Shelby County v. Holder Brief Amici Curiae
Public Court Documents
February 1, 2013
75 pages
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Brief Collection, LDF Court Filings. Shelby County v. Holder Brief Amici Curiae, 2013. 7367e129-c49a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/1da1a626-9a04-4603-91cb-adc48aeffdfb/shelby-county-v-holder-brief-amici-curiae. Accessed May 04, 2025.
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No. 12-96
I n the
Supreme (Court of ttje Hntteii States
SHELBY COUNTY, ALABAMA,
Petitioner,
v.
ERIC HOLDER, JR., ATTORNEY GENERAL, et al,
Respondents.
O n W rit of C ertiorari to the United States
Court of A ppeals F or T he D istrict of C olumbia C ircuit
BRIEF OF POLITICAL SCIENCE AND LAW
PROFESSORS AS AMICI CURIAE
IN SUPPORT OF RESPONDENTS
A nita E arls
Counsel of Record
A llison R iggs
S outhern Coalition for
Social J ustice
1415 W. Highway 54
Suite 101
Durham, NC 27707
(919) 323-3380
anita@southerncoalition.org
Counsel for Amici Curiae
245229
0
C O U N S E L P RE SS
(800) 274-3321 • (800) 359-6859
mailto:anita@southerncoalition.org
TABLE OF CONTENTS................................................ i
TABLE OF APPENDICES.........................................iii
TABLE OF CITED AUTHORITIES.......................... iv
BRIEF OF AMICI C U R IA E ........................................ 1
INTEREST OF AMICI CU RIAE .................................1
SUMMARY OF ARGUMENT...................................... 2
ARGUMENT.................................................................. 3
I. N egative R acial A ttitu d es Among
Whites Are More Prevalent in Covered
Jurisdictions......................................................... 6
A. American National Election Study and
Racial Stereotypes...................................... 7
B. Cooperative Congressional Election
Study and Racial Resentment....................13
C. Additional Social Science Research......... 14
II. R acially Polarized Voting is More
Prevalent in Covered Jurisdictions....................16
A. Racially Polarized Voting in State
Elections......................................................17
i
TABLE OF CONTENTS
Page
Table of Contents
B. Racially Polarized Voting in National
Elections..................................................... 22
III. Covered Jurisdictions Are More Likely
to Adopt Vote Denial and Suppression
M easures...........................................................26
IV. Non-White Voters in Covered Jurisdictions
Are Vulnerable Due to SocioEconomic
Disparities......................................................... 31
A. States Fully Covered by Section 5 ............33
B. States Partially Covered by Section 5 ___34
C. Covered S ta tes & Em ploym ent
Discrimination Charges.............................35
CONCLUSION.............................................................39
Page
I l l
APPENDIX A
Table of group population and proportions.................. la
APPENDIX B
Summary of Census statistics for 2000 and
2010 for Fully Covered States.................................. 2a
APPENDIX C
Summary of Census statistics for 2000 and
2010 for Partially Covered States.............................3a
APPENDIX D
Racial attitudes among White respondents in
Cooperative Congressional Election Study, 2010 .. .4a
APPENDIX E
Polarized voting among Whites in 2000 - 2008
Presidential election..................................................5a
APPENDIX F
Sources...................................................................... 6a
TABLE OF APPENDICES
Page
IV
CASES
Baldus v.
Members ofWis. Gov’t Accountability Bd.,
849 F. Supp. 2d 840 (E.D. Wis. 2012).......................18
Benavidez v. City of Irving,
638 F. Supp. 2d 709 (N.D. Tex. 2009).......................18
Bone Shirt v. Hazeltine,
461 F.3d 1011 (8th Cir. 2006).................................. .18
Busbee v. Smith,
549 F. Supp. 494 (D. D.C. 1982).................................. 7
Crawford v. Marion County Election Bd.,
553 U.S. 181 (2008)............................................... 4, 29
Fabela v. City of Farmers Branch,
No. 3:10-CV-1425-D, 2012 WL 3135545
(N.D. Tex. Aug. 2,2012)............................................ 18
Fairley v. Hattiesburg,
No. 2:06cvl67-KS-MTP, 2008 WL 3287200
(S.D. Miss. Aug. 7, 2008), a ff’d, 584 F.3d
660 (5th Cir. 2009)......................................................18
Harper v. Va. State Board of Elections,
383 U.S. 663 (1966).................................................. .31
TABLE OF CITED AUTHORITIES
Page
V
Hunter v. Underwood,
471 U.S. 222 (1985)................................................... 30
Jamison v. Tupelo,
471 F. Supp. 2d 706 (N.D. Miss. 2007).....................18
Large v. Fremont Cnty.,
709 F. Supp. 2d 1176 (D. Wyo. 2010), aff’d,
670 F.3d 1133 (10th Cir. 2012)..................................18
League of United Latin Am. Citizens v. Perry,
548 U.S. 399 (2006).............................................18,19
Luther v. Borden,
48 U.S. 1 (1849)........................................................... 5
New York v. United States,
505 U.S. 144 (1992)..................................................... 5
N W Austin Mun. Util. Disk No. 1 v. Holder,
557 U.S. 193 (2009)...............................................3,4
Rodgers v. Lodge,
458 U.S. 613 (1982)................................................19
Shelby Cnty. v. Holder,
679 F.3d 848 (D.C. Cir. 2012).................................17
Shelby Cnty. v. Holder,
811 F. Supp. 2d 424 (D.D.C. 2011)
Cited Authorities
Page
19
VI
Cited Authorities
South Carolina v. Katzenbach,
383 U.S. 301 (1966)............. ...3
Page
Texas v. Holder,
Civ. No. 12-128,2012 WL 3743676
(D.D.C. 2012).................................................
Texas v. United States,
No. 11-1303, 2012 WL 3671924 (D.D.C. Aug.
28, 2012), juris, statement filed, 81 USLW
3233 (October 19,2012)......................................
Thornburg v. Gingles,
478 U.S. 30 (1986).................................. 17
United States v. Brown,
494 F. Supp. 2d 440 (S.D. Miss. 2007), aff’d
561 F.3d 420 (5th Cir. 2009)............................ ’
United States v. City of Euclid,
580 F. Supp. 2d 584 (N.D. Ohio 2008)...............
United States v. Osceola Cnty.,
475 F. Supp. 2d 1220 (M.D. Fla. 2006)...............
United States v. Vill. of Port Chester,
No. 06 Civ. 15173, 2008 WL 190502 (S.D.N.Y.
Jan. 17, 2008), a ff’d, 704 F. Supp. 2d 411
(S.D.N.Y. 2010) ................. 18
Vll
Cited Authorities
CONSTITUTIONAL PROVISIONS
Page
U.S. Const, art. I V .........................................................5
U.S. Const, art. IV § 4 ................................................... 5
STATUTES
42 U.S.C. § 1973 et seq.........................................passim
OTHER AUTHORITIES
A m erican Civil L ib e r tie s Union, M ass
Incarceration: The Facts, http://www.aclu.org/
combating-mass-incarceration-facts-0.................... 30
Angus Campbell, et al., T h e A m erican Voter
(Wiley Press 1960)..................................................32
Anthony G. Greenwald, Colin Tucker Smith, N.
Sriram, Yoav Bar-Anon, & Brian A. Nosek,
Implicit Race Attitudes Predicted Vote in the
2008 US. Presidential Election, 9 Analysis of
Soc. Issues & Pub. Pol.’y, 241 (2009).........................25
Ben Highton, Prejudice Rivals Partisanship
and Ideology When E xplaining the 2008
Presidential Vote across the States, 44 PS:
Pol. Sci. & Politics 530 (2011)....................................26
Bertrall L. Ross II & Terry Smith, Minimum
Responsiveness and the Political Exclusion of
the Poor, 72 Law & Contemp. Probs. 197 (2009)___31
http://www.aclu.org/
Vlll
Cited Authorities
Business Week, Twenty States With the Most
Workplace D iscrim ination, http://images.
businessweek.com/slideshows/20110728/
Page
tw enty-states-w ith-the-m ost-w orkplace-
discrimination...........................................................38
CNN, Election Center 2012, Mississippi Senate
Race, http://www.cnn.com/election/2012/results/
state/MS/senate (last visited Jan. 16,2013)............ 20
CNN, Election Center 2008 U.S. Senate Exit
Polls, Alabama Results, http://www.cnn.
com/ELECTION/2008/results/polls/#val=
ALSOlpl.................................................................... 21
CNN, Election Center 2008 Local Exit Polls,
Mississippi Results, http://www.cnn.com/
E L E C T IO N /2 0 0 8 /re su lts /p o lls /# v a l =
MSSOlpl.................................................................... 20
CNN, Election Center 2008 Local Exit Polls,
Mississippi Special Results, http://www.cnn.
com/ELECTION/2008/results/polls/#val=
MSS02pl (last visited Jan. 16,2013).........................20
CNN, Election Center 2008 Presidential Exit
Polls, Alabama Results, http://www.cnn.com/
ELECTION/2008/results/polls/#ALP00pl
(last visited Jan. 16, 2013)..........................................21
Dana Abies Morales, Racial A ttitudes and
Partisan Identification in the United States,
1980-1992, 5 Party Politics 191 (1999).................. 14,16
http://images
http://www.cnn.com/election/2012/results/
http://www.cnn
http://www.cnn.com/
http://www.cnn
http://www.cnn.com/
IX
Edward G. Carmines & James A. Stimson, I ssue
E v o lu tion : R ace and t h e T r a n sform a tion
of A m e r ic a n P o l it ic s (P rinceton Univ.
Press 1989)....................................................... 7,15-16
Gabriel Sanchez, Stephen Nuno, and Matt Barreto.
“Racial and Ethnic Differences in Access to
Photo-ID in Texas,” Latino Decisions Blog,
March 12,2012......................................................... 29
Jonathan Knuckey, Racial Resentm ent and
the Changing P artisanship o f Southern
Whites, 11 Party Politics 5 (2005)............................. 15
Kareem Crayton, Beat ‘Em or Join Em? White
Voters and Black Candidates in Majority-
B lack D is tr ic ts , 58 Syracuse L. Rev.
548 (2008)..............................................................17,19
Katherine Tate, B lack F aces in th e M ir r o r :
A frican A mericans and T h eir R epresentatives
in t h e U.S. C o n g r e s s (P rinceton Univ.
Press 2003).................................................................32
Keith Reeves, Voting H opes or F ea r s? W h it e
Voters, B lack Candidates & R acial P olitics
in A merica (Oxford Univ. Press 1997)......................15
Louis DeSipio, C o u n t in g on t h e L a t in o
Vo t e : L atinos as a N ew E lectorate (Univ.
of Virginia Press 1998)..............................................32
Cited Authorities
Page
X
M. V. Hood & Seth C. McKee, Gerrymandering
on Georgia’s Mind: The Effects of Redistricting
on Vote Choice in the 2006 M id te rm
Cited Authorities
Page
Election, 89 Soc. Sci. Q. 60 (2008)............................ 14
Martin Gilens, Paul M. Sniderman, & James H.
