here's a final thought. the final thought is that they spend so much time before the public holding hands and gazing at each other. they spend more time doing that than anything else and pretty soon, you know, they start to believe it.

washington journal is live every morning at 7:00 eastern on c-span. today, a discussion on the impact of the health care law on mental health coverage. the alliance for health reform, johnson obert wood foundation are co-hosting the event. live at 12:15 p.m. eastern here on c-span. >> making a transition from journalism to books is exhilarating and completely verwhelming and frightening, but wonderful. >> why did you make that choice?

>> i made that choice because i wanted to be working on a book just because the freedom really allows you to dive into a topic and lose yourself and go off on tangents to really ough time explore a choice. >> sunday, taboo sciences, in space, the afterlife, system. human digestive mary roche will take your calls, -mails, facebook comments, and tweets, in depth, three hours live on sunday. >> last week the supreme court struck down the key provision of voting rights act, holding back the act is unconstitutional. it's used to determine which tates need federal approval before changing voting laws. now, the oral arguments from in the case which challenged the law. this is an hour and 15 minutes. >> first this morning, in case

1296, shelby county versus holder. justice, and may it please the court. eight four years ago, justices of a court agreed that 2005, 25-year extension of oting rights act section 5 preclearance obligation uniquely to jurisdictions reached by 4-b's antiquated raised a serious constitutional question. those justices recognized that record before the congress unmistakable t that the south had changed. the question for the current remedial needs justified the extraordinary federalism and preclearance. f >> may i ask you a question,

assuming that i accept your premise and there's some about that, that some portions of the south have pretty muchr county hadn't. many have many more iscriminating, 240 discriminatory voting laws locked by section five objections. remedied by erous section two litigation. may be the wrong party bringing this. >> this is an on face challenge. i might say, justice -- favor.'s in why would we vote in favor of a ounty whose record is the epitome of what caused the passage of this law to start with. >> i don't agree with your premises. when i ay number one, say the south has changeled, that's the statement made by the

ight justices in the northwest austin case. - theresn'tnybody int too. the -- in any side of this issue that huge admit progress has been made. congress itself said that. in -- in line with justice question, in the appeals, the judge ing judge there, williams, said if this case were states, mississippi, louisiana, and alabama, those worst records. the application of section 5 to them might be okay. he think ginsberg said as assessed various messages in the

record, he thought the states might be distinguished. he did not say -- he didn't reach the question whether or not those states should be preclearance, whether on an absolute basis there was subject t record to them. >> the states you're quarter black. alabama has no statewide elected officials. if congress were to write a that looked to the number of successful section 2 per million residents, alabama would be the number one state on the list. in unpublished section 2 suits, alabama would on the umber two state list. if you use the number of section actions, alabama would again be the number two state on the list. to a formula, g but under any formula that devise, it would capture alabama. if i might respond, i think

a similar omayor had question, it's why should it be on face. addresses to preclearance and the formula, to 've been addressed determine the validity of imposing preclearance under the circumstances prevailing and the formula. because shelby county is covered ot by an independent determination of congress with respect to shelby county, but within the alls formula as part of alabama. there's t think that any reluctance -- >> but challenges are generally our law.d in so the question then becomes, a formula trike down as justice kagan said which circumstance the record shows the remedy with the proportional, rational, whatever standard of applicationply, its to alabama would happen.

