all voters to replace that historically has been no for discrimination. that's an example taken from one of the section 215 cases from alabama. i don't know what the difference is accept that this court were spent making the secondary is not important. but the form of discrimination is still the discrimination found it to be so. >> when congress is addressing a new tivo, assuming i can find this evil to a level justifying -- >> it said we can't keep up with the way states are doing it. >> we are dealing with two different questions. was that kind of remedy never before and never after an vote against a century prior restraint in the exercise of core software functions was that

justified? and in katzenbach we are confronting an emergency with people who will not honor 15th amendment and who would use -- >> and in 2006, congress went back to the problem, developed a substantial record, talked about what problems have been solved, what problems have yet to be solved and decided that although the problems had changed, the problem is still evident to not that they actually continue. it's hard to see how congress could develop a more thorough record than a day. >> i'm not questioning whether the congress did its best. it's whether congress found with adequate to invoke his usual remedy. >> congress must've found the situation was even clearer and violations more evident because originally the vote in the

senate was something like 79 to 18. in a 2006 extension of his 98 to nothing. there must've been even clearer in 2006 the these states were violating the constitution. do you think that's true? >> justice scalia, it was clear to 98 senators including every senator from a covered state who decided there was a continuing piece of legislation. >> or decided they'd better not vote against it. none of their entries in voting against it. >> i don't know what they're thinking exactly, but it seems to me one might reasonably think this, it's gotten a lot better, but it's still there. so if you have a revenue that

wasn't totally over, wouldn't you keep there been any? or would she not at least say a person who wants to keep that remedy, which is not yet dead, let's keep it going. is that an irrational decision? >> that is a hypothetical that doesn't address what happened. the old disease, eliminating people's rights to register and vote. >> the old disease is discrimination under the 15th amendment, abridging a persons right to vote because the color or race. >> the focus of the congress in 1965 and in katzenbach was on registration and voting. >> added already evolved. >> i beg your pardon, but i think this court has never decided the 15th amendment

governs the dilution. the original enactment was under the 15th amendment. >> denial or abridgment. what would it mean except for dilution? >> i let you lectured him on election, but not another. separate primary rules from election rolls. abridgment can be done in many ways. dilution is a different concept. we're not saying it isn't covered are the 14 amendment. there is an old disease in that disease is cured. if you want to label disease and generalized it, you can see the new disease is still a disease. >> some of the questions to this point mirror what the government says towards the end of this brief. it's rather proud of this reverse engineering. we really knew of specific

states we are interested income the server uses all categories to cover that state. is that a methodology in your view is superb. and proportionality? >> i think it is not. i don't accept that it was reverse engineered. it was as justice breyer continued because it was fair. if you look at what was done and approved in 1964, the problem areas we examine in detail, identify the care of her wrist aches that would let somebody say yes, discrimination is right. the turnout is below the national average by a substantial margin. that spells it out or we have an existing right it's all very rational. here you have to say, is the finding with respect to every

state, alaska, arizona, jurisdictions in new york city, is the designation conqueror to the problem you detect in each one, even assuming any problems require the extraordinary relief, what's the proportionality of this remedy to state-by-state? is reverse engineered, first of all since congress thought about it and said we made up a list in our heads and this old formula miraculously covered the list. >> suppose that's the rationale when i'm getting some of the questions made. what is wrong with that? >> if there was a record sufficient for each of those states to sacrifice their inherent power to prior restraint, i think you sort that

could argue how congress describes them as long as it's rational might work. i don't think we have that record here. >> i don't know why you even go that far under the equal footing doctrine. gobi property single estates by name and if that in effect is what's being done, it's equally improper, but she don't seem to make that argument. >> i thought it sort of extraordinary to say we want to hit the save state. doesn't matter what formula we use them as so as long we want to hit the safe states is good enough and that makes the constitutional. >> i agree with that. whatever saying -- >> i would like to hear the answer to the question. >> the answer is congress cannot arbitrarily pick out states. they teach it stay up with with equal dignity.

