The Effects on Voting Laws after the Shelby v Holder Supreme Court Ruling - 7

Supreme Court Oral Argument Highlights and Excerpts (continued)

Verrilli then explained to the Court that the arguments were related; when Justice Roberts next asked Verrilli if he knew which State has the worst ratio between white and African American voter turnout which Verrilli did not have the answer to. Justice Roberts then apprised Verrilli that the answer was Massachusetts while asking him if he knew which State had the best, answering his own question with Mississippi. After Roberts' answer and subsequent question and answer Verrilli affirmed the fact and then continued by emphasizing "But Congress recognized that expressly in the findings when it reauthorized the act in 2006." He went on to explain that Congress understood that the "first generation problems had been largely dealt with, but there persisted significant…" Verrilli was not allowed to complete the thought when Roberts broke in again and questioned "Which State has the greatest disparity in registration between white and African American?" When Verrilli answered that he didn't have the answer, Roberts informed him that Massachusetts was also the answer to that question, and Mississippi was third "where again the African American registration rate is higher than the white registration rate."

Verrilli was then allowed to finish a thought when he conveyed to the Court that the difference in 2006 was that "Congress wasn't writing on a blank slate" when they faced the choice of reenactment. He continued by saying that the choice that Congress had to determine "was whether the conditions were such that it could confidently conclude that this deterrence and this constraint was no longer needed" He went on to say that Congress "made a cautious choice" in the renewal year based on the history and "view of the record of continuing need" which he admitted was "not sufficient on its own" to warrant the renewal but it was surely pertinent to Congresses conclusion because it justified keeping the constraint and the deterrence in place.

After Verrilli finalized his statement, both Justices Alito and Sotomayor tussled to gain the floor but Justice Alito inevitability acquired it and stated that "There is no question that the Voting Rights Act has done enormous good." Praising it as "one of the most successful statutes that Congress passed in the twentieth century." However, he set the basis for dispute by asking "why wasn't it incumbent on Congress under the congruence and proportionality standard to make a new determination of coverage?" He went on to speculate that it was possible that the entire country should be covered by the enforcement clause or possibly supplemental areas should be covered, grounded on a formula that is based on "up-to-date statistics." He further proposed the question why wasn't the formula required by "the congruence and proportionality standards." He theorized to the Solicitor General what would have happened if in 1965, Congress "had based the coverage formula on voting statistics from 1919, 46 years earlier." He then asked Verrilli if he thought the Katzenbach decision would have resulted with the same outcome.

Verrilli responded by pointing out that the actions of Congress in 1965 were unalike in the effect that Congresses actions in 2006 was not working with a "clean slate" as was the case in 1965. He continued by indicating that the coverage formula deemed to be proper in 1965 was upheld by the Court on four instances since its original institution and expressed that his feeling was that "the question before Congress under congruence and proportionality or the reasonably adapted … is whether the judgment to retain that geographic coverage for a sufficient relation to the problem Congress was trying to target, and Congress did have before it very significant evidence about disproportionate results in Section 2 litigation in covered jurisdictions, and that, we submit, is a substantial basis for Congress to have made the judgment that the coverage formula should be kept in place, particularly given that it does have a bail-in mechanism and it does have a bailout mechanism, which allows for tailoring over time." He referred to the "reasonably adjusted test in McCullough… or whatever the test is, and under the formula in Northwest Austin."

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