The Effects on Voting Laws after the Shelby v Holder Supreme Court Ruling – 3

Supreme Court Oral Argument Highlights and Excerpts

It’s commonly known that the present day Supreme Court is made up of five Justices that lean toward a conservative position and four whose viewpoint would be considered to lean liberal. Although their rulings should be solely based on the law, political opinions will most likely influence some decisions of the Courts membership, especially in matters that are open to each distinct Justice’s individual interpretation.

At the onset of oral arguments it became quickly noticeable how the pulse of the discussions would proceed, directly after Chief Justice Roberts established the start of proceedings.

The “Official – Subject to Find Review” holds many interesting, and some controversial statements and points. On behalf of Shelby County, Bert W. Rein, Esq. presented his argument which stated that the existing preclearance obligation of Section 5 of the Voting Rights Act which protected selected jurisdictions was an “antiquated coverage formula” and went on to reference eight Justices of the Court that agreed in 2005 that the 25-year extension granted by Congress “raised a serious constitutional question.” He went on to assert that “those Justices recognized that the record before Congress” in that year “made it unmistakable that the South had changed” disparaging “the extraordinary federalism and cost burdens of preclearance.”

Justice Sotomayor questioned counsel’s representation of the specific geographic location of the Petitioner saying that if “some portions of the South has changed, your county pretty much hasn’t.” and mentioned that 240 discriminatory voting laws were blocked by Section 5 objections and went on to say that “You may be the wrong party bringing this.”. And went on to ask “why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?”

Mr. Rein expressed his disagreement with the Justice’s premises and pointed out that the statement he introduced was that of eight Justices in a previous Supreme Court case (Northwest Austin) which he was referencing from 2009 when the Court rejected to rule on Section 5’s constitutionality; referring to the principle of Constitutional avoidance.

Justice Ginsburg then countered by saying that there “isn’t anybody… on any side of this issue”, including Congress “who doesn’t admit that huge progress has been made” in the South but cited the D.C. Court of Appeals dissenting Judge Williams who said, “If this case were about three States, Mississippi, Louisiana, and Alabama, those States have the worst records, and application of Section 5 to them might be okay”.

Judge Kagan also expressed adversarial comments in reference to Alabama’s possible exemption to the burdens of preclearance conveying to Counsel that Alabama would come in first if a formula were used by Congress looking into the amount of successful Section 2 suits per million. She continued by saying “…think about this State that you’re representing… I mean, you’re objecting to a formula, but under any formula that Congress could devise, it would capture Alabama.” Later she spoke to Mr. Rein during his presentation saying that in 2006 “Congress went back to the problem, developed a very substantial record, a 15,000-page legislative record… and decided that, although the problem had changed, the problem was still evident enough that the act should continue.”

Citing the Katzenbach decision, and other previous decisions that addressed the Voting Rights Act formula and preclearance, Rein told the Court that “they’ve all been addressed to determine the validity of imposing preclearance under the circumstances then prevailing, and the formula because Shelby County is covered, not by an independent determination of Congress with respect to Shelby County, but because it falls within the formula as part of the State of Alabama.” Based on his statement, Justice Sotomayor expressed that in general, “facial challenges” are “disfavored in our law.” and asked Mr. Rein the question, supporting Justice Kagan’s earlier statement saying “why do we strike down a formula, which under any circumstance the record shows the remedy would be congruent, proportional, rational, whatever standard of review we apply, its application to Alabama would happen.”
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