Kuklinski, Affirmative Action and the Politics
of Realignment, 28 Brit. J. Pol. Sci. 159 (1998)..........7
M att B arreto , Stephen Nuno, and Gabriel
Sanchez, 2007, “Voter ID Requirements and
the Disenfranchisements of Latino, Black
and Asian V oters.” Paper p resen ted at
the Midwest Political Science Association,
Annual Conference, Chicago, IL.............................. 29
Michael S. Lewis-Beck, Charles Tien, & Richard
Nadeau, Obama’s Missed Landslide: A Racial
Cost*!, 43 Pol. Sci. & Politics 69 (2010).......................25
Michael Tesler and David Sears, Obama’s R ace:
T he 2008 E lection and the D ream of a P ost-
R acial A merica (Univ. of Chicago Press 2010)........15
Michael W. Giles & Kaenan H ertz, R acial
T hrea t and P a r tisa n Id e n ti f ic a tio n ,
88 Am. Pol. Sci. Rev. 317 (1994).................................. 7
Mississippi Secretary of State, Official Tabulation
of the Vote for State Office of Governor, http://www.
sos.ms.gov/links/elections/results/statewide/
Governor_Statewide%20-%20General%20
Election%202011%20Results.pdf............................ 20
http://www
XI
Cited Authorities
Nicholas A. Valentino & David 0. Sears, Old Times
There Are not Forgotten: Race and Partisan
Realignment in the Contemporary South,
24 Am. J. Pol. Sci. 672 (2005).............................. 14,16
Public Policy Polling, M ississippi Governor,
November 6, 2011, http://www.publicpolicy
polling.com /pdf/2011/PPP_Release_M S_
1106925.pdf...............................................................21
Raymond E. Wolfinger, & Steven J. Rosenstone,
W ho Votes? (Yale Univ. Press 1980)......................... 32
Richard Skinner & Philip Klinkner, Black, White,
Brown and Cajun: The Racial Dynamics of
the 2003 Louisiana Gubernatorial Election,
The Forum 2 (1) (2004).............................................. 14
Robert Huckfeldt & Carol Weitzel Kohfeld,
R ace and the D eclin e of C lass in A merican
P olitics (Univ. of Illinois Press 1989)....................... 7
Page
Sidney Verba, Kay L. Schlozman, & Henry L.
Brady, Voice and equality: C ivic voluntarism in
A merican politics (Harvard Univ. Press 1995)___32
S p en cer P is to n , How E x p lic i t R a c ia l
Prejudice Hurt Obama in the 2008 Election,
32 Pol. Behavior 431 (2010)............................ ...........26
Terry Smith, Autonom y v. Equality: Voting
Rights Reconsidered, 57 Ala. L. Rev. 261 (2005) .. .20
http://www.publicpolicy
Xll
Cited Authorities
Page
Terry Smith, B arack Obama, P ost-R a c ia lism ,
a n d t h e N ew P o l it ic s of T r ia n g u l a t io n
(Palgrave MacMillan 2012)........................................35
The Mississippi Governor’s Race: A Welcome
First, The Economist (Aug. 27,2011), http://www.
economist.com/node/21526911...................................21
The Sentencing Project, Racial Disparities, http://
www.sentencingproject.org/template/page.
cfm?id=122.................................................................30
Thomas B. Edsall & Mary D. Edsall, C h a in
R eaction: T he I mpact of R ace, R ights, and Taxes
on A merican P olitics (W.W. Norton 1991)............... 7
Todd Donavan, Obama and the White Vote,
63 Pol. Res. Q. 863 (2010)..........................................25
Tom Pyszczynski, Carl Henthorn, Matt Motyl,
& Kristel Gerow, Is Obama the Anti-Christ?
R acia l Prim ing, Extrem e C ritic ism s o f
Barack Obama, and Attitudes Towards the
2008 U.S. Presidential Candidates, 46 J. of
Experimental Soc. Psychol. 863 (2010).....................25
U.S. Census Bureau, State & County Quick Facts,
M ississippi, http://quickfacts.census.gov/
qfd/states/28000.html 20
http://quickfacts.census.gov/
Xlll
Cited Authorities
Page
U.S. Equal Employment Opportunity Commission,
Definition of Terms, http://www.eeoc.gov/eeoc/
statistics/enforcement/definitions.cfm.....................36
LEGISLATIVE HISTORY
H.R. Rep. No. 109-478 (2006) 17
http://www.eeoc.gov/eeoc/
1
BRIEF OF AMICI CURIAE
Professors Kareem Crayton, Matthew Barreto,
Luis Fraga, Jane Junn, Terry Smith, and Janelle Wong
respectfully submit this brief as amici curiae in support
of Respondents.1
INTEREST OF AMICI CURIAE
Amici Curiae are all nationally recognized university
research scholars whose collective studies on electoral
behavior, public opinion, and voting rights in the United
States have been published in leading scholarly journals
and books.
Professor Kareem Crayton is an associate professor
of law and political science at the University of North
Carolina at Chapel Hill. Professor Matthew Barreto is an
associate professor of political science at the University
of Washington. Professor Luis Fraga is a professor
of political science at the University of Washington.
Professor Jane Junn is a professor of political science at
the University of Southern California. Professor Terry
Smith is a professor of law at the DePaul College of Law.
Professor Janelle Wong is a professor of American studies
at the University of Maryland.
Amici have shared their expertise with the courts to
inform voting rights cases as well as with Congress in the
1. The parties’ letters of consent to the filing of this brief are
on file with the Clerk. No counsel for a party authored this brief
in whole or in part. No person other than amici or their counsel
made a monetary contribution intended to fund the preparation
or submission of this brief.
2
2006 reauthorization of the temporary provisions of the
Voting Rights Act. Their extensive professional knowledge
and experience in these areas are relevant to the question
before the Court.
SUMMARY OF ARGUMENT
Congress acted within its constitutional authority
in 2006 by reauthorizing Section 5 of the Voting Rights
Act, 42 U.S.C. § 1973 et. seq., to safeguard the rights of
every American citizen, regardless of race or color, to
vote. Reliance on the coverage formula in Section 4(b), 42
U.S.C. § 1973b(b), which has been approved by the Court
on multiple occasions, is justified by the distinct conditions
that are present in covered jurisdictions due to race-based
discrimination. This point is evident in the prevalence of
racially discriminatory attitudes, the incidence of racially
polarized voting, the enactment of voter dilution and voter
disqualification devices, and data on the socioeconomic
conditions of minority voters.
Amici present a comprehensive summary of empirical
evidence showing the ongoing differences between covered
and non-covered jurisdictions. The systematic divergence
represents the legacy of racially discriminatory practices
in the political system that characterizes covered
jurisdictions.
In light of its 2006 legislative record and the continuing
differences between covered and non-covered areas, this
Court should find that Congress rightly determined that
maintaining Section 5 would ensure that the movement
toward equal enjoyment of the right to vote is not reversed.
3
ARGUMENT
The presence of higher levels of discrimination in
covered jurisdictions compared with non-covered locations
represents the continuing legacy of the institutionalization
of racial discrimination in the political arena. The
jurisdictions identified by Section 4(b) were the country’s
most committed purveyors of formal and informal
policies to disenfranchise non-White voters. This Court
has repeatedly recognized that these states created
“exceptional conditions [that] justified extraordinary
legislation.” N W Austin Mun. Util. Dist. No. 1 v. Holder,
557 U.S. 193, 211 (2009); see also South Carolina v.
Katzenbach 383 U.S. 301, 308, 310-15, 328 (1966).
Petitioner’s brief acknowledges this long history of
the most blatant forms of discrimination that compelled
Congress to specify federal authority in Section 5 for
voting rights enforcement. “In 1965, 95 years after the
Fifteenth Amendment’s ratification, African-Americans
were still widely denied the right to vote throughout the
South.” Pet. Br. at 1-2.
Two specific arguments by Petitioner are considered
in this brief. Petitioner first argues that in Alabama and
other jurisdictions, institutionalized race discrimination
has now been addressed by the VRA and that exceptional
treatment is no longer justified. To the extent that any
residual effects from this era do exist, Petitioner argues
that they are neither qualitatively or quantitatively
different from the voting discrimination present in non-
covered jurisdictions. Pet. Br. at 24-28. These assertions
are unsupported by the weight of empirical data.
4
Amici present a systematic analysis of empirical data
that are closely related to voting discrimination - including
socioeconomic antecedents to political participation, the
prevalence of racially discriminatory attitudes, racially
polarized voting, and patterns of devices that limit voting
access - from recent and comprehensive data sources.2
All of the findings discussed herein corroborate the
2006 legislative record and the prudent conclusion that
the jurisdictions targeted for Section 5 review should
remain unchanged. Congress’s obligation was to identify
systemic discrimination in voting and to create a remedy
or deterrent that was both congruent and proportional.
Nw. Austin, 577 U.S. at 204. Because Petitioner attacks
Section 5 facially, it “bear[s] a heavy burden of persuasion”
to demonstrate that the statute lacks a “legitimate sweep.”
See Crawford v. Marion County Election Bd., 553 U.S.
181, 200-202 (2008).3
2. For the sake of the reader, Am ici provide summary
tables within the argument section to highlight the major trends
cited in the analysis. More detailed presentations of these same
data, corresponding to the tables presented, are available in the
appendices.
3. Given its decision to challenge Section 5 facially, Petitioners’
complaint that “aggregating [evidence of discrimination] denies
equal dignity to each sovereign State by obscuring each State’s
individual record,” see Pet. Br. at 62, is puzzling. First, as measured
by the data in this Brief, Alabama ranks among the nation’s most
discriminatory states by almost every metric. Thus, according to
Petitioner, “equal dignity” would almost certainly mean it should
remain covered by Section 5. The “aggregating” that Petitioner
complains of actually helps to obscure its own discrimination and
to cherry-pick instances of over- and under-inclusiveness among
covered and non-covered jurisdictions. But the facial nature of its
challenge to Section 5 means that Petitioner must show more than
an aberration here or there; it must demonstrate that Section 5’s
“sweep” is plainly unconstitutional.
