Court Settlement Best For Alabama

Speaking about self rule, Winston Churchill once jested, “Democracy is the worst form of government in the world, except all the other forms.”

Democracy as we understand it began on a rocky land-mass projecting into the Mediterranean at the base of Europe. It was there about 2,500 years ago that Greek tribes took control of their cities from kings and blood-related clans, established the foundations for self rule, and created one of the world’s most marvelous civilizations.

The spirit of that civilization endures today. A recent manifestation of the democratic spirit can be found in Judge Myron Thompson’s October 6, 1994 decision in the case relating to electing judges to Alabama’s three appellate courts.

In this case, three African American plaintiffs filed a lawsuit in Federal court claiming that the current at-large system of electing Alabama’s appellate judges violates the Voting Rights Act of 1965. The essence of their claim is that African American citizens of the state are denied their right to “an equal opportunity to participate in the political process and elect candidates of their choice to the appellate judgeships.”

The court noted as background that, “in the last 125 years, only two African-Americans have served as appellate judges in Alabama.”

Alabama has three appellate courts: the Alabama Supreme Court, the Court of Criminal Appeal and the Court of Civil Appeal. Currently, there are nine justices on the Supreme Court and five judges on each of the appeals courts. The court further noted that of the sitting appellate court judges, only one, Associate Justice Ralph Cook, is black. He was appointed to replace Associate Justice Oscar Adams, the only prior black justice. He was also appointed.
In the process of adjudicating this litigation, the State of Alabama and the plaintiffs reached an agreement. Because the case was in Federal court, it was necessary for the parties to obtain the court’s approval. The court found the agreement to be fair and approved it with some adjustments.

There are three major benefits to this settlement. First, it avoids a lengthy and costly trial. Second, it allows the 1994 elections to proceed uninterrupted. Third and most importantly, it offers a solution to the problem–a solution crafted by the parties rather than a solution imposed upon Alabama by the Federal Court.

In the settlement, the parties agreed to establish a Judicial Nominating Commission composed of five members. The Alabama Lawyers Association and the Alabama State Bar Association each will select one member. Lawyers for the plaintiff class will select two members. The fifth member will be selected by a majority of the other four members.
The settlement leaves open the possibility for selection of as many as three white persons as members of the Nominating Commission. The settlement places no requirement on the Commission to nominate African American candidates to fill open judgeships. The Commission can nominate and the Governor can appoint a qualified lawyer of any race to fill a judicial vacancy.

This commission will initially nominate candidates to fill five new judgeships created by the agreement; two on the Court of Criminal Appeal, two on the Court of Civil Appeal, and one on the Alabama Supreme Court. Adding two seats to each appellate court, in 1997, means that there will be seven judges on each of Alabama’s civil and criminal appeals courts.

Under the agreement, if in 1998, the Alabama Supreme Court has less than two African American justices serving on it, the court will be temporarily expanded to ten justices. The newly created seat will then be filled by the nominating commission on a non-racial basis.

Some radio commentators, Soap Box callers and letters appearing in editorial pages of newspapers have criticized the settlement. Some of these uninformed critics of the settlement say that it requires the state to appoint black judges. They are wrong: nowhere in the more than 100 page document is there any requirement that a person of a particular racial category be appointed to a judgeship.

The settlement’s nominating and appointment process does remove some judgeships from voter elections. However the decision notes that redistricting to create a majority minority district would eliminate all the appellate judgeships not in a voter’s district from the ballet. Redistricting would foreclose voters’ opportunity to vote on some appellate judges forever. The settlement leaves the current state-wide system for electing appellate judges in place. At the same time, it leaves open the possibility for African American candidates to campaign and win elections to Alabama’s appellate courts thereby suspending the ‘racial trigger’ requiring the Nominating Commission to act.

The court considered other remedies in its deliberations. Cumulative voting was considered and rejected. It was noted that some judges have ordered cumulative voting schemes in Alabama to resolve local voting rights cases. Single member districting was considered and rejected as a possible solution to this case for a number of reasons, several of which are discussed in the previous paragraph. However, from this columnist’s point of view the most consequential reason the court penned against redistricting as a solution to this case is that “the appointment remedy avoids ‘marginalizing’ those black and white voters who would end up a minority in a race-based district.”

Judge Thompson uses these words written by Judge Richard T. Rives almost thirty years ago to conclude the court’s deliberations:

“I look forward to the day when the state and its political subdivisions will again take up their mantle of responsibility (and thereby relieve the Federal Government of the necessity of intervening in their affairs.”

With this agreement, Alabama’s political leaders are walking the path those Greek tribes took 2,500 years ago to gain self rule.

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Originally Published: 2 November 1994, Montgomery Advertiser

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