The Effects on Voting Laws after the Shelby v Holder Supreme Court Ruling – 4

Supreme Court Oral Argument Highlights and Excerpts (continued)

Mr. Rein’s remained on point reaffirming that Section 4’s formula needed to be addressed. He again alluded to Northwest Austin stipulating that the Court had addressed the formula but stated that the circumstances involved “a very small jurisdiction… approaches a very big question” as noted by the Court at that time. In addition to Northwest Austin, he referred to City of Rome v. United States, a covered jurisdiction, where two officials of the city on behalf of the city filed a declaratory judgment action in the US District Court, pursuing relief from the Act established on an assortment of assertions. The three-judge panel rejected the city’s requests and approved summary judgment for the respondents, concluding that the rejected electoral changes and annexations, although not fashioned for a discriminatory purpose, still demonstrated a discriminatory effect. The court refused to allow the city to “bail out” of the Act’s coverage pursuant to Section 4(a) to escape Section 5’s preclearance requirement. The findings of the District Court demonstrated that the city had not proved that the 1966 electoral changes and the annexations rejected by the Attorney General didn’t have a discriminatory effect. Rein conversely referred to the Katzenbach ruling as a comparison to Rome and continued the analogy, determining that “the formula itself is the reason why Shelby County encounters the burdens, and it is the reason why the Court needs to address it.”

Justice Sotomayor pointed out that in the Katzenbach decision the Court didn’t look at the record of all the other States or all of the other counties, instead it “concentrated on the record of the two litigants in the and from that extrapolated more broadly.” It basically didn’t do what he was asking of this Court. She went on to say that Mr. Rein was asking the Court to ignore the record of Shelby County “and look at “everybody else’s.”

Mr. Rein responded by saying that he didn’t think that her description was “a fair reading of Katzenbach,” and went on to describe how he saw the issue, including stating that the Court examined if the “formula was rational in practice and theory.” He also mentioned that it was relayed by the Court that although the Court didn’t “have evidence on every jurisdiction that’s reached by the formula that by devising two criteria, which were predictive of where discrimination might lie, the Congress could then sweep in jurisdictions as to which it had no specific findings.” He summed up that thought by adding that the issue wasn’t being heard to analyze the jurisdictions but in practicality “to challenge this formula because in and of itself it speaks to old data, it isn’t probative with respect to the kinds of discrimination that Congress was focusing on and it is an inappropriate vehicle to sort out the sovereignty of individual States.” He made reference to the fact that he could say that Alabama has an amount of representatives that are in a fair proportion to the mount of black voters as well as a high registration rate and turnout but that doesn’t address the issue since Shelby County is only a single area within the state. He then finalized the thought explaining that Shelby County and Alabama are included in “a formula that is neither rational in theory nor in practice,” relaying his opinion that “that’s the hub of the case.”
With that said a quick volley between Justice Kennedy and Mr. Rein ensued where Kennedy asked Rein “: if you would be covered under any formula that most likely would be drawn, why are you injured under this one? I think that’s the thrust of the question.” Rein responded saying “Well, we don’t agree that we would be covered under any formula.” Kennedy stated “But that’s the hypothesis. Rein then spoke about Congresses power to look into jurisdictions such as Shelby County individually and without regard to how they stand against other States and other counties. He completed his statement by saying “…in other words, what is the discrimination here among the jurisdictions, and after thoroughly considering each and every one comes up with a list and says this list greatly troubles us that might present a vehicle for saying this is a way to sort out the covered jurisdictions…”

At this point he was interrupted by Justice Alito who began a round of hypotheticals which was joined in by Justice Scalia which Justice Sotomayor terminated with her statement that the hypotheticals initiated from a predicate that had no basis on the books but there was “no question that Alabama was rightly included in the original Voting Rights Act”, and continued by saying that additionally “there’s no challenge to the reauthorization acts… The only question is whether a formula should be applied today. And the point is that the record is replete with evidence to show that you should… It’s a real record as to what Alabama has done to earn its place on the list.” Rein responded by again pointing to the Katzenbach decision reiterating that “it came under a formula then deemed to be rational in theory and in practice.” Justice Breyer then said “So when Congress in fact reenacted this in 2005, it knew what it was doing was picking out Alabama.” His statement explained that because Alabama was again covered in 2005 it wasn’t for the original reasons but ‘the underlying evil’ was still a type of discrimination,” although “it’s evolved” … and then continued further points on that measure of the issue.

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