“If Congress is going to single out separate states by name, it should do it by name,” Kennedy said. “Congress just didn’t have the time or the energy to do this; it just reenacted” the existing formula.
Justice Samuel A. Alito Jr. called the Voting Rights Act “one of the most successful statutes that Congress passed in the 20th century” but nevertheless said the selection of jurisdictions covered by Section 5 makes no sense today.
Comparing jurisdictions that are covered with those that are not, he questioned whether discrimination is “a bigger problem in Virginia than in Tennessee, or it’s a bigger problem in Arizona than Nevada, or in the Bronx as opposed to Brooklyn.”
Solicitor General Donald B. Verrilli Jr., who along with Debo P. Adegbile of the NAACP Legal Defense and Educational Fund was defending the law’s reauthorization, was bluntly asked by Roberts: “Is it the government’s submission that the citizens in the South are more racist than citizens in the North?
Verrilli said the government was not making that claim but instead was arguing that Congress had found that Section 5 was still needed in those jurisdictions and, in doing so, was relying on a formula that the court had found constitutional in four previous examinations.
The law was being challenged by Shelby County, Ala., a growing suburb south of Birmingham. The county was represented by Bert W. Rein, a Washington lawyer who said today’s Alabama bears “no resemblance” to the state that earned its spot on the 1965 list.
But the liberal justices were armed with statistics. “You’re objecting to a formula, but under any formula that Congress could devise, it would capture Alabama,” said Justice Elena Kagan, citing findings that a greater proportional number of violations of the act occur in the South.
Justice Sonia Sotomayor said it was a recent violation by a town in Shelby County that led to the current case. “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?” she asked.
Although the discrimination of 1965 may no longer be present, Justice Ruth Bader Ginsburg said, “the discrimination continues in other forms.”
The question of deference to Congress provoked the most dramatic moments. When Scalia said the 98 to 0 Senate vote for reauthorization was evidence that lawmakers had not seriously considered the issue, Kagan took the unusual step of addressing him directly.
“Well, that sounds like a good argument to me, Justice Scalia,” she said. “It was clear to 98 senators, including every senator from a covered state, who decided that there was a continuing need for this piece of legislation.”
Addressing Verrilli, Scalia repeated his concern that extending the voting rights law is “not the kind of a question you can leave to Congress.”
Verrilli disagreed, saying, “We are talking about the enforcement power that the Constitution gives to the Congress to make these judgments to ensure protection of fundamental rights.”
Kennedy suggested several times that another part of the law, which applies to the entire nation, is enough to prevent discrimination.
The symbolic significance of Section 5 could make the court reluctant to strike it down entirely. Instead, the justices could keep the section but declare that the formula used in selecting the covered states is outdated and must be revisited. Proponents of the law say that would effectively doom Section 5, because it would be hard to get a new formula through a partisan and polarized Congress.
The case is
Shelby County v. Holder
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