the teaching of katzenbach is what congress has done that examination, they can devise a formula even if it understands that formula will not apply across all 50 states. what we accept katzenbach in terms of picking out states in sampling a look at you, that does not protect the equal dignity of the states. >> the formula applied right now , covered jurisdictions have less than 25% of the nation's total population account for 56% of all successful publish section two lawsuits. if you do that on a per capita basis, the successful section two lawsuits four times higher in jurisdictions that noncovered jurisdictions. so you can say this should be covered, maybe they should be covered. the formula seems to be working

pretty well in terms of going after the actual violations on the ground and who is committeeman. >> is to fallacies, justice kagan in that statement. number one is some kind of ntt. as judge williams did, you look at them one by one, giving them equal to me. >> for my start underinclusive and overinclusive. congress has developed this formula and continued that actually seems to work pretty well in targeting places where they're at the most successful section two lawsuits, the most violations on the ground that have been adjudicated. >> if you look at the analysis state-by-state, that isn't true. congress has picked out states at the top in other states like illinois are tennessee and i don't think they deserve preclearance.

abiding by population may make it look better. but it's not only irrational but we adopt it. they say it's irrational because that makes delaware, small state, look worse before the primary violators. it may make a nice number, but there's no justification for that match your good >> it happens not to be what congress selected. >> you could say the user rationale outbursts. just if it rationale, which happens to produce this result doesn't seem very persuasive. >> your time is set. about ready to expire for the rebuttal. can you tell me it seems the government can easily bring a section to a nice part of that ask for bail and under section three? are those expensive time-consuming suits?

do we have anything in the record that you could advise? it's just an effective remedy. >> number one, there's pulmonary injunctions. it depends on the kind of dispute you have. some of them are very complex and we complex every state but a section five challenge saying the attorney general is demanding preclearance. it's not the nature of section two. if you look at the voting rights act, one thing that stands out as you're up against states with entrenched discriminatory practices in their lot. the remedy congress put in place for those states with section two and all across the country if there's a problem, the remedy a section two. so if congress passed section two with inadequate remedy, it could do specific specifics and

maybe we have to put time tables under, but that's not what happened. so i think section two covers even more broadly because it deals with results in which the court has said is broader in effect. it's an effective remedy and at this point, given the history, the right thing to do is go forward under section two and remove the stigma of prior restraint in preclearance and the unequal application based on data that is no better history in 1972. >> something was said about equal footing. in houston back, the court said the doctrine of the equality of states in south carolina does not have this approach for that doctrine applies only to the

time upon which states are admitted to the union and not to the remedy for local evils which subsequently appears. has the court changed that interpretation? >> that referred to the fact that once you use a formula, you're selecting now. the court felt the formula was rational in theory and therefore it did not miss a server of the equality of the states. they were all assessed under the same two criteria, some past, some did not. i think i really doesn't mask the need for equal treatment to other sovereign states. >> i'm going to have a hard time at that because you can't be suggesting the government sees a problem in one or more states and decides it's going to do something for them and not for others look emergency relief and

that somehow violates the equal footing doctrine. you can tree stays the same because their problems are different, populations are different companies are different. everything is different about the states. >> what congress uses article i, section eight come and have substantial latitude. were talking about remedial power here. we are talking about overwriting powers that are reserved to the states to correct abuse. when congress does that, it has to treat them equally. >> tell me what you think is last of the rational means test in city of rome. do you think the city now controls the 14th and the 15th amendment and how we look at mak satirizes under them. >> justice of mar, the two tests have a lot in common because in the city of ernie, the

katzenbach decision was pointed out as a model of asking the questions that proportionality ask us to address. number one, how does this remedy meet finance a constitutional violation? bass that question and katzenbach. what's the relationship between the two? and then i have to ask the question, all right, this killing a fly with a sledgehammer a fair question because with a search on the core functions of the state, a great deal of caution and care is required. so i think that the rational basis to apply to delegated powers, but here on one hand the solicitor defense under the 14th and 15th amendment say have something doesn't violate common look worse precedent under the 14th amendment is

very clear that proportionality attests, but i don't think we would really need to get that far because we believe if you examine it under macola, it would fail as well. are there no further questions? >> thank you, council. we would give you five minutes and a commensurate increase in the general's time. >> thank you, mr. chief justice. >> there's a fundamental point at the outset. and when it knowledges petitioner, this court in northwest austin at the voting rights act made a huge difference in transforming the price of this country for a century. section i preclearance was the principal engine of that progress it has always been true only a tiny fraction result in objections. so that progress has been a

result of the deterrence and constraint section five imposes unfair jurisdictions and not the actual enforcement it means of objection. to reauthorize section five in 2006 had to decide whether it could be confident to the attitudes and behaviors covered jurisdictions have changed in a bet that very effective constraint and deterrence could be confidently removed. congress had as justice kagan identified a very substantial record of need before it. >> a little bit about that record. do you know how many submissions that were for to the attorney general in 2005? >> at another precise number. >> 37,000. >> one out of 3700.

