Breaking In: The Rise of Sonia Sotomayor Read Online Free PDF Page B

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    Alabama officials and the Southern states backing them in the case of Shelby County v. Holder tried to establish a record that would make it easy for the Roberts Court to follow through on its suggestion that it was time for the United States to move beyond this racial remedy. They stressed that the huge gap between white and black voter registration in the 1960s had closed and that African American turnout in some places during the 2012 elections was higher than white turnout. The Obama administration and civil rights advocates, alternatively, sought to make it difficult for the Roberts Court to invalidate the law aimed at Southern states by building a record that highlighted allegations of bias in such covered places as Texas, Louisiana, and South Carolina.
    In his arguments before the justices on behalf of Shelby County in late February 2013, Bert Rein—again hired by Blum—asserted that the “preclearance” requirement for any changes to districting and ballot rules was an unconstitutional relic of an Old South that no longer existed. Rein contended that the government had been relying on an outdated formula, tracing to discriminatory polling practices in the late 1960s and ’70s, to restrict the nine states from making changes without prior approval. U.S. solicitor general Verrilli countered that Congress had compiled a sufficient record to demonstrate that the decades-old formula continued to target the places with the most serious problems of voting discrimination. 18
    As with college affirmative action, this was the first time that Justice Sotomayor was hearing a voting rights dispute on the Supreme Court. Hispanics, along with African Americans, had benefited from the Justice Department’s oversight of states with histories of race discrimination. Rein had not gotten very far along in his argument when Sotomayor and fellow liberal Justice Kagan asked why a time-honored plank of the Voting Rights Act should be invalidated in a case from Alabama, a state that had known decades of racial violence and discrimination.
    “Think about this state that you’re representing,” Justice Kagan said. “It’s about a quarter black, but Alabama has no black statewide elected officials.”
    Justice Sotomayor followed up, sharpening the focus on Shelby County: “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?” In Shelby County alone, she asserted, Section 5 had prevented “240 discriminatory voting laws” from taking effect over the years. A telling example—though one not mentioned by either side at oral argument—involved the city of Calera. Over objections of the U.S. Justice Department, that Shelby County city had drawn a new voting district map plan that caused the sole African American on the city council to be voted out of office. After the Justice Department forced Calera to redraw the map, the councilman regained his seat. 19
    Rein did not challenge Sotomayor’s numbers, but he said that black voter registration and turnout was “very high” in Alabama. He also stressed that evidence on the ground was irrelevant when officials were lodging such a broad-based challenge to a law.
    Justice Kennedy, sitting up in his chair and peering out through rimless glasses, said he was skeptical of a law that singled out the South for special federal regulation decades after the era of Jim Crow. “If Alabama … wants to acknowledge the wrongs of its past,” he asked Solicitor General Verrilli, defending the federal policy, “is it better off doing that [as an] independent sovereign or … under the trusteeship of the United States government?”
    Verrilli said that many of the original places Congress targeted because of their deep-seated discrimination still needed oversight. “Of fundamental importance here is that that history remains relevant,” he responded to Kennedy. That history of racial bias in America and its remedies