Northwest Austin Municipal Utility Distr. One v. Holder Brief for Intervenors-Appellees

    No. 08-322

In The

^Supreme (Eourt rrf tlie Jifafps

Northwest Austin Municipal Utility 
District Number One,

Appellant,
v.

Eric H. Holder, Jr., Attorney General 
of the United States, et al. ,

Appellees.

On Appeal From the United States District Court 
for the District of Columbia

Brief for Intervenors-Appellees 
Rodney and Nicole Louis, etal 

Lisa and David Diaz, etal.; 
Angie Garcia, et al. ; and 

People for the American Way

John  Payton 
Director-Counsel 

Jacqueline A. Berrien 
*Debo P. A degbile 
Ryan  P. Haygood 
Jenigh  J. Garrett 
Danielle Y. Conley 
NAACP Legal Defense

and Educational Fund, Inc. 
99 Hudson Street, Suite 1600 
New York, NY 10013 
(212) 965-2200

*Counsel o f Record

Kristen M. Clarke 
Joshua Civin 
NAACP Legal Defense

and Educational Fund, Inc. 
14441 Street, NW, 10th FI. 
Washington, D.C. 20005 
(202) 682-1300

Counsel for Intervenors-Appellees 
Rodney and Nicole Louis; 
Winthrop and Yvonne Graham; 
and Wendy, Jamal and Marisa 
Richardson

(Additional Counsel Listed on Inside Cover)



Sam uel  Spital 
Holland & Knight 
195 Broadway, 24th Floor 
New York, NY 10017 
(212) 513-3200

Counsel for Intervenors- 
Appellees Rodney and Nicole 
Louis; Winthrop and Yvonne 
Graham; and Wendy, Jamal 
and Marisa Richardson

Kathryn  Kolbert 
People for the American 

Way Foundation 
2000 M Street, N.W., Suite 400 
Washington, D.C. 20036 
(202) 467-4999

Counsel for Intervenor-Appellee 
People for the American Way

N ina Perales 
IvAn  Espinoza-M adrigal 
Mexican American 

Legal Defense & 
Educational Fund, Inc. 

110 Broadway, Suite 300 
San Antonio, TX 78205 
(210) 224-5476

Counsel for Intervenors- 
Appellees Lisa and David Diaz 
and Gabriel Diaz

Jose Garza 
George K orbel 
Judith  A. Sanders-Castro 
Texas RioGrande 

Legal Aid, Inc.
1111 N. Main Street 
San Antonio, TX 78212 
(210) 212-3700

Counsel for Intervenors- 
Appellees Angie Garcia, Jovita 
Casares and Ofelia Zapata



1
QUESTIONS PRESENTED

1. Whether a municipal utility district that does 
not register voters is a “political subdivision” eligible 
to invoke the bailout provision in Section 4(a) of the 
Voting Rights Act when the Act’s plain language 
limits such “political subdivision[s]” to counties, 
parishes, and entities “which conduct[ ] registration 
for voting.”

2. Whether Congress acted within the scope of its 
enforcement powers under the Fourteenth and 
Fifteenth Amendments when, in light of an extensive 
legislative record of persistent unconstitutional 
discrimination against minority voters in covered 
jurisdictions and compelling evidence that a failure to 
renew Section 5 would result in backsliding of the 
progress that has been made, Congress reauthorized 
Section 5 of the Act.



11

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, 
Intervenors-Appellees, NAACP Legal Defense and 
Educational Fund, Inc., Mexican American Legal 
Defense and Educational Fund, Inc., Texas 
RioGrande Legal Aid, Inc., and People for the 
American Way Foundation, certify that each are non­
profit corporations with no parent companies, 
subsidiaries or affiliates that have issued shares to 
the public.



Ill

Page

QUESTIONS PRESENTED...................   i

CORPORATE DISCLOSURE STATEMENT..........ii

TABLE OF AUTHORITIES..............................  v

SUMMARY OF ARGUMENT.......................  1

ARGUMENT....................................................   2

I. T h e  V o t in g  R ig h ts  A c t : 1965 to  2006................ 3

A. The Voting Rights Act was Enacted and
Reauthorized in the Face of Widespread 
Discrimination.................................................. 3

B. Congress Carefully Examined the Evidence
During the 2006 Reauthorization Process 
and Determined that Section 5 Remains 
Necessary...............................    7
1. Substantial Voting Discrimination

Persists in Texas.......................................14
2. Substantial Voting Discrimination

Persists in Other Covered 
Jurisdictions.............................................. 25

Registration and Voting................................ 26

M ethods o f  E lection ........................................30

TABLE OF CONTENTS



IV

Page
Redistricting................................................... 34

Annexations andD e Annexations............... 42

Discriminatory Polling Place
Changes.............................................   44

Other Discrimination..................................... 45

The Persistent Nature o f
Discrimination................................................ 47

C. Congress Considered the Interests of the 
Covered Jurisdictions.....................................53

II. In  R e a u t h o r izin g  S e c t io n  5, Co n g ress  
R esp ec ted  t h e  Co n st it u t io n a l  Ba l a n c e  
Em b o d ie d  in  t h e  R e c o n st r u c t io n  
A m e n d m e n t s  a n d  R efle c ted  in  Bo erne and 
Its  Pr o g e n y ...... ..........  55

A. Appellant’s Disagreements With Congress’s 
Fact-finding and Predictive Judgments
Do Not Undermine Section 5’s 
Constitutionality.....................................   58

B. The Reauthorized Section 5 Readily
Passes Muster Under Boerne...................... 60

CONCLUSION........................................................... 64

ADDENDUM...............................................................la

TABLE OF CONTENTS— Continued



V

TABLE OF AUTHORITIES 

CASES

Page(s)
Alden v. Maine,

527 U.S. 706 (1999).............. .....................62

Allen v. State Bd. o f Elections,
393 U.S. 544 (1969).....................................13

Arlington Heights v. Metro. Housing Dev.,
429 U.S. 252 (1977)................ 12 n.9, 39, 44

Bartlett v. Strickland,
556 U .S .___(2009)............... ....................1, 5

Bd. o f  Trustees o f the Univ. o f  Ala. v. Garrett, 
531 U.S. 356 (2001).................................... 61

B eer v. United States,
425 U.S. 130 (1976)...................................... 6

Bone Shirt v. Hazeltine,
336 F. Supp. 2d 976 (D.S.D. 2004)...........38

City o f Boerne v. Flores,
521 U.S. 507 (1997)............................passim

City o f Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989).................................... 55

City o f Rome v. United States,
446 U.S. 156 (1980) 13, 55, 61



VI

TABLE OF AUTHORITIES— Continued

Page(s)

Clark v. Roemer,
500 U.S. 646 (1991)................................... 33

Dillard v. City o f  Foley,
926 F. Supp. 1053 (M.D. Ala.
1995)............................................. 42, 51 n.22

Fla. Prepaid Postsecondary Educ. Expense Bd. 
v. Coll. Sav. Bank, 527 U.S. 627 
(1999)    ................ .....................56

Harris v. Grad dick,
593 F. Supp. 128 (M.D. Ala. 1984)...........30

Harris v. Siegelman,
695 F. Supp. 517 (M.D. Ala. 1988)...........30

Hunter v. Underwood,
471 U.S. 222 (1985)........................... 27n .l5

Kim el v. Fla. Bd. o f  Regents,
528 U.S. 62 (2000).............. ....................... 61

League o f  United Latin Am. Citizens v. Perry, 
548 U.S. 399 (2006)...................... 10, 14, 17

Lopez v. M onterey County,
525 U.S. 266 (1999).............................55, 63

M iller v. Johnson,
515 U.S. 900 (1995)............................... 9 n.7



M ississippi State Chapter, Operation PUSH v. 
Allain, 674 F. Supp. 1245 (N.D. Miss.
1987)............................................................ 26

M ississippi State Chapter, Operation PUSH v. 
Mabus, 932 F.2d 400 (5th Cir. 1991)...... 26

Nev. D ep ’t o f  Human Res. v. Hibbs,
538 U.S. 721 (2003)......................... 56, 61

Oregon v. Mitchell\
400 U.S. 112 (1970).....................................55

Perkins v. Matthews,
400 U.S. 379 (1971).............   21

Presley v. Etowah County Comm’n,
502 U.S. 491 (1992).................................... 49

Reno v. Bossier Parish School Bd.,
528 U.S. 320 (2000)............................... 5 n.3

Rogers v. Lodge,
458 U.S. 613 (1982)............................passim

Slaughter-House Cases,
83 U.S. 36 (1873).........................................56

South Carolina v. Katzenbach,
383 U.S. 301 (1966)............................passim

v i i

TABLE OF AUTHORITIES— Continued

Page(s)



TABLE OF AUTHORITIES— Continued

Page(s)

Tennessee v. Lane,
541 U.S. 509 (2004).........................2, 56, 60

Thornburg v. Gingles,
478 U.S. 30 (1986)...................... 10, 19 n.13

Turner Broad. Sys. Inc. v. FCC,
520 U.S. 180 (1997).................................... 58

United States v. Charleston County,
316 F. Supp. 2d 268 (D.S.C. 2003), affd,
365 F.3d 341 (4th Cir. 2004)....... 29, 30, 47

United States v. Georgia,
546 U.S. 151 (2006).................................... 62

White v. Regester,
412 U.S. 755 (1973)...........................19 n.13

Young v. Fordice,
520 U.S. 273 (1997).........................   27

DOCKETED CASES

La. House o f Reps., et al. v. Ashcroft,
No. 02-0062 (D.D.C. Feb. 13, 2003)......... 35

League o f United Latin Am. Citizens v. Texas, 
No. 06-1046 (W.D. Tex. Dec. 1, 2006)...... 17



IX

Morales v. Handel,
No. 08-3172 (N.D. Ga. Oct. 27,
2008)...................................................54 n.24

STATUTES

42 U.S.C. § 1973b(a)(7) (2006)........................ 9

42 U.S.C. § 1973b(a)(8) (2006)........................ 9

42 U.S.C. § 1973c(a) (2006)................... . 5, 52

42 U.S.C. § 1973c(b) (2006)...................37 n.17

42 U.S.C. § 1973c(c) (2006).........................6 n.3

Pub. L. No. 97-205 § 2(b)(8) (1982)................. 7

Pub. L. No. 109-246 § 2(b)(1) (2006)...............8

Pub. L. No. 109-246 § 2(b)(4) (2006).............59

Pub. L. No. 109-246 § 2(b)(4)(C) (2006)....... 10

Pub. L. No. 109-246 § 2(b)(5) (2006).............59

Pub. L. No. 109-246 § 2(b)(7) (2006)...............8

Pub. L. No. 109-246 § 2(b)(8) (2006)..... ....... 10

Pub. L. No. 109-246 § 2(b)(9) (2006)...............8

TABLE OF AUTHORITIES— Continued

Page(s)



LEGISLATIVE MATERIALS

TABLE OF AUTHORITIES— Continued

Page(s)

S. Rep. No. 94-295 (1975)..................................6

S. Rep. No. 97-417 (1982)..... ........................... 6

H.R. Rep. No. 97-227 (1981).............................6

H.R. Rep. No. 109-478 (2006)................ passim

152 Cong. Rec. H5143-02
(daily ed. July 13, 2006)........................8, 54

152 Cong. Rec. H5143-H5207
(daily ed. July 13, 2006)........................8 n.5

152 Cong. Rec. S7967-S7968
(daily ed. July 20, 2006)........................7 n.4

To Examine the Impact and Effectiveness o f  
the Voting Rights A ct: Hearing before the 
Subcomm. on the Constitution o f  the H. 
Comm, on the Judiciary, 109th Cong.
(Oct. 18, 2005)....... ........ ...................passim



XI

Page(s)
Voting Rights Act-' An Examination o f the 

Scope and Criteria for Coverage Under the 
Special Provisions o f the Act'- Hearing 
before the Subcomm. on the Constitution, 
H. Comm, on the Judiciary, 109th Cong. 
(Oct. 20, 2005)................. ........... 18 n.12, 43

Voting Rights A ct: Section 5 o f  the A ct - 
History, Scope & Purpose-' Hearing before 
the Subcomm. on the Constitution o f the 
H. Comm, on the Judiciary, 109th Cong. 
(Oct. 25, 2005).................................... Passim

Voting Rights A ct: The Continuing N eed for 
Section 5-' Hearing before the Subcomm. 
on the Constitution, H. Comm, on the 

Judiciary, 109th Cong. (Oct. 25,
2005) .......................................................... 39

Voting Rights A ct: Section 5  -  Preclearance 
StandardsH earing before the Subcomm. 
on the Constitution o f  the Id. Comm, on the 
Judiciary, 109th Cong. (Nov. 1, 2005)...... 9

Voting Rights A ct: Evidence o f Continuing 
N eed: Hearing before the Subcomm. on the 
Constitution o f  the H. Comm, on the 
Judiciary, 109th Cong. (Mar. 8,
2006) ................................................... passim

TABLE OF AUTHORITIES— Continued



TABLE OF AUTHORITIES— Continued

Page(s)

Fannie Lou Hamer, Rosa Parks, and Coretta 
Scott King Voting Rights A ct 
Reauthorization and Amendments Acts o f  
2006'■ Hearing before the Subcomm. on the 
Constitution o f the H. Comm, on the 
Judiciary, 109th Cong. (May 4,
2006)..................................................7, 57, 58

An Introduction to the Expiring Provisions o f 
the Voting Rights A ct and Legal Issues 
Relating to R eauthorizationH earing  
before the S. Comm, on the Judiciary,
109th Cong. (May 9, 2006)... 10, 15n.l0, 18 
n.12, 38

Modern Enforcement o f the Voting Rights A ct: 
Hearing Before the S. Comm, on the 
Judiciary, 109th Cong. (May 10,
2006)................................ 10, 33, 50 n.20, 58

The Continuing N eed for Section 5 Pre-
clearance'- Hearing before the S. Comm, on 
the Judiciary, 109th Cong. (May 16,
2006) .................................................. passim

Understanding the Benefits and Costs o f  
Section 5 Pre-clearance'- Hearing before 
the S. Comm, on the Judiciary, 109th Cong. 
(May 17, 2006)...................................passim



TABLE OF AUTHORITIES— Continued

Page(s)

Continuing N eed for Section 203’s Provisions 
for Limited English Proficient Voters•' 
Hearing before the S. Comm, on the 
Judiciary, 109th Cong. (June 13,
2006)......................................................58, 59

Reauthorizing the Voting Rights A ct’s
Temporary Provisions-' Policy Perspectives 
and Views from the Field: Hearing before 
the Subcomm. on the Constitution, Civil 
Rights and Property Rights o f  the S.
Comm, on the Judiciary, 109th Cong. (June 
21, 2006).........................................53, 58, 59

Renewing the Temporary Provisions o f the 
Voting Rights Act'- Legislative Options 
after LULAC v. Perry'- Hearing before the 
Subcomm. on the Constitution, Civil Rights 
and Property Rights o f the S. Comm, on the 
Judiciary, 109th Cong. (July 13,
2006)....................................................36 n.16

OTHER AUTHORITIES

David J. Garrow,
Protests at Selma (1978.)............. 4



XIV

TABLE OF AUTHORITIES— Continued

Page(s)

President Lyndon B. Johnson,
Address to Congress on the Voting Rights 
Act: We Shall Overcome (Mar. 15, 1965), 
a vailable at www.historyplace.com/ 
speeches/johnson.htm .......................4, 5 n.2

Ellen Katz,
Final Report o f  the Voting Rights
Initiative,
39 U. Mich. J. L. Reform 639
(2006)............................................ 15 n.10, 16

Adam Nossiter,
For Some, Uncertainty at Racial Identity, 
N.Y. Times, Oct. 4, 2008.................. 36 n.16

United States Dep’t of Justice Civil Rights 
Div.: Section 5 Objection Determinations, 
http ;//w ww .usdoj. gov/crt/voting/sec_5/ 
obj_activ.php................................ 50 n.21, 51

http://www.historyplace.com/


1

SUMMARY OF ARGUMENT

No statute in our history embodies America’s 
commitment to democracy more clearly than the 
Voting Rights Act. Since 1965, Congress and five 
Presidents have acted to create or preserve this 
statutory framework designed to prevent racially 
discriminatory barriers that deny or abridge our 
citizens’ right to vote.

