When Alabama rewrote its state’s constitution in 1901, it limited voting to wealthy white men and established white supremacy as a guiding principle for state law. The fact that some clauses clearly violated provisions in the United States Constitution didn’t stop state leaders. It banned anyone from voting who wasn’t a male over 21, was convicted of certain crimes, didn’t have property, couldn’t pass a literacy test, or pay a poll tax.
The federal Voting Rights Act of 1965 banned such practices, but conservative white lawmakers have used every tactic allowed within the bounds of federal law and Supreme Court precedent to maintain a decisive hold on power even though Alabama has one of the highest shares of Black people in the country.
Alabama has been at the forefront of attempts to resist, undermine and overturn federal civil rights legislation standing in the way of attempts to disenfranchise Black voters.
Alabama has disenfranchised Black voters in places such as Mobile and Tuskegee and enacted strict voter ID laws that disproportionately made it difficult for Black residents to vote. In 2013, Shelby County was ground zero for the U.S. Supreme Court’s tossing out the federal oversight clause — section five — of the 1965 Voting Rights Act, which had been credited with blocking more than 100 attempted election restrictions in the state.
Since the Shelby v. Holder case, voter rolls across the state have been purged, and polling places have been shuttered.
Now Alabama is back before an even more conservative U.S. Supreme Court with another attempt to overturn federal law banning discrimination against Black voters. Arguments in Merrill v. Milligan, a case testing extreme racial gerrymandering that Alabama Republicans adopted in redistricting following the 2020 Census, were heard Oct. 4.
“Prior to 1960, the legislature failed to do the redistricting process for 50 years. The Supreme Court then had to step in and say you have an obligation to do the redistricting to make sure that the lines reflect the changes of the population,” said Jack Genberg, a staff attorney at the Southern Poverty Law Center, which is one of the Civil Rights groups that brought the Merrill Milligan case. “So, there are a number of different ways historically that Alabama has had issues in redistricting and has run afoul of the law and drawn a rebuke from the courts.”
Racial gerrymandering
Two previous U.S. Supreme Court cases in which Alabama’s gerrymandering of legislative districts — Gomillion v. Lightfoot in 1960 and Mobile v. Bolden in 1980 — established the precedent that electoral districts excluding or disenfranchising Black voters are illegal.
In 1960, Black residents of Tuskegee, Alabama, sued the city after almost all Black people were excluded from the city’s boundaries – effectively leaving Black residents with no electoral district. The case established that racial gerrymandering violates the 15th Amendment of the Constitution, enacted in 1869 to protect newly freed African Americans’ right to vote.
About this series
This project looks at the state of voting access, voting rights and inequities in political representation in all 50 states and Washington, D.C.
By 1980, racial gerrymandering in Alabama was in front of the Supreme Court again. This time it was more nuanced, centering the question of intent. Black residents in Mobile, Alabama, argued that despite being a significant portion of the city’s population, they had no chance of being represented on the city commission because of an at-large, versus neighborhood district representation system.
After evidence was submitted showing the intent behind creation of the at-large electoral system in 1911 was to prevent a Black person from ever being elected, the Supreme Court sent the case back to a lower court to draw district maps providing fair representation to Black residents. In 1982, Congress strengthened Section 2 of the Voting Rights Act, adding that regardless of the intent of an election process, if discrimination does happen and the results reflect that, it is unlawful.
With Merrill v. Milligan being argued at the Supreme Court, which historically has ignored discriminatory outcomes in various cases unless explicit intent was proven, advocates fear Section 2 of the Voting Rights Act could be next on the chopping block.
Alabama State Sen. Bobby Singleton, Evan Milligan of Alabama Forward, the Southern Poverty Law Center, and 10 other groups filed a federal lawsuit in January claiming Alabama’s new congressional districts intentionally dilute Black voting power in the state. While Black voters make up 27% of the state, only one of the seven districts is majority Black.
