On the morning of Feb. 27, 2013, I entered the Supreme Court as part of the NAACP Legal Defense Fund team representing Alabama voters in Shelby County, Ala. v. Holder, a challenge to the Section 5 “preclearance” provision of the Voting Rights Act.
The provision requires states and jurisdictions with some of the worst histories of voting discrimination to submit any changes in voting laws to the U.S. Department of Justice or a federal court for approval (or “preclearance”) to ensure that the changes are free from discrimination before they can be implemented.
The Supreme Court had considered the constitutionality of the Voting Rights Act four times before, and each time upheld the heart of the act. The most recent such challenge had been in 2009. But that didn’t mean that we were expecting an easy time of it.
I’ll never forget the hush that came over the courtroom when Cecilia Marshall, widow of former Supreme Court Justice Thurgood Marshall, and civil rights hero U.S. Rep. John Lewis, D-Ga., entered the courtroom. The fact that they were there to witness the arguments signaled – for anyone who didn’t already get it – the weight of the issue before the court.
Once arguments got underway, the courtroom reacted once again – this time with a shocked gasp – when Justice Antonin Scalia referred to the Voting Rights Act as a “perpetuation of racial entitlement.” To the contrary, the Voting Rights Act is an American entitlement that was paid for through countless sacrifices and deaths untold.
Although we were on the right side of the law and history, it seemed pretty evident that at least some of the justices – and possibly a majority – were not on our side. I try not to dwell too much on June 25, 2013, the day the Supreme Court issued its devastating decision in the Shelby case, striking a core provision of the Voting Rights Act known as “Section 5,” rendering its protections inoperable.
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