>> two separate questions. one is whether the formula needs be addressed in northwest austin. this court addressed the formula. circumstances there were a very small jurisdiction, as court said approaching a big question. rome.he 15i78 in so the formula itself is the shelby county encounters the burdens and the --son why the court >> interestingly enough, the court didn't do what you're asking us to do, which is to record of all of the other states or all of the other counties. it's basically concentrated on litigants of the two in the case. nd that extrapolated more broadly. i don't think that you're -- >> you're asking us to do something which is to ignore record and look at everybody else's. >> i don't think that's a fair katzenback. in katzenback, what the court

id was examine whether the formula was rational in practice and in theory. and what the court said is, evidence on t have every jurisdiction that's by hed by the formula, that devising two criteria, which was redictive of where discrimination might lie, the congress could then sweep in jurisdictions to which it had no specific findings. so we're not here to parse the jurisdictionings. to challenge the formula because in and of itself, it speaks to old data. with respect tive to the kinds of discrimination that congress is focusing on, it's an inappropriate the number of proportionate to the number of black voters. high registration and turnout of black voefters in alabama. but i don't think that addresses the issue of the rationality in

theory and practice of the formula. congress wants to write another statute, another statute, that would present a different case. e're here facing a county, a state that are swept in a formula that was neither in theory or practice. >> i suppose the thrust of the so far has been if you ould be covered under any formula that most likely would be drawn, why are you injured under this one? >> well, we don't agree we would covered. >> that's the hypothesis. under --uld be covered most suggested formulas for this kind of statute, why are you injured by this one? think that's the thrust of the question. think that if congress has to power to look at countyctions like shelby individually and without regard

stand against other states -- other count tips, in other words, what's the discrimination here among the jurisdictions and thoroughly considering each and every one, comes up this list and says greatly troubles us. for might present a vehicle saying this is a way to sort out jurisdictions. >> suppose congress passed the everyone whose last name begins with a shall $1,000 a ial tax of year. and let's say that tax is whose ged by somebody last name begins with "a," would t be a defense to that challenge that for some reason particular person should pay a $1,000 penalty that people a different last name would not pay?

>> no, it would just invent another statute. a debate as to whether somebody might invent a different statute that has a formula. >> i was about to ask a similar question. if someone was acquitted of a -- wouldrime, would it the prosecution be able to say, well, okay, he didn't commit this crime. congress could have enacted a different statute, which he this have violated in case? of course you wouldn't listen to that, would you? agree with that. >> it starts with the predicate basis application has no in any record. but there's no question that rightly imprudent in the original voting rights act. challenge to the reauthorization acts. the only question is whether a applied today.be and the point is that the report evidence to show that you should. like there's ot some made up

applied to you or why a different crime is going be charged against you. there's a real record as to what alabama has done to earn its place on the list. >> justice sotomayor, with the question alabama was placed in the act in 1964 because it was answered in katzenback because it came under form then deemed to be rational in theory and practice. congress has, you know, has readopted the formula and it's covers alabama. >> the reason for the formula. of course, part of the formula looks back to what happens in 1965. and he says, are you a urisdiction that did engage in testing and had low turnout or low registration? that isn't true of alabama

today. >> that's correct. >> so when congress in fact ed this in 2005, it knew picking as doing was out alabama. ou understood, it was picking out alabama, even though the -- that re not engaging in particular thing. but the underlying evil is the discrimination. analogy i could think of is imagine a state has disease. and in 1965, you can recognize he presence of that disease, which is hard to find by a certain kind of surface, movement, or plant growing up. now it's evolved. so by now, when we use that same formula all we're doing is state. out that but we know one thing -- the disease is still there in the state. because this is the question of a statute that, in fact, has worked.

the question, i guess, is do out some of those states and go back to justice as long 's question -- as it's rational in some instances, directly to pick out hose states, at least one or two of them, then doesn't the a facial r five challenge? that's the question. >> thank you. pryor, a couple of things important. northwest aid in austin, the opinion joined. he current needs have to generate current burden. so soed what happened in alabama doesn't justify. justify?t it's not a question of rewriting the statute. this is a question of renewing a statute that by in large has worked. if you have a statute that

i don't you might say, want it to sunset if it's worked as long as the problem is there degree. that's the question of rationality. isn't that what happen? >> if you base it on the of 1965, i could take the decisions that follow along lines. huge problem of the passage of the civil rights act. vestiges of discrimination. when i look at those today and has in what alabama terms of black registration and turnout, there's no resemblance. dealing with a completely changed situation -- keep emfa siting over and over again in your brief, registration, you said it a times this morning. congress was well aware that longer the was no problem. this legislative record is what they call second generation devices.

