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Solicitor General Donald B. Verrilli, who presented the government’s case defending the law, called Section 5 the “principal engine” driving the progress that has been made since the statute was passed.
Justices Sonia Sotomayor, Stephen G. Breyer, Ruth Bader Ginsburg and Elena Kagan were just as probing when questioning Bert Rein, who represented Shelby County. The justices asked why, if covered areas continue to show evidence of discrimination, there was any evidence that the current formula was outdated.
“Assuming I accept your premise, and there’s some question about that, that some portions of the South have changed, your county pretty much hasn’t,” Sotomayor interjected at the beginning of Rein’s argument. “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?”
“I don’t know what they’re thinking exactly,” Breyer said of the most recent congressional reauthorization. “But it seems to me one might reasonably think this: It’s an old disease, it’s gotten a lot better, a lot better, but it’s still there. So if you had a remedy that really helped it work, but it wasn’t totally over, wouldn’t you keep that remedy?”
Though Justice Anthony M. Kennedy, thought to be the likely swing vote on the case, seemed open to subjecting areas with a history of voting discrimination to pre-emptive enforcement, he questioned whether the statute is appropriate as currently applied. The Marshall Plan and the Northwest Ordinance were once-needed laws that were later abandoned, he pointed out.
“Times change,” Kennedy said. “Congress just didn’t have the time or energy to do this, it just re-enacted it.”
Congressional Democrats defended the law during a Wednesday news conference on the court’s steps.
“The Voting Rights Act restored justice, equality and fairness to our country’s most sacred right: the right to vote. We are now witnessing unprecedented attacks on the right to vote and now more than ever, we must also fight to maintain its legacy and integrity,” said Congressional Hispanic Caucus Chairman Rubén Hinojosa of Texas.
Hinojosa was joined at the court by Congressional Black Caucus Chairwoman Marcia L. Fudge of Ohio, House Minority Leader Nancy Pelosi of California, Assistant Minority Leader James E. Clyburn of South Carolina, Rep. John Lewis of Georgia, Congressional Asian Pacific American Caucus Chairwoman Judy Chu of California and Congressional Progressive Caucus Co-Chairman Raúl M. Grijalva of Arizona.