Debo Adegbile to go before supreme court to defend Voting Rights Act and argue key provision should not be struck down
The lawyer who will next week go before the US supreme court to defend the Voting Rights Act has warned that if a key provision of the law that prevents discrimination at the polling booth largely in southern states is struck down, it would "set the hands of the clock winding backwards" for millions of minority voters.
Debo Adegbile, special counsel for the NAACP, the country's largest civil rights organisation, will have the momentous task on Wednesday of defending one of the mainstays of America's prolonged struggle against racial discrimination.
Lined up against him will be an array of conservative lawyers and legislators, many based in the south, where the sting of the legislation is felt most keenly.
Wednesday's hearing, in which the nine supreme court justices will hear oral argument before delivering a ruling expected in June, is being seen as the greatest threat to the Voting Rights Act since it was enacted in 1965. The focus of the debate will be Section 5, a provision under which 16 states – mainly though not exclusively in the south – are subject to stringent federal monitoring designed to prevent them discriminating against African American and other minority voters.
In Shelby County v Holder, representatives of one of the proscribed areas - Shelby County in Alabama – are calling on the justices to throw out Section 5 on the grounds that racial segregation and discrimination are in the past, and therefore such exceptional measures are no longer necessary. Under the terms of Section 5, any of the identified jurisdictions must seek "pre-clearance" from the Department of Justice or a federal court in Washington before they can make any substantial changes to their voting arrangements.
But Adegbile will go before the judges to argue that the blatant attacks on the voting rights of black and other minority citizens which the Act addressed were still very much a live problem. In comments to reporters, he said that there was an "unbroken chain of more than 100 years of intense and persistent discrimination against minority voters across large parts of the country."
The 1965 Voting Rights Act was one of the towering achievements of the civil rights movement and the presidency of Lyndon Johnson. It was passed at a time when hundreds of thousands of black voters were still effectively disenfranchised through a range of dirty tricks, some as crude as imposing a poll tax on voting that weeded out poorer, disproportionately minority, citizens.
The NAACP brief submitted to the supreme court ahead of the hearing points out that the jurisdictions covered by Section 5 have shown a consistent pattern of discriminatory behaviour. Between 1982 and 2006, the jurisdictions collectively tried to introduce 1,300 discriminatory voting measures, all of which were blocked under the Act.
Drawing on a phrase used in supreme court deliberations in the past, Adegbile said that the method of discrimination might have changed over time, but "old poison was being poured into new bottles". Alabama, the state from which next week's challenge originates, has had almost 240 discriminatory voting laws blocked over that period.
The NAACP brief notes that "purposeful discrimination by Alabama lawmakers persists to the present day". Though the population of the state is a quarter African American, there are still no black statewide elected officials.
In 2011, a federal court hearing a gambling case found that there was "compelling evidence that political exclusion through racism remains a real and enduring problem in Alabama" and that the desire to disenfranchise blacks remained "entrenched in the high echelons of state government". Several white legislators involved in the case were recorded on tape comparing black voters to "illiterates" and "Aborigines".
Paradoxically, Shelby County, the specific district that has brought the supreme court challenge, itself has dirty hands in terms of a persistent pattern of discriminatory offending. The county has a decades-old history of holding "at-large" elections – votes staged across the entire district to make sure that the majority white population always prevails.
It also has a history of "diluting" black representation by redrawing boundary lines to destroy majority-black districts. As recently as 2008, the small town of Calera in Shelby County introduced a redistricting plan that resulted in the defeat of the only black member of the city council – a move that was later overturned under the same section 5 of the Voting Rights Act that the leaders of Shelby County now want to strike down.
"This is not a theoretical concern," said Adegbile. "The Voting Rights Act is strong medicine, for a strong problem."
The enduring problem of electoral skullduggery in the US was on ample display during last year's presidential election. Mainly Republican-controlled legislatures introduced an unprecedented number of reforms that erected barriers to voting that disproportionately affected minority communities.
President Obama on Friday lent his voice to the defence of the Voting Rights Act. He said that if the safeguards were removed, "it would be hard for us to catch those things up front to make sure that elections are done in an equitable way".
Earlier this month Obama ordered the creation of a non-partisan commission to look into how the voting experience in the US could be improved, following evidence of considerable impediments, including long lines at the polls, last November.
Section 5 currently applies to nine states in their entirety: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. It also applies to identified parts of a further seven states: California, Florida, Michigan, New Hampshire, New York, North Carolina and South Dakota.
New Hampshire is in the process of "bailing out" of Section 5, which means it has had a clean record under the terms of the Act for the past 10 years and is now being freed from its provisions. The NAACP argues that the process of the "bail out" rebuts Alabama's claim that the legislation is too rigid and incapable of change.