ongress said up front we know that the registration is fine. no longer the problem. continuesscrimination in other forms. let me speak to that. hat highlights one of the weaknesses here. could congress continue based on '65 and renew?in your question shows it's a different situation. continuing the efforts initiated in 1975. the reason section 5 was created was because states are moving faster than litigation new formsto catch the of discriminatory practices being developed. form, urt struck down one the states would find another. justice ginsberg

is calling it secondary. what congress said is it terms of voterin umbers but in other ways to disenfranchise voters like voting booth from a convenient location for all oters to a place that istorically has been known for discrimination. that's an example taken from one of the section 2 and 5 cases alabama. >> justice sotomayor -- >> i don't know what the is except that this court or some may think it's unimportant. of discrimination is different than what congress found it to be so. a when congress is addressing new evil, it assumes it can find

extraordinary premise. >> it said we can't keep one the way states are doing it. > i think we're dealing with two different questions. one is, was that kind of remedy, an unusual never before and never after invoked by the congress, putting higher restraint in the exercise of their core sovereign functions? that justified? they were enback, confronting people in the ountry who will not honor the 15th amendment and who will use -- >> in 1986, in 2006, congress back to the problem, developed a very substantial of 15,000-page legislative record, talked about been solved, had talked about what problems had decided solved, and that although the problem has hanged, the problem was still evident enough that the act should continue.

it's hard to see how congress developed a better and more thorough legislative rein?d than it did, mr. >> i'm not questioning whether congress did its best. question was whether what congress found was adequate to invoke the remedy. congress must have found that the situation was clearer and the violations even more evident than originally. because originally the vote in example, was or something like 79-18. 2006 extension was 98-0. even clearer een in 2006. that these states were violating the constitution. that's true? >> justice scalia, it was clear senators including every senator from a covered state who was a that there continue need for this piece of

legislation. perhaps ided that they'd better not vote against it, that there's nothing -- none in voting terests against it. >> i don't know what they were thinking, exactly. to me one might reasonably think this -- it's an old disease. gotten a lot better. still etter, but it's there. so if you had a remedy that work, but ped it wasn't totally over, wouldn't you keep that remedy? or would you not at least say a person who wants to keep that remedy which has worked for hat old disease which is not yet dead, let's keep it going. is that an irrational decision? does t is a hypothetical not address what happened. what happened is the old disease limiting people's right to and vote. >> no, the old disease is discrimination under the 14th -- 15th amendment which is abridging a person's right to

race. ecause of color or >> focus of congress in 1965 and katzenback in 1964 was on registration and voter -- voter collusion as well. it has evolved away from that or to. ted >> i beg your pardon, but i sotomayor, this court never decided that the it.h amount covers the 14th does, but the original enactment was under the 15th amendment. or abridgment? what would it mean except for delusion? >> abridgment might mean i let in one election but not the other. primary rules from election rules. ichmond can be done in many ways, delusion is a different concept. it's not covered by the 14th amendment. there's an old disease and that disease is cured.

if you want to label it disease generalize it, you can say well the new disease is still a disease. i think that's not what happened. >> some of the questions asked to this point, i think, mirror what the government says towards the end of its brief. it's rather proud of this engineering. we really knew it was some specific states we were interested in. we use these old categories to cover that state. is that a methodology in your that was appropriate under proportionalty. >> i think it is not. first of all, i do not accept quote, reverse engine engineered, i think it was continued because it was there. if you look at what's done and in 1964, congress said here's the problem areas that we detect. examined them in details. we identified the

haracteristics that would let somebody say, yes, the discrimination is right. they're using the tester device. is below the national average by a substantial margin. that spells it out. a relief valve in the then existing bailout. so it was all rational. you'd have to say is the finding with respect to every alaska, arizona, the cover jurisdictions in new york ity, is the designation congruent to the problem that you detect in each one, even assuming, and you don't accept any of the problems require the extraordinary relief, what's the -- proportionalty to this remedy you have state-by-state. erely saying it's reverse engineered first of all says congress has really thought we made up a say head and the old formula miraculously covered the list. there's no record that happened. >> counsel --

