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Shelby County, Alabama v. Holder (12-96) - Key Provision of Voting Rights Act In Play

Per The Blog of Legal Times (an ALM Publication):

"The constitutionality of a key part of the nation's Voting Rights Act appeared in serious trouble in the U.S. Supreme Court on Wednesday as the justices heard arguments over Congress' 2006 reauthorization of the act.

"In Shelby County, Alabama v. Holder, the court is asked whether Congress exceeded its authority under the 15th and 14th Amendments when it re-authorized Section 5 under a formula that the challengers contend is outdated and intrusive on state sovereignty. Section 5 currently requires nine states, primarily in the South, and parts of seven others to have any changes in their voting practices pre-cleared by the U.S. Department of Justice or the federal district court in Washington, D.C. The formula in Section 4(b) determines which jurisdictions must submit to Section 5.

"While a large crowd rallied in support of the act on the sidewalk in front of the Court, intense questioning ensued inside the courtroom."

...

"Justice Antonin Scalia noted that when Section 5 was adopted in 1965, there was double-digit opposition to it in the Senate and with each reauthorization, the number of opposing votes decreased until there was no Senate opposition in 2006.

"'I think that's attributable to a phenomenon that has been called the perpetuation of racial entitlements,' he told Verrilli. 'Once you enact them, it's very hard to get out. I'm fairly confident this will be re-enacted in perpetuity' unless a court steps in to examine the justification. 'The concern here is this is not the kind of question you can leave to Congress.'

"Verrilli said it would be 'extraordinary' to look behind the judgment of Congress in 'a sort of motive analysis.' He added, 'These are predictive judgments about human behavior and voting that Congress knows much about.' And the Constitution, he said, expressly gives Congress the enforcement power in this area."

More after the jump...