The Effects on Voting Laws after the Shelby v Holder Supreme Court Ruling – 13

Supreme Court Oral Argument Highlights and Excerpts (continued)

Mr. Rein listened as Justice Sotomayor interceded on his rebuttal by asking him: “Do you think that the right to vote is a racial entitlement in Section 5?” to which Mr. Rein replied no, and brought up the Fifteenth Amendment’s protection of the right for all citizens to vote. Justice Sotomayor then expounded that she asked a different question and simplified the point by saying “Do you think Section 5 was voted for because it was a racial entitlement?” and added “Do you think there was no basis to find that…” Mr. Rein started his next statement by explaining that in 1964 the issue of racial discrimination caused Congress to react, due to its belief that it was rampant in certain areas of the Country. “So to that extent, as the **intervenor said, yes, it was intended to protect those who had been discriminated against.” Justice Sotomayor then asked him if he believed that the problem of racial discrimination pertaining to the right to vote no longer existed and it was no longer going on anywhere within the Country to which Mr. Rein answered “I think that the world is not perfect… we are not arguing perfectibility,” and then went on to state that the Petitioner proposes that there is no indication that the areas that are covered by the Section 4 formula and Section 5 preclearance are exclusively subjected to this type of analysis.” Justice Sotomayor then stated that some of the statistics that were given by Mr. Rein during his testimony portrayed that the State of Alabama wasn’t in violation of anything that should leave them in a position to be covered under the Section 4 formula but added that “there are others… [Statistics] that are very compelling that it has.” She then asked him why the decision should be left to the Supreme Court as opposed to Congress about the “types and forms of discrimination and the need to remedy them?” Mr. Rein then explained that first off, in general we aren’t looking solely at Alabama but looking at it relatively to “other sovereign States” He then rehashed Justice Kennedy’s point of Alabama by itself as well as all other of the covered states “be given a chance, subject to Section 2, subject to cases brought directly under the Fifteenth Amendment, to exercise their sovereignty…” to which Justice Sotomayor asked him “How many other States have 240 successful Section 2 and Section 5…” Mr. Rein then again contended that he could point to the statistics but maintained that singling out the Petitioner’s State, as opposed to Massachusetts, or any of the other States; in his opinion wasn’t really the way to go. He said that the actual decision should rest on the “validity of the formula” which “brings Alabama in.” He then again spoke to the ratio of elected black legislators as being balanced to Alabama’s black populace and further pointed out that it’s been an extensive period of time since the State has had a “Section 5 rejection.”
With that said, he again brought up Justice Breyer’s previous inspection, referring to what appears to be his comments that the Act as a whole should be reexamined to decide if the original reason for its implementation still exists for the same reasons and isn’t in modern principle a … what Justice Breyer termed “new disease” and went on to say that “let’s just try a little bit more until somebody is satisfied that the problem is cured?”. Judge Breyer interjected by saying to Mr. Rein “Don’t change horses. You renew what is in the past… where it works, as long as the problem isn’t solved. Okay?” With that Mr. Rein professed his thoughts by saying “Well, and I think the problem to which the Voting Rights Act was addressed is solved.” He went on to note the changes of registration and the voting capability and continued the premise by saying “That problem is solved on an absolute, as well as, a relative basis.” Returning to Justice Breyer’s previous remarks he continued the analogy referring to a disease detected in the population in 1965 which was addressed with a radical available treatment, that might lend assistance to curing the malady, but when it came to 2005 and a new disease was detected even though the original disease was eradicated. But if there is a new sickness, then why shouldn’t the original treatment be used? He then categorically stated that he wouldn’t. Justice Kagan then said that “that is the question, isn’t it? You said the problem has been solved. But who gets to make that judgment really? Is it you, is it the Court, or is it Congress?” Mr. Rein brought about laughter when he said “Well, it is certainly not me” to which Justice Scalia responded “That’s a good answer. I was hoping you would say that.” After the levity reverted to a tone of symmetry, Mr. Rein continued his point telling the Court that although Congress had the authority to examine the question and make “a record,” it was up to the Supreme Court to decide if the problem had truly been solved or a new related yet different problem exists. Justice Kagan facetiously responded by saying “Well, that’s a big, new power that you are giving us, that we have the power now to decide whether racial discrimination has been solved?” She went on to say that she didn’t believe that authority fell under the Court’s purview or specific area of responsibility. Mr. Rein countered by addressing Justice Kagan, asserting that he made no claim that the Court had that power but only that “based on the record made by the Congress,” the Court did in fact have the ability to review Congress’s established record and act upon it.

(**Definition: somebody who intervenes in something, or a party that enters a lawsuit as a third party in order to protect its interests)
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