[EL] Oral Argument and Justice Kennedy

[Lillie Coney]

My take on this case and as evidenced last year is that covered areas may not be the best approach.  It is the behavior that indicates a threat to voting rights.

As long as election administrators or stated elected officials are willing to damage voting rights no matter where they are--that is a problem.  In 2012, covered areas did not perfectly match the egregious behavior.  

The Southern Strategy aggressive and brazenly used North of the Mason Dixon Line--why couldn't the Voting Rights Act be used by the DOJ?  These areas were not covered by the formula.

Are there options other than carving out portions of Section 5 that would create equal treatment for jurisdictions when the DOJ acts?

I do thing the Court knows how toxic cases involving election administration or rules have been.  Bush v Gore and Citizens United are two that come to mind.  To drop or change the use of Section 5 will have bad outcomes.  Last year made it clear if there was no Section 5 what we did see could have been a trip down memory lane no one would have enjoyed.

We take peaceful transition of power as a given, but we have it only because we have worked really hard at addressing the extremes people will go to in order to win an election.

Section 5 has not only assured predictability for voting in covered areas it has with no doubt in my mind curbed practices that caused real harms to our Democratic Republic.

Section 5 may not be perfect, but in law and life very little is everything we want.  

Lillie

On Feb 28, 2013, at 11:00 PM, "Larry/Cinthia Ottinger" <LarryCinthia at Verizon.net> wrote:

> Rick,
>  
> I listened to oral argument at the Court yesterday.
>  
> I don’t think there’s any question about Chief Justice Roberts’ views as evidenced by his repeatedly hostile questioning.  As one jarring example, the transcript confirms that this self-described “umpire of balls and strikes” actually asked the Solicitor General of the United States whether the United States was asserting that citizens in the south were more racist than those in the north.  Chief Justice Roberts was outdone only by Justice Scalia, from whom such remarks may be more expected though no less disturbing.  Thus, Justice Scalia went off on a rant attributing the overwhelming reauthorization of the VRA by Congress to a “phenomenon that is called perpetuation of racial entitlement.” 
>  
> Thus, the ultimate decision rests with Justice Kennedy.  Your points about Justice Kennedy, including in particular his strong feelings about the formula for covered jurisdictions and state sovereignty, certainly ring true but wanted to add a few other observations. 
>  
> Justice Kennedy was looking for reinforcement from Mr. Rein with respect to his characterization of and concern with the formula, but didn’t get it.  To the contrary, both Justices Kennedy and Scalia expressed surprise that petitioner was not arguing that the formula was “reverse engineered” to target specific, pre-selected states and thus violated the constitutional “equal footing doctrine.”  While Mr. Rein agreed that it would not proper to target specific states, he said: “First of all,  I don’t accept that it was, quote, ‘reverse engineered.’” Mr. Rein instead agreed with Justice Breyer’s characterization of what Congress did in the most recent reauthorization as simply extending the VRA and then went on to explain that the formula that Congress devised back in 1964 was at least then a rational test to get at “where the discrimination is ripe.”  Mr. Rein concluded his initial and primary response on this topic by saying that there is “no record” that members of Congress “made up a list of jurisdictions in [their] heads” and then realized the old formula would cover those jurisdictions and do the trick.
>  
> Justice Kennedy also more than once sought record evidence that Section 2 would provide an effective remedy in lieu of Section 5, as Justice Kennedy certainly was disposed to believe.  While Mr. Rein supported Justice Kennedy’s argument his response was not clear or convincing.  Indeed, Justice Kennedy expressed his tentativeness about making conclusions with respect to Section 2 as an alternative during Solicitor General Verrilli’s argument, which was far more persuasive and substantive than Mr. Rein’s response.  Thus, Justice Kennedy said “the evidence is very clear that Section -- that individual suits under Section 2 type litigation were just insufficient and that Section 5 was utterly necessary in 1965. No doubt about that.  But with -- with a modern understanding of -- of the dangers of polling place changes, with prospective injunctions, with preliminary injunctions, it's not clear -- and -- and with the fact that the Government itself can commence these suits, it's not clear to me that there's that much difference in a Section 2 suit now and preclearance. I may be wrong about that. I don't have statistics for it. That's why we're asking.”  Verrilli drove the point home to Justice Kennedy that the record was insufficient to reach a conclusion on this topic:  “I really think the Petitioner's argument that Section 2 is a satisfactory and complete substitute for Section 5 rests entirely on their ability to demonstrate that preliminary injunctions can do comparable work to what Section 5 does. They haven't made any effort to do that. And while I don't have statistics for you, I can tell you that the Civil Rights Division tells me that it's their understanding that in fewer than one-quarter of ultimately successful Section 2 suits was there a preliminary injunction issued.
> So, 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, I just don't think that the -- that the Petitioners have given the Court anything that allows the Court to reach that conclusion.”
>  
> While Justice Kennedy may be predisposed to decide the case for petitioners, and he neither needs petitioner to confirm his view of the case nor strong record evidence on Section 2 as a valid substitute, the briefing and oral argument did not make it easier for him.   The odds may still be that Justice Kennedy decides against the formula that will de facto eliminate Section 5 for the foreseeable future given the intransigence in the current Congress.  That would be tragic.  However, the argument certainly gave reason for some hope in this regard.  Knowing the importance of this case, which clearly will be part of his legacy, Justice Kennedy possibly could feel some professional, personal and institutional constraints.
>  
> Thanks,
>  
> Larry    
>  
> This is a personal message not on behalf of any organization.
>  
>  
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