white candidate, and all 19 currently serving appellate judges are white.

The racial homogeneity among judges in a state where 27 percent of the population is black can be explained by a voting system that the lawsuit claims shuts out black Alabamians from serving on the bench, according to the Anniston Star.

Alabama's "at-large" system is shared by only a few other states. Judges elected by the at-large process are voted on by everyone in the state, rather than by voters in a district within the state, the more customary method. Since black voters are a minority in Alabama, it is all but impossible for them to elect a black judge while competing with a majority of white voters, as votes in the state tend to polarize along racial lines.

According to the NAACP Legal Defense Fund's website, at-large voting has become rare due to its legacy of use as a discriminatory tactic: "the votes of voters of color often are drowned out or submerged by the votes of a majority of white voters who often do not support the candidates preferred by Black voters."

“In 2016, Alabama’s appellate courts are no more diverse than they were when the Voting Rights Act was signed more than 50 years ago,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law in a press release. “It is time for the highest courts in the state of Alabama to reflect the diversity of the communities they serve. This lawsuit seeks to provide African-American voters an equal opportunity to elect judges of their choice, achieve long overdue compliance with the Voting Rights Act and instill greater public confidence in the justice system of Alabama.”

The plaintiffs in the lawsuit will be represented by the Lawyers' Committe in partnership with with various civil rights attorneys and pro bono lawyers.

Alabama Secretary of State John Merrill, who is named in the lawsuit as the official in charge of overseeing state elections, told ThinkProgress that it would be "inappropriate" for him to comment at length on the pending case, but he emphasized that his goal is “to ensure that every eligible Alabamian is registered to vote and has a valid form of ID allowing them to participate on Election Day.” He also said that the state "is fully compliance with all election law."

Ms. Clarke disagreed, telling reporters in a teleconference that "voting discrimination is alive and well in Alabama," according to AL.com.

Alabama has had a long history of state-sponsored discrimination, including decades of chattel slavery, Jim Crow laws, and an entrenched battle against integration. Intimidation by elected white authorities after Reconstruction ensured that the African-American population remained largely unrepresented in state and local government until the passage of the Voting Rights Act, and many relics of segregationist policies persist in the state to the present day.

The lawsuit is hoping to change one of those relics by demanding that the Alabama federal district court divide the state into districts that each elect a member of the Supreme and appellate courts, to give portions of the state with majority-black voters an opportunity for representation on the bench.

The lawsuit comes as similar battles about voting rights are being fought across the US. A recent Monitor article reported on federal appeals court striking down North Carolina's voter ID law in July, citing "discriminatory intent" against voters of color.

"The right to vote is the right from which all other rights flow," said Michael Keats of the law firm Stroock & Stroock & Lavan in the press release. "That right to vote takes on a special significance in electing the judges and justices who define our legal rights and obligations, who adjudicate our guilt and innocence. A judiciary elected through a racially discriminatory system, like Alabama’s, deprives African-Americans of their own voice in the administration of justice.

"That is illegal and this lawsuit will end that discriminatory system.”