This case is the latest in a line of challenges to the 
Act’s constitutionality. All have been rejected by the 
Court. The foundation of this Appellant’s attack is 
the contention that the country no longer needs 
Section 5, the heart of the Voting Rights Act, to be 
the inclusive democracy that we strive to become, and 
that racial discrimination no longer poses a 
significant threat to that aspiration. This argument 
cannot be reconciled with the evidence.

While there has certainly been progress, as a 
plurality of this Court noted just last week: “ [sjtill, 
racial discrimination and racially polarized voting 
are not ancient history. Much remains to be done to 
ensure that citizens of all races have equal 
opportunity to share and participate in our 
democratic processes and traditions. . . .” Bartlett v.
Strickland, 556 U.S. ___ (2009), slip op. at 21
(Kennedy, J.). In 2006, Congress too observed 
measurable progress in our nation’s efforts to 
ameliorate voting discrimination, but found 
substantial continuing intentional discrimination. 
After careful review of a record exceeding 15,000 
pages, Congress determined that condoning racial 
discrimination in voting, with knowledge of its



2

persistence and effects, erodes our Constitution’s 
promise of full citizenship.

Precedent does not support Appellant’s attempt to 
substitute its judgment for that of Congress. This 
Court’s decisions from South Carolina v. Katzenbach 
to City o f Boerne v. Flores and its progeny leave no 
doubt that Section 5 remains constitutional. 
Specifically, this Court has already determined that, 
faced with ongoing discrimination against minority 
voters, Congress can, consistent with the 
Constitution, adopt the Section 5 prophylaxis, and 
any remaining question about whether Congress 
should have reauthorized the remedy is properly 
regarded as legislative and not constitutional in 
nature.1

ARGUMENT

Resolution of Appellant’s constitutional challenge 
turns in large part on the gravity of the harm 
Congress addressed through Section 5. See, e.g., City 
o f  Boerne v. Flores, 521 U.S. 507, 529-31 (1997); 
Tennessee v. Lane, 541 U.S. 509, 523 (2004). This 
brief speaks to that question.

After an overview of the Voting Rights Act (“VRA 
or Act”) of 1965 and the first three reauthorizations, 
we discuss the extensive record before Congress in 
2006. See Part I. A-B, infra. That record revealed 1

1 We adopt the Intervenors-Appellees NAACP, et al.’s 
arguments concerning bailout and the deferential review that 
guides consideration of the 2006 reauthorization. In this brief, 
we show that Section 5 easily satisfies Boerne’s congruence-and- 
proportionality framework.



3

invidious and persistent discrimination in the 
covered jurisdictions, as well as Section 5’s 
imperative role in turning the promise of inclusive 
democracy into a reality. Far from working a 
substantive redefinition of constitutional rights, 
Section 5 is well within Congress’s authority to 
remedy and deter core violations of the Fourteenth 
and Fifteenth Amendments. In these circumstances, 
application of this Court’s precedents is 
straightforward, and Appellant’s invitation for this 
Court to second-guess Congress’s weighing of the 
evidence should be rejected. See Part II, infra.

I. The Voting Rights Act : 1965 to 2006

A. The Voting Rights Act was Enacted and 
Reauthorized in the Face of Widespread 
Discrimination

The abrupt end of Reconstruction in 1877 offers a 
bitter lesson about the consequences of failed political 
will to sustain comprehensive voting rights for 
minority voters. Following the demise of
Reconstruction, States and localities in the Old 
Confederacy engaged in decades of “unremitting and 
ingenious defiance of the Constitution,” by
promulgating numerous measures designed either to 
prevent Blacks from voting, or to cancel out the effect 
of the Black vote. South Carolina v. Katzenbach, 383 
U.S. 301, 309 (1966). Those schemes reduced 
minority participation to insignificance. It was 
eighty years before Congress responded with 
legislation. Beginning in 1957, Congress enacted 
three statutes designed to facilitate case-by-case 
voting litigation, but these “new laws [did] little to



4

cure the problem of voting discrimination.’’ Id. at 
313. This case-by-case method was ineffective 
because voting suits are “unusually onerous to 
prepare,” litigation is “exceedingly slow,” and, 
following favorable judicial decisions, some 
jurisdictions enacted new “discriminatory devices not 
covered by the federal decrees.” Id. at 314.

March 7, 1965 marked the beginning of the end 
for this piecemeal approach. That day, millions of 
Americans had their television programs interrupted 
with images of Alabama law enforcement officers 
brutally assaulting Black men, women, and children 
on the Edmund Pettus Bridge in Selma, Alabama. 
The demonstrators were peacefully protesting a state 
trooper’s killing of a young Black man during a voter 
registration event. See David J. Garrow, Protests at 
Selma 61-62 (1978). A week later, President Johnson 
delivered a speech before a special joint session of 
Congress. He began:

I speak tonight for the dignity of man 
and the destiny of Democracy. I urge 
every member of both parties, 
Americans of all religions and of all 
colors, from every section of this 
country, to join me in that. At times, 
history and fate meet at a single time in 
a single place to shape a turning point in 
man’s unending search for freedom. So 
it was at Lexington and Concord. So it 
was a century ago at Appomattox. So it 
was last week in Selma, Alabama.

President Johnson described the now infamous 
tactics employed to prevent Blacks from voting in the



5

South, and shared his first-hand experience 
witnessing discrimination against Mexican 
Americans in Texas. He urged the passage of a new 
voting rights act, but recognized: “even if we pass
this bill the battle will not be over.”2

Congress responded by enacting the Voting Rights 
Act of 1965, a milestone in “the struggle to end 
discriminatory treatment of minorities who seek to 
exercise one of the most fundamental rights of our
citizens: the right to vote.” Bartlett, 556 U.S. ___,
slip op. at 6.

Section 5 lies at the heart of the Act. See 
Katzenbach, 383 U.S. at 315. It requires covered 
States and political subdivisions to obtain
preclearance of voting-related changes from either 
the Department of Justice (DOJ) or a three-judge 
panel of the United States District Court for the 
District of Columbia. 42 U.S.C. § 1973c(a) (2006). 
Preclearance will be granted as long as the change 
“neither has the purpose nor will have the effect of 
denying or abridging the right to vote on account of 
race or color. . . .” Id. The statute’s purpose prong 
prevents the implementation of voting-related 
changes that were motivated by intent to 
discriminate against minority citizens. See id. 
§1973c(c).3 The effect prong prevents retrogression:

2 President Lyndon B. Johnson, Address to Congress on the
Voting Rights Act: We Shall Overcome (Mar. 15, 1965),
a vailable at www.historyplace.com/speeches/johnson.htm.
3 This purpose standard was used by DOJ to evaluate 
preclearance submissions between 1965 and 2000, but was 
rejected in favor of a retrogressive purpose standard by this

http://www.historyplace.com/speeches/johnson.htm


6

it ensures that minority voters are no worse off under 
the new law or practice compared to the previous 
(benchmark) one. See B eer v. United States, 425 
U.S. 130, 141 (1976).

Like several other parts of the VEA, Section 5 has 
a sunset provision. In 1970 and 1975, Congress 
reauthorized Section 5 for five and seven years, 
respectively, after reviewing evidence that, while the 
Act had led to significant progress, discrimination 
against minority voters persisted in the covered 
jurisdictions. See, e.g., S. Rep. No. 94-295, at 13*15 
(1975). In addition, in 1975, the record before 
Congress documented numerous examples of racial 
discrimination in voting against Latinos, Asian 
Americans, American Indians, and Alaska Natives. 
Id. at 25-27, 31. In Texas, for example, Mexican 
Americans suffered discrimination “in ways similar 
to the myriad forms of discrimination practiced [ ] 
against blacks in the South.” Id. at 25. Congress 
extended Section 5’s protections to these voters, and 
also altered the coverage formula, which led to 
Texas’s inclusion as a covered State.

In 1982, Congress again learned that
discrimination in the covered jurisdictions persisted. 
H.R. Rep. No. 97-227, at 19 (1981); S. Rep. No. 97- 
417, at 12*14 (1982). A large bipartisan majority of 
Congress reauthorized Section 5 for 25 years, and

Court in Reno v. Bossier Parish School Bd, 528 U.S. 320 (2000) 
(“Bossier II ). In the 2006 reauthorization, Congress restored 
the pre-Aossiei'/Zdefinition of the purpose prong. See 42 U.S.C. 
§ 1973c(c).



7

President Reagan signed the reauthorization into 
law. Pub. L. No. 97-205 § 2(b)(8) (1982).

B. Congress Carefully Examined the Evidence 
During the 2006 Reauthorization Process 
and Determined that Section 5 Remains 
Necessary

In determining whether Section 5 was still needed 
to remedy and deter unconstitutional discrimination 
against minority voters in 2006, Congress 
approached its task with great care. The House and 
Senate Judiciary Committees held a combined 21 
hearings over 10 months, receiving testimony from 
over 90 witnesses—including state and federal 
officials, litigators, scholars, and private citizens— 
both for and against reauthorization.4 Throughout 
the process, the record was “open and available for all 
groups of all opinions” to present their views to 
Congress. M ay 4, 2006 Hearing, at 70.

Congress deliberated “long and hard over months 
and months of internal debate.” Id. at 74. 
Representative James Sensenbrenner, then-Chair of 
the House Judiciary Committee, explained that the 
2006 reauthorization of the VRA was based on “one of 
the most extensive considerations of any piece of 
legislation that the United States Congress has dealt 
with in the 27 1/2 years that I have been honored to

4 See H.R. Rep. No. 109-478, at 5 (2006); 152 Cong. Rec. S7967- 
S7968 (daily ed., July 20, 2006). Hearings were held by the 
House and Senate Judiciary Committees between October 18, 
2005 and July 13, 2006. Specific hearings are cited herein by 
date.



8

serve as a Member of this body.” 152 Cong. Rec. 
H5143-02 (daily ed, July 13, 2006).

After this careful review, Congress found that 
significant progress has been made in combating 
discrimination against minority voters. Pub. L. No. 
109-246 § 2(b)(1) (2006). However, “ [d]espite [this] 
progress, the evidence before Congress reveals that 
40 years has not been a sufficient amount of time to 
eliminate the vestiges of discrimination following 
nearly 100 years of disregard for the dictates of the 
15th amendment and to ensure that the right of all 
citizens to vote is protected as guaranteed by the 
Constitution.” Id. § 2(b)(7).

In light of the foregoing, Congress concluded—by 
a 390-33 vote in the House and a 98-0 vote in the 
Senate5—that certain temporary provisions of the 
VRA were no longer needed,6 and that Section 5 was 
among those provisions still necessary to prevent 
minority citizens from being “deprived of the 
opportunity to exercise their right to vote, or [having] 
their votes diluted, undermining the significant gains 
made by minorities in the last 40 years.” Id. § 2(b)(9). 
Accordingly, Congress passed the Fannie Lou Hamer, 
Rosa Parks, and Coretta Scott King Voting Rights 
Reauthorization and Amendments Act of 2006, which 
extended Section 5 for 25 years, and which further 
committed Congress to reconsider the need for this 
remedy in 15 years. See A2 U.S.C. § 1973b(a)(7), (8).

5 See 152 Cong. Rec. H5143-H5207 (daily ed. July 13, 2006).
6 See H.R. Rep. No. 109-478, at 61-62 (repealing provisions 
relating to federal examiners).



9

The factual findings underlying Congress’s 
decision to reauthorize Section 5 are unassailable. 
The record demonstrates that, while minority voters 
have made significant progress, unconstitutional 
discrimination remains all too common. Since 1982, 
there have been well over one thousand 
discriminatory electoral practices in the covered 
jurisdictions that were blocked by either Section 5 or 
Section 2 of the VRA, hundreds of which clearly 
involved intentional discrimination.

Under Section 5, DOJ interposed over 620 
objections between 1982 and the 2006 
reauthorization. J.S.App. 66. Appellant claims that 
the vast majority of Section 5 objections “do not 
signify the purposeful discrimination required for a 
constitutional violation.” Br. at 63. But the evidence 
before Congress showed the opposite' 60% of all 
objections between 1980 and 2000 were based, at 
least in part, on purposeful (and thus 
unconstitutional) discrimination. November 1, 2005 
Hearing, at 180-81.7

Yet, even this powerful remedy does not 
completely block abridgments of the right to vote. In

7 Similarly, amicus Scharf-Norton Center’s speculation about 
the number of objections based on DOJ enforcing an 
impermissible maximization approach, see Br. at 10-12 
(discussing M iller v. Johnson, 515 U.S. 900, 927 (1995)), is 
divorced from the actual record. A review of the objection 
letters reveals that a very small number of objections (almost 
exclusively from the early 1990s) were even arguably based on a 
maximization theory. See October 25, 2005 (History) Hearing, 
at 225-2595 (copies of post-1982 objections).



10

the nine States fully covered by Section 5, plaintiffs 
also brought 653 successful Section 2 lawsuits 
between 1982 and 2006 (a number that includes 
settled cases). See App. Br. at 48. Although Section 
2 does not require a finding of purposeful 
discrimination, much of the evidence offered in 
Section 2 cases is also probative of unconstitutional 
conduct. Compare Thornburg v. Gingles, 478 U.S. 
30, 36-37 (1986) with Rogers v. Lodge, 458 U.S. 613, 
616-28 (1982). Moreover, because of this statutory 
remedy, courts need not reach constitutional 
questions in most voting rights cases. See, e.g , 
League o f United Latin Am. Citizens v. Perry, 548 
U.S. 399, 442 (2006) CLULAC).

Therefore, Congress reasonably concluded that, in 
the covered jurisdictions, the hundreds of successful 
Section 2 suits evidenced the ongoing need for 
remedial legislation. See Pub. L. No. 109-246 
§2(b)(4)(C), (8). Notwithstanding Appellant’s
conclusory assertion to the contrary, (Br. at 48), 
however, Congress also reasonably found that “case- 
by-case enforcement” through “Section 2 would be 
ineffective to protect the rights of minority voters[.]” 
H.R. Rep. No. 109-478, at 57. Congress learned that 
Section 2 suits are among the most complex and 
resource intensive of all actions brought in federal 
court, taking an average of at least two to five years 
with costs running into the millions of dollars. See, 
e.g., M ay 10, 2006 Hearing, at 96; M ay 9, 2006 
Hearing, at 141; M ay 17, 2006 Hearing, at 20, 80. 
Moreover, Section 2 allows the discriminatory 
practice to go into effect (often for several election 
cycles), and candidates who win election under a 
discriminatory plan gain the substantial advantages



11

of incumbency. See October 18, 2005 Hearing, at 13; 
43-44; M ay 16, 2006 Hearing, at 6. Finally, Congress 
learned that minority voters at the local level 
(especially in rural communities) generally lack 
access to the resources and expertise necessary for 
successful Section 2 litigation. October 25, 2005 
(History) Hearing, at 84.

