Birmingham & The Impact of Race on State Preemption Laws

Karim Lakhani

Karim Lakhani is a student at Harvard Law School.

Early last year, Alabama passed a preemption law preventing any city in the state from, among other things, setting their own minimum wage.  The law was perceived to be targeting Birmingham, the only city in Alabama to have enacted a minimum wage ordinance that went beyond the federal minimum wage.  In response, the NAACP filed a lawsuit arguing that the state’s blocking of Birmingham’s minimum wage hike was done “with racial animus” and violated both the Equal Protection Clause and the Voting Rights Act.  Last month, a federal judge in Birmingham dismissed the suit, which is now being appealed to the 11th Circuit.  As states across the country increasingly pursue preemption to nullify or prevent cities from raising their minimum wage, the lawsuit filed in Birmingham is one of the first to raise the prospect of racial discrimination in the use of preemption, prompting the question: what role does race play in state preemption laws?

Birmingham Lawsuit

In August of 2015, the Birmingham City Council passed a minimum wage ordinance, raising the minimum wage to $8.50 effective July 2016 and $10.10 effective July 2017.  At the beginning of the Alabama Legislature’s 2016 session, Representative David Faulkner introduced HB 174, a bill titled “Alabama Uniform Minimum Wage and Right-To-Work Act.”  HB 174 called for the Legislature to occupy and preempt any regulation touching “wages, leave, or other employment benefits… to the complete exclusion of any policy… enforced by any county, municipality… of this state.”  HB174 was fast-tracked and signed into law by Governor Robert Bentley within sixteen days of being introduced.

When HB 174 became law, Alabama was one of five states without a statewide minimum wage.  Further, Birmingham was the only city in Alabama that had increased its minimum wage beyond the federal minimum wage of $7.25, suggesting that HB174 was specifically targeting Birmingham’s ordinance.

Last April, the NAACP, several Birmingham residents who work for or just over minimum wage, and the Alabama Legislative Black Caucus filed suit against Alabama’s Governor and Attorney General.  The complaint alleges that because the law reverses the power of Birmingham’s local citizens to control their minimum wage, the law transfers “power from the city council elected by the majority-black Birmingham electorate to the Legislature elected by the majority-white state electorate.”  As a result, the complaint argues that the law violates the Voting Rights Act, as it results in “the denial or abridgement of the right of citizens of Birmingham to vote on account of their race.”

The complaint also argues that the new law violated the Equal Protection Clause of the Fourteenth Amendment.  Because the law “prohibits the majority-black electorate of the City of Birmingham from exercising their electoral power over local government… with respect to economic interests of particular importance to African-Americans,” it “denies black citizens of Birmingham equal protection of the law.”

Finally, the complaint contends that the new law was passed with “the invidious purpose and with the racially discriminatory intent of denying the majority-black electorate of the City of Birmingham the ability to regulate” their minimum wage, in violation of the Voting Rights act and the Thirteenth, Fourteenth and Fifteenth Amendments.

The complaint offers striking statistical numbers in support.  In terms of racial demographics, while African Americans make up about 26% of the state’s population, they make up 73% of the population of Birmingham, Alabama’s most populous city.  Of those in Birmingham that would have benefited from the proposed increase, 70% of them were African Americans.  Further, Birmingham, like the rest of the state, has dramatic racial wage disparity, with white wage earners in Birmingham earning $1.41 more per hour on average than black wage earners.

The complaint also compares Birmingham’s poverty rate to those in other areas of Alabama.  For example, while 32% of African Americans in Birmingham live below the federal poverty line, less than 3% of the City of Mountain Brook, the home of Representative Faulkner which is 97.2% white, live below that level.

Lastly, the complaint looks at the racial breakdown of the legislators supporting and opposing the bill.  In the Alabama Legislature, all African-American Representatives and Senators voted against the bill.

In response to the suit, the state argued that the law applied impartially to the state as a whole, and further claimed that the plaintiffs provided no direct evidence of racial motivation.  Last month, United States District Judge R. David Proctor agreed with the state, dismissing the suit.  In his opinion, Judge Proctor found that the plaintiffs lacked standing, as the new law dictated that a city may not require a different minimum wage, suggesting too tenuous a relationship between the new law and injuries the plaintiffs may have suffered.  Further, he suggests that even if there was standing, there is no distinct link connecting racial motivation and the state’s actions, and as the policy effects cities statewide, the racial claims are irrelevant.  Further, Judge Proctor argued that the Voting Rights Act was not relevant, as the law did not impact voting standards or procedures and Birmingham residents were equally free to elect their city councilors both before and after HB174 became the law.

State Preemption Laws & Race

On March 2nd, plaintiffs in this suit filed a notice of appeal.  It’s unclear how the Eleventh Circuit will review the case on appeal, but this challenge to Alabama’s preemption law raises unanswered questions as to the role that race plays in state preemption laws across the country.  As previously outlined on the blog by Melissa Greenberg, a growing number of states have enacted laws prohibiting cities from passing minimum wage ordinances.  According to the National League of Cities, currently 34 states have preemption policies targeting local minimum wage increases.

Further, the country’s demographics and views on minimum wage are significantly divided.  According to Charles Murray, a substantial majority of white Americans live in rural areas, with only 10.5% of white Americans living in the country’s largest twenty cities.  Further, a Pew Research study from last August suggests that white and black Americans substantially disagree on increasing the federal minimum wage to $15 an hour; while 54% of white Americans oppose the measure, 89% of black Americans are in favor.

There are three cities in particular where the role of race in state preemption laws could be explored further: Detroit, St. Louis, and Atlanta.  All three are some of the most populous cities in their respective states, all of which have state preemption laws targeting minimum wage increases.  Further, all three cities have a disproportionate population of African Americans compared to their respective states as a whole, in addition to severe racial economic disparity.  For example, African Americans make up 82.7% of Detroit’s population, compared to making up only 14.2% of Michigan’s population, a state where the black unemployment rate is more than three times that of white Michigan residents.

The country’s racial demographics, in addition to racial economic disparity and differences in support for minimum wage increases, suggest that the role of race in the growing number of states with preemption laws merits further research.

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