5
Petitioner also characterizes Section 5’s differential
treatment of covered states as an affront to states’ “equal
dignity.” Pet. Br. at 49. It is not states which are entitled to
equal dignity but rather the people—including its minority
citizens—from each state to whom equal treatment is due:
“The Constitution does not protect the sovereignty of
States for the benefit of the States or state governments
as abstract political entities, or even for the benefit of
the public officials governing the States. To the contrary,
the Constitution divides authority between federal and
state governments for the protection of individuals. State
sovereignty is not just an end in itself: ‘Rather, federalism
secures to citizens the liberties that derive from the
diffusion of sovereign power.’” New York v. United States,
505 U.S. 144,181 (1992).4
Thus, Petitioner’s focus on the equal dignity of states
obscures a basic question in this litigation: Are non-
White voters in covered jurisdictions more vulnerable to
voting discrimination than those living in non-covered
jurisdictions? Unless Petitioner can show that minorities
in covered jurisdictions receive the “equal dignity” to
which they are entitled in the electoral realm, Section 5
4. This point is equally relevant in any consideration of the
Guarantee Clause. U.S. Const, art. IV § 4. To the extent this
provision entrenches any judicially cognizable right to the people,
but see Luther v. Borden, 48 U.S. 1 (1849) (finding that this
provision was non-justiciable), any public right to responsive or
accountable governance was surely violated by the long term use
of election and governance systems that sanctioned the wholesale
denial of the right to vote on the basis of race. The institutionalized
harms to these citizens are neither hypothetical nor episodic - nor
are they in dispute. Thus, the remedy devised in Section 5, which
protects these excluded groups from continued violations, is fully
consistent with Article IV’s principle of assuring democratic
governance to every citizen of a given state.
6
must be deemed a congruent and proportional response
to voting discrimination. Amici now turn to the empirical
data demonstrating the heightened vulnerability of
minority voters in Section 5 jurisdictions.
Section I considers survey data on the prevalence
of negative racial attitudes among White citizens, which
are more pronounced in Section 5 areas than elsewhere.
Section II addresses more direct evidence of racially
polarized voting, which shows th a t the landscape
remains different in the covered jurisdictions than other
states. Section III provides greater detail about how
preclearance jurisdictions are more likely to employ voter
disqualification policy measures than elsewhere. Finally,
Section IV reviews several categories of socioeconomic
data showing significant racial disparities in covered
jurisd ictions on m etrics associated with political
participation.
I. Negative R acial Attitudes Among W hites Are
More Prevalent in Covered Jurisdictions
An enduring feature of the era of institutionalized
exclusion that preceded the Voting Rights Act is the
enshrinement of racial animosity toward non-White
groups. Racial animosity is embedded in the very ideology
of segregation - deeming some groups unworthy of
equal status as citizens. Thus, the views of antipathy or
resentment for groups serve as the building blocks for
establishing the structures that enforce political exclusion.
Petitioner and associated A m ic i suggest tha t
discrimination and hostile racial attitudes today are
pervasive nationwide and that the conditions in Section 5
7
covered jurisdictions are no different than in other states.
However, data from reputable national studies on political
behavior prove Petitioner’s claim to be empirically false.
In this section, Amici examine survey data on negative
racial attitudes and demonstrate that such attitudes are
substantially more pervasive among Whites living in
jurisdictions covered by Section 5 than elsewhere.
A. American National Election Study and Racial
Stereotypes
Racially polarized voting is well known and well
documented as an indicator of discrimination in states and
jurisdictions covered by Section 5. But it does not occur
in a vacuum. Social science research has documented
extensively that the underlying catalysts triggering bloc
voting are racial attitudes and stereotypes.5 The judiciary
has routinely relied on measures like these as evidence of
discrimination in voting lawsuits.6
5. Edw ard G. Carm ines & Jam es A. Stimson, I ssue
E volution: Race and the Transformation of American Politics
(Princeton Univ. Press 1989); Thomas B. Edsall & Mary D.
Edsall, Chain Reaction: The Impact of Race, R ights, and Taxes
on American Politics (W.W. Norton 1991); Michael W. Giles &
Kaenan Hertz, Racial Threat and Partisan Identification, 88
Am. Pol. Sci. Rev. 317 (1994); Robert Huckfeldt & Carol Weitzel
Kohfeld, Race and the Decline of Class in American Politics
(Univ. of Illinois Press 1989); Martin Gilens, Paul M. Sniderman,
& James H. Kuklinski, Affirmative Action and the Politics of
Realignment, 28 Brit. J. Pol. Sci. 159 (1998).
6. See, e.g., Busbee v. Smith, 549 F.Supp. 494, 501 (D. D.C.
1982) (finding state reapportionment committee’s use of the term
“nigger districts” to be probative of an intent to discriminate
against Black voters).
8
Survey data on the subject leaves little doubt that
these negative attitudes persist and that they are more
prevalent in covered jurisdictions. A chi-square test
of statistical significance finds that negative racial
attitudes are statistically more widespread in Section 5
jurisdictions, and this trend holds true for data taken on
multiple occasions between 2000 and 2010.
Table 1 summarizes results from White respondents
in the American National Election Study (ANES), the
leading national study of political attitudes, across
various measures related to race. These data track the
state and county of each respondent, which allows for a
direct comparison of racial attitudes of Whites living in
Section 5 jurisdictions with those living in outside Section
5 jurisdictions. Across all available measures of bias,
reported in Table 1, Whites in Section 5 jurisdictions
exhibit more negative viewpoints toward African
Americans and immigrants. This regional pattern is
consistent when comparing responses in studies conducted
in 2000 as well as in 2008.
Table 1:
Racial attitudes among Whites in ANES, 2000 & 2008
2008 ANES 2000 ANES
Sec Not Sec Not
Statement 5 Sec 5 Diff 5 Sec 5 Diff
“Government should not make any
special effort to help Blacks because they
should help themselves.”
51 39 12** 43 29 14**
“Other minorities overcame prejudice and
worked their way. Blacks should do the
same without any special favors.”
48 34 14** 42 32 10**
“Generations of slavery and
discrimination have created conditions
that make it difficult for Blacks to work
their wav up” - percent who disagree
61 47 14** 57 43 14**
“If Blacks would only try harder they
could be just as well off as Whites.”
66 57 9* 54 45 9*
Table 1: (continued)
Racial attitudes among Whites in ANES, 2000 & 2008
“It is not the federal government’s
business to see to it that Black people get
fair treatment in jobs.”
36 27 9* 38 32 6f
“Do you personally hope the United
States has an African American president
in your lifetime.”
48 56 -8* — — —
“Oppose the U.S. government making it
possible for undocumented immigrants to
become U.S. citizens.”
45 33 12** — — —
Chi-square test results are statistically significant: ** P>.010 * P>.050, fP>.100
Source: American National Election Study, 2000 and 2008, data among White respondents
11
In fact, the measures for White attitudes in Section
5 jurisdictions actually became more negative towards
Blacks between 2000 and 2008. For example, in 2000,
42% of Whites in Section 5 jurisdictions agreed with the
statement that Blacks should work their way up “without
any special favors” while in 2008,48% of Whites in Section
5 jurisdictions agreed. Likewise, in 2000, 54% of Whites
in Section 5 areas agreed that if Blacks would only “only
try harder they could be just as well off as Whites” and in
2008, the percentage who agreed rose by 12 points to 66%.
This hardening of prejudicial attitudes towards Blacks in
Section 5 jurisdictions comports with evidence that White
vote preferences in the 2000 and 2008 elections became
more polarized against Barack Obama in 2008 than it was
against Albert Gore in 2000 (discussed in greater detail
in Section II below).
Other questions from this study included measures
on viewpoints concerning Latinos, immigrants and other
groups, which are summarized in Table 2. For example,
in the 2000 ANES respondents were asked whether
they thought different groups had too much influence in
American politics today; too little influence; or just about
the right amount. Compared to Whites living elsewhere,
White respondents in Section 5 locations were more likely
to report that Blacks, Latinos, Asians and Jews had too
much influence in American politics today, but less likely
to think Whites had too much influence.
Table 2:
Perceptions of group influence among Whites in ANES, 2000
Statement (percent who agree)
2000 ANES
Section Non-Section 5 Diff
“Blacks have too much influence in American politics today” 37 21 16**
“Latinos have too much influence in American politics today” 15 8 7*
“Asians have too much influence in American politics today” 10 5 5t
“Jews have too much influence in American politics today” 22 14 8*
“Whites have too much influence in American politics today” 16 23 _7*
Chi-square test results are statistically significant: ** P>.010 * P>.050 fP>.100
Source:American National Election Study, 2000 data among White respondents
13
B. Cooperative Congressional Election Study and
Racial Resentment
More recent data from a major social science study
provides further evidence highlighting the distinctions
present in Section 5 areas. The 2010 Cooperative
Congressional Election Study (CCES) interviewed
more than 50,000 respondents across the 50 states and
examined attitudes towards Blacks and immigrants. The
results are summarized in Table 3.
Table 3:
Racial attitudes among Whites in CCES, 2010
Non
Percent Reporting Section 5 Sec 5 Diff
Racial Resentment 66% 53% 13%***
Anti-immigrant attitudes 46% 35% 11%***
Chi-square test results are statistically significant: *** P>.001 ** P>.010 *P>.050
Source: Cooperative Congressional Election Study, 2010, data among White respondents
The first relevant measure is the degree of racial
resentment expressed by voters based on an eight-point
scale of animosity. Among White respondents in Section
5 covered jurisdictions, an average of 66% reported
high levels of racial resentment towards Blacks - a full
thirteen points higher than the measure for Whites
living in non-Section 5 areas. Among all of the states,
White respondents in Alabama, Louisiana, Mississippi
and Georgia rated highest on their quotient of racial
resentment. These four states are fully covered by Section
5. See Appendix D.
14
The same pattern emerged on the two questions that
tracked attitudes towards immigrant groups. White
respondents in Section 5 states were significantly more
likely to report anti-immigrant attitudes than Whites
in non-Section 5 states and localities. Once again, the
individual states that registered the highest degree of
anti-immigrant attitudes among White respondents were
all covered by Section 5. Alabama, Mississippi, Texas,
Georgia, Louisiana, Alaska, and Arizona were the seven
states with the highest degree of anti-immigrant attitudes
in the CCES 2010 data.
C. Additional Social Science Research
The survey results reviewed here are consistent with
an abundance of published research in leading academic
publications.7 Scholarly research in the last decade alone
has produced several findings showing that prejudice
and discriminatory attitudes towards Blacks and Latinos
persists and that it is strongest among Whites in states
covered by Section 5.8
7. Dana Abies Morales, Racial A ttitudes and Partisan
Identification in the United States, 1980-1992, 5 Party Politics
191 (1999); Nicholas A. Valentino & David 0. Sears, Old Times
There Are not Forgotten: Race and Partisan Realignment in the
Contemporary South, 24 Am. J. Pol. Sci. 672 (2005).
8. M. V. Hood & Seth C. McKee, Gerrymandering on
Georgia’s Mind: The Effects of Redistricting on Vote Choice in the
2006 Midterm Election, 89 Soc. Sci. Q. 60 (2008); Richard Skinner
& Philip Klinkner, Black, White, Brown and Cajun: The Racial
Dynamics of the 2003 Louisiana Gubernatorial Election, The
Forum 2 (1) (2004).
15
Further, a preponderance of the scholarship concludes
that harboring negative racial attitudes is the underlying
mechanism responsible for producing racial bloc voting
among Whites, against minority candidates for elected
office. For example, in a large-scale study of racial
attitudes and voting, Professor Keith Reeves finds that “a
significant number of Whites harbor feelings of antipathy
toward Black Americans as a categorical group - feelings
and sentiments that are openly and routinely expressed....