A panel of federal judges determined the congressional maps violated the Voting Rights Act and ordered the Alabama legislature to redraw the map four months before the May primary elections.
But two weeks later, the U.S. Supreme Court stepped in and ordered an emergency stay, allowing congressional elections to move forward with the new districts and adding the case to its docket in the fall.
The Supreme Court claimed four months wasn’t enough time for the legislature to draw the new maps, even though the court has previously given states less time to redraw districts.
“Obviously, we are hoping that the Supreme Court affirms the Alabama District Court opinion,” Genberg said. “It is a well-reasoned opinion, and it affirms voting rights in the state.”
Voter purges
While there are only 3.5 million people on Alabama’s voter rolls, since 2015, the state has removed 1.4 million voters, according to WAFF 48.
Frustrated county officials and advocates across the state say voters are being wrongfully purged without their knowledge. The practice prompted Greater Birmingham Ministry in February to file a federal lawsuit against Secretary of State John Merrill. Greater Birmingham Ministry also filed a public record request on May 17, 2021, to get a list of the voters removed after the 2020 election, but Merrill told them that would cost $37,000, which Greater Birmingham Ministry said is illegal.
The lawsuit said that the group helps formerly incarcerated people reapply for their voting rights, and they need the information to know whom they should be contacting.
Merrill has not notified voters who were kicked off the rolls due to the state’s felony disenfranchisement law.
He told the Huffington Post in 2017, “I’m not going to spend state resources dedicating to notifying a small percentage of individuals who at some point in the past may have believed for whatever reason they were disenfranchised,” Merrill said.
The case is still pending.
Felony disenfranchisement
Alabama is one of seven states that permanently strips a person of their voting rights if they are convicted of certain felonies.
The “crime involving moral turpitude” clause in the state’s constitution, which was added in 1901 — in the aftermath of Reconstruction — left a vague understanding of what that meant until 2017.
That year, a lawsuit, Thompson v. Alabama, challenged the statute, arguing the broadness in which it is enforced is racially discriminatory. Later that year, the legislature passed a law defining what “moral turpitude” meant, permanently disqualifying voters based on a specific list of various non-violent and violent felony convictions.
According to CampaignLegal.Org, 286,000 people in the state – 7.6% of the entire statewide voting-age population and 15% of the Black male voting population cannot vote because of this law.
Voter ID
In 2011, Alabama passed the first of what would be a wave of modern state voter ID laws in Republican-controlled states in the wake of the 2008 election of the country’s first Black president. Alabama’s law requires anyone who is voting (absentee or in person) to present a qualifying photo ID. At the time, at least 280,000 voters would be disenfranchised because of the law.
Because of the law’s terms, the voter ID law didn’t go into effect until 2014. It has faced legal challenges from Greater Birmingham Ministries and The National Association for the Advancement of Colored People — as recently as 2020.
Within a year after the passage of the photo ID requirement, Alabama closed dozens of DMV offices in Black communities, making it more difficult to obtain the IDs required by the law.
Absentee voting
Because of the global pandemic, Alabama allowed no-excuse absentee voting during the 2020 election.
But that has changed.
Alabama has reverted to its previous system of allowing absentee voting only if a resident will be out of town on Election Day, unable to travel to the polls due to an illness, working during election hours on Election Day, are the primary caregiver for a family member, or incarcerated and have not been convicted of a felony involving “moral turpitude.”
That’s only the first hurdle to absentee voting in Alabama, which has one of the most stringent processes in the country.
Once a voter’s application has been approved and receives their ballot, they must have two witnesses or a notary sign their absentee ballot and include a photocopy of their ID before they return the ballot. Alabama is one of only 12 states that impose a notary or witness signature requirements.
There are no ballot drop boxes, so voters have to either return the ballot to their election office or pay for postage and mail it to the return address on the ballot envelope.
The state also passed a law last year requiring all requests for absentee ballots to be received seven days before election day, which is less time than the previous requirement of five days before Election Day.