mr. chief justice, that's why he made the point that they keyway in which section five -- everyone agrees significant progress we've made is principally because of section five of the voting rights act has always been true albeit tiny fraction of submissions resulted in objections. forever into the future you can say there has been improvement, but the only reason are these extraordinary procedures that deny the states sovereign powers, which the constitution prisoners. so the only reason it's improved is because of these procedures, we must continue this procedures in perpetuity. >> that's not the argument. congress relied on far more than just the deterrent effect. there was a number of chechens, signing does related.

>> do you know which state has the worst ratio of white voter turn out to african-american turnout? massachusetts. where african-american turnout actually exceeds white turnout? mississippi. >> yes, mr. chief justice. especially in the finance of an reauthorize the act of 2006 said the first-generation problems have been largely dealt with. >> which state has the greatest disparity in registration between white and african-american? massachusetts. 30s mississippi for the rate is higher than the white registration rate. the choice congress faced -- congress wasn't writing on it links play. it faced a choice and that choice was whether the conditions were such that it could confidently conclude that

the deterrence and constraint was no longer needed and in view of the record of continuing need in view of the history week knowledge is not sufficient on its own to justify reenactment, but it's certainly relevant to the judgment congressman because it justifies congress having made a cautious choice in 2006 to keep the constraint and deterrence in place. >> justice alito, there's no question the voting rights act has done enormous good. it's one of the most successful acts in the 20th century and one could go further than not. but when congress decided to reauthorize it in 2006, why would you comment on congress under the conference in proportionality standard to make a determination of coverage? maybe the whole country should be covered or maybe certain

parts of the country should be covered based on a formula that is grounded in up to date statistics. but why wasn't that required by the congruence in proportionality standards? >> suppose congress in 1965 had basic coverage formula on voting statistics are made to 19, 46 years earlier, to think katzenbach would come out the same way? >> now, it was different than what congress did in 1965. it is not an say. in 1965 this court upheld four separate times over the years and it seems to me the question before congress on proportionality or the reasonably adopted formula in northwest houston is whether the judgments retain that geographic coverage of sufficient relations

and congress did have before a evidence about disproportionate results in section two litigation and jurisdictions do not resubmit if a substantial basis for congress to make a judgment the coverage formula should be kept in place, particularly given it has a mechanism envelop mechanism. >> that is reverse engineering that you seem so proud of. it seems to me that it is furious the real purpose of the statutes. and if the congress is going to single out separate states, shade. if not, you should use criteria relevant to the existing and congress didn't have the time and energy to do this. >> i think the formula was rational and effective in 1965. the court upheld a ban entry

returns after times after that. >> the marshall plan is very good, two? but times change. >> the question is whether times have changed enough that the differential between jurisdictions and the rest of changed enough that congress could confidently make a judgment that this is no longer needed. >> could you respond to the question that justice kennedy asked earlier, which was why isn't section two enough time? they could bring section two claims privately do. you heard the question. >> yes, with respect -- start with katzenbach. katzenbach made the point that section two litigation was in a substitute for section five because the section five does a ship the burden and i think it

is self-evident that section two cannot be the work of section five. take one example. polling place changes is the most frequent type of section five submission. changes after an election can be a source of great mischief. what section five does is require changes to be precleared on a 60 day calendar which prevents that kind of mischief and there's no way you could do section two. >> i think the evidence clears the individuals who were just insufficient in section five is utterly necessary. no doubt about that. but with a modern understanding of the danger polling place changes, but respect of

injunctions, with preliminary injunction and the government itself can commence these suits is not clear to me that there's that much difference in the section to suit down preclearance. i may be wrong. i don't have statistics. >> i don't think that conclusion follows. there's thousands thousands to polling places in registration techniques, et cetera. most of those facing the cost-benefit ratio is going to be one of the reasons katzenbach said section five is necessary and is strongly against these suits with respect to the big redistrict teens, the katzenbach holds are extremely expensive and typically resulted after the fact litigation. what is true if there could be a