In addition to Section 5 objection letters and 
Section 2 litigation, Congress studied several other 
probative categories of evidence, which are discussed 
in detail by the District Court. These include^ over 
100 successful Section 5 enforcement actions to 
compel the submission of voting changes that 
jurisdictions never submitted for preclearance; over 
200 voting changes withdrawn in response to DOJ 
letters requesting more information about a proposed 
voting change (MIRs); more than two dozen denied or 
withdrawn requests for judicial preclearance; and 
evidence of discrimination documented by the over 
300 federal election observers assigned by the 
Attorney General each year since 1982 based on “a 
reasonable belief that minority citizens are at risk of 
being disenfranchised,” through, in ter alia, 
“harassment and intimidation inside polling 
locations,” H. R. Rep. No. 109-478, at 44. See 
J.S.App. 84-93.

And, as the District Court also explained, in 
addition to these quantitative measures of ongoing 
discrimination, Congress received compelling 
evidence that “the existence of Section 5 deterred 
covered jurisdictions from even attempting to enact 
discriminatory voting changes,” H.R. Rep. No. 109- 
478, at 24. Abe J.S.App. 108-12.



12

The District Court canvassed numerous specific 
examples of intentional discrimination against 
minority voters. See, e.g., J.S.App. 155-83. But that 
by no means exhausted the evidence presented to 
Congress. There are hundreds of additional 
examples that the District Court did not discuss in its 
thorough opinion.

Below we provide a sample of the record evidence 
of discrimination in the covered jurisdictions since 
1982, drawn primarily from Section 5 objection 
letters. Most of these examples are not included in 
the District Court’s opinion. An Addendum to this 
brief references over one hundred Section 5 objection 
letters cited herein,8 the vast majority of which are 
based at least in part on discriminatory purpose 
(hereinafter discriminatory-purpose objections).9

8 Pursuant to Rule 32(3), we have submitted a request to lodge 
these objection letters with the Court. The letters are also 
available at http://naacpldf.org/Sec5.pdf.
9 Section 5 places the burden of proof on the covered jurisdiction.
A review of all of the objection letters since 1982, however, 
reveals almost no discriminatory-purpose objections that were 
interposed because DOJ lacked evidence about the jurisdiction’s 
motive or because that evidence was in equipoise. See October 
25, 2005 (History) Hearing, at 225-2595. In each objection letter 
we discuss, DOJ conducted a “sensitive inquiry into such 
circumstantial and direct evidence of intent as may be 
available,” as required by Arlington Heights v. Metropolitan 
Housing Development Corp., 429 U.S. 252, 266 (1977), in cases 
where the burden of establishing purposeful racial
discrimination is on the plaintiff. Specifically, these
discriminatory-purpose objection letters include one or more of 
the following circumstances probative of intentional 
discrimination under Arlington Heights'- (l) a pattern of

http://naacpldf.org/Sec5.pdf


13

Three important themes emerge from this 
summary. First, despite unquestionable progress 
since 1965, voting discrimination in covered 
jurisdictions has proven a persistent threat to the 
rights guaranteed by the Fourteenth and Fifteenth 
Amendments. As was the case in prior 
reauthorizations, see, e.g., City o f  Rome v. United 
States, 446 U.S. 156, 180-181 (1980), Congress 
learned in 2006 that gains in minority registration 
often lead to the use of sophisticated forms of 
purposeful discrimination designed to cancel out 
minority voting strength. See generally Allen v. 
State Bd. o f Elections, 393 U.S. 544, 565 (1969) 
(recognizing that “ [t]he Voting Rights Act was aimed 
at the subtle, as well as the obvious, state regulations 
which have the effect of denying citizens their right 
to vote because of their race.”). Notably, numerous 
jurisdictions have enacted multiple discriminatory 
voting laws since 1982.

Second, the scope of discrimination against 
minority voters is illustrated not only by the large 
number of examples, but also by the circumstances 
surrounding each individual act. Many incidents of 
discrimination that appear localized actually involve 
intentionally discriminatory actions taken by both 
local officials and the State. Moreover, a single 
objection or MIR can deter numerous discriminatory

decisionmaking inexplicable on race-neutral grounds; (2) 
contemporary records of decisionmakers’ views; (3) departures 
from normal procedural or substantive practices! and (4) the 
historical background and specific sequence of events leading up 
to a voting change. See id. at 266-67.



14

voting regulations. See, c.g., October 18, 2005 
Hearing, at 1250.

Third, as this Court noted in a recent case arising 
from Texas, minority voters are often the most likely 
to face discrimination when they are gaining 
numerical strength and on the verge of exercising 
newfound political power. See LULAC, 548 U.S. at 
440 (“In essence, the State took away [Latinos’] 
opportunity [to elect a candidate of choice] because 
they were about to exercise it.”).

The experience in Texas, where Appellant is 
located, is a microcosm of the discrimination common 
in covered jurisdictions. We begin there.

1. Substantial Voting Discrimination 
Persists in Texas

As this Court observed in 2006:
Texas has a long, well-documented 
history of discrimination that has 
touched upon the rights of African- 
Americans and Hispanics to register, to 
vote, or to participate otherwise in the 
electoral process. . . . The history of 
official discrimination in the Texas 
election process— stretching back to 
Reconstruction—led to the inclusion of 
the State as a covered jurisdiction under 
Section 5 in the 1975 Amendments to 
the Voting Rights Act.

LULAC, 548 U.S. at 439-440 (quoting with approval 
lower court opinion).

Although there has been progress since 1975, the 
promise of the Fifteenth Amendment has not been



15

realized. While the overall rate of DOJ objections 
may be relatively small, (See App. Br. at 52), the 
quantity and nature of objections in Texas alone 
establishes that minority voters continue to face 
persistent intentional discrimination in exercising 
their fundamental right to vote.

Between the 1982 reauthorization and 2004, 
DOJ interposed 105 objections to discriminatory 
voting changes in Texas—ten of which were 
statewide. See J.S.App. 68, 71. At the local level, 
Section 5 objections prevented the implementation of 
discriminatory electoral changes in 72 Texas counties 
where over two-thirds of the State’s minority 
population resides. Dkt. No. 100-12, Ex. 8 (“Texas 
Report”), at 22-23. Twenty-eight counties, utilizing 
various strategies to obstruct minority participation, 
have drawn multiple Section 5 objections in this 
period. Id. Furthermore, an additional 60 
submissions from Texas jurisdictions were either 
withdrawn in response to an MIR or denied judicial 
preclearance, and Texas plaintiffs also brought 29 
successful Section 5 enforcement actions. See
J.S.App. 87, 90. In addition to all of this activity 
under Section 5, between 1982 and 2004, more than 
150 Section 2 suits were resolved on behalf of 
minority voters in Texas, leading 142 jurisdictions to 
alter discriminatory voting practices. Texas Report, 
at 34. io 10

10 We note that, notwithstanding the assertions of several amici, 
see, e.g., Southeastern Legal Foundation Amicus Br. at 28, a 
majority of successful suits in the study of Section 2 cases 
presented to Congress originated in the covered jurisdictions.



16

The examples underlying these statistics shed 
light on the nature of recent voting discrimination at 
both the state and local level.

Texas’s redistricting plans for its House of 
Representatives have drawn Section 5 objections 
after each decennial census since the State was 
covered in 1975. October 25, 2005 Hearing, at 2177- 
80, 2319-23, 2518-23. In the most recent of those 
objections (2001), DOJ found the State’s redistricting 
plan retrogressive because it eliminated three Latino- 
majority districts. Moreover, the plan fragmented 
Latino voters in a manner that “deviates from the 
State’s traditional redistricting principles[.]” Id. at 
2521. Following the 1990 Census, DOJ likewise 
determined that, not only was Texas’s state house 
redistricting retrogressive, lawmakers deliberately 
packed or fragmented residentially compact Latino 
populations to minimize the number of Latino- 
majority districts. See id. at 2321-22.

Similarly, this Court concluded that Texas’s 2003 
congressional redistricting plan violated Section 2, 
and noted that it “bears the mark of intentional

October 18, 2005 Hearing, at 974. (Amici’s contrary 
understanding is based on one confusing sentence in the study. 
See id). Indeed, that study found that plaintiffs in covered 
jurisdictions have a notably higher rate of success in Section 2 
suits than do plaintiffs in non-covered jurisdictions. Id.', see also 
M ay 9, 2006 Hearing, at 44; Ellen Katz, Final Report o f the 
Voting Rights Initiative, 39 U. Mich. J. L. Reform 639, 655-56 
(2006). These differences between the covered and non-covered 
jurisdictions are particularly noteworthy given that the Section 
5 prophylaxis deters a substantial amount of discrimination in 
the covered jurisdictions.



17

discrimination [against Latino voters] that could give 
rise to an equal protection violation.” LULAC, 548 
U.S. at 440. Because of the slower pace of the Section 
2 remedy, however, the 2004 congressional elections 
had already taken place under the illegal plan. Even 
after this Court’s decision, Latino voters were forced 
to bring a successful Section 5 enforcement action 
when state officials, without requesting preclearance, 
attempted to curtail early voting in the special 
election held in the remedial district. See LULAC v, 
Texas, No. 06-1046 (W.D. Tex. Dec.l, 2006).

An example of entrenched resistance to minority 
voting rights at the local level involves the 
extraordinary efforts by county officials in Waller 
County, over three decades, to prevent students at 
the historically Black Prairie View A & M University 
from voting. Litigation from the late 1970s— 
including a decision from this Court—established 
that Prairie View A & M students had a right to vote 
in county elections. Nonetheless, in the 1990s and 
2000s, local officials indicted students, or threatened 
them with prosecution, for voting in such elections. 
J.S.App. 90, 92; March 8, 2006 Hearing, at 185-86. 
Then, in 2004, the county commissioners’ court, 
aware that students would be on break the day of the 
primary election, voted to reduce early voting 
dramatically, and did not submit this change for 
Section 5 preclearance.11 The county only abandoned 
this newest effort to suppress Black turnout when 11

11 This very same commissioners’ court had drawn a Section 5 
objection in 2002 for enacting a retrogressive redistricting plan. 
October 25. 2005 (History) Hearing, at 2524-27.



18

the university chapter of the NAACP brought a 
Section 5 enforcement action. See J.S.App. 92; March 
8, 2006 Hearing; at 185-86. Given this record, 
Appellant’s claim that voting discrimination in 
Waller County was a “one-off’ occurrence, (Br. at 46), 
is untenable.

The City of Seguin was similarly creative in 
attempting to thwart minority participation, but, 
contrary to Appellant’s suggestion, (Br. at 54-55), 
Section 5 played a critical remedial role. Between 
1978 and 1993, Latino plaintiffs filed three separate 
successful lawsuits, using Section 5, Section 2, and 
the Equal Protection Clause, to challenge Seguin’s 
malapportioned, multi-member, or otherwise dilutive 
districting plans.12 See Texas Report, at 36-37. A 
1993 settlement led to the creation of eight single­
member districts. Id. at 29. Then, after the 2000 
census revealed that Latinos had become a majority 
in five of the eight city council districts, Seguin

12 In jurisdictions with racially polarized voting, at-large 
elections or multi-member districts tend to minimize the voting 
strength of minority groups by permitting the majority to elect 
all of the representatives. See, e.g., Rogers, 458 U.S. at 616.
In 2006, Congress learned that racially polarized voting is more 
severe in covered than in non-covered jurisdictions, and that 
racial appeals (e.g., a candidate emphasizing the race of his 
opponent by publishing his opponent’s picture, sometimes 
darkened, in his campaign literature) are more common in 
covered than non-covered jurisdictions—indeed, the evidence 
before Congress showed that racial appeals are still routinely 
employed in biracial elections in some covered jurisdictions. 
See, e.g., October 20, 2005, at 84-85; May 9, 2006 Hearing, at 
44; May 17, 2006 Hearing, at 17.



19

blocked Latinos from electing a majority of council 
members by dismantling a Latino-majority district. 
After the Attorney General indicated that 
preclearance was unlikely, Seguin withdrew its 
proposal but promptly closed the candidate filing 
period to prevent any Latino candidate from 
competing in the district. Seguin did not submit this 
change for preclearance, but a successful Section 5 
enforcement suit caused the city to reopen its 
candidate filing period. See J.S.App. 92-93.

Three other recent examples from Texas illustrate 
the need for both Section 5 and Section 2. Until 
1990, Freeport elected its four-member city council in 
at-large elections by plurality vote. That year, the 
first and only Latino-preferred candidate was elected 
by a slim plurality, and the city responded by 
enacting a majority-vote requirement. October 25, 
2005 Hearing, at 2291-92; 2528-30.13 DOJ objected, 
finding that the change was retrogressive. Id. at 
2292. Shortly thereafter, the city settled a separate 
Section 2 case by agreeing to adopt single-member 
districts; over the next decade, Latino voters were 
able to elect candidates of choice in two out of four

13 Devices such as majority-vote requirements (which often 
result in run-off elections and prevent a plurality of voters from 
electing a candidate of choice); numbered posts (which require 
head-to-head contests for each seat); and anti-single-shot voting 
prohibitions (which prevent minority voters from concentrating 
their votes on a single candidate in multiple-candidate elections) 
enhance the tendency for multimember or at-large districts to 
minimize the voting strength of minorities. See, e.g., 
Thornburg, 478 U.S. at 37; Rogers, 458 U.S. at 616-17; White v. 
Regester, 412 U.S. 755, 766-67 (1973).



20

council districts. Id. at 2528-30. In 2002, however, 
Freeport drew a retrogression objection for 
attempting to reinstitute at-large elections. Id.

Similarly, in 2001, the Haskell Consolidated 
Independent School District, which encompasses 
Haskell, Knox, and Throckmorton Counties, 
attempted to return to at-large elections after having 
settled, just seven years earlier, a Section 2 suit by 
agreeing to implement single-member districts. 
O ctober 25, 2005 Hearing, at 2513-17. In interposing 
an objection, DOJ explained that the data did not 
support the race-neutral reason proffered by the 
district for the retrogressive plan (that voter turnout 
was higher under an at-large system). See id. at 
2515. Furthermore, DOJ rejected the district’s 
suggestion that the minority community should wait 
until after the new system took effect to challenge it, 
because that proposition “ignored the essential 
purpose of Section 5, which is to ensure that gains 
achieved by minority voters not be subverted by 
retrogressive changes.” Id.

DOJ objected to Bailey County’s 1991 
retrogressive redistricting plan, and interposed a 
second objection the following year, when the county 
held a special election using the objected-to district 
boundaries. See id. at 2362-63, 2409. Then, in July 
1993, the county drew a third objection when it 
attempted to evade a settlement in a separate voting 
suit by reducing the number of justice of the peace 
and constable districts from four to one. See id. at 
2416-18.



21

Faced with this evidence, Congress’s assessment 
of the important and continuing interplay between 
Sections 5 and 2 was well-founded.

Other types of examples abound. While Appellant 
argues that moving a polling place is a “minute and 
obviously benign change[ ],” (Br. at 14), this Court 
has recognized that the selection of a polling place 
affects whether “ [t]he abstract right to vote . . . 
becomes a reality at the polling place on election 
day.” Perkins v. M atthews, 400 U.S. 379, 387 (1971). 
Three examples from Texas prove the point.

In 2006, the North Harris Montgomery 
Community College District, which comprises two 
counties and an area of more than 1,000 miles, 
proposed to reduce the number of polling sites from 
84 to 12. M ay 16, 2006 Hearing, at 60-61. Objecting 
to these reductions as retrogressive, DOJ explained 
that the site with the smallest proportion of minority 
voters would serve 6,500 voters, while the site with 
the largest proportion of minority voters (which was 
79.2% Black and Hispanic) would serve over 67,000 
voters. Id,

In 1994, Marion County drew an objection when it 
provided pretextual reasons for relocating a polling 
place to a venue that was less accessible for Black 
residents; the county was apparently motivated, at 
least in part, by a desire to thwart recent Black 
political participation. J.S.App. 178-79.