And where such prejudices are excited....they constitute
the critical linchpin in Black office-seekers’ success in
garnering White votes.”9 Writing more than 10 years later
about the 2008 presidential election, Michael Tesler and
David Sears find the same pattern. Even after controlling
for partisanship and ideology, they find “the most racially
resentful were more than 70 percentage points more likely
to support McCain in March 2008 than were the least
racially resentful.”10
Other scholarly work also supports the finding that
discriminatory attitudes and racial prejudice play key
roles in driving White party identification, and this is
especially strong in Section 5 covered jurisdictions.11
9. Keith Reeves, Voting Hopes or F ears? White Voters,
Black Candidates & Racial P olitics in America 74 (Oxford Univ.
Press 1997).
10. Michael Tesler and David Sears, Obama’s Race: The 2008
E lection and the Dream of a Post-Racial America 61 (Univ. of
Chicago Press 2010).
11. Jonathan Knuckey, Racial Resentment and the Changing
Partisanship of Southern Whites, 11 Party Politics 5 (2005);
Edward G. Carmines & James A. Stimson, Issue E volution: Race
and the Transformation of American Politics ("Princeton Univ.
16
The most recent evidence on racial attitudes reveals a
very clear and consistent pattern indicating a continuing
repercussion of institutionalized exclusion. Accepted
survey measures of racial resentment and animosity
toward other groups find more pronounced negative
attitudes in this region than elsewhere. Not only are there
significant differences between Whites in the two regions,
the fully covered jurisdictions rank highest among all
states where these viewpoints among White voters are
most common. These clear examples of the prevalence
of negative racial attitudes in preclearance states fully
support Congress’s decision in 2006 to maintain the
formula targeting the existing covered jurisdictions.
II. Racially Polarized Voting is More Prevalent in
Covered Jurisdictions
Another significant point of dispute in this case is
whether the contemporary evidence of racially polarized
voting shows a significant distinction between Section 5
locations and the rest of the country. While most of the
parties draw different interpretations from the study of
data recently published by Professor Ellen Katz, Amici
present additional data that support the legislative finding
that racially polarized voting remains more prevalent in
Section 5 jurisdictions.
Congress noted in its 2006 report supporting
reauthorization that the sustained pattern of racially
polarized voting is a key factor of present discrimination.
Press 1989); Dana Abies Morales, Racial Attitudes and Partisan
Identification in the United States, 1980-1992, 5 Party Politics
191 (1999); Nicholas A. Valentino & David 0. Sears, Old Times
There Are Not Forgotten: Race and Partisan Realignment in the
Contemporary South, 24 Am. J. Pol. Sci. 672 (2005).
17
The House Report, for example relied upon evidence, “that
‘the degree of racially polarized voting in the South is
increasing, not decreasing. . . [and is] in certain ways re
creating the segregated system of the Old South, albeit a
de facto system with minimal violence rather than the de
jure system of late.’” H.R. Rep. No. 109-478, at 84 (2006).
Additionally, the same noted that “every statewide election
since 1988 where voters were presented with a biracial
field of candidates has been marked by racially polarized
voting.” Id. at 33.
Numerous social science studies have also described
the ways in which polarized voting impedes the ability of
voters in protected groups to realize their political power
- e.g., allying with different constituencies, competing for
statewide offices, and advancing broader policy interests.12
In Thornburg v. Gingles, this Court noted that polarized
voting is among the clearest markers of a jurisdiction in
need of a federal anti-discrimination remedy. 478 U.S. 30,
52-54 (1986).
A. Racially Polarized Voting in State Elections
Judicial findings of racially polarized voting offer even
more clear evidence of ongoing discrimination. Covered
jurisdictions constitute far fewer states, counties and
townships, and far less of the U.S. population, than non-
covered jurisdictions. See Shelby Cnty. v. Holder, 679 F.3d
848,874 (D.C. Cir. 2012) (noting that covered jurisdictions
constitute less than 25% of the country’s population). Yet
judicial findings of racially polarized voting from 2006
to the present have been disproportionately in Section 5
12. See Kareem Crayton, Beat 'Em or Join Em? White Voters
and Black Candidates in Majority-Black Districts, 58 Syracuse
L. Rev. 548, 554-58 (2008) (summarizing social science data).
18
jurisdictions.13 The district court in the instant case made
clear the importance of the continued existence of racially
13. The following cases found racially polarized voting in
non-covered jurisdictions: United States v. Osceola Cnty., 475 F.
Supp. 2d 1220,1232 (M.D. Fla. 2006); United States v. Vill. of Port
Chester, No. 06 Civ. 15173,2008 WL 190502, at *28 (S.D.N.Y. Jan.
17, 2008), aff’d 704 F. Supp. 2d 411 (S.D.N.Y. 2010); United States
v. City of Euclid, 580 F. Supp. 2d 584,603 (N.D. Ohio 2008); Large
v. Fremont Cnty., 709 F. Supp. 2d 1176,1207 (D. Wyo. 2010), affd
670 F.3d 1133 (10th Cir. 2012); Baldus v. Members ofWis. Gov’t
Accountability Bd., 849 F. Supp. 2d 840, 856 (E.D. Wis. 2012).
The following cases found racially polarized voting in
covered jurisdictions: League of United Latin Am. Citizens v.
Perry, 548 U.S. 399,427 (2006); Bone Shirt v. Hazeltine, 461 F.3d
1011 (8th Cir. 2006) (suit by Native Americans against State of
South Dakota, a partially covered jurisdiction under Section 5
of the Voting Rights Act, over legislative redistricting); United
States v. Brown, 494 F. Supp. 2d 440, 485 n.72 (S.D. Miss. 2007)
(in intentional discrimination case brought under Section 2 of
Voting Rights Act against African American political officials for
“episodic,” “one of a kind” conduct, court acknowledged racially
polarized voting in Noxubee County, Miss., and finds intentional
discrimination), aff’d 561 F.3d 420 (5th Cir. 2009); Jamison v.
Tupelo, 471 F. Supp. 2d 706, 713 (N.D. Miss. 2007); Fairley v.
Hattiesburg, No. 2:06cvl67-KS-MTP, 2008 WL 3287200, at *4
(S.D. Miss. Aug. 7, 2008) (finding racially polarized voting but no
Section 2 violation because a remedial district could not be drawn
to satisfy traditional redistricting criteria), aff’d, 584 F.3d 660
(5th Cir. 2009); Benavidez v. City of Irving, 638 F. Supp. 2d 709,
726 (N.D. Tex. 2009); Fabela v. City of Farmers Branch, No. 3:10-
CV-1425-D, 2012 WL 3135545, at *12 (N.D. Tex. Aug. 2, 2012);
Texas v. United States, No. 11-1303,2012 WL 3671924, at *21, *32
(D.D.C. Aug. 28, 2012) (preclearance action by State of Texas in
which three-judge court found the existence of racially polarized
voting and an intent to discriminate by Texas in enacting its new
congressional redistricting), juris, statement filed, 81 USLW3233
(October 19, 2012).
19
polarized voting: where it exists, minority populations are
especially vulnerable to retrogressive and discriminatory
electoral conduct because their political preferences
diverge from the majority. See Shelby Cnty. v. Holder,
811 F. Supp. 2d 424, 487 (D.D.C. 2011).
Indeed, contrary to the notion that minority political
success obviates Section 5, racially polarized voting
offers strong evidence that this same success renders
the provision as necessary as ever. As Justice Stevens
has observed: “[I]t is the very political power of a racial
or ethnic group that creates a danger that an entrenched
majority will take action contrary to the group’s political
interests.” Rodgers v. Lodge, 458 U.S. 613, 651 (1982)
(Stevens, J., dissenting). This Court acted in accord with
this sensible principle when it recently found that the state
of Texas unlawfully had sought to dilute Latino voting
strength in a congressional district in which Hispanics
were “becoming increasingly politically active and
cohesive.” League of Latin American Citizens v. Perry,
548 U.S. 399, 439 (2006). The emergence of a politically
active and cohesive non-White polity in jurisdictions prone
to racially polarized voting is more, not less, reason for
the prophylactic protections of Section 5. Structures that
guarantee the opportunity to participate and to elect
candidates of choice can help to offset and to diminish
racially polarized voting, see Crayton at FN 12, but as
this data shows, the effects are not immediate.
Racially polarized voting in many covered jurisdictions
continues to be extreme. In addition to the racially
polarized voting in covered jurisdictions in the past three
presidential elections, see Table 4, post-reauthorization
data also reveal extraordinary polarization in other
20
statewide contests. For instance, in post-reauthorization
United States Senate contests in Mississippi, the White
crossover vote for the Black-preferred candidate has
averaged only 13%.14 In the 2011 gubernatorial race
in Mississippi, the Black candidate, Mayor Johnny L.
DuPree, received a share of the total vote (39.02%) that
was almost identical to the Black population of the state
(37.3%).15 Further analysis indicates that DuPree won
an estimated 20% of the White vote, but more than 80%
14. See CNN, Election Center 2008 Local Exit Polls,
Mississippi Results, http://www.cnn.com/ELECTIQN/2008/
results/polls/#val=MSS01pl (last visited Jan. 16,2013); Election
Center 2008 Local Exit Polls, Mississippi Special Results, http://
www.cnn.com/ELECTIQN/2008/results/polls/#val=MSS02pl
(last visited Jan. 16, 2013); Election Center 2012, Mississippi
Senate Race, http://www.cnn.com/election/2012/results/state/MS/
senate (last visited Jan. 16,2013). To arrive at the 13% figure, we
averaged the crossover vote from the three Senate elections that
occurred in Mississippi from 2008 to 2012.
15. See Mississippi Secretary of State, Official Tabulation
of the Vote for State Office of Governor, http://www.sos.ms.gov/
links/elections/results/statewide/Governor_Statewide%20-%20
General%20Election%202011%20Results.pdf (last visited Jan. 29,
2013); See also U.S. Census Bureau, State & County Quick Facts,
Mississippi, http://quickfacts.census.gov/qfd/states/28000.html
(last visited Jan. 29,2013). This pattern of extraordinarily racially
polarized voting is continuation of the pre-re-authorization voting
behavior in Mississippi. In 2003, a Black candidate for lieutenant
governor, Barbara Blackmon, received a mere 8% of the White vote
in the general election. See Terry Smith, Autonomy v. Equality:
Voting Rights Reconsidered, 57 Ala. L. Rev. 261, 278 (2005). A
Black candidate running for state treasurer received just 22% of
the White vote despite being widely regarded as more qualified for
the position than his twenty-nine-year-old White opponent. See id.
http://www.cnn.com/ELECTIQN/2008/
http://www.cnn.com/ELECTIQN/2008/results/polls/%23val=MSS02pl
http://www.cnn.com/election/2012/results/state/MS/
http://www.sos.ms.gov/
http://quickfacts.census.gov/qfd/states/28000.html
21
of the Black vote.16 No Black political candidate has been
elected statewide in Mississippi since Reconstruction.17
Alabama, from which the instant controversy has
arisen, is another exemplar of the continuing scourge
of racially polarized voting and its diminishment of
minority voter opportunity. In her 2008 contest for the
U.S. Senate, state senator Vivian Figures (who is Black)
received only 11% of the White vote, just as presidential
candidate Barack Obama carried a mere 10%.18 Against
the backdrop of numbers such as these, it is not possible
to argue that covered jurisdictions are indistinct from
non-covered jurisdictions in terms of minority political
opportunity. Although racially polarized voting exists
elsewhere in our country, the most extreme instances of it
continue to occur in covered jurisdictions. Moreover, such
polarized voting is disproportionately found in Section 5
jurisdictions.