preliminary injunction. for section two is a very complete substitute rests entirely on ability to demonstrate injunctions can do comparable work to my section five does. they haven't made any effort to do that. the civil rights division tells me it is their understanding that section two series was a preliminary injunction issued. so i don't think there's a basis given the weighty question before the constitutionality. section two is a valid substitute for section five. i just don't think the petitioners have given the court anything that allows the court to reach that conclusion. >> can you tell us how many attorneys and staff are involved in the preclearance process? >> a very substantial number. >> what does that mean?

>> andrés, dozens? >> i think it's dozens. so it's a substantial number. it is true in theory those people could be used to bring section two litigation, but that doesn't answer because it still never going to get thousands of under the radar changes in no still be in the position for the question will be whether conjunctions there able to do the job. i'll point out the irony in the argument that what the petitioner wants for that kind for the section by process is much more efficient and much of our cost effect there. >> why should not apply everywhere in the country? >> congress made a reasonable judgment that in 2006 is prior judgments, there is more of a

risk continue to be validated. >> did you really think the record in 2006 supports the proposition -- let's take changing the location of polling places. that's a bigger problem in virginia and tennessee or arizona and nevada or the bronx as opposed to brooklyn. >> the combination of the history, which i concede is not dispositive, but is relevant because it suggests caution is in order but that's a reasonable judgment. the fact there is a very significant disproportionate successful section to be sold as compared to the rest of the country that congress was justified in concluding that there was reason to think that continue to be a serious enough differential problem. >> the statistics i have before me showed that in the five years prior to reauthorization, the

gap between success in section two suits in the cover to noncovered jurisdiction was eliminated. do you disagree with? >> congress appropriately look in a broader time frame and i think the right way to look at it is not just a population judgment that mr. rein was critical of. i think this is in the cat's amicus brief that they contain only 14% of the nation, so they are generating up to 80% of the litigation. >> isn't the government's admission to more racists in the north? >> it is not a night do not know the answer. >> you said it's not than you do not know the answer. >> is under submission.

i don't have the answer. but what i do know this congress had evidence of a continuing need a san section five objections, the purpose space character, section two rate and persistence of polarized voting in a gigantic wild jurisdictions that there was need to maintain the constraining effect of the preclearance process in a covered jurisdiction and not imposed on everyone else. >> that's right. given the differential. >> i just want to be sure that i hear your answer to an allegation argument that's been made at least as i've picked up the 90s he has, the problem is terrible. it has gotten a lot better. it is not to some degree. i think there is a kind of common ground. then the question is what about

the statute that has a certain formula? one respond if it has a formula that no longer has relevance in terms of its care to mistake, but it still picked out nine states. so so far you are with me. so it was rational when you continued. you just keep it going. you're not how to quite the same criteria as if you read it in the first place. but it does street state saw the same that are somewhat different. one response to that is this is the 15th special amendment. maybe you're right. the less perceived state-by-state. let's look at a state-by-state. that's what we normally do. now i don't know how satisfied are you that answer is.

i want to know which are responses, if he's right, that there is an irrationality involved if you're writing it today in treating stay day, not to to massachusetts or something. so if that's true, do we respond state-by-state? or is this a matter we should consider not a supplied, but on its face. i want to hear what you think about that. >> to make it to responses, justice breyer. the first one focuses on the operation of the law and the consequences that flow from it. i do not think shelby county or alabama got to bring a successful challenge on the basis that it ought not to have covered arizona or alaska. the statute has been a

mechanism. those jurisdictions can build themselves out of it and if they do and it doesn't work, they may very well have a challenge they can bring to the law. that doesn't justify given the structure of the law that there's a tailored mechanism. >> i don't understand the distinction between facial and a supplied and they talk about formula. as applied to shelby county are covered because of the formula, so they challenge as applied to them. i'm not even sure what your position is on the formula. if the formula congruent and proportional today? review had this reverse engineering argument? >> congress' decision to reenact it was congruent and proportional. >> to the problem was the formula congruent and proportionate? >> the court has found four