And, in 1991, a water district in Lubbock County 
enacted polling place changes that required voters in 
predominately African-American neighborhoods to 
travel to remote venues, while their counterparts in 
predominately white neighborhoods were assigned to



22

centrally located polling places. The district 
presented implausible nonracial reasons for the 
change, which was promulgated shortly after a 
settlement in a Section 2 suit forced the district to 
abandon at-large elections. See O ctober 25, 2005 
Hearing, at 2300-03; J.S.App. 72-73.

The evidence before Congress also revealed other 
types of discrimination designed to suppress minority 
turnout in Texas. For example, hearings conducted 
by the NAACP after the 2000 and 2002 elections 
documented various forms of intimidation and 
misinformation against Black voters. March 8, 2006 
Hearing, at 138-39. In one particularly horrendous 
example, in 2000, a campaign worker for the first 
Black candidate to make the general election ballot in 
over 100 years in Wharton County (which has drawn 
six Section 5 objections since 1982) had her home set 
on fire, and a burnt picture of the Black candidate 
thrown on her property, after receiving calls about 
what would happen to her if she did not remove “the 
N-word sign out of her yard.” Id.', see also id. at 2998- 
3002; O ctober 25, 2005 (H istory) Hearing, at 216-17. 
Local law enforcement officers did little to investigate 
this election-related incident except requiring the 
victim to take a polygraph. See March 8, 2006 
Hearing, at 3000-05. See also J.S.App. 104-05 
(documenting additional polling-place discrimination 
against Black and Latino voters in Texas).

This type of discrimination is particularly 
significant given that, as Appellant concedes, Texas 
continues to suffer the greatest registration disparity 
between Anglos and Hispanics of all the wholly 
covered States. Br. at 50 (observing 16-point



23

difference between Anglos and Hispanics; also noting 
5-point difference between Anglos and Blacks).

The adoption of discriminatory annexations, 
methods of election, and redistricting plans has also 
been common in Texas. DOJ interposed 
discriminatory-purpose objections in 1999 and 1997 
respectively to racially selective annexations—i.e., 
purposeful efforts to use annexations to increase the 
white percentage of the population—by the cities of 
Lamesa (its second Section 5 objection in six years) 
and Webster. See O ctober 25, 2005 (H istory) 
Hearing, at 216; 2505-07; J.S.App. 176-78. In 1994, 
an independent school district in Limestone County 
drew a discriminatory-purpose objection when it 
adopted a new method of election that appeared 
calculated to minimize Black voting strength; the 
district had disregarded the plan unanimously 
recommended by a fifteen member tri-racial study 
committee and provided pretextual reasons for the 
plan it selected. See O ctober 25, 2005 (H istory) 
Hearing, at 2437-40. Other examples of purposefully 
discriminatory methods of election remedied by 
either Section 2 or Section 5 occurred in- Refugio 
County (1991); Dallas (1990); Frio and Medina 
Counties (1988); Colorado and Austin Counties 
(1988); Midland (1986); and Terrell (1983). See id. at 
2304-06; 2247-48, 2249-50; J.S.App. 100-102.

In 1992, Galveston and Terrell Counties each 
drew objections to their purposefully discriminatory 
redistricting plans. Galveston County provided 
pretextual reasons for a plan that fragmented 
minority voters across multiple districts, see October 
25, 2005 (H istory) Hearing, at 2344-45, while Terrell 
County (which had drawn a separate method-of-



24

election objection just six years earlier) provided no 
plausible nonracial explanation for adopting a plan 
that diminished Latinos’ voting strength even though 
the Latino-share of the county’s population had 
increased from 43% to 53%, see id. at 2359-60.

Similarly, in 1994, DOJ interposed an objection to 
an apportionment plan by the Gonzales County 
Underground Water Conservation District. The 
district avoided creating any districts where minority 
voters would have an opportunity to elect candidates 
of choice through “gross[ ] malapportion[ment]”—one 
district with nearly half the minority population was 
more than two-and-a-half times the size of any other 
district. See id. at 2458. Notably, this objection, like 
several others interposed between 1982 and 2004, 
was aimed at a small utility district—evidence that 
political subunits similar in size to Appellant 
implement discriminatory voting changes.

Simply put, the record before Congress
demonstrates that, notwithstanding progress,
intentional discrimination against minority voters 
remains a widespread and persistent problem in 
Texas.

But for Section 5, the vast majority of the 
incidents described in this section would have come 
out differently, and, as a result, the ability of African 
Americans and Latinos to participate in our 
democracy would have been severely impaired.



25

2. Substantial Voting Discrimination 
Persists in Other Covered Jurisdictions

Texas is not an anomaly.14 The evidence before 
Congress showed ongoing discrimination against 
minority voters throughout the covered jurisdictions. 
As noted, when Congress considered the need for 
Section 5 in 2006, there had been over 600 Section 5 
objections, over 600 successful Section 2 suits, over 
200 submissions withdrawn due to MIRs, and over 
100 Section 5 enforcement suits since the previous 
reauthorization. In nine of the wholly or partially 
covered States, more objections were interposed since 
the 1982 reauthorization than between 1965 and 
1982. J.S.App. 66-68. And “as in 1975, the 
legislative record reveals that the Attorney General 
interposed objections to a wide variety of electoral 
changes proposed by governments at all levels.” Id. 
at 69. Between 1982 and 2004, each fully covered 
State drew at least two statewide objections, with 
most fully covered States drawing many more. See 
id. at 71. At the local level, objections were 
particularly numerous in areas with large minority 
populations. See id. at 72, 74-75.

In the following pages, we discuss representative 
examples of discrimination against minority voters in 
covered jurisdictions outside of Texas divided into the 
following categories^ (l) registration and Election Day 
voting; (2) methods of election; (3) annexations and

14 See generally March 8, 2006 Hearing, at 104-290 (report by 
the National Commission on the Voting Rights Act), available at 
http://www.votingrightsact.org/report/finalreport.pdf.

http://www.votingrightsact.org/report/finalreport.pdf


26

de-annexations^ (4) redistricting; (5) polling place 
changes; and (6) other types of discrimination. A 
final category discusses jurisdictions that have had 
multiple acts of discrimination deterred by Section 5, 
or by some combination of Sections 2 and 5.

Registration and Voting

Due in large part to the VEA, minority 
registration has increased dramatically in the 
covered jurisdictions. Still, in 2006, Congress 
reviewed considerable evidence of purposeful 
discrimination designed to suppress minority 
registration and turnout.

Almost 100 years after Mississippi enacted a dual­
registration requirement for municipal and non­
municipal elections as part of the “Mississippi Plan” 
to deny Blacks the right to vote, that requirement 
still had its intended discriminatory consequences: 
many Blacks were not registered because the 
burdens of the complex dual-registration system 
(including limited access to registration sites) fell 
more heavily on Black citizens, who 
disproportionately lacked access to automobiles or 
telephones. M ississippi State Chapter, Operation 
PUSH v. Allain, 674 F. Supp. 1245, 1251-55 (N.D. 
Miss. 1987). Black voters brought a lawsuit 
challenging the system, and, in 1987, a federal 
district court found that the dual-registration law 
had been enacted for a discriminatory purpose, 
continued to have a discriminatory effect, and 
violated Section 2 of the VRA. See id. at 1268. The 
Fifth Circuit affirmed in 1991. See M ississippi State 
Chapter, Operation PUSH v. Mabus, 932 F.2d 400 
(5th Cir. 1991). Then, just four years later, the State



27

once again established a dual-registration system 
(this time for state vs. federal elections), ostensibly 
for the purpose of complying with the National Voter 
Registration Act. See J.S.App. 78-79. Mississippi 
refused to seek preclearance. See id, Individual 
voters then brought a Section 5 enforcement action, 
and this Court unanimously held that preclearance 
was required. See Young v. Fordice, 520 U.S. 273 
(1997).

In the wake of Young, the State finally submitted 
its dual-registration system for preclearance, and 
DOJ applied the Arlington H eights test to interpose a 
discriminatory-purpose objection. See O ctober 25, 
2005 (H istory) Hearing, at 1603-04. DOJ noted that 
the racially discriminatory effects of this system 
“were not just foreseeable but almost certain to 
follow.” Id. at 1603. Moreover, proposals supported 
by election officials that would have mitigated this 
discriminatory impact were “rejected under 
somewhat unusual circumstances,” with state 
officials offering “insubstantial” reasons for their 
opposition and in some cases couching it in racially 
charged terms. Id. 15

Notwithstanding Appellant’s mischaracterization 
of the record, (Br. at 44), the entrenched 
discrimination illustrated by Mississippi’s dual­
registration system lasted over a century, and was

15 For another example of a Jim Crow voting law that was not 
invalidated until after the 1982 reauthorization, see Hunter v. 
Underwood, 471 U.S. 222 (1985).



28

only remedied by the combined enforcement of 
Sections 5 and 2.

Congress also learned in 2006 that race continues 
to affect minority voting access in other ways. In 
2004, Long and Atkinson Counties in Georgia 
required Latino registered voters, whose citizenship 
had been challenged because of their Spanish 
surname, to attend a hearing to establish citizenship; 
the registrar in Atkinson County facilitated the 
challenge process by supplying a segregated list of 
registered voters with Spanish surnames. See 
O ctober 18, 2005 Hearing, at 474-78. Long County 
later entered into a settlement agreement with DOJ 
based on the county’s handling of these mass 
challenges. March 8, 2006 Hearing, at 1531. Latinos 
in Arizona also experienced widespread 
discrimination when attempting to vote in 2004; poll 
workers asked Latinos (but not Anglos) for 
identification, trucks with megaphones were parked 
outside of heavily-Latino precincts and the drivers 
warned residents that they would be deported if they 
wrongfully registered to vote, and police cars circled 
around polling places. See id. at 3979-80.

Black voters likewise continue to face widespread 
intimidation and harassment. In 2005, literature 
was disseminated in Black neighborhoods in 
Danville, Virginia, threatening to lynch African 
Americans and warning that if residents “‘didn’t vote 
a certain way certain things could happen to you.’” 
Id. at 2045. In 2003, a federal court found 
“significant evidence of intimidation and harassment” 
by poll managers in predominately minority precincts 
in Charleston County, South Carolina that “never 
occurred at predominately white polling places.”



29

United S tates v. Charleston County, 316 F. Supp. 2d 
268, 286 n.23 (D.S.C. 2003), affd, 365 F.3d 341 (4th 
Cir. 2004) (Wilkinson, J.). During New York City’s 
1993 mayoral election, off-duty police officers, with 
guns in view, blanketed polling sites in Black 
communities. O ctober 18, 2005 Hearing, at 62. The 
previous year, poll workers in Hale County, Alabama 
closed a polling place early so that Black voters from 
a local fish processing plant could not vote; Congress 
learned that similar tactics were common in the 
county. See March 8, 2006 Hearing, at 302. And in 
North Carolina’s 1990 Senate election, 125,000 Black 
voters were mailed postcards on the eve of the 
election stating, incorrectly, that they could not vote 
if they had moved within 30 days of the election. 
March 8, 2006 Hearing, at 1737. Two years later, 
DOJ obtained a consent decree banning this practice. 
See id. & n.70.

Congress also heard examples of voter fraud 
designed to prevent Blacks from gaining political 
power, and of severe discrimination against potential 
Black poll workers. In McCormick County, South 
Carolina, the clerk of the County Board of Registrars 
pleaded guilty to rigging a 1994 state house election 
in favor of the long-time white incumbent, who was 
running against an African-American challenger. Id. 
at 1973. The year before, DOJ settled Section 2 
lawsuits against five Georgia counties that had 
discriminated against potential Black poll workers. 
Id. at 1526 & n.129. Similarly, Alabama’s 
intentionally discriminatory laws and processes 
caused “black persons [to be] grossly 
underrepresented among poll officials, with the result 
that polling places across the state continue to be



30

viewed by many blacks as areas circumscribed for 
whites and off-limits for blacks.” H arris v. Graddick, 
593 F. Supp. 128, 133 (M.D. Ala. 1984); see H arris v. 
Siegelman, 695 F. Supp. 517, 526 (M.D. Ala. 1988).

M ethods o f Election

Even more common than these ongoing efforts to 
suppress minority registration and turnout are 
efforts to cancel out the impact of the minority vote, 
by, as one example, the adoption of discriminatory 
methods of election.

In 2004, the South Carolina legislature enacted a 
law effectively prohibiting single-shot voting and 
adding a majority-vote requirement to Charleston 
County’s at-large school board elections, 
notwithstanding: (l) a judicial finding only months 
earlier that this method of election for Charleston’s 
county council illegally diluted minority voting 
strength in violation of Section 2, and (2) evidence 
that elected officials understood the retrogressive 
nature of the change. See March 8, 2006 H earing; at 
175-76. Indeed, this change was the culmination of a 
series of efforts by the Charleston County state 
legislative delegation to alter the method of election 
for, or reduce the powers of, the Charleston County 
school board after the 2000 election resulted in 
Blacks gaining a majority of seats on the board for 
the first time in history. See United States v. 
Charleston County, 316 F. Supp. 2d at 290 n.23. 
DOJ interposed an objection. J.S.App. 172. Thus, 
once again, Sections 5 and 2 worked in tandem to 
remedy discrimination against minority voters, but 
while the Section 5 objection had immediate impact, 
the Section 2 litigation lasted several years and cost



31

millions of dollars. March 8, 2006 Hearing, at 175- 
76.

Another example of a State facilitating 
discrimination by local jurisdictions arises out of 
Louisiana. In 2001, Louisiana enacted legislation 
allowing the electors of St. Bernard Parish to reduce 
the size of the parish school board from eleven single­
member districts to five single-member districts and 
two at-large seats. Id. at 1618. A federal court found 
that the proposed plan violated Section 2 because, 
unlike the existing plan, it did not include any 
African-American opportunity districts—that is, a 
district where Black voters have an opportunity to 
elect candidates of choice. Id. During a hearing in 
the case, a white state senator, Lynn Dean, offered 
testimony that exhibits the racial animus that some 
elected officials still harbor. Id. at 1693-94. When 
asked whether he had heard the word “nigger” used 
in the parish, Dean testified that “he uses the term 
himself, ha[d] done so recently, that he does not 
necessarily consider it a ‘racial’ term and that it is 
usable in jest, as well.” Id. Dean’s interest in and 
influence over the composition of the parish’s school 
board stemmed from his service on that body for 10 
years prior to his election to the state senate. Id. at 
1618.

Northampton County, Virginia provides another 
recent example of a jurisdiction enacting consecutive 
discriminatory methods of election. In 2001, despite 
racially polarized voting, the county proposed 
switching from six single-member districts, three of 
which were majority-minority, to three dual-member 
districts, all with majority-white voting-age
populations. DOJ objected to this plan, concluding



32

that the county’s stated justification was inaccurate, 
and that it had inexplicably abandoned consideration 
of non-retrogressive alternatives. See O ctober 25, 
2005 (H istory) Hearing, at 2484-86. The county 
responded with two more retrogressive plans, which 
drew objections from DOJ in May and October 2003. 
See id. at 224, 2592-95; March 8, 2006 Hearing, at 
2040.

Two objections from the 1990s further illustrate 
that Sections 2 and 5 of the VRA are both needed to 
remedy discrimination by covered jurisdictions. In 
July 1993, plaintiffs agreed to settle a Section 2 
lawsuit challenging Mt. Olive, North Carolina’s use 
of at-large elections for the town’s board of 
commissioners. Two months later, the board 
abandoned the redistricting plan to which the parties 
had agreed, and promulgated a new discriminatory 
plan. DOJ interposed a discriminatory-purpose 
objection, concluding that the board’s justification for 
adopting the new plan appeared pretextual. October 
25, 2005 (H istory) Hearing, at 1823-24. The racial 
animus underlying the board’s conduct was 
confirmed by its extraordinary efforts to freeze the 
only Black member of the board out of the 
decisionmaking process-' “the board petitioned [a] 
court to prohibit her from participating in board 
discussions or voting on the method of election issues 
raised by the Section 2 litigation.” Id. at 1824.

