The Effects on Voting Laws after the Shelby v Holder Supreme Court Ruling – 10

Supreme Court Oral Argument Highlights and Excerpts (continued)

Mr. Adegbile opened his testimony with the following commentary:
“Mr. Chief Justice, and may it please the Court:
The extensive record supporting the renewal of the preclearance provisions of the Voting Rights Act illustrates two essential points about the nature and continuing aspects of voting discrimination in the affected areas. The first speaks to this question of whether Section 2 was adequate standing alone. As our brief demonstrates, in Alabama and in many of the covered jurisdictions, Section 2 victories often need Section 5 to realize the benefits of the… of the ruling in the Section 2 case. That is to say, that these measures act in tandem to protect minority communities, and we’ve seen it in a number of cases.”

Justice Scalia then asked in regard to Section 2 if that wasn’t the case in every state and went on to say that he didn’t believe that anyone was disputing that it had a better impact when synchronized with Section 5. However he asked why just in the now-covered states.

Mr. Adegbile responded by citing his brief which showed there was “a demonstrated pattern of Section 2 and 5 being used in tandem whereas in other jurisdictions, most of the Section 2 cases are one-off examples.” This was directed “specifically in the covered jurisdictions” Prior to that commentary he stated that it was beyond question that it would be the truth in any locale. He then provided an example by referring to Selma, Alabama in the decade of the 1990s, specifically pointing out that decade and “not in the 1960s”.

Justice Kennedy spoke next asking Mr. Adegbile to correct him if he was wrong discerning that a Section 2 case had the ability for a bail-in order, under Section 3 and which would ultimately allow “a mini… something that replicates Section 5.”

Mr. Adegbile expounded that the bail-in would be accessible if there was a definitive judgment of a violation of the constitution and went on to say that “it has been used in… in number of circumstances.” He then continued by further pointing out that: “The United States brief has an appendix that points to those.” He further gave recent examples such as Port Chester, New York and the case of the League of United Latin American citizens (LULAC) as well as what he termed an “example that makes this point very clearly” referring to a Section 2 case brought in Mississippi during the 1990s when the State tried to bring back dual registration when they initiated the implementation of the National Voter Registration Act. Enforcement by Section 5 “was able to knock it down.”

Chief Justice Roberts then asked Mr. Adegbile if he agreed with the *reverse engineering (see page 5) argument made by the Respondent which was previously brought up by himself and Justice Kennedy when they questioned both Mr. Rein and Verrilli about it in detail. Mr. Adegbile responded by stating “I would frame it slightly differently” and then went on to continue his thought on the matter saying “My understanding is that the history bears some importance in the context of the reauthorizations, but that Congress in… in none of the reauthorizations stopped with the historical backward look.” He noted that in 2006, after the reauthorization period of 1982 Congress believed there was a startlingly amount of ongoing objections which was further considered by the Chief Justice when he stated “I guess the question is whether or not that disparity is sufficient to justify the differential treatment under Section 5. He presumed that once the formula was detached, if it was thought that it needed *reverse engineering and was not basically warranted on its own, it seemed to him that it would have a more difficult test for it to “justify the differential treatment under Section 5.” Mr. Adegbile, referring to Northwest Austin said that it needs to be sufficiently related” and thought “there are two principal sources of evidence,” to which the Chief Justice retorted “we also said congruent and proportional. To this statement, Mr. Adegbile replied “…I think that they’re part of the same, same test, same evaluative mechanism.” He went on to explain that “the first question is, is Congress remedying something or is it creating a new right.” He then referred to Boerne which basically asked the question “is Congress trying to… do an end-around, a back doorway to expand the Constitution. We know in this area Congress is trying to implement the Fifteenth Amendment and the history tells us something about that.” Chief Justice Roberts then posed the question “Well, the Fifteenth Amendment is limited to intentional discrimination, and, of course, the preclearance requirement is not so limited, right?” To which Mr. Adegbile answered “That’s correct.” However he pointed out that in appropriate application of its remedial authorities, Congress can grasp beyond the root of the intentional discrimination in a case where they’ve exhibited that a significant problem is present with a preventive effect.

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