>> suppose there were, suppose rationale.hat that's what i got from the government's brief. that's the questions i get from bench. what is wrong with that? > if there was a record sufficient for each of those their to sacrifice inherent core power to preclearance to prior restraint, i think you would argue that how congress described them as long as its rationale might work. >> i don't know why you go that far. i don't know why the equal footing doctrine it would be proper just to single out states name and if that in effect is what's being done, it seems to improper.e you don't seem to make that argument. thing.ought the same i thought it was extraordinary hat congress could pick out -- we want to hit those eight

states. formula, we want to hit those eight states, constitutional. >> i'm not saying i agree with that. >> why congress would like to -- any problem >> i would like to hear the answer to the question -- justice kennedy is congress cannot pick out states. they have to treat each state dignity.l it has to examine all of the states. he teaching of katzenback is when exoning has done that kind of examination, it can dwitz a understands if it that formula will not apply across all 50 states. so we accept katzenback, but in terms of picking out states at you 'm going to look and you, no, that does not affect the equal dignity of the states. > under that formula, cover jurisdictions less than 25% of the nation's total population. they account for 56% of all of

the section two lawsuits. if you do that on a per capita basis. he successful section 2 lawsuits, four times higher in coverage jurisdictions than in jurisdictions. the formula -- you can say, you know, maybe this -- this covered.shouldn't be maybe this one should be. the formula seems to be working well in terms of going after the actual violations on committing nd who's them. >> there are two fallacies, kagan, in that statement. number one is treating the as some urisdictions kind of entity -- let us treat them. as judge williams did in his if you look at them one-by-one, giving the equal dignity. formulas are underinclusive and all are over inclusive. congress developed this formula continued it in use that seems to work pretty well in targeting the places where there the most successful section

2 lawsuits. where there were the most the ground that have been adjudicated. >> well, if you look at the state-by-state done by judge williams, that isn't true. congress has picked out some fall at the top and some that do not. making them look better is irrational. it's not irrational. it.bject to they say it's irrational, because after all, it makes small state, look worse on the list of violators. useful metric. it may make a nice number. happens to be the method congress didn't select. f they selected it, they could say they used a rationale that worked but because they picked rationale that happens to produce this result doesn't

persuasive. ery >> your time is about ready to expire for the -- for the rebuttal period. question.have this to you tell me -- it seems me the government could bring a ection 2 suit and as part of that ask for bail in under section three. are those ex-penaltiesive time consuming suits? have anything in the record that tells us or anything in the bar's experience that you us?ld advise it's just a -- an effective remedy. one, it is mber effective. there are preliminary injunctions. on the kind of dispute that you have. some of them are very complex. if it would be complex somebody brought a section five challenge in a three-judge court aying the attorney generals denied he preclearance. so the -- it's the complexity of nature of n, not the section two. and might i say, if you look at thingting rights act, one that really stands out is you're up against states with

ntrenched discriminatory practices in their law. the remedy congress put in place states was section two. and all across the country, let sovereignty.qual if there's a problem in ohio, two.emedy is section so congress thought section two was an inadequate remedy. of look at the specifics section two and say maybe we should put timetables in there or modify it. happened. what they re-enacted section two as it stood. so i think that section two more broadly because it deals with results. nd which the court has said is broader than effect. it's an effective remedy. and i think at this point, given history, the e right thing do is go forward under section two and remove the stigma of the prior restraint and the preclearance of the and the unequal application based on data that 1972.o better history than i just remind y