In 1993, Newport News, Virginia drew a 
discriminatory-purpose objection when it attempted 
to implement at-large elections for its school board— 
its second method-of-election objection in four years. 
Id. at 2573. Then, in 1994, the city entered into a 
consent decree in parallel suits brought by Black



33

voters and the United States, in which it 
acknowledged discriminating against African 
Americans in violation of Section 2 and the 
Fourteenth and Fifteenth Amendments through its 
system of at-large city council elections. See J.S.App. 
102. Thus, far from proving that Section 5 is 
unnecessary as Appellant contends, (Br. at 47-48), 
the repeated efforts of Newport News to discriminate 
against minority voters were only remedied through 
two Section 5 objections and one Section 2 lawsuit.

Other jurisdictions failed even to submit for 
preclearance method-of-election changes that 
adversely affected Black voters. Indeed, as this 
Court unanimously stated in Clark v. Roemer, 500 
U.S. 646 (1991):

[T]he State of Louisiana failed to 
preclear . . . judgeships as required by 
§ 5. It received official notice of the 
defect in July, 1987 [when individual 
citizens filed a Section 5 enforcement 
action], and yet three years later, it had 
still failed to file for judicial
preclearance. . . .  It scheduled elections 
for the unprecleared seats in the fall of 
1990 even after the Attorney General 
had interposed objections under § 5. In 
short, by the fall 1990 election, 
Louisiana had with consistency ignored 
the mandate of § 5.

Id. at 655. See also M ay 10, 2006 Hearing, at 139 
(enforcement action under similar circumstances in 
Mississippi).



34

The Addendum to this brief references additional 
discriminatory-purpose objections to method-of- 
election changes designed to minimize minority 
voting strength in: Monterey County, CA (2002);
Gaffney, SC (1996); Greenville, MS (1995); North 
Carolina (1990, 1987, 1986, and 1984 for changes 
affecting covered counties); Chambers County, AL 
(1990); Anderson County, SC (1990); Lancaster, SC 
(1989); Bladen County, NC (1987); Cottonport, LA 
(1987); Wilson County, NC (1986); Newberry County, 
SC (1984) and Greenville, VA (1982). In each case, 
the jurisdiction’s discriminatory intent was revealed 
by one or more of the following circumstances: (l)
evidence of discrimination by state or local officials in 
the deliberative process! (2) unexplained departures 
from neutral legislative practices! or (3) the 
jurisdiction’s failure to provide any non-pretextual, 
nonracial justification for its plan. See O ctober 25, 
2005 (H istory) Hearing; at 3319-22! 2053-56! 1516- 
21; 1788, 1771-13, 1736-40, 1712; 358-59; 1963-65! 
1952-54! 895-96; 1738! 1731-32! 1894-95! 2549-51.

Redistricting

During the 2006 reauthorization process, 
Congress received extensive evidence of purposefully 
discriminatory redistricting plans enacted by covered 
jurisdictions since 1982— many of which were 
remedied by Section 5. This evidence spanned 
numerous covered jurisdictions, many of which drew 
multiple objections for discriminatory redistrictings, 
at both the state and local levels.

“In one particularly stark example, Congress 
heard testimony that not one redistricting plan for 
the Louisiana House of Representatives had ever



35

been precleared as originally submitted.” J.S.App. 
70. After the 2000 Census, Louisiana sought judicial 
preclearance for its state house redistricting plan, but 
acknowledged that it intentionally increased electoral 
opportunities for white voters at the expense of such 
opportunities for African-American voters. During 
the judicial preclearance litigation, the three-judge 
court criticized the State for “blatantly violating 
important procedural rules” and for a “radical mid­
course revision in [its legal] theory”; the court noted 
that the State’s conduct bordered on sanctionable. 
La. H ouse o f Reps., e t a l, v. Ashcroft, No. 02-0062 at 
1, 2 (D.D.C. Feb. 13, 2003) (three-judge court). On 
the eve of trial, Louisiana withdrew the preclearance 
action, and restored an African-American opportunity 
district after evidence emerged that the plan the 
State had submitted for preclearance violated the 
State’s own redistricting principles. See March 8, 
2006 Hearing, at 1608.

Ten years earlier, Louisiana had similarly 
discriminated against Blacks in its state house 
redistricting. Then, Louisiana did not consistently 
apply its stated redistricting criteria; rather, it 
applied those criteria when doing so would deprive 
Black voters of an opportunity district and departed 
from those criteria when doing so would deprive 
Black voters of an opportunity district. See October 
25, 2005 (H istory) Hearing, at 951-52.

Similarly, Mississippi drew a discriminatory- 
purpose objection to its redistricting plan for the 
state senate following the 1990 Census, which was 
similar to an objection DOJ interposed to its 
congressional redistricting plan following the 1980 
census. See id. at 1183-86; J.S.App. 79. In both



36

circumstances, DOJ concluded that the plan was 
calculated to minimize Black voting strength in the 
Delta region; after the 1990 census, legislators 
privately referred to an alternative plan that would 
have increased the number of majorityBlack 
districts as the “nigger plan.” J.S.App. 80.

Like Mississippi, Alabama drew statewide 
redistricting objections from DOJ after both the 1980 
and 1990 Census. In 1991, the State failed to provide 
a plausible nonracial explanation for fragmenting 
concentrated Black populations, and DOJ had reason 
to believe that the “underlying principle of the 
Congressional redistricting was a predisposition on 
the part of the state political leadership to limit 
Black voting potential to a single district.” October 
25, 2005 (H istory) Hearing, at 385-86. After the 1980 
Census, the State “systematically reduc[ed] the 
influence which Black voters . . . enjoy” in ten urban 
legislative districts and eliminated entirely four 
Black-majority districts in rural counties. See id. at 
264-65. DOJ determined that the State’s districting 
choices “do not appear to have been necessary to any 
legitimate governmental interest” and were not 
applied neutrally throughout the State. Id. at 265.16

16 In his amicus brief Governor Bob Riley concedes that 
Alabama “earned its spot on §5’s original coverage list,” but 
argues that by renewing the State’s coverage in 2006, “Congress 
wrongly equated Alabama’s modern government, and its people, 
with their Jim Crow ancestors.” Governor Riley Amicus Br. at 
1-2. Governor Riley, however, fails to recognize that the 
Congressional standard was not simply improvement (which is 
undeniable) but equality (which remains elusive).



37

Arizona has drawn Section 5 objections to its 
statewide legislative redistricting plans after each 
decennial census since it was first covered. In 2001, 
DOJ concluded that the legislative redistricting plan 
was not only retrogressive for Latino voters, but in 
addition the circumstances surrounding the drawing 
of at least one district “raised concerns that [the 
districting decision] may have also been taken, at 
least in part, with a retrogressive intent.” Id. at 
500.17 DOJ similarly concluded that the proposed

Particularly misplaced is Governor Riley’s suggestion—which 
relies wholly on post-reauthorization evidence—that race has 
lost its salience in Alabama elections. Id. at 9-11. Congress in 
2006 learned that Alabama has no Black officials elected 
statewide, and virtually all Black officials are elected from 
majority-minority districts. See July 13, 2006 Hearing, at 388- 
89. Although not before Congress, the 2008 Presidential 
election results confirm the existence of extreme racial 
polarization in Alabama. President Obama received support 
from only 10% of white voters in Alabama—his worst showing 
among the 50 states. Nathaniel Persily, et al. Amicus Br. at 11- 
12. Shortly before the election, one Alabama resident predicted 
of Obama'- “‘He’s going to tear up the rose bushes and plant a 
watermelon patch . . . .”’ Adam Nossiter, For Some, Uncertainty 
at Racial Identity, N.Y. Times, Oct. 4, 2008, at A21.
17 That an Independent Redistricting Commission (IRC) 
proposed this plan does not weaken the force of this objection. 
Cf. Scharf-Norton Amicus Br. at 2-3. A purposefully 
retrogressive redistricting plan is no less discriminatory because 
it was initially proposed by an IRC. Furthermore, contrary to 
the Scharf-Norton Center’s suggestion, id., the retro gressive- 
effect prong of Section 5 simply requires that minority voters 
have an equal opportunity to elect candidates of choice as they 
did in the benchmark plan; it does not forbid competitive 
elections.



38

redistricting plan following the 1990 Census 
discriminated against Latino voters, and that the 
State provided pretextual reasons for rejecting non- 
discriminatory alternatives. Id. 476, 481-82. After 
the 1980 Census, the State could not offer a plausible 
non-discriminatory reason for enacting a redistricting 
plan that was retrogressive for American Indian 
voters. Id. 454-55.

Congress also learned of South Dakota’s 
discrimination against Indian voters in its 2001 
legislative redistricting plan. M ay 9, 2006 Hearing, 
at 86 (citing Bone Shirt v. H azeltine, 336 F. Supp. 2d 
976 (D.S.D. 2004)). In Bone Shirt, American Indians 
were packed into a single district where they 
constituted 90 percent of the voting-age population. 
336 F. Supp. 2d at 1048. After rejecting the State’s 
argument that “non-tenuous policies” supported this 
packing and noting that the state legislature’s 
redistricting committee received almost no input 
from the Indian community, a court held that the 
statewide redistricting violated Section 2. See id. at 
1047-48. Tellingly, only two years earlier, American

For a similar reason, the contention of amicus Thernstrom, et 
al., that amendments to Section 5 will “preserve0 in amber until 
2031 all extant majority-minority districts . . . regardless of 
changes in voting patterns,” is false. Br. at 4; see id. at 26-28. 
The ability-to-elect standard, codified at 42 U.S.C. § 1973c(b), 
does not require the maintenance of majority-minority districts 
regardless of voting patterns. If racially polarized voting 
declines, the elimination of majority-minority districts will not 
be retrogressive because minority voters will have an equal 
opportunity to elect candidates of choice in majority-white 
districts. See, e.g., March 8, 2006Hearing, at 301-02.



39

Indians in the State’s covered counties successfully 
sued South Dakota for enacting hundreds of voting 
changes between 1976 and 2002 and failing to submit 
them for preclearance. O ctober 25, 2005 (Continuing 
N eed) Hearing, at 131.

In recent years, numerous cities, counties, and 
other local jurisdictions have also promulgated 
racially discriminatory redistricting plans. In the 
opinion below, the District Court described Section 5 
objections that prevented the enforcement of 
redistricting plans motivated by a discriminatory (or 
after 2000 retrogressive, see  note 3, supra) purpose 
in: Delhi, LA (2005); Ville Platte, LA (2004);
Pittsylvania County, VA (2002); Albany, GA (2002); 
Webster County, GA (2000); Grenada, MS (1998); 
Tallapoosa County, AL (1998); and Greensboro, AL 
(1994). J.S.App. 155-83.

Other examples abound. In 2002, DeSoto Parish 
and the City of Minden, Louisiana each drew 
retrogressive-purpose objections from DOJ for 
adopting redistricting plans that, by local officials’ 
own accounts, were intentionally designed to reduce 
opportunities for Blacks to elect candidates of choice. 
See O ctober 25, 2005 (H istory) Hearing, at 1157-60; 
1150-52. Also in 2002, South Carolina drew a 
retrogressive-purpose objection for its apportionment 
of school board districts in Union County. Applying 
Arlington Heights, DOJ noted, in ter alia, that Black 
residents of the county were frozen out of the 
deliberative process, and that the State did not 
explain why it had not considered available non- 
retrogressive plans that were consistent with its 
stated redistricting goals. See id. at 2086-87. And in 
2001, DOJ interposed a retrogressive-purpose



40

objection when the City of Greer, South Carolina 
eliminated the sole minority-opportunity district for 
municipal elections. The evidence showed that the 
city proffered pretexual reasons for altering its 
apportionment plans to satisfy concerns raised by 
white citizens while quickly rejecting proposals 
supported by minorities. See id. at 2080.

Jurisdictions also frequently adopted 
discriminatory plans when minority communities 
were on the verge of exercising political power, and 
often more than one Section 5 objection was 
necessary to deter this type of discrimination. For 
example, the 1990 Census revealed that the Black 
population of Selma, Alabama grew from 52.1% to 
58.4%. The city responded by packing Black voters 
into four districts (three of which were over 90% 
Black) and fragmenting Black neighborhoods across 
the remaining five districts. Id. at 391. In a 1992 
objection letter, DOJ found that the city’s reasons for 
rejecting a nondiscriminatory alternative “appear[ed] 
to be pretextual”; the city was actually “motivated by 
the desire to confine black population concentrations 
into a predetermined number of districts, and thus 
ensure a continuation of the current white majority 
on the council.” Id. at 392. Selma then submitted a 
new redistricting plan that drew an objection in 1993. 
While addressing some of the concerns expressed in 
DOJ’s 1992 objection, the new plan continued to 
“fragment [] black population concentrations . . .  in an 
apparent effort to limit the opportunity for black 
voters to elect more than four councilmembers.” Id. 
at 403. Minutes from a council meeting at which the 
plan was adopted confirmed that the city was 
motivated by intentional discrimination. Id.



41

The Town of Johnston, South Carolina and East 
Carroll Parish, Louisiana similarly each drew 
consecutive discriminatory-purpose objections in the 
1990s for intentionally packing African-American 
voters, who represented a majority of the electorate, 
into a minority of districts. See id. at 1980-82, 2003- 
05; 1013-15, 985-86. Similarly, Marion County and 
Lee County, South Carolina each drew an objection 
in 1993 when, faced with increases in Black 
population, the counties placed a quota on how many 
Black residents could be included in the districts that 
would determine majority control of the county 
council and school board. See id. at 1992-95; 1996-99.

In addition to the examples discussed above and 
in the District Court’s opinion, DOJ objected to 
redistricting plans submitted by the following 
jurisdictions where the evidence—either in the form 
of explicit statements during the deliberative process 
or powerful circumstantial evidence (e.g ., freezing the 
minority community out of deliberations, departing 
from normal legislative rules, or failing to provide a 
non-pretextual, nonracial reason for a change)— 
indicated that the jurisdiction had been motivated by 
a discriminatory or retrogressive purpose: Sumter
County, SC (2002); Orangeburg County, SC (1992); 
Dallas County, AL (1992 (two separate objections), 
1987 & 1986); Catahoula Parish, LA (1991); Bolivar 
County, MS (1991); Edgefield County, SC (1987); 
Yazoo County, MS (1986, 1985, & 1983); Pointe 
Coupee Parish, LA (1983); LaSalle Parish, LA (1982) 
and McDonough, GA (1982). October 25, 2005 
(H istory) Hearing, at 2082-84; 1983-85; 397-99, 388- 
90, 327-29, 310-12; 972-73; 1414-16; 1935-37; 1344- 
45, 1330-31, 1265-67; 884-68; 867-69; 581-83.



42

Annexations and D e-Annexations

Since the 1982 renewal, Section 5 blocked 
purposefully discriminatory annexations and de­
annexations by many covered jurisdictions similar to 
those discussed above by Lamesa and Webster, 
Texas. In several cases, discriminatory annexations 
were part of a systematic effort to prevent minority 
voters from electing candidates of choice. In 1993, 
DOJ objected (for the second time in four years) to 
Foley, Alabama’s policy of encouraging petitions for 
annexation from majority-white residential areas 
while discouraging or rejecting petitions from 
predominately African-American areas; the city could 
offer no legitimate nonracial explanation for this 
policy. See O ctober 25, 2005 (H istory) Hearing, at 
406. Foley had adopted its discriminatory 
annexation policy shortly after a successful Section 2 
challenge to its at-large elections. See Dillard v. C ity 
o f Foley, 926 F. Supp. 1053, 1059 (M.D. Ala. 1995) 
(describing court’s 1989 order).

