Preclearance Requirement of the Voting Rights Act

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Notable quotes

Supreme Court

JUSTICE ALITO: "Well, if section 2 is ineffective, then why didn't Congress extend section 5 to the entire country? Could Congress have reauthorized section 5 without identifying significant differences between the few jurisdictions that are covered and the rest of the country?"

CHIEF JUSTICE ROBERTS: "Well, that's like the old -- you know, it's the elephant whistle. You know, I have this whistle to keep away the elephants. You know, well, that's silly. Well, there are no elephants, so it must work. I mean, if you have 99.98 percent of these being precleared, why isn't that reaching far too broadly." (in regards to the argument that section 5 is highly effective)

JUSTICE SCALIA: ... "You know, the -- the Israeli Supreme Court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there. Do you ever expect -- do you ever seriously expect Congress to vote against a reextension of the Voting Rights Act? Do you really think that any incumbent would -- would vote to do that?"

JUSTICE KENNEDY: "Thirty attorneys." (on staff) "Do you quarrel with the assessment -- the testimony before the Senate Judiciary Committee that it costs the States and the municipalities a billion dollars over 10 years to comply?" (In regards to the cost of preclearance processsing)

JUSTICE KENNEDY: "But yet -- yet the Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio. The sovereignty of Alabama, is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments than the other. And does the United States take that position today? ... This is -- this is a great disparity in treatment, and the government of the United States is saying that our States must be treated differently. And you have a very substantial burden if you're going to make that case."

WW2 Flags

JUSTICE SCALIA: "But you're subject to preclearance and you cannot make changes without going to the Attorney General and asking for his permission....Is it any different from, from a -- a Federal law prohibiting certain speech? Do you have to subject yourself to the -- to the penalty for that speech before you can attack the law? I don't think so."

GREG COLEMAN: "...but if, for instance, the same coverage formula had been applied to the 2000 and 2004 elections, equalizing for citizen voting age population, the only covered State would have been Hawaii. Under that formula, using modern data, modern information, none of these States would have been covered if you account for noncitizen voting age population."

JUSTICE SCALIA: "How many years is that? (since the bailout provision was added) Over a quarter of a century, there have been 15 bailouts that have gone through? All of them in the State of Virginia?"

JUSTICE SCALIA: "It fends off Section 2 suits, I assume. I mean, that's great. You get a declaratory judgment, here -- you know, a benediction, and you skip off without having to face suits. That may be one reason. Another reason may be that they like the packing of minorities and the other -- the other districting tricks that can be -- that can be pulled because - because of the requirements of the Voting Rights Act." (in regards to the claim that covered States are finding that preclearance actually serves their interests)


JUSTICE ALITO: "Well, it's 18 percent. If these statistics are correct, the difference between Latino registration and white registration in Texas was 18.6 percent, which is not good, but it's substantially lower than the rate in California, which is not covered, 37 percent; Colorado, 28 percent; New Mexico, 24 percent; the nationwide average, 30 percent." (with regard to the claim that registration rates between Hispanics and whites was great in Texas.)

CHIEF JUSTICE ROBERTS: "Well, so your answer is that Congress can impose this disparate treatment forever because of the history in the south? ...Well, they said five years originally and then another 20 years. I mean, at some point it begins to look like the idea is that this is going to go on forever."

JUSTICE CLARENCE THOMAS: Justice Thomas was the lone dissenter. He said he would have held that the provision, known as Section 5, is unconstitutional. "The violence, intimidation and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains," he said.

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