16. See Public Policy Polling, M ississipp i Governor,
November 6, 2011, http://www.publicpolicvpolling.com/ndf/2011 /
PPP Release MS 1106925.pdf (last visited Jan. 28, 2013).
17. See The Mississippi Governor’s Race: A Welcome First,
The Economist (Aug. 27, 2011), http://www.economist.com/
node/21526911(last visited Jan. 16, 2013).
18. See CNN, Election Center 2008 U.S. Senate Exit Polls,
Alabama Results, http://www.cnn.com/ELECTIQN/2008/results/
polls/#val=ALS01pl (last visted Jan. 16.2013.10:57 AM): Election
Center 2008 Presidential Exit Polls, Alabama Results, http://www.
cnn.eom/ELECTION/2008/results/polls/#ALP00pl (last visited
Jan. 16, 2013).
http://www.publicpolicvpolling.com/ndf/2011_/
http://www.economist.com/
http://www.cnn.com/ELECTIQN/2008/results/
http://www
22
B . Racially Polarized Voting in National Elections
The legislative record on racially polarized voting
at state and local levels finds additional support from
the analysis of more recent national elections. One clear
way of illustrating the effect of polarization in covered
jurisdictions is by looking to survey data in national
contests. Table 4 summarizes the level of support for
Democratic candidates among White voters, broken out
by state, in election contests for U.S. President in 2000,
2004 and 2008.19
The most apparent pattern from this data is that
the level of White support for the Democratic nominee
varies significantly between covered and non-covered
states. In each year, the difference between these regions
is statistically significant. The 2000 election shows an
average level of white voter support for the nominee in
non-covered states that was fourteen points higher than
in covered states. In 2004, the average level of White
support in the covered states was 25%, compared with
43% in non-covered states (a difference of 18.2 percentage
points). In 2008, the level of White support in Section 5
states was 23% compared to an average of 48% in the rest
of the country.
19. A complete test of racially polarized voting would search
for a sharp contrast in the level of support for a candidate among
Whites compared to other racial groups. Here, Amici examine
the preferences of White voters alone as an indicator, since well
over a majority of the relevant non-White groups supported the
Democratic ticket in each of the presidential elections at issue.
Table 4:
Polarized voting among Whites in 2000 - 2008 Presidential election
State
%
Gore
'00
%
Kerry
'04
%
Obama
'08
04-08
Chg
00-08
Chg
%
Dem
%
Ind
%
Rep
Section 5 29 25 23 -2 -6 32 13 55
Non- 43 43 48 5 5 39 12 49
Difference _14** - _ 2 5 * * * _7* -11* -7 1 6
Chi-square test results are statistically significant: *** P>.001 ** P>.010 *P>.050
Sources: National Exit Poll vote among White respondents 2000, 2004, 2008; and CCES 2010 for party
identification among White voters
24
It is equally instructive to observe the extent to which
White support diminished in the 2008 election - the first
year that a major party’s nominee for President was
Black. On average, White support in pre-clearance states
dropped an additional two percentage points below that of
the nominee in 2004. The extent of this drop-off provides
another way to assess the extent to which White voters
remain unwilling to vote for candidates due to race.
What is also noteworthy about this data is how closely
the results track the geographic pattern subject to Section
5’s requirements. The group of states with the largest
drop-off of White support for the Democratic nominee
in 2008 includes several Section 5 jurisdictions. In fact,
more than half of the nine total states where the measure
dropped for the Democratic nominee between 2004 and
2008 were covered jurisdictions. The state of Louisiana
had the nation’s steepest decline in support among Whites,
dropping ten points during this period — from 24% to 14%.
One might be inclined to characterize these findings
simply as the product of partisanship rather than racial
bloc voting, but additional data refute any serious
suggestion that ideology accounts for these changes. About
32% of Whites in Section 5 states identified as Democrats,
yet only 23% of them supported the presidential nominee
in 2008 (the lowest share of the three elections studied).
A simple comparison of different states with similar
patterns of Republicanism illustrates the point. About
the same percentage of White voters in the states of
Utah (non-covered) and Georgia (covered) reported their
affiliation with the Republican Party. See Appendix E. Yet
25
in comparing the performance of the Black Democratic
candidate in 2008, one observes a marked difference
among White voters. The Democratic ticket lost both
statewide contests, but a much smaller share of White
voters in Georgia supported the candidate than in Utah -
one of the nation’s most Republican states. Party affiliation
alone simply cannot account for this difference in states
with roughly similar patterns of allegiance to Republican
ideology.
These findings comport with other existing research
that has noted the pattern of polarized voting in national
elections. The newest published research by political
scientists finds evidence that Barack Obama received less
support in 2008 than John Kerry did in 2004 among White
voters in many Section 5 states as a direct result of racial
prejudice and discriminatory attitudes.20
In his analysis of the White vote for Obama in Southern
states, Professor Ben Highton notes, “at the state level,
the influence of prejudice on voting was comparable to the
influence of partisanship and ideology. Racial attitudes
explain support for Obama and shifts in Democratic voting
20. Michael S. Lewis-Beck, Charles Tien, & Richard Nadeau,
Obama’s Missed Landslide: A Racial Cost?, 43 Pol. Sci. & Politics
69 (2010); Todd Donavan, Obama and the White Vote, 63 Pol.
Res. Q. 863 (2010); Anthony G. Greenwald, Colin Tucker Smith,
N. Sriram, Yoav Bar-Anon, & Brian A. Nosek, Implicit Race
Attitudes Predicted Vote in the 2008 U.S. Presidential Election, 9
Analysis of Soc. Issues & Pub. Pol.’y, 241 (2009); Tom Pyszczynski,
Carl Henthorn, Matt Motyl, & Kristel Gerow, Is Obama the Anti-
Christ? Racial Priming, Extreme Criticisms of Barack Obama,
and Attitudes Towards the 2008 U.S. Presidential Candidates,
46 J. of Experimental Soc. Psychol., 863 (2010).
26
between 2004 and 2008.”21 This finding is corroborated
by Professor Spencer Piston’s individual-level analysis of
voter attitudes and support for Barack Obama in Southern
states: “Negative stereotypes about Blacks significantly
eroded White support for Barack Obama. Further,
racial stereotypes do not predict support for previous
Democratic presidential candidates or current prominent
Democrats, indicating that White voters punished Obama
for his race rather than his party affiliation.”22
Quite apart from the evidence linking White bloc
voting in the covered jurisdictions to racial animus, this
Court has long recognized that racially polarized voting
is independently significant as measure of the lack of
minority political opportunity, regardless of what may
motivate such polarization. Thus, Congress correctly
focused on racially polarized voting in concluding in 2006
that the covered jurisdictions should remain unchanged.
III. Covered Jurisdictions Are More Likely to Adopt
Vote Denial And Suppression Measures
In originally fashioning the Act in 1965, Congress
developed a targeting formula for Section 5 that employed
both the measures of political participation and the
presence of certain disqualification devices. While these
devices were not facially invalid as a m atter of law,
Congress determined that these legal measures were
21. Ben Highton, Prejudice R ivals Partisanship and
Ideology When Explaining the 2008 Presidential Vote across the
States, 44 PS: Pol. Sci. & Politics 530 (2011).
22. Spencer Piston, How Explicit Racial Prejudice Hurt
Obama in the 2008 Election, 32 Pol. Behavior 431 (2010).
27
relevant to identifying the group of states that tended to
employ a racially unequal electoral system.
The distinct pattern of current legal devices now
present in Section 5 states similarly demonstrates
the heightened risk posed to minority voters in these
jurisdictions. Covered and partially-covered jurisdictions
are more likely than others to impose an array of
restrictions on the exercise of the franchise. These
restrictions, in turn, have a disparate impact on minority
access to the polls.
The data in Table 5 show that the differences between
states with varying levels of Section 5 coverage are stark.
Across all varieties of institutional measures to restrict
voting rights, states that are fully covered by Section
5 are more than twice as likely as non-covered states
to adopt policies that make voting more difficult for
citizens. Fully covered states are more likely to employ a
combination of these restrictive measures, which amplifies
the disqualification effect on voters.
Table 5. States with Limits on Enfranchisement by Section 5 Coverage
States
Fully
Covered
by Sec 5
States Fully
or Partially
Covered by
Sec 5
States
NOT
Covered
by Sec 5
Percent of states that currently require identification to vote1 25% 30% 11%
Percent that require or request photo ID to vote, current and
pending clearance2 50% 50% 16%
Percent requiring proof of citizenship to vote3 25% 13% 8%
Percent that currently have permanent or partial limits on
voting if felony conviction4 38% 31% 16%
States with most restrictive immigration-control legislation
as current law5 50% 29% 6%
Number of states 8 16 34
N ational C onference o f State Legislators, Oct. 2012
N a tio n a l C onference o f State Legislators, O ct, 2012 and B allotpedia.com , Jan 2013
^Lawyers C om m ittee for Civil R ights June 2011
4A C LU M ap o f State Felon D isenfranchisem ent Law s (n.d.)
^National C onference o f State L egislatures, A ug., 2012
00
29
States that are fully covered by Section 5 or that
include a significant proportion of covered jurisdictions are
much more likely to institute policies that require citizens
to produce potentially burdensome documentation proving
their identities or citizenship before they are allowed to
vote. This Court has recognized that states may not impose
“excessively burdensome requirements” on any class of
voters. See Crawford v. Marion County Election Bd.,
553 U.S. at 202 (citations omitted). The disproportionate
impact that restrictive voter identification requirements
have on Black and Latino voters is well-established in
both the scholarly literature and more general analysis.23
Indeed, a three-judge panel recently found that Texas’s
photo identification law retrogressed Latinos’ right to
vote. Texas v. Holder, Civ. No. 12-128, 2012 WL 3743676,
*33 (D.D.C. 2012) (describing Texas’s photo ID law as “the
most stringent in the country” and finding that it “would
almost certainly have retrogressive effect”).
States covered by Section 5 are also more likely to
adopt laws that permanently or partially limit the rights
of convicted felons to vote. States that are not covered
by Section 5 are much more likely to allow convicted
felons to vote as soon as their sentences are completed.