different times at the formula in the same kind of problems mr. ryan is identifying now. we're truly because of course devices were eliminated by the statutes no jurisdiction and how do they save in the registration had been very substantially ameliorated, that there were additional problems as the second generation problems to make a congruent and proportional that congress was sent writing on a blank slate in 2006. congress is making a judgment about whether the formula come everyone agrees and the case depends on the proposition section five is a big success. >> maybe it was, mr. verrilli. that's a problem i have. this court doesn't like to get

involved in racial questions such as something that can be left to congress. the problem here however is the comment i made earlier comment that the initial enactment of this legislation in a time when the need for it was so much more abundantly clear with double digits against it and that was only a five-year term. then it was reenact it five years later, a can for a five-year term. double digits against it in the senate. that was reenact it for seven years come in single digits it. been active for 25 years, eight senate votes against it. and the last enactment, not a single vote in the senate

against it and the house is pretty much the same. i don't think that is attributable. i think it is very likely attributable to a phenomenon called perpetuation of racial entitlement. it has been written about whenever a society adopts racial entitlements. it is very difficult to get out through the normal political processes. i don't think there's anything to be gained by any senator to vote against continuation of this act. and i am fairly confident it will be reenact to in perpetuity unless a court can say it does not comport with the constitution you have to show where you treat different states differently that there's a good reason for it. that is the concern that those

of us who have questions about the statute has. it is not the kind of a question you can leave to congress. they're certain districts in the house that are black districts by law just about now. even the virginia senators have no interest in voting against this. the state government is not their government and they're going to lose those if they do not reenact the voting rights act. who's going to vote against that in the future? >> you have an extra five minutes. >> thank you. [laughter] i may need it for the question. >> first, we are talking about the enforcement power that the constitution gives to the congress to make these judgments to ensure protection of fundamental rights. so this is a situation which

commerce is given a power which is given to act upon the state and it cannot have been lost on the framers of the 14th and 15th in it at the power of congress is confirming on them is likely to be exercised in a deferential manner because of us can herd to deal with problems in the former states of the confederacy. so with respect to the grand of power, it is to congress to make these judgments. of course subject to review under the standard of northwest austin, that's the first point. the second point i say with all due respect, i think it would be extraordinary to the behind congress as expressed in the statutory findings and evaluate congress on the basis of that mode of analysis --

>> i'm not talking about dismissing it. i'm talking about looking to see whether it makes sense. >> i do think the deference congress does the city, katzenbach says that different is appropriate because of the nature conferred here and the superior institutional confidence of congress to make these judgments. these are judgments that assess social conditions. judgments about human behavior. predictive judgments of human behavior and something that people in congress know the most about, which is voting on the political process. i understand your point about entrenchment, but with respect to the senate, you just can't say it's in everybody's interest to section bible make it easier for some of the senators to win. it's going to make it harder.

>> to think the preclearance device could be enacted for the entire united states? >> i don't think there's a record that would substantiate that. >> is a federal interest of each state being responsible to ensure it has a political system that accent named indecent unconstitutional way. >> we acknowledge that northwest austin. >> if these monuments to the civil rights movement, if it wants to acknowledge is the better off doing not or if under the united states government. >> of course it would be better. >> for congress to exercise the authority in 1965.

with the exercise of that authority that brought about situation where we can argue about whether it's still necessary. the fundamental appointments is what congress did was make a cautious choice in 2006 that given the record before it in the history, the more prudent course was to maintain the constraining effect of section five, given the federalism costs because what it protects is the right of fundamental importance of the constitution gives the express authority to protect appropriate legislation. >> i would like to make sure i understand your position as applied versus spatial issue. if your position that this could be a different case if that were

brought by a come as, a county in alaska as opposed to shelby county, alabama? >> when they try to articulate what our position is. we recognize it's a facial challenge and we defended as a facial challenge, but our point is the facial challenge can't succeed because they are able to point out that maybe some other jurisdictions that i've not to be appropriately covered and that's especially true because there's a tailoring mechanism in the statute. if it doesn't work in jurisdictions that could make a claim, they will haven't applied challenge. that's how we feel. >> thank you, general. >> thank you, mr. justice. >> mr. adegbile. >> associate justice, and may i please the court? the proportions of the act