In 1994, DOJ objected to Shreveport, Louisiana’s 
annexation of white-suburban wards to its city court 
jurisdiction! the annexations would have changed the 
population of that at-large jurisdiction from 54% to 
45% African-American. Despite DOJ’s initial 
objection, the city tried a total of five more times, 
twice in 1995, in 1996, and twice in 1997. Each time, 
DOJ informed the city that it would have no objection 
if Shreveport changed its at-large method of electing 
judges to help ameliorate the discriminatory effect of 
the annexations, and each time, the city refused to 
make that change. March 8, 2006 Hearing, at 1615- 
17.



43

Other purpose-based objections tell a similar 
story. As discussed by the District Court, Section 5 
objections prevented the Town of North, South 
Carolina (2003) and the City of Grenada, Mississippi 
(1998) from implementing discriminatory 
annexations designed to prevent African Americans 
from exercising political power. J.S.App. at 165-67, 
175-76. In 1994, Hemingway, South Carolina drew a 
purpose-based objection for its racially selective 
annexations. The town had initially refused to 
submit its annexations for preclearance and did so 
only after Black residents succeeded in a Section 5 
enforcement action. March 8, 2006 Hearing; at 1065. 
DOJ objected, concluding that the town provided a 
pretextual reason for its annexation decisions; 
indeed, after the local regional planning agency 
concluded that it was more feasible for the town to 
annex a predominately African-American residential 
area than a nearby predominately white area, the 
town did the opposite. See O ctober 25, 2005 (H istory) 
H earing; at 2028-30. After DOJ’s objection, 
Hemingway decided to take the unusual step of de- 
annexing recently annexed areas rather than 
annexing predominately Black areas. October 20, 
2005 Hearing, at 83.

In 1987, Augusta, Georgia drew an objection to its 
pursuit of an “annexation policy centered] on a racial 
quota system requiring that each time a black 
residential area is annexed into the city, a 
corresponding number of white residents must be 
annexed in order to avoid increasing the city’s black 
population percentage.” October 25, 2005 (H istory) 
Hearing, at 642-43. Augusta went so far as to 
conduct door-to-door surveys to identify white



44

residential areas for annexation. See id. DOJ 
withdrew its objection the following year, after the 
city settled Section 2 litigation, which resulted in a 
new method of election that was nondiscriniinatory. 
See March 8, 2006 Hearing, at 1516 n.78.

In addition to the examples discussed above, DOJ 
interposed objections to purposefully selective 
annexations or de-annexations in Ahoskie, NC 
(1989); Prichard, AL (promulgated by the State of 
Alabama) (1987); Greensboro, AL (1985); and 
Sumter, SC (1985). See id. at 1781-83; 319-20; 305- 
06; 1915-16.

Discrimina tory Polling Place Changes

As in Texas, other covered jurisdictions have 
attempted to suppress minority turnout by relocating 
polling places to intimidating or remote venues. In 
Jenkins County, Georgia for instance, the county 
proposed moving the polling place from an accessible 
venue inside the City of Millen to an inaccessible— 
and for pedestrians, potentially dangerous—location 
in a predominately white neighborhood outside of the 
city limits. (Thirty-eight percent of African-American 
households, compared to 4% of white households, 
lacked a vehicle.) The decision came shortly after a 
Section 2 lawsuit forced Millen to alter its method of 
election. March 8, 2006 Hearing, at 1524 n.120. 
After reviewing the evidence, DOJ concluded in 1995 
that the county’s selection of the new polling location 
“appears to be designed, in part, to thwart recent 
black political participation.” O ctober 25, 2005 
(H istory) Hearing, at 816.

Applying Arlington H eights, DOJ reached a 
similar conclusion in 1999 when the council in



45

Dinwiddie County, Virginia chose an all-white church 
in the extreme eastern (and predominately white) 
part of a rural precinct as a polling place, thus 
disregarding both the recommendation of the county 
electoral board and the council’s stated goal of finding 
a more centrally located polling site. See O ctober 25, 
2005 (H istory) Hearing,; at 2579-83; J.S.App. 182-83. 
That same year, McComb, Mississippi drew an 
objection when it proposed moving a polling place to 
an inaccessible location for minority voters; the 
county disregarded concerns articulated during the 
deliberative process and made no effort to consider 
nondiscriminatory alternatives. See October 25, 2005 
(H istory) Hearing, at 1613-14; see also id. at 1090-92; 
726-28 (describing purposefully discriminatory 
polling place changes in St. Landry Parish, LA (1994) 
and Johnson County, GA (1992)).

Other Discrimination

Covered jurisdictions used a variety of other 
tactics to discriminate against minority voters. For 
example, some jurisdictions adopted implementation 
schedules intended to delay changes that would allow 
minority voters to elect candidates of choice. After 
resolution of an aforementioned Section 2 suit led the 
City of Millen, Georgia to switch from at-large 
elections to a system of double- and single-member 
districts in 1993, see March 8, 2006 Hearing, at 1524 
n. 120, the city proposed delaying the election in a 
Black-opportunity district (the district that would 
permit Black voters to elect a majority of candidates 
of choice to the city council) until 1995, leaving that 
district unrepresented in the two-year interim. See 
O ctober 25 (H istory) Hearing, at 743-45.



46

Similarly, Cleveland, Mississippi drew an 
objection when it obtained a state court order 
authorizing the abandonment of a single-member 
districting plan that would have given Black voters a 
fair opportunity to elect candidates to the school 
board, and the cancellation of the November 1990 
election entirely. See id. at 1395-97, 1405-07. In 
addition to these examples, DOJ interposed 
objections under similar circumstances to 
implementation delays by consolidated school 
districts in Aiken and Saluda counties, SC (1986) and 
Cumberland County and Fayetteville City, NC 
(1985). October 25, 2005 (H istory) Hearing, at 1721- 
22; 1926-28.

Nor was this type of discrimination limited to the 
local level. Louisiana proposed to cancel the 1984 
presidential preference primary, claiming the 
suspension was necessary because of budget issues. 
DOJ observed that the suspension would “undeniably 
reduce the opportunities for Blacks to participate 
meaningfully in the delegate selection process,” and 
also noted that the timing of the proposed election 
cancellations came “on the heels of the 
announcement of the Reverend Jesse Jackson to 
enter the presidential race.” Id. at 890-92.

Other examples of creative discrimination 
include Kilmichael, Mississippi (2001) (canceling 
elections after the 2000 Census indicated that 
multiple Black aldermen and local officials could be 
elected during the 2001 election), see  J.S.App. 78; 
October 25, 2005 (H istory) Hearing, at 1616-19; 
Charleston County, South Carolina (1991) 
(substantially reducing the salary of probate court 
judge following the election of the first African



47

American to that position), see Charleston County, 
316 F. Supp. 2d at 286 n.23; Richland County, South 
Carolina (1988) (enacting a resignation requirement 
designed to create an economic disincentive for 
potential Black candidates), see O ctober 25, 2005 
(H istory) Hearing.; at 1948-51; Bamberg County, 
South Carolina (1986) (scheduling the Democratic 
Primary only 21 days after the election was called, 
despite a state law requiring a minimum of eleven 
weeks, for the apparent purpose of severely 
disadvantaging the candidate of choice of the Black 
community), see id. at 1932-33; North Carolina 
(1986) (resuming an election schedule for a special 
primary election in a judicial district, despite DOJ’s 
objection the month before to the method-of-election 
used by that district), see id. at 1733-35,1745-47.

The Persistent Nature o f Discrimination

Notwithstanding Appellant’s insistence that 
“gamesmanship” is a thing of the past in the covered 
jurisdictions, (Br. at 42, 63), the foregoing discussion 
documents numerous jurisdictions that have enacted 
new discriminatory measures after prior measures 
had to be abandoned.18 Several additional examples 
are discussed below.

Not only did Selma, Alabama draw multiple 
Section 5 objections since the last reauthorization, 
Dallas County (where Selma is located) drew three 
separate objections in the 1990s for retrogressive

18 As discussed by Intervenors-Appellees NAACP, et al., 
evidence of gamesmanship is not required to demonstrate the 
constitutionality of Congress’s decision to reauthorize Section 5.



48

redistricting plans that appeared motivated by an 
attempt to limit Black electoral success. S ee October 
25, 2005 (H istory) Hearing, at 388-90, 397-401.

Serial violations of the Act were also in evidence 
in Burke County, Georgia: the same county where, 
at least until the late 1970s, a segregated laundromat 
operated near the county courthouse, and, in the 
courthouse itself, faded paint over restroom doors did 
not fully conceal the words “colored” and “white.” 
Rogers, 458 U.S. at 631 n .l (Stevens, J., dissenting). 
In 1982, while this Court in R ogers v. Lodge analyzed 
the constitutionality of the county’s at-large system 
for electing county commissioners, see id. at 614-15, 
Waynesboro, the county seat, was unlawfully 
implementing an unprecleared majority-vote 
requirement for its mayoral elections. O ctober 25, 
2005 (H istory) Hearing, at 788-89. DOJ had 
previously objected to the same majority-vote 
requirement in 1972. See id. at 788. Then, in 1977, 
the town reinstituted the requirement, and did not 
seek preclearance until 1994, which was denied as 
the change was retrogressive given the level of 
continued racially polarized voting in Burke County. 
Id. at 789.

Another noteworthy example comes from South 
Carolina. In 1994, the South Carolina legislature 
abolished the elected Spartanburg County Board of 
Education after Section 2 litigation resulted in a 
consent decree changing the method of electing 
members of that board from at-large elections to 
single-member districts. See O ctober 25, 2005 
(H istory) Hearing, at 2041-43. In interposing a 
Section 5 objection, DOJ found that “[t]he sequence of 
events surrounding the adoption of [the state law]



49

gives rise to an obvious inference of discriminatory 
purpose.” Id. at 2042.

This objection, however, did not deter the South 
Carolina legislature, which attempted effectively to 
abolish the school board again in 1995. This time, 
the State proposed to transfer some, but not all, of 
the county school board’s responsibilities to seven 
local school districts, and to de-fund the elected 
school board. See October 25, 2005 (H istory) 
Hearing, at 2049-52. DOJ determined that “the 
county board retain[ed] substantial powers and 
duties” despite the redistribution of power to local 
school districts, which rendered the redistribution of 
authority not subject to Section 5 review under 
P resley v. Etowah County Comm’n, 502 U.S. 491 
(1992). O ctober 25, 2005 (H istory) Hearing, at 2050. 
South Carolina’s decision to de-fund the county 
board, however, “result[ed] in the de facto elimination 
of the county board” for at least one year, and fell 
within the P resley  exception because “minority voters 
would lose their newly-won electoral opportunities” 
on the county board. Id. at 2050-51. Noting that the 
same legislator who sponsored the objected-to 1994 
law sponsored this new law de-funding the local 
school board, and that the State could not offer a 
tenable nonracial justification for the law, DOJ again 
interposed a discriminatory-purpose objection. See 
id. at 2051.

In addition to the examples discussed above, 
numerous other jurisdictions were deterred by a 
combination of multiple Section 5 objections, or at



50

least one Section 5 objection and one Section 5 
enforcement suit, including: McComb, MS (2005),19 
DeSoto Parish, LA (2002); Minden, LA (2002); Point 
Coupee Parish, LA (2002); Alabaster, AL (2000); St. 
Martinville, LA (1997); Shreveport, LA (1997); 
Monroe County, MS (1995); Chickasaw County, MS 
(1995); St. Landry, LA (1994); Madison Parish, LA 
(1993); West Feliciana Parish, LA (1993); Lafayette 
Parish, LA (1993); East Carroll Parish, LA (1993); 
Batesburg, SC (1993); Sunflower County, MS (1992); 
Bolivar County, MS (1991); Leflore County, MS 
(1991); Morehouse Parish, LA (1992); and Yazoo 
County, MS (1986).20 Since the VRA was 
reauthorized in 2006, Randolph County, Georgia and 
Fayetteville, North Carolina have joined this group of 
jurisdictions with multiple Section 5 actions since the 
1982 reauthorization.21

Similarly, in addition to the examples discussed 
above, in the following jurisdictions, a combination of 
Section 2 (or constitutional) litigation and at least 
one Section 5 objection or enforcement action was 
necessary to remedy discrimination: Albany, Georgia

19 Parenthetical dates reflect the most recent Section 5 action.
20 See October 25, 2005 Hearing, at 435-39 (Alabama example);
March 8, 2006 Hearing, at 1618-20, 1667-69, 1651-54; October 
25, 2005 (History) Hearing, at 1027, 1132, (Louisiana
examples); March 8, 2006 Hearing, at 714-15; October 25, 2005 
(History) Hearing, at 159-72; M ay 10, 2006 Hearing at 91 
(Mississippi examples); March 8, 2006 Hearing, at 1030-31; 
October 25, 2005 (History) Hearing, at 188-91 (South Carolina 
examples).
21 See Objection Nos. 2007-2233; 2006-3856, available at 
http ://www .usdoj. gov/crt/voting/sec_5/obj_activ. php.



51

(2003); Harnett County, NC (2002); Washington 
Parish, LA (1999); Tallapoosa, AL (1998); Granville 
County, NC (1996); Chickasaw County, MS (1995); 
Foley, AL (1995); Hemingway, SC (1994); Calhoun 
County, GA (1992); Orangeburg, SC (1992); Edgefield 
County, SC (1992); Navajo and Apache Counties, AZ 
(1989); Richland County, SC (1988); Pitt County, NC 
(1988); Bladen County, NC (1987); Wilson County, 
NC (1986); Marengo County, AL (1986); Elizabeth 
City, NC (1986). 22

Examples of jurisdictions that drew a Section 5 
objection or were successfully sued under Section 2, 
and then later withdrew a separate preclearance 
submission are: Beaufort County, NC (2002);
Edgecombe County, NC (2001); Pitt County, NC 
(1996); Prince Edward County, VA (1993); Halifax 
County, NC (1991); and North Martin County, NC 
(1991).22 23

Accordingly, while the roots of the constitutional 
violations that Congress examined were “decades

22 See October 25, 2005 (History) Hearing, at 429-34; 310-12; 
Dillard, 926 F. Supp. at 1053 (Alabama examples); March 8, 
2006 Hearing, at 1407-08 (Arizona example): March 8, 2006 
Hearing, at 686-90, 1526 n.129; 652-56; 634-35; October 25,
2005 (History) Hearing, at 138 (Georgia examples); March 8,
2006 Hearing, at 1616, 1653 (Louisiana examples); March 8. 
2006 Hearing at 1715-16 (Mississippi example); March 8, 2006 
Hearing, at 1790-91; 1752-53, 1797-98; 1773-77; 1748; 1733-34 
(North Carolina examples); March 8, 2006 Hearing, at 1970, 
1033-39; 1015-17; 1964-65 (South Carolina examples).
23 See March 8, 2006 Hearing, at 1750, 2049, 2089. A list of all 
objections, organized by state, is available at 
httpV/www. usdoj.gov/crt/voting/sec_5/obj_activ.php



52

old”, Br. at 2, 23, its manifestations and threats are 
real, specific, and continuing.