Because Blacks and Latinos are overrepresented in the
criminal justice system, felon disenfranchisement laws
23. Gabriel Sanchez, Stephen Nuno, and Matt Barreto.
“Racial and Ethnic Differences in Access to Photo-ID in Texas,”
Latino Decisions Blog, March 12, 2012; Matt Barreto, Stephen
Nuno, and Gabriel Sanchez, 2007, “Voter ID Requirements and the
Disenfranchisements of Latino, Black and Asian Voters.” Paper
presented at the Midwest Political Science Association, Annual
Conference, Chicago, IL.
30
disproportionately deprive minority citizens of the right
to vote.
While Blacks and Latinos make up about 30% of the
U.S. population, these groups account for nearly 60%
of people in prison. Not surprisingly, then, nearly 15%
of Black men are denied the right to vote due to felony-
disenfranchisement laws.24 During the prior extension
of Section 5, this Court found that Alabama, the state in
which Petitioner is situated, unconstitutionally maintained
a felony disenfranchisement statute, the original purpose
of which was to discriminate against Black citizens and
the continuing impact of which was to disproportionately
disenfranchise them. Hunter v. Underwood, 471 U.S. 222,
233 (1985).
Am ici recognize that states may maintain voter
identification and felony disenfranchisement laws for
legitimate purposes. But the far greater instances of such
laws in the very jurisdictions where racial prejudice among
White voters is highest, where minority socioeconomic
disadvantage is greatest, and where White bloc-voting
is most persistent and extreme, underscores the need
for Section 5’s prophylactic review of these jurisdictions’
voting laws to determine their impact and intent.
24. See, The Sentencing Project, Racial Disparities, http://
www,sentencingproiect.org/template/page.cfm?id=122 (last
visited Jan. 29. 2013): see also, American Civil Liberties Union,
Mass Incarceration: The Facts, http://www.aclu.org/combating-
mass-incarceration-facts-0 (last visited Jan. 29, 2013).
http://www.aclu.org/combating-mass-incarceration-facts-0
http://www.aclu.org/combating-mass-incarceration-facts-0
31
IV. Non-White Voters In Covered Jurisdictions Are
Vulnerable Due To Socioeconomic Disparities
The negative racial attitudes, White bloc voting, and
barriers to voting discussed in the foregoing sections
place severe burdens on those Americans who are
socioeconomically disadvantaged. The material condition
of non-White citizens is therefore a core issue in assessing
minority political equality. See Thornburg v. Gingles, 478
U.S. 30,45 (1986) (specifying as relevant to a determination
of vote dilution “the extent to which minority group
members bear the effects of past discrimination in areas
such as education, employment, and health, which hinder
their ability to participate effectively in the political
process”). Economic circumstance affects citizens’
ability to comply with voting requirements that covered
jurisdictions may implement. See Texas v. Holder, Civ. No.
12-128, 2012 WL 3743676, at *19 (D.D.C. Aug. 30, 2012);
see also Harper v. Va. State Board of Elections, 383 U.S.
663, 668 (1966) (“The principle that denies the State the
right to dilute a citizen’s vote on account of his economic
status or other such factors, by analogy, bars a system
which excludes those unable to pay a fee to vote or who
fail to pay”).
Wealth and educational attainm ent affect the
responsiveness of the political parties to the needs of
voters. See Bertrall L. Ross II & Terry Smith, Minimum
Responsiveness and the Political Exclusion of the Poor,
72 Law & Contemp. Probs. 197,209-210 (2009) (examining
empirical studies of the political process’s responsiveness
to the concerns of the poor and concluding that “[t]he
poor, at least according to these empirical studies, have
32
essentially become an excluded group in the political
process.”).25
W here economic and educational disadvantage
correlate with race, as they do in the covered jurisdictions,
non-White voters are the most vulnerable to retrogressive
or intentionally discriminatory voting practices and non
responsiveness by government officials. Moreover, because
these conditions of racialized economic and educational
disparities are concentrated in covered jurisdictions,
where a majority of the three major non-White groups
protected by Section 5 resides, Congress has correctly
focused its remedial authority in these locations.26
In this section, Amici compare U.S. Census data for
2000 and 2010 in states that are fully covered and partially
covered by Section 5. On key metrics of socioeconomic
well-being—including education, household income,
home ownership, and employment—racial disparities
remain substantial in fully covered and partially covered
25. See also Sidney Verba, Kay L. Schlozman, & Henry
L. Brady, Voice and equality: Civic voluntarism in American
politics (Harvard Univ. Press 1995); Raymond E. Wolfinger,
& Steven J. Rosenstone, Who Votes? (Yale Univ. Press 1980);
Katherine Tate, Black Faces in the Mirror: African Americans
and Their Representatives in the U.S. Congress (Princeton Univ.
Press 2003); Angus Campbell, et al., The American Voter (Wiley
Press 1960); Louis DeSipio, Counting on the Latino Vote: Latinos
as a New E lectorate (Univ. of Virginia Press 1998).
26. A majority of persons belonging to each of the three
largest protected non-White groups in the United States reside
in states where Section 5 now applies. Approximately two-thirds
of Blacks, 63.3% in 2000 and 2010, and almost three-quarters of
Hispanics (as defined in the Census), 74.6% in 2000 and 72.3% in
2010, live in fully and partially covered states. See Appendix A.
33
jurisdictions. The implications of these current data
on the present legal question are plain: Minorities in
covered jurisdictions continue to suffer from substantial
socioeconomic disparity, “which hinder[s] their ability
to participate effectively in the political process.” See
Gingles, 478 U.S. at 45.
A. States Fully Covered by Section 5
In fully covered states, 84% of all Whites compared
to only 69% of Blacks had at least a high school education
as of 2000. See Appendix B. In this same year, Whites
were almost twice as likely as Blacks to have a bachelor’s
degree or higher. The share of Whites with a high school
education or higher exceeded the percentage for Hispanics
by 24 percentage points. And the share of those with a
college degree or higher was 11 percentage points better
for Whites than Hispanics. These racial differences in
educational attainment persisted in 2010.
Substantial disparities also appear in differences
among these groups, in median household income, percent
home ownership, and percent unemployed. In 2000,
Whites had a median household income that was $16,169
greater than that of Blacks, and $9,918 greater than
that of Hispanics. In that same year, the percentage of
homeownership among Whites exceeded the measure for
Blacks (as a percent of all Blacks) by 33 points, and the
difference between White and Hispanic homeownership
was 28 percentage points. The unemployment rate for
Whites in 2000 was half, or three percentage points
lower, the comparable measure for Blacks. Further, the
unemployment rate during this year was two points lower
among Whites than it was in the Hispanic community.
34
Differences in home ownership rates held over the
decade. In 2010, the proportion of Whites who owned
homes remained far greater than the comparable figure
for Blacks, and White homeownership surpassed Hispanic
homeowner ship by 27 percentage points. The differences
in unemployment rates persisted as well. In this same
year, the unemployment rate of Whites was half that of
Blacks, a difference of four percentage points, and White
unemployment rate was two percentage points lower
than that of Hispanics. In 2010, the gap between Whites
and Blacks in median income grew to nearly $21,000,
and increased to more than $15,000 between Whites and
Hispanics.
B. States Partially Covered by Section 5
Socio-demographic disparities also appear in states
that are partially covered under Section 5. The data for
these states appears in Appendix C. In 2000, 86% of all
Whites had a high school education or higher compared
to 76% of Blacks in these states. The difference between
the rates for Whites and Hispanics was even greater at
27 percentage points. Differences in the percent of each
group with a bachelor’s degree were also present: 10
percentage points separated the percentage of Whites
and Blacks with a bachelor’s degree or more, and Whites
held a 14 percent advantage over Hispanics with a college
degree or higher. In 2010 these differences in educational
attainment were still apparent.
A similar pattern appears when one assesses median
household income, home ownership, and unemployment in
2000 and in 2010. In 2000, Whites had incomes that were
$13,306 greater than Blacks and $11,221 greater than
35
Hispanics. Thirty-one percent more Whites than Blacks
own homes; Whites outpaced Hispanics in owning their
homes (72% vs. 40%, or a difference of 32 percentage
points). Substantial differences in unemployment rates
are evident. The unemployment rate of Blacks was more
than twice that of Whites as was the unemployment rate
of Hispanics.
In 2010, Whites had median household incomes that
were on average $19,698 greater than that of Blacks and
$16,056 greater than that of Hispanics. Differences in
homeownership also remained. With respect to rates
of home ownership, Whites outpaced both Blacks and
Hispanics by 33 and 29 percentage points respectively.
Finally, the unemployment rate of Blacks was more than
double that of Whites, a difference of five percentage
points, and the difference of three points between Whites
and Hispanics indicates that 50% more Hispanics than
Whites were unemployed.
C. Covered States & Employment Discrimination
Charges
While these continuing disparities in education,
household income, home ownership, and unemployment
are indications of the contemporary consequences of
historical discrimination, they also reflect continuing
present-day discrimination in the covered jurisdictions.
For instance, it is well understood among scholars and
experts that the higher Black unemployment rate is in
part a function of job discrimination.27
27. Terry Smith, Barack Obama, Post-Racialism, and the
New Politics of Triangulation 94 (Palgrave MacMillan 2012).
36
The United States Equal Employment Opportunity
Commission (EEOC) maintains state-specific data on the
outcomes of job discrimination and retaliation charges
filed with the agency against both private and government
employers. This data provides important evidence that
the pattern of discriminatory behavior in employment
appears more frequently in preclearance locations than
one might otherwise expect.
An examination of two categories of administrative
action on these charges reveals that covered jurisdictions
are the sites of a disproportionate share of job discrimination
and retaliation findings. As shown in Table 6, from 2006
through 2012, fully covered jurisdictions accounted
for a quarter of all merit resolutions by the EEOC,
significantly in excess of their collective 19% share of U.S.
adult population. Merit resolutions are “Charges with
outcomes favorable to charging parties and/or charges
with meritorious allegations.”28 In the period from 2006 to
2012, the EEOC was also statistically more likely to find
“reasonable cause” in charges filed in covered states. An
EEOC determination of reasonable cause means “cause to
believe that discrimination occurred based upon evidence
obtained in investigation.”29
28. U.S. Equal Employment Opportunity Commission,
D efinition o f Terms, http://www.eeoc.gov/eeoc/statisties/
enforcement/definitions.cfm (last visited Jan. 29, 2013).
