The Effects on Voting Laws after the Shelby v Holder Supreme Court Ruling – 8

Supreme Court Oral Argument Highlights and Excerpts (continued)

Justice Kennedy again brought up the topic of *reverse engineering, and mentioned “that you seem so proud of” it, and elaborated by saying in its reference that he believed that the principal “obscures the real purpose of … the statute.” He continued the thought by saying “And if Congress is going to single out separate States by name, it should do it by name. If not, it should use criteria that are relevant to the existing… and Congress just didn’t have the time or the energy to do this; it just reenacted it”

Verrilli’s response was that he believed the formula to be “rational and effective in 1965.” He continued by expressing that the “Court upheld it then, it upheld it three more times after that.” After some analogies of previous historical acts that worked at the time of their institution, but since “times change,” stated by Justice Kennedy Verrilli appeared to go to the root of the issue and testified that “the question is whether times had changed enough and whether the differential between the covered jurisdictions and the rest of the country had changed enough that Congress could confidently make the judgment that this was no longer needed.”

Justice Ginsburg then asked Verrilli if he could respond to Justice’s Kennedy’s prior question regarding why Section 2 wasn’t enough in present day situations stating “The government could bring Section 2 claims if it seeks privately to do.” Which Verrilli answered by starting with the Katzenbach decision which “made the point that Section 2 litigation wasn’t an effective substitute for Section 5 because what Section 5 does is shift the burden of inertia.” He went on to say that he believed it was “self-evident” that the abilities of Section 2, by itself couldn’t do what Section 5’s abilities certified. He described as example a situation where if polling location closings or relocations were established “at the last minute before an election” were to transpire, calling it a possible “source of great mischief” this would be stopped by Section 5 without the authorization of it to be “pre-cleared” based on a “60-day calendar,” but there would be “no way in the world you could use Section 2 to effectively police those kinds of activities.”

Justice Kennedy went on to agree with the General’s assessment but only justified it to the original 1965 interpretation. Speaking of a “modern understanding” he said that it was unclear to him if in today’s environment, there wasn’t that much difference between a Section 2 suit and the abilities of preclearance, citing reducing the dangers by prospective and preliminary injunctions, as well as “the fact that the government itself can commence these suits.” But he also admitted that he might be wrong about his statement since he had no statistics to prove that point and finished by saying “That’s why we’re asking.” the question. Verrilli countered by expressing that he didn’t believe that “that conclusion follows” indicating that there are currently “thousands and thousands of these under-the-radar screen changes”, referring to “polling places and registration techniques, et cetera.”
He went on to say that “Even with respect to the big ticket items”, such as redistricting the “cost benefit ratio” is going to slant powerfully against bringing these types of law suits forward, alluding again to the Katzenbach decision, that’s outcome clearly displayed that “Section 5 was necessary.” Bringing out an additional point he maintained his concern that a preliminary injunction regarding Section 2 would not be “a satisfactory and complete substitute for” and could not do “comparable work to what Section 5 does” as was the argument of the Petitioner, and went on to say that the Petitioner hadn’t “made any effort” to prove their point. He went on to tell the Court that it was the understanding of the Civil Rights Division, that relayed their findings to him “that in fewer than one-quarter of ultimately successful Section 2 suits was there a preliminary injunction issued.” He summed up his argument by saying “I don’t think that there’s a basis certainly given the weighty question before this Court of the constitutionality of this law, to the extent the argument is that Section 2 is a valid substitute for Section 5” and strongly suggested that the Petitioner hasn’t showed the Court anything that would prove that case or reach that conclusion.

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