you because something was said footing.ual in katzenback, the court said equality of of the . e state

a problem with that because you can't suggest that congress sees a problem in one decides to do nd something for them and not the others like emergency relief and violates the equal footing doctrine. you can't treat states the same. their problems are different, the populations are different, the needs are different. verything is different about the states. uses the ngress delegation under article 1, about 8, we're talking remedial power here. alking about overriding to

correct abuse. do you think the city of b jorn controls the 14th and 15th we look at them? city of boerne, actually congress in that roportionalty asked us to address. one, how does this remedy meet constitutional violations. they ask that question. between therelation two. then you have to ask the question, all right, is this killing applied with a sledge hammer a fair question because you start to invade core functions of the state, a great

deal of caution and care is required. o the test still applies to delegated powers. 14th it defends under the 15th amendment saying if it oesn't violate in the 15th, it's the 14th. it's clear that the court has applied it. they don't think we need to get that far. because we believe that you under mccullough. >> thank you, council. questions have intruded on the rebuttal time. we gave you the five minutes and commiserate increase in the time. justice. you, mr. chief may it please the court. there's a point to be made at the outset. petitioner, this court in

northwest austin that the voting made a huge difference in transforming the blatantly racist sections of this country. ection 5 preclearance was the engine of that process and always been true that only a submissions of under section 5 result in objections. progress under section 5 hat follows from that is the deterrence and restraint but not in the of rcement by means objection. when congress faced the question of whether to reauthorize had to 5 in 2006, it decide whether it could be confident that the attitudes and jurisdictionsover had changed enough that that very effective constraint and eterrence could be confidently removed. has justice kagan and i had earlier, a need of it

before it -- i ask a little bit about that record. you know how many submissions preclearance to the attorney general in 2005? >> i don't know the precise number. thousands. that's true. >> 3700. >> you know how many objections lodge? >> one in that year. >> one out of 3700. justice, that's why i made a point a minute ago that the key way in which section be the case s to that everyone agrees that significant progress that we've -- is principally because of section five of the voting rights act. been true that only a tiny fraction of submissions result in objections. true.t will always be forever into the future. you could always say, there has been improvemented. the reason is are these extraordinary procedures that eny the state's sovereign powers that the constitution preserves in them.

so, the only reason it's true of these procedures you must continue those procedures in perpetuity. is that the argument? the argument. we do not think that -- >> it is not. -- congress relied on far more than just the deterrent effect. just a substantial record based on the objections and the types objections. >> that's a different finding. >> they're related. the u know which state has worst ratio of white voter turnout to african-american voter turnout? i do not? >> massachusetts you know who as the best, where african-american turnout exceeds white turnout? mississippi. >> yes, mr. chief justice, but ongress recognized that expressly in the findings when it reauthorized the act in 2006. the generation's problems had been dealt with. > which state has the greatest disparity in registration between white and

african-american? massachusetts. third is mississippi where, the african-american registration rate is higher than the white registration rate. but when congress -- when the choice congress faced when it -- writing on a t blank slate in 2006, mr. chief choice.s, it faced the and the choice was whether the conditions were such that it confidently conclude that this deterrence in this longer needed.no relevant to congress making because it made a cautious hoice in 2006 to keep the constraints and the deterrence in place. >> justice? > there's no question that the voting rights act has done enormous good. it's one of the most successful

congress in the 20th century. one could go further than that. hen congress decided to reauthorize it in 2006, why congress incumbent on congruence standard, maybe the whole country should covered or maybe certain parts should be covered based on grounded in t is up-to-date statistics. hy wasn't that required by the proportionalty standards. suppose congress in 1965 based he coverage formula on voting statistics from 1919? earlier. do you think katzenbach would way? out in a different >> what congress did in 2006 was different than in 1965. 2006 was not writing on a clean slate.

