When Debo Adegbile ’94 appeared before the Supreme Court in April to argue against a constitutional challenge to Section 5 of the Voting Rights Act of 1965 (VRA) in Northwest Austin Municipal Utility District Number One v. Holder, it was the climax of several years’ effort to win Congressional reauthorization of temporary provisions of the VRA. Adegbile, the director of litigation at the NAACP Legal Defense and Educational Fund (LDF), had coordinated the organization’s national campaign strategy, testified in both the House and the Senate, and made appearances across the country to educate the public and engage in debate about VRA issues.

On the surface, the case was simple. A small Texas utility district with an elected board wanted the opportunity to “bail out” of its obligations under Section 5, which requires certain local jurisdictions with a history of discrimination to seek Justice Department preapproval before changing their voting procedures; Texas is one of the states singled out by Section 5. Since the utility district does not register voters, it was deemed ineligible to bail out, and so brought suit to win that right or, alternatively, to overturn the constitutionality of Section 5 entirely. The latter issue made NAMUD Number One v. Holder the most highly anticipated opinion of the term.

The tone of the oral argument on April 29 led most observers to believe that the Supreme Court might well declare Section 5 unconstitutional. Adegbile faced skeptical questioning from several of the justices, including Anthony Kennedy, considered a key swing vote in the case. One of the questions raised most prominently by the Court was whether the mix of covered jurisdictions was now outdated. Many legal analysts predicted a 5-4 decision.

The Court surprised both sides on June 22 when it released an 8-1 ruling that addressed the case in question narrowly while leaving Section 5 intact. In a majority opinion written by Chief Justice John Roberts, the Court gave non-voter-registering entities the right to seek bailout relief, but also implied that Section 5’s constitutional status might be in future jeopardy: “The Act imposes current burdens and must be justified by current needs.... Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.”

Richard Pildes, Sudler Family Professor of Constitutional Law, whose Congressional testimony related to Section 5's 2006 reauthorization was quoted in the opinion, said, “Congress had thrown down a gauntlet to the Court by not updating the Act in 2006, and the Court responded in its own more gentle way by essentially throwing the gauntlet back down to Congress and saying, ‘We’re going to permit this jurisdiction to win now and send you as strong a message as we can that the Act is in serious constitutional jeopardy.’”

Agreeing with Pildes, Samuel Issacharoff, Bonnie and Richard Reiss Professor of Constitutional Law, whose law review article on Section 5 was cited in the ruling, observed that “the most interesting feature of the opinion is the relationship between the Court and Congress.” While acknowledging that Section 5 could still have utility when it comes to hard-to-detect local issues, Issacharoff said, “If we look at where the problems have taken place in recent elections, Ohio and Florida come to the fore, and neither one is a covered jurisdiction under Section 5. That’s the reason for my skepticism that the structure of Section 5 is really directed toward the heart of voting problems in America.”

Adegbile, on the other hand, considers the continued relevance of Section 5 to be a legislative matter and not an issue for the Court to decide: “Where you have a statute that has withstood the test of time and has been a transformative piece of legislation that has helped move us from Jim Crow to a system of greater inclusion in the context of our most important right, that system should not lightly be set aside.... Discrimination in voting has proven to be persistent and adaptive, and the best way to attack it is to have focused attention, the type of focused attention that Section 5 brings.” Any attempt by Congress to revise Section 5 with an eye to a future Supreme Court challenge would be misguided, Adegbile said. “I think that it would be wrong and silly for Congress to begin chasing a moving target of the proclivities of five justices on the Supreme Court. It’s not what the Constitution calls for, and I don’t expect that’s what we’ll see on Capitol Hill.”

Acknowledging that no system is flawless, Adegbile said, “Section 5 has never been a perfect metric of all of the places where discrimination is happening, but it’s been a very effective one at getting at some of the most entrenched discrimination in places where it has been most pronounced.” Deeming the VRA part of an ongoing constitutional conversation, he added, “In my work I travel near and far to hear from those folks about whether or not they need Section 5.... Their experience has been such that they understand that the struggle for equality is not done yet.”

Posted on June 24, 2009