Early Report from Oral Argument: Not Looking Good for Section 5

SCOTUSBLOG tweet: “Update from argument: VRA Sec 5 almost sure to be invalidated 5-4. Congress will have to reconsider the preclearance formula.”  [A bit more from Tom Goldstein here.]

As Adam Liptak reminded us last night “Many predicted that the court would strike down Section 5 in 2009, and they were wrong. Observers who make the same prediction today may suffer the same fate. But evidence suggests that the court’s five more conservative members may be prepared to take on at least one aspect of the law.They could stop short of striking down Section 5 itself. But if they say only that the current coverage formula must end, sending the question back to Congress, that would almost certainly have the practical effect in the current climate of legislative gridlock of striking down the section altogether.”

Yup. They can hide behind the fig leaf of just striking down the coverage formula, as I suggested they’d do in this Reuters piece. But the practical effect is to end section 5.

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