‘What the court misunderstood is just how fragile our democracy is’ – Center for Public Integrity

It was a crowning achievement of the civil rights movement: the Voting Rights Act of 1965. For decades, it gave the federal government the power to shut down potentially discriminatory voting changes before they took effect. And on June 25, 2013, the U.S. Supreme Court gutted it.

The court ruled that the formula behind the law’s preclearance measure — which required some jurisdictions with histories of discrimination to secure approval for new voting laws — was unconstitutional. The preclearance requirement had been reauthorized several times by Congress, most recently in 2006.

In his opinion in the Shelby County v. Holder case, Chief Justice John Roberts argued that the measure was no longer necessary: “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”

The decision was a blow to advocates for voter access, including Debo Adegbile. As an attorney for the Legal Defense Fund, Adegbile argued the Shelby County case before the court.

In the years since, he worked as senior counsel for the Senate Judiciary Committee and was appointed by President Barack Obama to a six-year term on the U.S. Commission on Civil Rights, which ended in 2022. (Adegbile’s experience prior to his legal career included acting on Sesame Street for several years as a child.)

Now in private practice at the law firm WilmerHale, Adegbile spoke to Public Integrity about the legacy of Shelby County v. Holder, 10 years on.

This conversation has been edited for length and clarity.

Q. You represented a man named Ernest Montgomery, who had been the only Black elected official on the Calera, Alabama, city council. How did a lawsuit over Ernest Montgomery’s city council district become a referendum on the Voting Rights Act?

The Alabama area where Ernest Montgomery lived essentially eliminated his district in a redistricting plan that they failed to submit to the Department of Justice initially. 

And then, once it was submitted, a number of things were discovered. First, they had been engaging in a number of annexations to change the composition of the districts and have the effect of diluting the Black vote. Second, they then ran the election that DOJ objected to — because it would worsen the position of African American voters to elect candidates of their choosing; they went ahead and ran the election anyway. And the Black member of the council was eliminated. 

Later, DOJ brought an enforcement action and restored the district that ultimately Ernest Montgomery was elected back into. [Montgomery is still on the Calera City Council in 2023.]

It became the theater of war for a larger attack that ultimately disemboweled a core provision of the Voting Rights Act, the Section 5 preclearance provision.

Q. The court’s ruling said, essentially, that the moment in American history where preclearance was necessary had passed. What was preclearance and what did it mean for elections in this country?

The preclearance provision — which I like to refer to as the heart of the Voting Rights Act — was a provision that essentially focused on certain parts of the country, which had some of the most severe histories of discrimination. 

And it said that in those places, no voting change could take effect before it was submitted to the Department of Justice and the showing was made, by the jurisdiction that was seeking to make the change, that it wouldn’t worsen the position of minority voters. The other way that the jurisdiction could get approval was to go to a three-judge court in Washington and make the same showing.

And that provision was very powerful, because the necessity of having to get a voting change approved before it could take effect meant that if there were discriminatory voting changes, they could be blocked and stopped by the Department of Justice. 

Separately, it was a very powerful part of the statute because it deterred lots of bad behavior. Because the jurisdictions that were covered by preclearance knew that they were going to have to come forward, and that they would bear the burden of making the affirmative showing that the proposed voting change didn’t adversely affect minority voters. 

It was very powerful and protected minority voting rights in these places where discrimination had been persistent and adaptive.

Q. Just a few years before Shelby County, you had argued another case before the Supreme Court, Northwest Austin Utility v. Holder. In that case, the court left Section 5 standing. What changed between that ruling, in 2009, and Shelby County v. Holder in 2013?

It was a copycat case, with one significant difference. 

The earlier case had a statutory claim. They made a claim that not only was the preclearance provision unconstitutional, they also argued that the jurisdiction that was bringing forward the challenge — the Northwest Austin Municipal Utility District — had an opportunity to “bail out” from coverage of the preclearance system. 

The statute had an incentive mechanism built into it, that jurisdictions that had a clean bill of health for 10 years could apply to be exempted from having to submit their voting changes going forward. That provision, that incentive for good behavior, was called the bailout provision. 

And in the Northwest Austin case, the plaintiffs in that case argued both that the statute was unconstitutional; but separately, that the jurisdiction, the utility district, should be eligible to try and bail out because they didn’t have any voting discrimination.

