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The Right To Vote: The Impact Of Shelby County V. Holder On Voting Rights

AILSA CHANG, HOST:

And that case, Shelby County v. Holder, is what we're going to examine today in our series The Right To Vote. As the vice president mentioned, that Supreme Court case has, in part, made it possible for states to enact new restrictive voting laws. So let's go back. Shelby County is in the heart of Alabama, and that's where a Black city council member named Ernest Montgomery initially lost his bid for reelection in 2008, after his district was redrawn to include fewer voters of color.

(SOUNDBITE OF ARCHIVED NPR BROADCAST)

ERNEST MONTGOMERY: This was about my people.

CHANG: But the Department of Justice had a tool at its disposal - sections 4 and 5 of the Voting Rights Act. These provisions forced certain jurisdictions to seek what's called preclearance from the federal government before they could redraw maps or make other voting changes.

DEBO ADEGBILE: Essentially, it was a protection that was focused on some of the states and jurisdictions that had the deepest and darkest histories of voting discrimination.

CHANG: That's attorney Debo Adegbile. He represented Ernest Montgomery when Shelby County leaders challenged the preclearance requirement all the way to the Supreme Court. And in 2013, Shelby County won. In a narrow 5-4 vote, the justices said the formula that determined which jurisdictions needed preclearance was outdated. And Section 5 was essentially gutted. Condemnation from civil rights activists was swift, including from the late Georgia Congressman John Lewis.

(SOUNDBITE OF ARCHIVED RECORDING)

JOHN LEWIS: Today, the Supreme Court struck a dagger in the heart of the Voting Rights Act.

CHANG: Debo Adegbile agreed. His parents were both immigrants from Nigeria and Ireland. And he says, as a child, he came to understand the opportunity that America represents, an idea that he seeks to protect today as a civil rights lawyer. Adegbile has defended Section 5 of the Voting Rights Act twice before the Supreme Court, and I spoke to him about those two cases.

The very first time that you did argue before the court to defend the constitutionality of Section 5, this preclearance requirement, was in 2009, a few years before Shelby in a case called Northwest Austin Utility v. Holder. The court left Section 5 intact in that case. What did that case hint to you at the time about what might be coming down the road from the court?

ADEGBILE: The case got to the Supreme Court on the 100th day of the Obama presidency. And the context of that case was that we had the first Black president. And our adversaries were raising the question, do we still need this civil rights-era voting protection because so much has changed in the country? And our defense, of course, was that indeed a great deal has changed. But just as a great deal has changed, a great deal remains the same. And one of the things that remains the same is that minority voters face risks, and those risks are different in degree and nature in some parts of the country.

CHANG: Can you just talk about, what are the types of discrimination that Section 5 was created to protect against?

ADEGBILE: So what we've seen is that the pattern of trying to disadvantage minority voters has taken many forms. What folks in power will do is they will draw the district lines in ways that intentionally try to lessen or dilute the voices of Black or Latinx voters. And so there are extraordinary things that have been blocked and deterred by Section 5 because it required people to be thinking about the fact that they were going to be asked to come forward and make a demonstration that the act or the law was not discriminatory. And so it's a disincentive to do it.

CHANG: So when you learned the court's ruling in Shelby, which gutted Section 5, which had for such a long time protected against these forms of discrimination, what were the first thoughts that crossed your mind when you found out what the court decided?

ADEGBILE: It's heartbreaking when the Supreme Court acts in a way that is contrary to its precedent and, frankly, when it undermines one of the great civil rights statutes in American history. And it took away an important tool, but it did something else that was really troubling. It sent a signaling effect that the federal government was in retreat from the minority protection principle that the Voting Rights Act represents.

CHANG: If I may push you a little bit, in Shelby, Chief Justice John Roberts, in writing for the majority, basically said that, look, there's still Section 2. That still is good law under the Voting Rights Act. And Section 2 bans racial discrimination in voting. How do you respond to that argument that Section 2 is enough protection?

ADEGBILE: It's true. Section 2 is in place and it applies nationwide. The reason that we needed Section 5 preclearance is because Section 2 is an after-the-fact remedy. What Section 5 did is it allowed us to attack discrimination before it takes root.

CHANG: Well, I understand that shortly after you argued the Shelby case, you had a conversation with the late Georgia Congressman John Lewis. Can you tell me about that? What did he say to you?

ADEGBILE: It so happened that the weekend after the Shelby County argument was the time of the annual Edmund Pettus Bridge crossing. And I happened to see Congressman Lewis, and I tapped him on the shoulder to say hello and say hi. He turned around and gave me a bear hug there in the shadow of the Edmund Pettus Bridge. And I said to him that I tried to speak truth to power. And he said, you did. You did. And to be embraced by Congressman Lewis at the foot of the bridge where he and so many others were beaten and attacked for the right to vote days after we had been there trying to fight the modern fight for the right to vote was just a very meaningful personal moment.

CHANG: Well, as we look forward and consider the effects of the Shelby case, I want to reach back a little bit and play for you something that Ernest Montgomery, your former client, told NPR in 2013.

(SOUNDBITE OF ARCHIVED NPR BROADCAST)

MONTGOMERY: I'm not here to air our laundry here in Shelby County, but I know the story. I think we're getting better. But the removing of the legislation would definitely turn back the hands of time.

CHANG: Do you think that Ernest Montgomery was right, that the hands of time have turned back? I mean, how much of a step backwards do you think this country has taken on voting rights since Shelby?

ADEGBILE: What we're seeing is that there are efforts to make it harder for minority voters to participate in elections. In North Carolina, I think on the day that Shelby County was decided, there was legislation announced that went through systematically to identify all the ways that had increased Black turnout in the Obama presidential election, and one by one, made it harder for each and every one of those paths to be open to minority voters. And so everything that Mr. Montgomery predicted has come true and then some. And we need to continue to fight to not take these losses as permanent.

CHANG: Well, what form does that fight take? Where do you go from here? When you think back to what originally motivated you, what your original purpose was when you started doing this kind of work, how do you now try to accomplish the goals of the Voting Rights Act without some of its key provisions?

ADEGBILE: I think that the lesson of voting progress in America is a lesson of courage, persistence and strategy. We need the persistence to demand that Congress come back with new legislation and not allow the Supreme Court to have the last word on these things. Congress must take up its role and responsibility. And we need to bring these things together in a strategy that has the right kind of legislation and that is supported by the right kind of grassroots activism and movement so that it will get pushed through. That's the lesson I take from voting rights history, and that's what we need to marshal right now.

CHANG: That was Debo Adegbile. He's now a member of the U.S. Commission on Civil Rights and a lawyer at the law firm WilmerHale in New York. Tomorrow, a conversation with some of the figures who fought to pass the Voting Rights Act in the 1960s. Transcript provided by NPR, Copyright NPR.