But for Section 5, the vast majority of the 
incidents described in this section would have come 
out differently, and, as a result, the ability of 
minorities to participate in our democracy would 
have been severely impaired.

k  k  k

Appellant also points to evidence that was not 
before Congress, namely, the election of Barack 
Obama as the country’s first African-American 
President, to support its view that Section 5 has 
outlived its utility. Br. at 1. This post­
reauthorization event bears little relevance to the 
issue of Congressional judgment in 2006. Analysis of 
the voting patterns during the 2008 presidential 
election, however, underscores the reasonableness of 
Congress’s judgment. Consistent with the evidence 
before Congress in 2006, am ici curiae Nathaniel 
Persily, e t al., observed stark racially polarized 
voting in the covered jurisdictions. Indeed, the 
results reveal an increase in the differences in voting 
choices between whites and minorities in the covered 
jurisdictions that is attributable both to the 
“reluctance of whites to vote for Barack Obama and 
the increased cohesion among minority voters.” Br. 
at 6. The election returns from several Section 5- 
covered States bring into sharper focus the decisive 
role that race played in voting choices in the 2008 
Presidential election. Obama’s level of white support 
was 10% in Alabama, 11% in Mississippi, and 14% in 
Louisiana. Id.



53

More broadly, while the historically significant 
election of the nation’s first African-American 
president represents a milestone that was not visible 
in 1965, no event, no matter how significant, can 
instantaneously erase the legacy of Jim Crow and its 
enduring effects.

C. Congress Considered the Interests of the 
Covered Jurisdictions

Sensitive to federalism concerns, Congress also 
heard evidence about the administrative burden 
imposed by Section 5 and found that burden modest. 
See, e.g., M ay 16, 2006 Hearing, at 64-65; M ay 17, 
2006 Hearing, at 9-11, 25. Under Section 5, the only 
imposition for the vast majority of proposed changes 
is a short suspension period for the change before it 
goes into effect while DOJ undertakes an 
administrative review that generally must be 
completed within 60 days. 42 U.S.C. § 1973c(a). As 
Don Wright, General Counsel of the North Carolina 
State Board of Elections testified, county officials he 
has worked with find that “preclearance 
requirements are routine and do not occupy an 
exorbitant amount of time, energy or resources [.]” 
June 21, 2006 Hearing, at 12. Wright continued: “I 
could probably knock-out a pre-clearance on a routine 
matter in a half hour.” Id.

Indeed, Congress learned that Section 5 is viewed 
by many election officials in the covered jurisdictions 
as a tool that enhances the integrity of the political 
process and helps to avoid litigation. June 21, 2006 
Hearing, at 12-13; M ay 17, 2006 Hearing, at 1415. 
Numerous organizations representing the interests of 
local and state governments (including covered



54

jurisdictions) filed a statement of unqualified support 
for Section 5’s renewal. This letter, from the Council 
of State Governments, the National Conference of 
State Legislatures, the National Association of 
Secretaries of State, the National Association of 
Counties, the National League of Cities, and the U.S. 
Conference of Mayors, stated: “While substantial
progress has been made since passage of the Voting 
Rights Act in 1965, it has not yet resulted in the 
elimination of voting discrimination. Congress must 
renew [Section 5 and the other temporary] provisions 
of the Voting Rights Act.” 152 Cong. Rec. H5143-02 
(daily ed. July 13, 2006).

The modest administrative burden on, and 
benefits for, Section 5 jurisdictions were important 
considerations to Congress, and particularly for those 
members representing covered jurisdictions. 
Congress passed the 2006 reauthorization with 
overwhelming bipartisan support! the bill received 
unanimous support in the Senate and the support of 
a substantial majority of members of the House of 
Representatives from the covered States as well. 
Indeed, in this case, among the covered jurisdictions, 
only the Governor of Georgia filed a brief in support 
of Appellant.24

24 In discussing bailout eligibility, see Br. at 22-24, Governor 
Perdue fails to acknowledge that, just five months ago, plaintiffs 
brought a successful Section 5 enforcement action against the 
State of Georgia for failing to submit its new voter registration 
data matching system for preclearance. See Morales v. Handel, 
No. 08*3172 (N.D. Ga. Oct. 27, 2008) (three-judge court).



55

k  k  k

The history of the Voting Rights Act, and the 
2006 congressional record detailed above, offer 
powerful evidence of the continuing need for Section 
5 to remedy and deter unconstitutional
discrimination in covered jurisdictions.

II. In Reauthorizing Section 5, Congress 
Respected the Constitutional Balance 
Embodied in the Reconstruction Amendments 
and Reflected in Boerneand Its Progeny

C ityofB oern e v. Flores, 521 U.S. 507 (1997), and 
its progeny, like this Court’s earlier precedents, 
recognize that the Reconstruction Amendments grant 
distinctive enforcement powers to Congress. See id. 
at 517-18; City o f Richmond v. J.A. Croson Co., 488 
U.S. 469, 490 (1989) (plurality opinion) (Congress’s 
enforcement powers “include the power to define 
situations which Congress determines threaten 
principles of equality and to adopt prophylactic rules 
to deal with those situations”). Thus, where
Congress acts “within its sphere of power and 
responsibilities,” Boerne, 521 U.S. at 535, it enjoys 
substantial latitude to fashion remedies, even when 
those remedies “intrlude! into areas traditionally 
reserved to the States.” Lopez v. M onterey County, 
525 U.S. 266, 282 (1999) (citing City o f Rome, 466 
U.S. at 179). Congress’s broad enforcement powers, 
however, are not boundless. Rather, the
Reconstruction Amendments create a discernible 
balance among the powers of Congress, those of the 
States, and those of this Court. Boerne, 521 U.S. at 
522-24.



56

To achieve this important balance, this Court’s 
precedents recognize that enforcement legislation 
may be set aside only if it substantively redefines or 
expands constitutional rights, such that it encroaches 
on powers reserved to the States or this Court. 
Boerne, 521 U.S. at 519-29 (citing, in ter alia, Oregon 
v. M itchell, 400 U.S. 112 (1970)); see also
Katzenbach, 383 U.S. at 326. “The line between 
measures that remedy or prevent unconstitutional 
actions and measures that make a substantive 
change in the governing law is not easy to discern, 
and Congress must have wide latitude in 
determining where it lies.” Boerne, 521 U.S. at 519- 
20. To ensure that Congress does not exceed its 
broad authority, B oerne announced the congruence- 
and-proportionality test, which guides the 
determination of whether legislation is remedial (and 
valid) or substantive (and invalid). Id. at 519-20. 
Legislation satisfies the congruence-and- 
proportionality test unless it “is so out of proportion 
to a supposed remedial or preventive object that it 
cannot be understood as responsive to, or designed to 
prevent, unconstitutional behavior.” Id. at 532.

The concern with the constitutional balancing 
reflected in Boerne explains why this Court 
consistently has pointed to Section 5 as an exemplar 
of remedial enforcement legislation. See, e.g., id. at 
530-33; Fla. Prepaid Postsecondary Educ. Expense 
Bd. v. Coll. Sav. Bank, 527 U.S. 627, 639, 640 (1999); 
Nev. D ep’t o f Human Res. v. Hibbs, 538 U.S. 721, 
737-38 (2003); id. at 756-57 (Kennedy, J., dissenting). 
Unlike the statutes at issue in Boerne and its 
progeny, Section 5, consistent with the “pervading 
purpose” of the Reconstruction Amendments, is



57

designed to remedy racial discrimination. Slaughter- 
H ouse Cases, 83 U.S. 36, 71 (1873); see also 
Tennessee v. Lane, 541 U.S. 509, 562-63 (2004) 
(Scalia, J., dissenting).

Moreover, when Section 5 was passed in 1965, as 
with every subsequent reauthorization, Congress, 
after careful examination, identified an existing 
pattern of purposeful discrimination in voting and 
decided to combat it with a measure designed to deter 
some of the worst problems. Congress has 
approached each reauthorization with knowledge of 
the Act’s history, but directed its attention toward an 
assessment of whether ongoing voting discrimination 
in the covered jurisdictions warranted reauthorizing 
the Section 5 remedy. It is not permanent but it is 
designed to meet a grave constitutional harm.

Finally, in stark contrast to the legislative process 
underlying the Religious Freedom Restoration Act 
(the statute at issue in Boerne), during the 2006 
reauthorization, Congress carefully considered this 
Court’s rulings and drew upon them as it charted its 
legislative course. See, e.g., M ay 4, 2006 Hearing, at 
11'12, 23-24, 39, 54-55, 58; M ay 16, 2006 Hearing, at 
4-5, 21, 44-45, 90, 94; M ay 17, 2006 Hearing, at 50- 
54, 65-70. As recognized in Boerne, Congress acts 
appropriately by so relying on this Court’s 
precedents. See 521 U.S. at 536 (“When the political 
branches of the Government act against the 
background of a judicial interpretation of the 
Constitution already issued, it must be understood 
that in later cases and controversies the Court will 
treat its precedents with the respect due them under 
settled principles, including stare decisis, and 
contrary expectations must be disappointed.”).



58

A. Appellant’s Disagreements W ith Congress’s 
Fact-finding and Predictive Judgments Do 
Not Undermine Section 5’s Constitutionality

It is axiomatic that “ [t]he Constitution gives to 
Congress the role of weighing conflicting evidence in 
the legislative process,” and that this Court affords 
deference to Congress’s “predictive judgments.” 
Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 199 
(1997). Thus, this Court does not second-guess 
Congress’s reasonable factual determinations or 
predictive judgments. Rather, the Court analyzes 
whether the evidentiary record permits the 
conclusion that Congress’s legislation was responsive 
to a constitutional harm, such that the legislation is 
remedial and not substantive. See Boerne, 521 U.S. 
at 530-32.

Appellant does not seriously claim that the 
reauthorization of Section 5 involves the substantive 
redefinition of a constitutional right, which is the 
touchstone under Boerne. Instead, Appellant seeks 
to reopen numerous debates about the evidentiary 
record that were fully aired before, and reasonably 
resolved by, Congress. Among other issues 
considered and addressed during ten months of 
hearings described supra, Congress carefully 
considered each of the following:

• Some witnesses urged that circumstances 
in the covered jurisdictions no longer 
warrant the Section 5 remedy. M ay 4, 
2006 Hearing, at 20; M ay 17, 2006 
Hearing, at 207; M ay 10, 2006 Hearing, at 
108. But the weight of the evidence before



59

Congress showed that many covered 
jurisdictions continue to show 
recalcitrance even 40 years following the 
adoption of a powerful prophylactic 
remedy; indeed, numerous jurisdictions 
persist in adopting new discriminatory 
voting laws even after prior laws have 
been invalidated under Section 5 or 2. See 
Part I, supra; O ctober 18, 2005 Hearing, at 
18; June 21, 2006 Hearing, at 130-34; June 
13, 2006 Hearing, at 235; March 8, 2006 
Hearing, at 1606-08.

• Similarly, Congress learned that, although 
the rate of DOJ objections has declined, 
the quantity and quality of continuing 
objections—not to mention Section 5 
enforcement actions, MIRs, and Section 5’s 
role in deterring jurisdictions from 
attempting to implement discriminatory 
voting regulations—demonstrates that 
Section 5 remains necessary to remedy 
widespread voting discrimination in 
covered jurisdictions. H.R. Rep. No. 109- 
478, at 21-25, 53; March 8, 2006 Hearing, 
at 177; Pub. L. No. 109-246 § 2(b)(4), (5).

• Members of Congress explicitly sought to 
determine whether Section 2, standing 
alone, was sufficient to combat voting 
discrimination, and they learned, based on 
statistical evidence and testimony of 
witnesses who had considerable 
experience with both provisions, that



60

Section 2 is an inadequate remedy in the 
covered jurisdictions. See H.R. Rep. No. 
109-478, at 57; M ay 16, 2006 Hearing, at 
61; M ay 17, 2006 Hearing, at 80.

• Congress also considered the effect of 
Section 5 on the covered jurisdictions. The 
evidence demonstrated that the statute’s 
administrative burden is modest, and that 
Section 5 has important benefits for 
covered jurisdictions. See Part I. C, supra.

As demonstrated, the record shows that 
Congress’s conclusions on each of these evidentiary 
matters were well-founded. Particularly in these 
circumstances, Appellant’s request that this Court 
reweigh the evidence before Congress is inconsistent 
with Boerne. Instead, it is an improper invitation to 
displace and to fundamentally upset the
constitutional balance that Boerne is intended to 
maintain. See Boerne, 521 U.S. at 519-29; cf. Lane, 
541 U.S. at 558-63 (Scalia, J., dissenting).

B. The Reauthorized Section 5 Readily Passes 
Muster Under Boerne

In light of the foregoing discussion, a 
straightforward application of Boerne’s three-step 
analysis leads to the unmistakable conclusion that 
Section 5 remains appropriate enforcement
legislation under the Fourteenth and Fifteenth 
Amendments. See J.S.App. 118-144.

Under Boerne step one (the nature of the 
constitutional right), Congress acted at the zenith of 
its enforcement powers in reauthorizing Section 5



61

because the statute is targeted at the intersection of 
a suspect classification (race) and a fundamental 
right (voting). J.S.App. 120-22. Unlike several of 
this Court’s recent applications of Boerne, this is 
decidedly not a case where the Fourteenth 
Amendment acts as a vehicle for incorporating a 
rational-basis right through which Congress 
effectively redefines the substance of that right to 
prohibit a wide swath of state conduct. See generally 
Bd. o f Trustees o f the Univ. o f Alabama v. Garrett, 
531 U.S. 356 (2001); Kim el v. Fla. Bd. o f Regents, 528 
U.S. 62 (2000).

Boerne step two considers the legislative record 
of deprivations of the constitutional rights in 
question. See, e.g., K im el 528 U.S. at 88-89; see also 
J.S.App. 124. As discussed in Part I.B, supra,
Congress learned in 2006 that widespread 
unconstitutional discrimination against minority 
voters persists in the covered jurisdictions. This 
record of ongoing discrimination is of a wholly 
different magnitude than the records underlying each 
of the statutes this Court has analyzed (whether they 
were upheld or invalidated) under Boerne and its 
progeny. Indeed, as the District Court recognized, 
the 2006 record is filled with “evidence of the very 
kind of intentional discrimination the dissenters in 
Hibbs and Lane thought missing in those cases but 
present in Katzenbach and C ity o f Rome!' J.S.App. 
127. The scope of the 2006 record (throughout Texas 
and the other covered jurisdictions) is all the more 
remarkable because, as discussed, Congress also 
learned that Section 5 deterred many covered 
jurisdictions from even attempting to implement 
discriminatory measures. In sum, consistent with its



62

“‘historical experience’” in this area, Boerne, 521 U.S. 
at 525 (quoting Katzenbach, 383 U.S. at 308), 
Congress learned that racial discrimination remains 
both persistent and adaptive, such that Section 5’s 
proactive remedy is still necessary.

Finally, under Boerne step three, Section 5 is 
congruent and proportional to ongoing deprivations of 
core constitutional rights in the covered jurisdictions. 
See Boerne, 521 U.S. at 520, 533. Section 5, as 
reauthorized, forbids intentionally (and thus 
unconstitutionally) discriminatory voting laws, as 
well as a subset of voting laws with a racially 
discriminatory effect (those that are retrogressive). 
These are reasonable responses to widespread 
evidence of unconstitutional conduct. See United 
S tates v. Georgia, 546 U.S. 151, 158 (2006)
(unconstitutional discrimination); Boerne, 521 U.S. at 
529 (effects discrimination) (citing, in ter alia, C ity o f 
Rome). Furthermore, as this Court has recognized, 
Section 5 includes numerous features—not present in 
other statutes addressed under Boerne—that 
minimize its breadth: Section 5 is geographically 
limited (with baihout and baihin provisions to 
expand or contract coverage as necessary); it affects a 
discrete class of state laws (those related to voting); 
and it has a termination date. See, e.g., Boerne, 521 
U.S. at 533. And, importantly, Section 5 does not 
include a private damages remedy. This ensures that 
lines of political accountability are clear and avoids 
the risk that Congress has enacted a benefit program 
rather than remedial legislation. See Hibbs, 538 U.S. 
at 744-45 (Kennedy, J., dissenting); see also Alden v. 
M aine, 527 U.S. 706, 751 (1999).