29. Id,
http://www.eeoc.gov/eeoc/statisties/
Table 6:
Rate of EEOC Claims with Reasonable Cause or Merit Resolutions:
Comparing outcomes in Section 5 covered and non-covered States
EEOC Data 2006 - 2012
Section 5 Non-Section 5 Diff
Percent of Adult Population 19 81 —
Percent of all Reasonable Cause Determinations
2006-12
25 75
Percent of all Merit Resolutions 2006-2012 26 74
Rate of Reasonable Cause Determinations per 1000
Adults
0.166 0.103 0.064**
Rate of Merit Resolutions per 1000 Adults 0.718 0.457 0.261***
Note: For items 2 and 3, difference column represents difference in percent o f adult population in Section 5 states
(19%) and percent o f EEOC outcomes in these states. For items 4 and 5, difference represents gap between
Section 5 and non-Section 5 states going across the row.
Chi-square test results are statistically significant: *** P>.001 ** P>.010 *P>.050
Sources: EEOC Data by State on Resolution of Claims
38
The concentration of these claims follows an
unmistakable pattern. Based on the same EEOC statistics,
six of the nine fully covered jurisdictions have earned the
unenviable sobriquet of being among the twenty states
with the most workplace discrimination.30 Here again,
sheer population size alone simply cannot account for the
frequency of such claims in these states. Mississippi is only
the thirty-first (31st) largest state, yet it ranks eighteenth
(18th) in workplace discrimination. Alabama is only the
twenty-third (23rd) largest state, yet is ranked eleventh
(11th) in workplace discrimination. And while Texas is the
second (2nd) largest state, it ranked first (1st) in workplace
discrimination.31
In sum, the disparities along with the distinct pattern
of employment discrimination charges discussed above
paint a portrait of heightened socioeconomic vulnerability
in the covered states, a vulnerability which is magnified
by the high concentration of racial minorities living in
the covered jurisdictions. This vulnerability, in turn,
adversely affects political participation and opportunity
and justifies Congress’s determination that Section 5 is
still needed to guarantee that state and local governments
do not limit the voting rights of Blacks and Hispanics.
30. See Business Week, Twenty States With the Most
Workplace Discrimination, http://images.businessweek.com/
slideshows/20110728/twenty-states-with-the-most-workplace-
discrimination (last visited Jan. 16, 2013).
31. Id.
http://images.businessweek.com/
39
CONCLUSION
No party in the present litigation disputes the fact that
Congress’ intervention in 1965 to rid the country of race
discrimination in the political arena was warranted. While
Petitioner asserts that the time has arrived for this project
to end, the factors on which petitioner relies are woefully
incomplete. Petitioner mistakes the project at hand as a
very limited one - removing the legal barriers on non-
White citizens from registering to vote. What Petitioner
ignores, but what should not be lost on this Court, is the
fact that this was only one aspect of a prolonged project
to end institutionalized political exclusion based on race.
The data presented here offer a clear picture that, both
in 2006 and now, the decision to maintain Section 5 was a
reasonable one based on sound evidence.
Congress prudently recognized that dismantling the
enduring features of racial discrimination demanded
continued vigilance. And it reached this conclusion for
good reason. Because this project was sponsored by and
often executed by well-entrenched state government
actors, the effects of their efforts could not be reduced to
the formal denial of access to ballots.
40
Amici therefore respectfully urge the Court to take
account of the variety of evidence that shows that Section
5 remains a work in progress in much of our country and
to affirm the decision below.
Respectfully Submitted,
A nita E arls
Counsel of Record
A llison R iggs
S outhern C oalition for
S ocial J ustice
1415 W. Highway 54
Suite 101
Durham, NC 27707
(919) 323-3380
anita@southerncoalition.org
Counsel for Amici Curiae
mailto:anita@southerncoalition.org
APPENDIX
la
APPENDIX A
APPENDIX A
Table of group population and proportions for Full Coverage States: AL, AK, AZ, GA, LA, MS, SC,
TX, VA
2000 total
population of
group
% of group in
Full coverage
states in 2000
2010 total
population of
group
% of group in Full
coverage states in
2010
% Non-Hispanic White 194552774 18.0 196817552 18.7
% Black or African
American 34658190 32.2 37685848 33.5
% Hispanic 35305818 25.7 50477594 26.9
% Asian alone 10242998 12.2 14465124 13.1
Table of group population and proportions for Partially covered states: CA, FL, NY, NC, MI, NH, and
SD
2000 total
population of
group
% of group in
Partially covered
states in 2000
2010 total
population of
group
% of group in
Partially covered
states in 2010
% Non-Hispanic White 194552774 27.4 196817552 26.8
% Black or African
American 34658190 31.1 37685848 29.8
% Hispanic 35305818 48.9 50477594 45.5
% Asian alone 10242998 51.9 14465124 46.1
Table of group population and proportions for BOTH Fully covered and Partially covered states:
AL, AK, AZ, GA, LA, MS, SC, TX, VA, CA, FL, NY, NC, MI, NH, and SD
2000 total
population of
group
% of group in
selected states in
2000
2010 total
population of
group
% of group in
selected states in
2010
% Non-Hispanic White 194552774 45.4 196817552 45.5
% Black or African
American 34658190 63.3 37685848 63.3
% Hispanic 35305818 74.6 50477594 72.3
% Asian alone 10242998 64.2 14465124 59.2
2a
APPENDIX B
APPENDIX B
Summary of Census statistics for 2000 and 2010 for Fully Covered States
Fully covered states average: 2000 Census
Whites Blacks
Diff.
(W-B)
Hispanics
Diff.
(W-H)
Asians
Diff.
(W-A)
% High school
or higher 84 69 15 60 24 78 6
% College or
higher 26 14 12 15 11 41 -15
Median
household
income
$44,806 $28,637 $16,169 $34,888 $9,918 $45,935 -$1,129
% Home
ownership
74 41 33 46 28 54 21
%
unemployment
rate
3 6 3 5 2 4 1
2010 Census
Whites Blacks
Diff.
(W-B)
Hispanics
Diff.
(W-H)
Asians
Diff.
(W-A)
% High school
or higher
88 80 8 63 25 84 4
% College or
higher
30 17 13 15 15 46 -16
Median
household
income
$57,125 $36,310 $20,815 $41,708 $15,417 $59,759 -$2,634
% Home
ownership
74 49 25 47 27 61 13
%
unemployment
4 8 4 6 2 4 0
Sources: See Appendix F
3a
APPENDIX C
APPENDIX C
Summary of Census statistics for 2000 and 2010 for Partially Covered States
Partially covered states average: 2000 Census
Whites Blacks
Diff.
(W-B)
Hispanics
Diff.
(W-H)
Asians
Diff.
(W-A)
% High school
or higher
86 76 10 59 27 80 6
% College or
higher
27 17 10 14 13 46 -19
Median
household
income
$45,797 $32,491 $13,306 $34,575 $11,221 $49,600 -$3,803
% Home
ownership
72 41 31 40 32 49 23
%
unemployment
rate
3 6 3 6 3 3 0
Partially covered states average: 2010 Census
Whites Blacks
Diff.
(W-B)
Hispanics
Diff.
(W-H)
Asians
Diff.
(W-A)
% High school
or higher
91 82 9 66 25 85 6
% College or
higher
31 20 11 16 15 51 -20
Median
household
income
$57,313 $37,615 $19,698 $1,258 $16,056 $3,435 -$6,122
% Home
ownership
72 39 33 43 29 55 17
%
unemployment
rate
4 9 5 7 3 5 1
Sources: See Appendix F
4a
APPENDIX D
State Section
Five Rank Racial
Resent
Alabama Y 1 72
Louisiana Y 2 69
Mississippi Y 3 69
Georgia Y 4 69
West Virginia 5 66
Texas Y 6 66
Tennessee 7 65
Arkansas 8 63
South Carolina Y 9 62
South Dakota P 10 61
Nevada 11 61
Arizona Y 12 60
Alaska Y 13 59
North Carolina P 14 59
Virginia P 15 59
Pennsylvania 16 59
Ohio 17 59
Delaware 18 59
Florida P 19 59
Oklahoma 20 58
Idaho 21 58
Indiana 22 58
Missouri 23 58
Michigan P 24 57
North Dakota 25 57
Maryland 26 56
Kansas 27 56
Montana 28 55
New Jersey 29 55
Kentucky 30 55
Iowa 31 54
Colorado 32 53
Illinois 33 53
Nebraska 34 53
Wyoming 35 53
New Mexico 36 53
Utah 37 52
Wisconsin 38 50
New Hampshire P 39 50
Minnesota 40 50
New York P 41 50
Connecticut 42 50
California P 43 48
Maine 44 48
Rhode Island 45 47
Oregon 46 47
Massachusetts 47 45
Washington 48 44
Vermont 49 37
Hawaii 50 33
D.C. 51 23
Section 5 states
Non-Section 5
Difference
66
53
13**
APPENDIX D
in Cooperative Congressional Election 2010
State Section
Five Rank Anti-
I m m i <>
Alabama Y 1 51
Mississippi Y 2 47
Texas Y 3 47
Georgia Y 4 46
Louisiana Y 5 46
Alaska Y 6 46
Arizona Y 7 46
Tennessee 8 45
Arkansas 9 44
Oklahoma 10 44
Nevada 11 42
Virginia P 12 41
Indiana 13 40
North Carolina P 14 40
South Carolina Y 15 40
Florida P 16 40
New Mexico 17 40
Iowa 18 39
Montana 19 39
Missouri 20 38
Kentucky 21 38
West Virginia 22 37
Idaho 23 36
New Hampshire P 24 36
South Dakota P 25 36
Michigan P 26 35
Kansas 27 35
Colorado 28 35
Pennsylvania 29 35
Ohio 30 35
Illinois 31 35
Nebraska 32 35
North Dakota 33 35
Wisconsin 34 35
California P 35 35
Oregon 36 34
Maryland 37 34
Delaware 38 33
New Jersey 39 33
Maine 40 33
Minnesota 41 32
Hawaii 42 32
Rhode Island 43 32
Wyoming 44 31
Massachusetts 45 31
Utah 46 31
Connecticut 47 30
Washington 48 30
New York P 49 29
D.C. 50 21
Vermont 51 14
Section 5 states
Non-Section 5
Difference
46
35
j 1**
Chi-ajuatE testiBsuls are statistically significant: ** P>£)10 * P>.050 P>J.OO
Sou2Ee:Cocpe3.tiveCangiEssdc(nalE]ect±5n Study, 2010, data am cngW hite iB^xjndmt
5a
APPENDIX E
APPENDIX E
Polarized voting among Whites in 2000 - 2008 Presidential elections
State Sec 5 Gore '00 Kerry Obama 04-08 00-08 Dem Indep Repub
Alabama Y 28 19 10 -9 -18 20 13 67
Mississippi Y 27 14 11 -3 -16 25 11 64
Louisiana Y 26 24 14 -10 -12 25 11 64
Arkansas 38 36 30 -6 -8 29 15 56
Oklahoma 37 29 29 0 -8 31 7 62
Georgia Y 27 23 23 0 -4 27 12 61
North Carolina P 38 27 35 8 -3 35 13 52
West Virginia 43 42 41 -1 -2 44 13 43
Connecticut 53 51 51 0 -2 44 12 44
Tennessee 36 34 34 0 -2 29 11 60
South Carolina Y 28 22 26 4 -2 27 14 59
Virginia P 40 32 39 7 -1 32 12 56
Arizona Y 41 41 40 -1 -1 33 10 57
Texas Y 27 25 26 1 -1 26 11 64
Pennsylvania 48 45 48 3 0 42 11 47
Florida P 42 42 42 0 0 38 10 52
Kentucky 35 35 36 1 1 41 10 49
Maine 57 53 58 5 1 44 14 42
New Mexico 40 43 42 -1 2 40 10 50
Rhode Island 56 57 58 1 2 43 23 34
Missouri 40 42 42 0 2 39 11 51
Maryland 46 44 49 5 3 42 9 50
New Jersey 46 46 49 3 3 41 12 48
Delaware 50 45 53 8 3 42 9 50
Iowa 48 49 51 2 3 37 13 50
Massachusetts 54 59 57 -2 3 49 14 37
California P 48 47 52 5 4 44 9 47
South Dakota P 37 37 41 4 4 31 14 55
Michigan P 47 44 51 7 4 41 13 46
Nevada 41 43 45 2 4 36 12 52
Indiana 40 34 45 11 5 32 15 52
Kansas 35 34 40 6 5 35 13 53
Ohio 41 43 46 3 5 41 10 49
Wyoming 27 28 32 4 5 42 9 49
New York P 47 49 52 3 5 47 11 42
Illinois 46 48 51 3 5 43 10 47
Idaho 27 29 33 4 6 24 18 58
Minnesota 47 50 53 3 6 48 11 42
Utah 25 24 31 7 6 30 12 58
Alaska Y 25 33 32 -1 7 31 9 61
Nebraska 32 33 39 6 7 30 14 56
North Dakota 33 35 42 7 9 37 13 50
Wisconsin 45 47 54 7 9 42 13 45
New Hampshire P 45 50 54 4 9 38 15 47
Washington 49 52 59 7 10 47 11 42
D.C. 75 80 86 6 11 76 5 18
Montana 33 39 45 6 12 36 20 44
Colorado 38 42 50 8 12 40 10 50
Oregon 47 50 60 10 13 49 7 44
Vermont 51 58 68 10 17 58 20 22
Hawaii 50 58 70 12 20 50 7 43
Section 5 states 29 25 23 -2.4 -5.9 31.6 13.0 55.4
Non-Section 5 43 43 48 4.1 4.4 39.4 11.8 48.8
Difference _14** _!§*** -25*** -6.5* -10.3* -7.9* 1.2 6.7*
Chi-square test results are statistically significant: *** P>.001 ** P>.010 *P>.050
Sources: National Exit Poll vote among White respondents 2000, 2004, 2008; and CCES 2010 for party identification among White
voters
6a
APPENDIX F
APPENDIX F
Sources for Appendices B and C
Source: U.S. Census Bureau, 2010 Census. Summary File 2, Tables PCT3, PCT4, PCT7, PCT9, PCT10,
PCT15, PCT18, PCT22, PCT24, PCT28, PCT31, PCT32, PCT36, PCT37, PCT39, HCT2, HCT4, HCT5,
and HCT7. Accessed 1/10-1/15/2013_______________ _______________________________________
Source: U.S. Census Bureau, 2006-2010 American Community Survey. Accessed 1/10-1/15/2013.