judgment was made what the coverage should be. the court upheld it four separate times over the years. seems to me the question before congress under congruence proportionalty or the katzenbach apted verse says mcclung in austin, whether they made that and they got the target. before it d significant evidence of disproportionate results in litigations. and that we submit is a congress l basis for to make the judgment but the coverage formula should be kept n place, particularly given that. it has a bailout mechanism that allows for tailoring over time. reverse engineering seems to that obscures the -- real purpose of this statute. and if congress is going to

single out separate states by do it by name. if not, it should use criteria hat are relevant to the existing -- and congress just didn't have the time or energy to do this. re-enacted it. think the formula was rationale and effective in 1965. then, it upheld it upheld it three more times after that. >> the marshall plan was good too. act of the northwest ordinance. the time has changed. >> the question is whether times changed enough and whether differential in coverage jurisdictions and the rest of country have changed enough that congress could confidently ake the judgment this was no longer needed. >> could you respond to the kennedy that justice asked earlier? hich was for why isn't section 2 enough now? the government could bring 2 claims if it sits

privately. question. the >> with respect to katzenbach, the point that it wasn't a substitute for section 5. what section 5 does is shift the burden of inertia. it's self-evident section 2 section 5.he work of polling places. that's the most frequent type of submissions, changing in polling places. changes in the last minute efore an election could be a source of great mischief, polling places, moving them to locations, etc. section 5 requires those kinds f changes to be precleared and on a 60-day calendar that prevents that kind of mischief. in the world you can use section 2 to police

that -- i do think the evidence is very clear that ndividual suits in section 2 litigations were just insufficient and section 5 was utterly else in in 1965. no doubt about that. >> it remains -- > but with a modern understanding of the dangers of changes with perspective injunctions, with preliminary injunctions, and the fact that the government itself can commence not clear to me that there's that much difference in the section 2 suit now and in the preclearance. i may be wrong. i don't have statistics for it. don't think that conclusion follows. i think there are thousands and housands of these under the radar screen changes, the polling places and registration techniques, etc. in most of those, i submit the cost-benefit ratio would be the

cost of the litigation which is the reasons katzen bach said was necessary. it will bring the suits. even with respect to the big icket items, the big katzenbach gs that holds. commissioner's e race there could be a preliminary injunction. that think in the argument section 2 is satisfactory and complete substitute for section rests entirely on their ability to demonstrate that they an do the comparable work to what section 5 does. they haven't made an effort to do that. statistics, t have the civil rights division tells me it's their understanding that suits han one quarter of was the preliminary injunction issued. so i don't think there's a basis, certainly given the weighty question before the court of the constitutionality f this law to the extent that the argument is that section 2

is a valid substitute for ection 5, i just don't think that the petitioners have given the court anything that allows the court to reach that conclusion. >> can you tell us how many attorneys and how many staff in the justice department are the preclearance process? >> is it five or 15. a very substantial number? >> what does that mean? means i don't know that number. >> okay. so -- hundreds, dozens, what? i think it's dozens. so it's a substantial number. in theory that those people could be used to bring litigation. but that doesn't answer the mail submit. never going to get the thousands of under the radar changes and you're going to be in the the question will be whether preliminary injunctions are available to do the job. no evidence that that's true. i'll point out there's a certain that what e argument the pell tiggeser wants is to

ubstitute section two of litigation of that time with a section 5 process which is much efficient, much speedier, much more efficient. >> why should it apply country?re in the >> i think congress made a reasonable question that the 2006, the prior judgments that there was more of risk in the cover jurisdictions continued to be validated. the record in 2006 supports supportssition that -- the changing of polling places. that's the bigger problem in tennessee, or an bigger problem in arizona than in nevada, or in the bronx as opposed to brooklyn? >> i think the combination of concede is which i not dispositive but is relevant suggests caution is in order and that's a reasonable question on the part of congress. the combination of that history