illustrates two points about the nature and considering aspects in the affected areas. whether section two is adequate standing alone. as their brief demonstrates, in alabama and many jurisdictions, section two victories often meet section five to be less benefits of the ruling in the section to case. that is to say these measures act in tandem to massena nam or of cases. >> justice scalia -- >> cannot think anybody is contesting it's more effective. the issue is why just in the states? >> fair enough. it's beyond the question and shows then specifically a pioneering come a demonstrated pattern of section two and i've

been used in tandem for us other jurisdictions come in the section two cases are one-off examples. we point to a number of examples. take for example, selma, alabama. of the 1960s, but the observers over necessary to give effect to the principle of section five was that in 1965. >> a section to case can have it order for bail under section three and then you basically have something that replicates section five. >> behling is available if there's an actual finding of a violation. it has been used in circumstances. the united states brief points to those. one of the recent was in port chester, new york. it's quite clear that the repetitive nature in those places take, for example, after this court rules the

redistricting plan after the 2000 round of redistricting discrimination in the remedial election, the state of texas try to shirt and constrained for purposes of denying the latino community of the opportunity to the benefits of the ruling. but we seem to section two is the benefits invest in incumbents who would not be there but for the discriminatory plan. congress and the house report, i believe they should be seven time it continues to be inadequate remedy to address the problem of successive violations. another example is endemic to 90s in mississippi with a section to case to break down into a registration system that had a discriminatory purpose when mississippi went to implement the national voter registration act, they try to bring back to a registration end

of the section five enforcement action was able to knock it down. >> to recruit the reverse engineering? >> i would frame it differently, chief justice roberts. my understand is the history person portends in the reauthorization, but congress and none of the reauthorization stopped with a historical backward look. it takes cognizance of the experience, but also looks to see what the experience has been on the ground and what congress on 2006 was a surprisingly high number of objections after the 1982 reauthorization. >> the question is whether or not that disparity is sufficient to justify the differential treatment under section five of the take away the formula if you think it has to be reverse engineered and not simply justified on its own, then it seems to me you have a much harder task to justify the

differential treatment under section five. >> the court is to be sufficiently related to mr. principal sources of evidence. >> is also congruent and proportionate. >> indeed. i don't understand this to be emulated. i think they are part of the same of value-added mechanism. the first question is this congress remedy and send pain? that is essentially what is trying to get to you. if dr. rhee to expand the constitution. we know congress is trying to implement the 15th amendment and history tells us about that. >> the 15th amendment is limited to discrimination and of course the preclearance requirement is not. >> that's correct. the court cases have held congress and popper exercise can reach beyond the core of the

intentional discrimination with prophylactic effect when they demonstrate a substantial problem exists. the two things that speak to this issue about the disparity in coverage than continuing to cover jurisdictions. there were two major inputs. the section five activity is a range of different obstacles was passed to reach the discriminatory thing. >> the section five, but it says nothing about the presence or absence, if not right? >> i come to my second category. the second category has national application. with the evidence in this case shows before congress is the concentration of section two successes in the jurisdictions is substantially more.

justice kagan said it was four times more per population data. the fact of the matter is another piece in this case for patent mccreary looks at all section two cases and shows the directional sound they appointed to disparity under section two. >> all of the noncovered states are worse in that regard than the noncovered states? >> everyone of them is worse. >> it's a fair question. >> is the crucial question. congress has selected these nine states. is there some good reason for selecting these nine? >> what we see in the evidences of the top eight states of section two outcomes, seven of them or cover jurisdictions. the eighth was the part of the mechanism is justice kennedy points out in the jurisdictions that have special voting.

so that points to the fact this is not a static statue. >> i think the point is if you draw a red line around the states that iran, at least some of those have a better record than some of the states that are out. so in 1965, we have history. we have 200 years of slavery. 80 years or so of legal segregation. we've had 41 years at the statue in the statute is held the law. so therefore, 2005 looks back and says don't change horses in the middle of the stream because we still have a ways to go. the question is, is it rational to do that? and could differ on that one thing to say this of course this is aimed at states.

what do you think the civil war was about? of course it is aimed some states some states differently than others. and at some point, that historical and practical sense that come in that renew what were taped his justification works out. the question i think this hasn't run out now? now you tell me, windows that ran out? what is the standard for when it runs out? never? is something you've heard people worried about. never run out? or does it run out but not yet? or do we have a clear case where the statistic run-up. >> fair enough, justice breyer. what the evidence shows if it hasn't run out yet. the whole purpose is that we make progress in congress recognized the progress he made.