Source: U.S. Census Bureau, Census 2000 Summary File 2, Matrices PCT3, PCT4, PCT8, PCT9, PCT10,
PCT11, PCT14, PCT18, PCT19, PCT23, PCT26, HCT2, andHCT5. Accessed 1/10-1/15/2013.________
Source: U.S. Census Bureau, Census 2000 Summary File 4, Matrices PCT35, PCT36, PCT38, PCT43,
PCT45, PCT47, PCT49, PCT61, PCT64, PCT67, and PCT70. Accessed 1/10-1/15/2013.______________
Source: U.S. Census Bureau, Census 2000 Summary File 4, Matrices PCT55, PCT57, PCT58, PCT79,
PCT81, PCT85, PCT86, PCT87, PCT88, PCT89, PCT94, PCT98, PCT99, PCT100, PCT101, PCT103,
PCT107, PCT108, PCT109, PCT110, PCT112, PCT113, PCT130, PCT139, PCT142, PCT150, PCT151,
and PCT157. Accessed 1/10-1/15/2013.
Sources for State specific breakdowns:
Source: U.S. Census Bureau, "Profile of General Demographic Characteristics: 2000 Census 2000
Summary File 2 (SF 2) 100-Percent Data."
http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=DEC_00_SF2_DPl&p
rodType^table. Accessed 1/10-1/15/2013.______________
Source: U.S. Census Bureau, "Profile of Selected Social Characteristics: 2000 Census 2000 Summary File
4 (SF 4) - Sample Data."
http://factfmder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=DEC_00_SF4_DP2&p
rodType=table. Accessed 1/10-1/15/2013.___________
Source: U.S. Census Bureau, "Profile of Selected Economic Characteristics: 2000 Census 2000 Summary
File 4 (SF 4) - Sample Data."
http://factfmder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=DEC_00_SF4_DP3&p
rodType=table. Accessed 1/10-1/15/2013.________________________________________
Source: U.S. Census Bureau, "State and County QuickFacts." http://quickfacts.census.gov/qfd/index.html.
Accessed 1/10, 1/11, 1/12, 1/13, 1/14, and 1/15 2013.______________________ ___________________
Source: U.S. Census Bureau, "Profile of General Demographic Characteristics: 2000 Census 2000
Summary File 1 (SF 1) 100-Percent Data."
http://factfmder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml7srcH3kmk. Accessed 1/10-
1/15/2013.______________________________ __________________________________________
Source: U.S. Census Bureau, "Profile of General Population and Housing Characteristics: 2010 2010
Demographic Profile Data."
http://factfmder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml7srcH3kmk. Accessed 1/10-
1/15/2013._______________________________________
Source: U.S. Census Bureau, "Profile of General Population and Housing Characteristics: 2010 2010
Census Summary File 2."
http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml7pidH3EC_10_SF2_SF2DP
l&prodTypeHable. Accessed 1/10-1/15/2013.________________________________________ _
Source: U.S. Census Bureau, "SELECTED SOCIAL CHARACTERISTICS IN THE UNITED STATES
2006-2010 American Community Survey Selected Population Tables."
http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_10_SF4JDP02&
prodTypeHable. Accessed 1/10-1/15/2013._____________________________________________
Source: U.S. Census Bureau, "SELECTED ECONOMIC CHARACTERISTICS 2006-2010 American
Community Survey Selected Population Tables."_______________ ___________________
http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=DEC_00_SF2_DPl&p
http://factfmder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=DEC_00_SF4_DP2&p
http://factfmder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=DEC_00_SF4_DP3&p
http://quickfacts.census.gov/qfd/index.html
http://factfmder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml7srcH3kmk
http://factfmder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml7srcH3kmk
http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml7pidH3EC_10_SF2_SF2DP
http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_10_SF4JDP02&
Appendix F - Continued
7a
http://factfinder2. census. gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_10_SF4_DP03&
prodType=table. Accessed 1/10-1/15/2013._________________________________________________
Citation Notes: General Notes:
All data from ACS (aggregated estimates),
except for race.
*Median household income=all households (HH)
Race data from full Census dataset population. * Median family income=only related/familial households
Tables resulted from 'search' function on
American FactFinder database search engine on
Census.gov.
* Median non-family incomes=non-related HH (total HH-family
HH=non-family HH)
On US. Census Bureau's American Fact
Finder Data Search, I utilized the following
criteria to pull this information together for
both 2000 and 2010 Census results:
*Median individual income-Median earnings for workers' from
Census categories.
Search criteria: Geographies-State—>'State
name'; Race and Ethnic Groups-Race and
Hispanic Origin (2010 Code based),
Hispanic Origin=Not Hispanic', 'Race
alone/alone or in any combination-Alone;
Selected categories: White alone, not
Hispanic or Latino, Black or African
American Alone, not Hispanic or Latino,
Asian alone, not Hispanic or Latino. For
Hispanics, Filtered by 'Hispanic
Origin-Hispanic; Selected category:
Hispanic or Latino (any race) (200-299). For
year filter, added filter 'Year-2000 or
‘Year’=2010.
*Race for 2000 percentage exceeds 100 because of overlapping
racial categories.
http://factfinder2
AFFIDAVIT OF SERVICE
S U P R E M E C O U R T O F T H E U N IT E D S T A T E S
N o . 12-96
SHELBY COUNTY, ALABAMA,
Petitioner,
X
v.
ERIC HOLDER, JR., ATTORNEY GENERAL, ET AL.,
Respondents.
_______________________________________________________________________________X
S T A T E O F N E W Y O R K )
C O U N T Y O F N E W Y O R K )
1, M a ry n a S a p y e lk in a , b e in g d u ly sw o rn a c c o rd in g to law an d b e in g o v e r th e ag e o f
18, u p o n m y o a th d e p o se an d s a y tha t:
I am re ta in e d b y C o u n se l o f R eco rd fo r A m ici Curiae.
T h a t on th e 1st d a y o f F e b ru a ry , 2 0 1 3 , I se rv e d th e w ith in B r ie f o f P olitica l Science
and L aw Professors as A m ici Curiae in Support o f Respondents in th e a b o v e -c a p tio n e d
m a tte r u p o n :
B ert W . Rein
W iley R ein LLP
Attorneys fo r Petitioner
1776 K Street, N W
W ashington, DC 20006
(2 0 2 )719-7000
Brein(a).wilevrein.com
D ebo P. A degbile
N A A C P Legal D efense & E ducational Fund, Inc.
Attorneys fo r Respondents
99 H udson Street, 16th F loor
N ew Y ork, N ew Y ork 10013
(212)965-2249
D adegbiletalnaacpldf.org
Jon M. Greenbaum
L aw yers’ C om m ittee for Civil Rights U nder Law
1401 New Y ork A venue, N W , Suite 400
W ashington, DC 20005
(202) 662-8315
iCTeenbaum@ lawverscomm ittee.org
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230 Peachtree Street NW
A tlanta, G A 30303-1504
(404) 523-2721
im cdonald@ aclu.org
D onald B. V errilli, JR.
Solicitor General
U nited States D epartm ent o f Justice
950 Pennsylvania A venue, NW
W ashington, DC 20530-0001
(202) 514-2217
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B r ie f o f Political Science and Law Professors as Am ici Curiae in Support o f Respondents
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A ll p a r tie s re q u ire d to b e se rv ed h a v e b e e n se rv ed .
I d e c la re u n d e r p e n a lty o f p e tju ry th a t th e fo re g o in g is tru e and c o rre c t.
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SUPREME COURT OF THE UNITED STATES
No. 12-96
X
Shelby County, Alabama,
Petitioner,
vs.
Eric Holder, Jr., Attorney General, et al.„
Respondents.
■X
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