We were both in the courtroom yesterday for the oral argument in the Shelby County, Alabama, voting rights case, and were particularly struck by one aspect of the arguments: the strange persistence of the myth that Section 2 of the Voting Rights Act is an adequate substitute for Section 5. The working theory seems to be that if Section 5 is declared unconstitutional or the coverage formula in Section 4 is struck down, there’s always Section 2 of the Act. We call that a theory because there is no basis in reality for believing it.
Solicitor General Don Verrilli told the Justices that Section 2 cases are not an adequate substitute for Section 5, emphasizing that the voter has to bear the burden of proof and other heavy burdens, including cost. Attorney Debo Adegbile followed that up with the point that Sections 2 and 5 work in tandem, with Section 5 often needed to insure that gains won in Section 2 cases are protected.
From our own perspective as two lawyers with more than a hundred Section 2 cases in our combined nearly 90 years of practice (forty years plus each), we have some points we think are important to consider as the Justices decide this case. We would also note the importance of Supreme Court cases like United States v. Raines.