nd there's a significant disproportion of section 2 results in the jurisdictions as ompared to the rest of the country that congress was justifying concluding there was reason to think there continues be a serious enough differential problem. > the statistics that i have let's sayshow that in the five years prior to reauthorization, the gap between suits in the covered and noncovered jurisdictions, it was eventually eliminated. do you disagree with that? >> you have to look at it. in a ss looked at it broader time frame. and it made judgments. way nk actually the right to look at it is not just the mr. ation judgment that rein was critical of. the fact is and i think it's in katzamicus brief, it covered 14% of the jurisdictions in the

nation. jurisdictions in the nation are covering 82% of the litigation. the government's submission that the citizens in the south are more racist than citizens in the north. >> it is not, i do not know the answer to that. >> which is it? is not and you don't know the answer to it. >> it is not our submission. matter. objective i don't know the answer to that question. but what i do know is that it evidence before that there was a continuing need based on section 5 objections, the purpose-based character of those objections, based on the section two rate. based on the persistence of olarized voting and based on a gigantic wealth of jurisdictions maintain that the current and constraining effect of the preclearance process in the jurisdictions. >> and not impose it on everyone else. >> that's right.

given the differential litigation. >> i want to be sure i hear your answer to an allegation excellent argument that's been made, at least that i picked up. problem was the terrible. it has gotten a lot better. to some degree cured. all right? of commonere's a kind ground. then the question is what about his statute that has a certain formula. one response is -- yes, it has a longer has a o tremendous relevance in terms of the characteristic, that is tests.y but it's still picked out nine states. me.so far you're with so, it was rational when you bill it -- you don't you keep it going. you're not held to the same interia if you're writing it the first place.

states, it's reat different. is the 15th to that amendment, you know, maybe right. let's proceed state-by-state. state-by-state. that's what we normally do as a plot. now i don't know how satisfactory that answer is. i want to know what your with whether he's right. a he's right, that there is rrationality to that if treating state a which is not worse than massachusetts or right?ing, so if that's true, do we respond is this a ate, and matter we should consider, not as applied but on its face. to hear what you think about that. responses justice

pryor. the first focuses on the operation of the law and the consequences that flow from it. do not think that shelby county or alabama ought to be successful g a facial challenge against this that it ought s not to have covered arizona or alaska. bailout ute has mechanism. those jurisdictions can try to avail themselves of it. do, and it doesn't work, then they -- they may very as-applied n challenge that they can bring to the law. given t doesn't justify the structure of the law and a tailoring mechanism in it. understand the distinction between facial and as applied when you're talking formula. as applied to shelby county, they are covered because of the formula. challenging the formula as applied to them. and we've heard some discussion. not even sure what your position is on the formula.

congruent and proportional today. or do you have this reverse engineering argument? congress had the decision in geographic nact the coverage was congruent and proportional because congress had -- or was the oblem -- formula congruent and proportional -- > too the court upheld the formula in four different applications. the court found in four that the formula is congruent and proportional. the same kinds of problems that rein is identifying now. >> i'm sorry, they were true of rome. in the city because, of course, the tests and devices were eliminated by the statutes. no jurisdictions could have tests and devices and the city f rome itself said the registration problems had been ameliorated by then. but there were additional kinds theroblems that the -- that assent of the second generation problems was true even in the justificationas a that made it congruent and

proportional. we submit it's still true now. congress wasn't writing on a blank slate in 2006, congress was making a judgment about this formula which everyone agrees and, in fact, r. rein's case depends on the proposition that section 5 be was a big success. >> maybe it was making that verrilli, but that's a problem that i have. tok, this court doesn't like racial questions such as this one. it's something that could be left to congress. problem here, however, is the comment i meant earlier that the initial this legislation in a time when the need for it was abundantly clear, was in the senate. digits it was double against it. five-year term and it was re-enacted five years