63

This is not to deny that Section 5’s proactive 
remedy has federalism costs. The Reconstruction 
Amendments, however, permit the statute’s 
“intrusion into areas traditionally reserved to the 
States” to address the grave problem of racial 
discrimination in voting. Lopez, 525 U.S. at 282-83 
(citing Katzenbach and C ity o f Rome). The only 
question raised by this case is whether, since its prior 
reauthorizations, Section 5 has become “so out of 
proportion to a supposed remedial or preventive 
object that it cannot be understood as responsive to, 
or designed to prevent, unconstitutional behavior.” 
Boerne, 521 U.S. at 532. The record of ongoing 
discrimination in the covered jurisdictions and the 
tailored nature of the remedy leave no doubt that 
Section 5 passes that test.



64

CONCLUSION
For the foregoing reasons, the judgment of the 

district court should be affirmed.
Respectfully submitted,

Nin a  Perales
IvAn  Espinoza -Madrigal
Mexican American Legal 

Defense & Educational 
Fund, Inc.

110 Broadway, Suite 300 
San Antonio, TX 78205 
(210) 224-5476
Counsel for In tervenors - 
Appellees Lisa and David Diaz 
and Gabriel Diaz

Jose Garza
George  K orbel
Judith  A. Sa n d e rs-Castro
Texas RioGrande Legal Aid, Inc.
1111 N. Main Street
San Antonio, TX 78212
(210) 212-3700
Counsel for Intervenors- 
Appellees Angie Garcia, Jovita 
Casares and Ofelia Zapata

J ohn  Payton
Director-Counsel

Jacqu elin e A. Berrien  
*Debo P. A degbile  
Ryan  P. Haygood  
Jenigh  J. Garrett 
Danielle  Y. Conley  
NAACP Legal Defense 

and Educational Fund, Inc. 
99 Hudson Street, Suite 1600 
New York, NY 10013 
(212) 965-2200 
* Counsel o f Record

Kristen  M. Clarke 
J osh ua  Civin  
NAACP Legal Defense 

and Educational Fund, Inc. 
14441 Street, NW, 10th FI. 
Washington, D.C. 20005 
(202) 682-1300

Sam u el  Spital 
Holland & Knight 
195 Broadway, 24th Floor 
New York, NY 10017 
(212) 513-3200
Counsel for Intervenors- 
Appellees Rodney and Nicole 
Louis’ Winthrop and Yvonne 
Graham/ and Wendy, Jamal 
and Marisa Richardson



65

Ka th r yn  Kolbert 
People for the American 

Way Foundation 
2000 M St., N.W., Suite 400 
Washington, D.C. 20036 
(202) 467-4999

Counsel for Intervenors- 
Appellees People for the 
American Way

March 18, 2009



ADDENDUM



State of Alabama (1982)
O ctober 25, 2005 (H istory) H earing1............ 264-266
Greensboro, Alabama (1985)
O ctober 25, 2005 (H istory) H earing..............305-306
Dallas County, Alabama (1986)
O ctober 25, 2005 (H istory) H earing..............310-312
Pritchard, Alabama (1987)
O ctober 25, 2005 (H istory) H earing..............319-320
Dallas County Bd. of Ed., Alabama (1987)
O ctober 25, 2005 (H istory) H earing..............327-329
Valley Indep. Sch. Sys., Alabama (1990)
O ctober 25, 2005 (H istory) H earing..............358-359
State of Alabama (1992)
O ctober 25, 2005 (H istory) H earing..............385-387
Dallas County, Alabama (1992)
O ctober 25, 2005 (H istory) H earing..............388*390
Selma, Alabama (1992)
O ctober 25, 2005 (H istory) H earing..............391-393
Dallas County, Alabama (1992)
O ctober 25, 2005 (H istory) H earing..............397-399
Dallas County, Alabama (1992)
O ctober 25, 2005 (H istory) H earing..............400-401
Selma, Alabama (1993)
O ctober 25, 2005 (H istory) H earing............. 402-405
Foley, Alabama (1993)
O ctober 25, 2005 (H istory) H earing..............406-407

JURISDICTION PAGE NOS.

1 V oting R igh ts A ct: Section 5 o f  the A ct - H istory, Scope & 
P urpose: H earin g before the Subcom m . on the C onstitu tion  o f  
the H. Comm, on the Judiciary, 109th Cong. (2005).



Greensboro, Alabama (1994)
O ctober 25, 2005 (H istory) H earing..............412-414
Tallapoosa County, Alabama (1998)
O ctober 25, 2005 (H istory) H earing...... .......429-434
Alabaster, Alabama (2000)
O ctober 25, 2005 (H istory) H earing..............435-439
State of Arizona (1982)
O ctober 25, 2005 (H istory) H earing............. 454-456
State of Arizona (1992)
O ctober 25, 2005 (H istory) H earing..............475-477
State of Arizona (1992)
O ctober 25, 2005 (H istory) H earing..............481-482
State of Arizona (2002)
O ctober 25, 2005 (H istory) H earing..............496-501
McDonough, Georgia (1982)
O ctober 25, 2005 (H istory) H earing..............581-583
Augusta, Georgia (1987)
O ctober 25, 2005 (H istory) H earing..............642-643
Johnson County, Georgia (1992)
O ctober 25, 2005 (H istory) H earing..............726-728
Millen, Georgia (1993)
O ctober 25, 2005 (H istory) H earing..............743-745
Waynesboro, Georgia (1994)
O ctober 25, 2005 (H istory) H earing..............788-790
Jenkins County, Georgia (1995)
O ctober 25, 2005 (H istory) H earing..............815-817
Webster County Bd. of Ed., Georgia (2000)
O ctober 25, 2005 (H istory) H earing..............830-833
Allen, Georgia (2002)
O ctober 25, 2005 (H istory) H earing..... ........845-848

2a



LaSalle Parish, Louisiana (1982)
O ctober 25, 2005 (H istory) H earing..............867-869
Pointe Coupee Parish, Louisiana (1983)
O ctober 25, 2005 (H istory) H earing..............884-886
State of Louisiana (1984)
O ctober 25, 2005 (H istory) H earing..............890-892
Cottonport, Louisiana (1987)
O ctober 25, 2005 (H istory) H earing..............895-896
State of Louisiana (1991)
O ctober 25, 2005 (H istory) H earing..............949-952
Catahoula Parish, Louisiana (1991)
O ctober 25, 2005 (H istory) H earing...... .......972-973
East Carroll Parish, Louisiana (1991)
O ctober 25, 2005 (H istory) H earing..............985-986
East Carroll Parish, Louisiana (1992)
O ctober 25, 2005 (H istory) H earing..... ....1013-1015
St. Landry Parish, Louisiana (1994)
O ctober 25, 2005 (H istory) H earing..........1090-1092
Minden, Louisiana (2002)
O ctober 25, 2005 (H istory) H earing..........1150-1152
DeSoto Parish Sch. Dist., Louisiana (2002)
O ctober 25, 2005 (H istory) H earing..........1157-1160
State of Mississippi (1982)
O ctober 25, 2005 (H istory) H earing..........1183-1186
Yazoo County, Mississippi (1983)
O ctober 25, 2005 (H istory) H earing..........1265-1267
Yazoo County, Mississippi (1985)
O ctober 25, 2005 (H istory) H earing.......... 1330-1331
Yazoo County, Mississippi (1986)
O ctober 25, 2005 (H istory) H earing..........1344-1345

3a



Cleveland Sch. Dist., Mississippi (1990)
O ctober 25, 2005 (H istory) H earing..........1395-1398
Cleveland Sch. Dist., Mississippi (1991)
O ctober 25, 2005 (H istory) H earing..........1405-1407
State of Mississippi (1991)
O ctober 25, 2005 (H istory) H earing..........1410-1413
Bolivar County, Mississippi (1991)
O ctober 25, 2005 (H istory) H earing..........1414-1416
Greenville, Mississippi (1995)
O ctober 25, 2005 (H istory) H earing....... ..1516-1521
State of Mississippi (1997)
O ctober 25, 2005 (H istory) H earing......... 1599-1605
Grenada, Mississippi (1998)
O ctober 25, 2005 (H istory) H earing..........1606-1612
McComb, Mississippi (1999)
O ctober 25, 2005 (H istory) H earing..........1613-1615
Kilmichael, Mississippi (2001)
O ctober 25, 2005 (H istory) H earing..........1616-1619
Halifax County, North Carolina (1984)
O ctober 25, 2005 (H istory) H earing..........1711-1713
Cumberland County, North Carolina (1985)
O ctober 25, 2005 (H istory) H earing..........1721-1722
Wilson County, North Carolina (1986)
O ctober 25, 2005 (H istory) H earing..........1730-1732
State of North Carolina (1986)
O ctober 25, 2005 (H istory) H earing..........1733-1735
Pitt County, North Carolina (1986)
O ctober 25, 2005 (H istory) H earing..........1736-1740
State of North Carolina (1986)
O ctober 25, 2005 (H istory) H earing..........1745-1747

4a



State of North Carolina (for Pitt County) (1987) 
O ctober 25, 2005 (H istory) H earing..........1769-1771
Town of Ahoskie, North Carolina (1989)
O ctober 25, 2005 (H istory) H earing..........1781-1784
Perquimans County, North Carolina (1990)
O ctober 25, 2005 (H istory) H earing..........1787-1790
Town of Mt. Olive, North Carolina (1994)
O ctober 25, 2005 (H istory) H earing..........1823-1825
Newberry County Bd. of Ed., South Carolina (1984) 
O ctober 25, 2005 (H istory) H earing......... 1894-1896
Sumter, South Carolina (1985)
O ctober 25, 2005 (H istory) H earing..........1915-1916
Consol. Sch. Dist. Aiken/Saluda County, South 
Carolina (1986)
O ctober 25, 2005 (H istory) H earing......... 1926-1928
Bamberg County, South Carolina (1986)
O ctober 25, 2005 (H istory) H earing..........1932-1933
Edgefield County Sch. Dist., South Carolina (1987) 
O ctober 25, 2005 (H istory) H earing......... 1935-1937
Richland County, South Carolina (1988)
O ctober 25, 2005 (H istory) H earing......... 1948-1951
Lancaster, South Carolina (1989)
O ctober 25, 2005 (H istory) H earing......... 1952-1954
Anderson County Bd. of Ed., South Carolina (1990) 
O ctober 25, 2005 (H istory) H earing......... 1963-1965
Town of Johnston, South Carolina (1992)
O ctober 25, 2005 (H istory) H earing......... 1980-1982
Orangeburg County, South Carolina (1992)
O ctober 25, 2005 (H istory) H earing..........1983-1985

5a
Bladen County, North Carolina (1987)
October 25, 2005 (History) Hearing..........1760-1763



Lee County, South Carolina (1993)
O ctober 25, 2005 (H istory) H earing......... 1996-1999
Town of Johnston, South Carolina (1993)
O ctober 25, 2005 (H istory) H earing......... 2003-2005
Town of Hemingway, South Carolina (1994)
O ctober 25, 2005 (H istory) H earing......... 2028-2031
Spartanburg County, South Carolina (1994)
O ctober 25, 2005 (H istory) H earing......... 2041-2043
Spartanburg County, South Carolina (1995)
O ctober 25, 2005 (H istory) H earing......... 2049-2052
Gaffney, South Carolina (1996)
O ctober 25, 2005 (H istory) H earing......... 2053-2056
Green, South Carolina (2001)
O ctober 25, 2005 (H istory) H earing......... 2078-2081
Sumter, South Carolina (2002)
O ctober 25, 2005 (H istory) H earing......... 2082-2084
Union County Sch. Dist., North Carolina (2002) 
O ctober 25, 2005 (H istory) H earing......... 2085-2087
State of Texas (1982)
O ctober 25, 2005 (H istory) H earing......... 2177-2180
Columbus Indep. Sch. Dist., Texas (1988)
O ctober 25, 2005 (H istory) H earing...... ...2247-2248
Hondo Indep. Sch. Dist., Texas (1988)
O ctober 25, 2005 (H istory) H earing......... 2249-2250
State of Texas (1990)
O ctober 25, 2005 (H istory) H earing......... 2288-2290
Freeport, Texas (1990)
O ctober 25, 2005 (H istory) H earing..........2291-2292

6a
Marion County, South Carolina (1993)
October 25, 2005 (History) Hearing......... 1992-1995



Refugio Indep. Sch. Dist., Texas (1991)
O ctober 25, 2005 (H istory) H earing.........2304-2306
State of Texas (1991)
O ctober 25, 2005 (H istory) H earing........ .2319-2323
Galveston County, Texas (1992)
O ctober 25, 2005 (H istory) H earing..........2344-2345
Terrell County, Texas (1992)
O ctober 25, 2005 (H istory) H earing..........2359-2361
Bailey County, Texas (1992)
O ctober 25, 2005 (H istory) H earing. ....2362-2363
Bailey County, Texas (1993)
O ctober 25, 2005 (H istory) H earing.........2408-2409
Bailey County, Texas (1993)
O ctober 25, 2005 (H istory) H earing.........2416-2418
Marion County, Texas (1994)
O ctober 25, 2005 (H istory) H earing......... 2427-2429
Mexia Indep. Sch. Dist., Texas (1994)
O ctober 25, 2005 (H istory) H earing. ....2437-2440
Mexia Indep. Sch. Dist., Texas (1995)
O ctober 25, 2005 (H istory) H earing......... 2466-2468
Webster, Texas (1997)
O ctober 25, 2005 (H istory) H earing......... 2489-2493
Lamoesa, Texas (1999)
O ctober 25, 2005 (H istory) H earing....... ..2505*2507
Haskell Consol. Indep. Sch. Dist., Texas (2001) 
O ctober 25, 2005 (H istory) H earing..........2513-2517
State of Texas (2001)
O ctober 25, 2005 (H istory) H earing....... ..2518-2523

7a
Lubbock County Water Control Dist., Texas (1991)
October 25, 2005 (History) Hearing..........2300-2303



Freeport, Texas (2002)
O ctober 25, 2005 (H istory) H earing..........2528-2530
Greensville County, Virginia (1982)
O ctober 25, 2005 (H istory) H earing..........2549-2551
Newport News Sch. Dist., Virginia (1993)
O ctober 25, 2005 (H istory) H earing..........2573-2575
Dinwiddie County, Virginia (1999)
O ctober 25, 2005 (H istory) H earing..........2579-2583
Northampton County, Virginia (2001)
O ctober 25, 2005 (H istory) H earing..........2584-2587
Pittsylvania County, Virginia (2002)
O ctober 25, 2005 (H istory) H earing..........2588-2591
Northampton County, Virginia (2003)
O ctober 25, 2005 (H istory) H earing..........2592-2595
Monterey County, California (2002)
O ctober 25, 2005 (H istory) H earing..........3319-3322
Northampton County, Virginia (2003)
March 8, 2006 (N eed) H earing ....Lod. 1-3
Town of Delhi, Louisiana (2005)
J.S. App. at 161.................................................Lod. 4-7
Ville Platte, Louisiana (2004)
J.S. App. at 163.............................................. Lod. 8-12
Charleston County Sch. Dist.,South Carolina (2004) 
J.S. App. at 172-174 ................................... Lod. 13-15
Town of North, South Carolina (2003)
J.S. App. at 174-176 ....................................Lod. 16-18

8a
Waller County, Texas (2002)
October 25, 2005 (History) Hearing..........2524-2527

2 V oting R igh ts A ct: E vidence o f  C ontinuing N eed : H earing  
before the Subcom m . on the C onstitution o f  the H. Comm, on the 
Judiciary, 109th Cong. (2006).