In that case, the court ruled that they were eligible for bailout, and so the court took that off-ramp [by not ruling on a constitutional issue, only the issue of the bailout].

The difference in Shelby County was that there was no statutory claim. It was only the constitutional claim that was squarely presented to the court, and thus there was no similar off-ramp. And the ruling then was 5-to-4 declaring the preclearance provision unconstitutional, over some very strong dissent by Justice Ginsburg.

Q. So we are now nearly a decade from that ruling. What has a weakened Voting Rights Act meant for our democracy?

The discriminatory voting measures began on the day of the Shelby County ruling. States that had previously been covered by preclearance, like Texas and North Carolina, immediately put into place voting measures that would be challenged in long litigation, and ultimately be found to be discriminatory. 

And so what we predicted would happen began immediately, and it has only continued. That’s a terrible outcome for our democracy. 

The ruling had a signaling effect, that the court and the federal government was in retreat from the longstanding mission of minority voter protection. And that signaling effect has had an equally damaging impact as not having the statute itself. 

It has given some power and some motivation to those who would seek to impose discriminatory voting measures to try and see how many of them they can get by, because it seems like the court is not going to be as vigilant in protecting our democracy. What the court misunderstood is just how fragile our democracy is.

Q. There’s currently a case in a lower court that could reach the U.S. Supreme Court and hamstring Section 2 of the VRA — potentially limiting private individuals and groups from bringing lawsuits. What would that kind of change mean for voters?

One of the primary arguments at the time of the Shelby County case was that the preclearance provision that applied only to some parts of the country with long histories of voting discrimination was not necessary, because there was another provision that applied nationwide. That other provision is Section 2 of the Voting Rights Act. 

What we have seen is that folks are now attacking and undermining Section 2 itself. And so it’s dismantling the statute and its purpose, piece by piece. 

We need to see if the Supreme Court was serious when they relied, in part, on the existence of Section 2 as being an adequate voter protection measure.

Q. The court in Shelby County didn’t find that Section 5 of the law was unconstitutional — instead they said the “coverage formula” in another part of the law was. Congress has the power to come up with a new coverage formula. Are you hopeful that Congress could do that in a way that would satisfy the current court? Or that Congress might take any action on federal oversight of voting rights?

We’re now 10 years on and no legislation has passed yet. I know that Congress continues to work on that legislation. I actually left LDF and went to work on the Hill for Senator [Patrick] Leahy on that legislation, and so I worked on an early version of [the John Lewis Voting Rights Advancement Act]. I do think that in time, Congress will act. But it has been very slow to act. 

In the meantime, all of the discrimination in these formerly covered jurisdictions is unfolding, and is having an impact unless voting litigators are able to block it bringing one case at a time — which of course is less efficient and less effective than the prophylactic measure of having the preclearance provision in place.

Q. We’ve been talking about the last 10 years, but what do you think the next 10 years hold for election law and voting in this country?

We’re going to have to decide: What are we prepared to tolerate in terms of our democracy?

But what we have seen is that these problems are intense, they’re still real, they are with us and they can affect elections every day. And so what needs to happen at the state and federal levels is that there are bills and measures that affirmatively protect people’s access to participate in our democracy. We can only be a beacon of democracy if we practice it at home first. 

I like to say that there are two ways to win elections. One is to motivate more of your voters to get people out to vote, to have ideas that people are attracted to and get behind. And I call that democracy’s high road, through voter mobilization.

The reality is that there’s another path to win elections, and there’s a long history of it in the United States. That’s the path of trying to block or deter your opponents’ voters from getting to the polls. Essentially, democracy through subtraction, rather than democracy through addition. That is the low road of American democracy.

Q. Is there anything else you want to say?

I believe Shelby County will go down in the annals of Supreme Court jurisprudence as one of the most harmful decisions in the area of American democracy and in civil rights. I believe that history will not be kind to the ruling in Shelby County. 

All of the facts and evidence were before the Supreme Court. There was an extraordinary, virtually unprecedented congressional record to support what Congress did. And we, immediately, have seen the impact of that ruling. And so what we will need to do is to stay on the course of the long fight to protect American democracy, know that democracy is an active sport and not shrink from that fight. Even in the face of obstacles.

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