for example, to examine a provision to address the registration problem. in terms of when we were there, our great hope is by the next reauthorization. in 15 years, which is now nine years from where i stand today before you, congress should go look and see if it's still necessary. so they don't think this is to be there in perpetuity. in 2011 in which a federal judge cited the court's opinion, the legislators caught on tape referring to african-american voters as illiterates. the judge cited the northwest austin case, the muckraker case in our pre-cbs, the south has changed in the progress, but some things remain stubbornly the same in the train after to deny voters the franchises by developing this history to this very day.

>> has there been egregious episodes of the kind you're talking about in states that are not covered? >> absolutely, chief justice roberts. >> adesso make the point that it continues to be justified. >> i think it's fair to look at on some level piece by piece, state by state. you have to look at the great mosaic. this is in part about our march to history to keep promises their constitution says for too long for him that an escort in congress have both taken promises seriously in light of the substantial evidence. it is reasonable for congress to make the decision that we need to stay the course so they can turn the corner. to be fair, this cannot go on forever. our experience teaches sixth amendments have had to be passed to ensure safeguards. they protect voters, 7% eligible voters who have not had the

opportunity to register, but because i written notice that the united states constitution is about. >> thank you, counselor. five minutes. mr. rein. >> thank you, mr. chief justice. >> to think the right to vote his entitlement to section five? >> the 15th amendment protects the right. >> i asked if a question. do you think it is a racial entitlement? do you think there is no basis? >> commerce is reacting in 1964 to race discrimination, which is prevalent in jurisdictions. so to that extent, yes it was intended to protect those who have been discriminated against. if i might say, --

>> to think racial discrimination in voting has ended? there's not anywhere? >> i think the world is not perfect. we are not arguing perfect ability. there's no evidence caught up by the formula of the places uniquely subject. >> some statistics, but there are others compelling the past. why should we make the judgments and not congress? about the types and forms of discrimination and the need to remedy some? >> may i answer that? number one, we are not look in alabama in isolation. we're looking relative to other sovereign states. the question is has alabama even in isolation? those states reach the point for the given a chance subject to section two, subject to cases brought to exercise. >> how many other states have

248 section two and section five? >> we are not here to try alabama or massachusetts or any other state. the question it's validity of the formula. if you look at alabama, it has a number of black legislators proportionate to the population of alabama. i want to come to justice breyer's point because i think he is on a somewhat different wavelength, which is isn't this a mere continuation? showed shouldn't affect the paddock before me must strive or until someone is satisfied in the problem is cured? >> you don't change horses. you renew within the past where it works as long as the problem isn't solved. >> i think the problem to which the voting rights act was addressed to solved. look at the registration and

voting. that is an absolute disposability basis. that is like saying if i detect a disease affiliate in 1865 and i have a radical treatment that may help cure that disease when it comes to 2005 naca new disease, why not apply the old treatment? >> that is the question, isn't it? the problem has been solved, but who just make that judgment really? is that you, the court or congress? >> is certainly not me. >> that's a good answer. i was hoping you would say that. last mac >> congress can examine it. congress makes the record. it's up to the court to determine whether it has been solved. >> that's a big new power are giving us that we have the power to decide whether racial discrimination has been solved?

>> i did not claim that power, justice kagan. based on the record by congress to determine whether the record justifies discrimination. >> you referred to the problem identified by the tool for picking up the states, which was literary test, et cetera. i suspect the problem with the denial or abridgment by the state of right to vote on the basis of race and color. and that test was a way of picking out places for that problem existed. now with my version of the problem is the problem, insert is not solved. if your version of the problems come up with a receipt test is a problem, you have a much smaller case. so how would your opinion do we decide what is the problem the congress is addressing the

voting rights act? >> you look at katzen back in the four corners of the voting rights act. it responds to the use of devices. that problem has been resolved definitively, so it can't be the basis of further legislation. but we talk about here is congress looks and said could solve that. section five has done its work. people register voters. senators to see a very large group of the population has politically wedded themselves to section five are not going to vote against it. so i think that evidence would suggest the efficacy of section five. you have a different constituency from 1964. coming to the point