five-year n for a term. double digits against it in the senate. then it was re-enacted for seven years. single digits against it. then enacted for 25 years. eight senate votes against it. this last enactment, not a ingle vote in the senate against i want. and the house is pretty much the same. attributable it's to the fact that it's so much clear now that we need this. it's attributable -- ery likely attributable to a phenomenon that's called perpetuation of racial entitlement. it's been written about when ever a society adopts racial entitlements. it is very difficult to get out o the normal political processes. i don't think there's anything senator to by any vote against continuation of

this act. fairly confident it perpetuityenacted in unless -- unless a court can say the es not comport with constitution. you have to show when you treat different states differently that there's a good reason for it. that's -- that's the concern of us who -- who have some questions about this statute have. it's a concern that it's question that a this can lead to congress. thee's certain districts in house that are black districts by law about now. republican senators, they have no interest in voting against this. the state government is not government. they're going to lose votes if they do not re-enact the voting act.s the name of it is wonderful, the voting rights act. who's going to vote against that in the future?

>> you have an extra five minutes. >> thank you, i may need it for that question. [ laughter ] >> justice scalia, there are a number of things to say. first, we are talking about the enforcement power that the constitution gives to the judgmentso make these to ensure protection of fundamental rights. a situation where ongress is given a power which expressly is given to it to act n the states in the sovereign capacity. it cannot be lost on the framers of the 14th and 15th amendment congress was of conferring on them was likely to a differential manner and the congress is onferred to deal with the problems of the former states of the confederacy. with respect to the power, tional grant of it's a grant of power to congress to make the judgments. the subject to review by court, under the standard of

is an st austin we agree appropriate standard. that's the first point. second point, with all due would be think it extraordinary to look behind the judgment of congress as in the statutory findings and evaluate the the ent of congress on basis of that sort of motive --lysis as opposed to >> look beyond it in boerne, i'm dismissing it,out i'm talking about looking at it to see if it makes any sense. i do think that the deference that congress has owed boerne said much deference. katzenbach said much deference. appropriate because of the nature of the power that's the rred here and frankly constitutional confidence of congress to make these kinds of judgments. these are judgments that assess predictions. these are predictive judgments bout human behavior and predictive judgments about

social conditions and human behavior about something that knowles something about. that is voting and the political process. your point rstand about entrenchment, but with respect to the senate, you can't it's in everybody's interest. that the -- the enforcement of is going to make it easier for some of the senators to win and it will make it senators some of the to win. >> you think the preclearance for the uld be enacted entire united states? 1. >> i don't think there's a substantiate uld that. >> that is because there's a interest in each state being responsible to ensure that it has a political that acts in the democratic and the civil and decent and proper and constitutional way. agree with that. we respect that. we acknowledge that northwest austin requires -- wants to have monuments to the heroes of the civil rights movement, if it

wants to acknowledge the wrongs f its past, is it better off doing that if it's an own sovereign or is it under the trusteeship of the united states government. be better e it would in the situation. with all due respect, your agrees that it was appropriate for congress to exercise the express constitutional authority when it did in 1965. everybody agrees that it was the exercise of that authority that brought about the situation where we can now argue about whether it's still necessary. point that i think is fundamental importance here, remains relevant. what congress did was make a 2006.ous choice in that given the record before it more ven the history, the prudent course was to maintain the deterrent and constrainting section 5 even given the federalism costs. after all, it's a right

of fundamental importance that the onstitutional gives congress the express authority to protect through appropriate legislation. > before your timex pyres, i would like to make sure that i understand your position on this applied, versus facial issue. is it your position this would if it were nt case brought by, let's say, county in opposed to shelby county, alabama? >> no, not -- no. just try to articulate clearly what our position is. they brought a facial challenge. we recognize it's a facial challenge. we're defending it as facial challenge. facial point is that the challenge can't succeed because they're able to point out there other jurisdictions that ought not to be appropriately covered and that's tailoringse there's a mechanism in the statute, if the tailoring