(Special to The Root) — When our clients from Shelby County, Ala., arrived at the Washington, D.C., offices of the NAACP Legal Defense and Educational Fund the night before Supreme Court oral argument in the case challenging the constitutionality of the Voting Rights Act, they had a lot to say. They had stories to tell about how the same white leaders who have held on to power for decades continue to control the access to political power in that county. Lifelong Shelby County residents, several Baptist ministers and one city councilman who lost his seat when, as a result of redistricting, the black population in his district was reduced from 70 percent to 29 percent, they told stories about how life is lived by blacks in small towns all over the South.
They came all the way up from Alabama, they said, to see for themselves what the Supreme Court would do. Would the court uphold Congress' 2006 decision to reauthorize Section 5 of the Voting Rights Act? That provision requires certain states and local jurisdictions to submit any proposed voting changes to the Department of Justice for preclearance before they can be implemented.
Congress enacted the provision to ensure that minority voting rights would be protected in districts with consistent records of voting discrimination. So, for example, when a district in Mississippi planned to move a polling place out of the black community to a location in the white community that had historically been a meeting place for white racists, the Department of Justice denied the local jurisdiction permission to move the polling place.
I sat next to 81-year-old Earl Cunningham during the argument on Wednesday. He's seen it all in Shelby County, and he was unfazed by the pomp and circumstance of the court proceedings. Talking during the argument is not permitted, so we had to be satisfied with pressing each other's elbow and occasionally passing notes.
The first question from the bench seemed to channel the reality that our clients had spoken of the night before. It came from Justice Sonia Sotomayor. She asked Bert Rein, the attorney for Shelby County, why his client was bringing this suit to bring down the Voting Rights Act. She noted, "If the South has changed, your county certainly hasn't." Then she added, "Your county is the epitome of why the statute was enacted" in the first place.
She was soon joined by Justices Elena Kagan and Ruth Bader Ginsburg. Even Justice Anthony Kennedy wanted to know how a county like Shelby, with its record of voting discrimination, could claim to be "injured" by the Voting Rights Act.
The conservative justices had their questions, too. Chief Justice John Roberts took up again his passionate defense of the South, a cause he championed in 2009 when Section 5 of the act was last challenged. He asked of U.S. Solicitor General Donald Verrilli Jr. the same question he asked of the lawyer for the NAACP Legal Defense Fund in 2009: "Do you think the citizens of the South are more racist than the citizens of the North?"
Debo Adegbile, special counsel for the LDF, argued for our clients from Shelby. He reminded the court that just a few years ago, state legislators in Alabama were caught on tape calling black voters "illiterates." He drew the court's attention to the crux of the case: the extensive record amassed by Congress demonstrating ongoing widespread voting discrimination in the jurisdictions covered by Section 5 of the act.
There were only two hush or gasp moments during the morning. A hush fell when Mrs. Cissy Marshall, widow of the late Supreme Court justice and LDF founder Thurgood Marshall, entered the courtroom a few minutes before the argument began. She sat quietly on one of the front benches. When members of the packed audience began to realize who she was, a slow stream of civil rights lawyers and activists made their way over to greet her.
The second moment was during the argument when Justice Antonin Scalia described the reauthorization of Section 5 of the Voting Rights Act as "the perpetuation of racial entitlement." It felt like a slap in the face, and there was a literal gasp from the audience.
After the argument, journalists immediately began predicting the death of the Voting Rights Act. We reminded them that the same predictions had been made after the oral argument in 2009. At one point a radio reporter asked me what the Legal Defense Fund would do if Section 5 of the Voting Rights Act were struck down.
"It's not about what we'll do," I told her. "It's about what America will do if we return to the days of unchecked voting discrimination. Every American should be asking themselves that question today, what will we do without Section 5."
Sherrilyn A. Ifill is the president and director-counsel of the NAACP Legal Defense and Educational Fund, Inc., which represented black voters from Shelby County, Ala., in the case.
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