Shelby County v. Holder Brief for Respondent Intervenors

    No. 12-96

In  T h e

S u p r e m e  C o u r t  of tlie ® m te b  S t a t e s

SHELBY COUNTY, ALABAMA,
Petitioner,

v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL 

OF THE UNITED STATES, et al.,
Respondents.

On Writ of Certiorari to the United States Court of 
Appeals for the District of Columbia Circuit

BRIEF FOR RESPONDENT-INTERVENORS 
EARL CUNNINGHAM, HARRY JONES, 

ALBERT JONES, ERNEST MONTGOMERY, 
ANTHONY VINES, AND WILLIAM WALKER

Sherrilyn  I fill
Di rector-Counsel 

DEBO P. ADEGBILE 
Counsel of Record 

EJUSE C. BODDIE 
Ryan  P. Haygood  
Dale E. Ho
Natasha  M. Korgaonkar  
Leah  g Aden  
NAACP L egal  Defense 

& Educational  Fu n d , In c . 
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2200 
dadegbile@naacpldf.org

Joshua Given 
NAACP Legal Defense 

& Educational  Fu n d , In c . 
1444 I Street, NW, 10th Floor 
Washington, DC 20005

Of Counsel:
Sam uel  Spital 
W illiam  J. Honan 
Harold  Barry  V asios 
Marisa  Marin  elli 
Robert  J. Burns 
Holland  & Knight  LLP 
31 West 52nd Street 
New York, NY 10019

mailto:dadegbile@naacpldf.org


1

QUESTION PRESENTED
Whether Congress’ decision in 2006 to reauthor­

ize Section 5 of the Voting Rights Act under the pre­
existing coverage formula of Section 4(b) of the Vot­
ing Rights Act exceeded its authority under the 
Fourteenth and Fifteenth Amendments and thus vio­
lated the Tenth Amendment and Article IV of the 
United States Constitution.



ii

CORPORATE DISCLOSURE STATEMENT
Pursuant to Supreme Court Rule 29.6, the 

NAACP Legal Defense and Educational Fund, Inc. 
certifies that it is a non-profit corporation with no 
parent companies, subsidiaries or affiliates that 
have issued shares to the public.



I l l

TABLE OF CONTENTS
Page

QUESTION PRESENTED....................................... i
CORPORATE DISCLOSURE STATEMENT........ ii
TABLE OF CONTENTS.......................................... iii
TABLE OF AUTHORITIES.................................... iv
SUMMARY OF ARGUMENT....................................1
ARGUMENT.............................................................. 3
I. Congress carefully exercised its

constitutional authority to remedy and 
deter racial discrimination in voting..................3

II. Sections 4(b) and 5 remain justified by
current needs........................................................ 7
A. The 2006 reauthorization record reveals

widespread unconstitutional conduct in 
the covered jurisdictions................................ 8
1. Vote Dilution: old poison in new

bottles......................................................... 8
2. Section 5 objections and Section 2

litigation are probative of 
unconstitutional conduct........................ 10

B. A state-by-state review of the evidence
reveals substantial ongoing
discrimination in the great majority of 
covered jurisdictions......................................12
1. Alabama...................................................13

Circumvention and the Dillard 
litigation.............................................. 16



IV

Shelby County..................................... 19
Selma revisited...................................20

2. Comparable persistent and adaptive
discrimination in numerous covered 
States.........................................................23

Texas................................................... 23
Mississippi..........................................26
Louisiana............................................. 28
Georgia................................................ 30
South Carolina....................................33

3. Significant voting discrimination also
persists in additional jurisdictions....... 35

North Carolina....................................35
Arizona................................................ 37
South Dakota......................................38
Virginia............................................... 39

III. Section 5 is an “appropriate” response to the
record of ongoing voting discrimination...........41
A. Case-by-case enforcement remains

inadequate..................................................... 41
B. Current needs justify current burdens...... 43

IV. The geographic scope of preclearance is
properly tailored to reach Alabama and the 
other covered jurisdictions................................ 47
A. The record of discrimination in Alabama 

forecloses Shelby County’s facial 
challenge........................................................ 47



V

B. Substantial differences persist between
covered and non-covered jurisdictions....... 51
1. Quantitative evidence............................. 51

a. Successful Section 2 suits..................52
b. Racially polarized voting and

racial appeals......................................54
2. Shelby County’s state-by-state

argument is meritless............................. 56
3. Qualitative evidence............................... 58

C. The geographic scope remains rational
in theory......................................................... 60

CONCLUSION......................................................... 63



VI

TABLE OF AUTHORITIES
Cases

Page(s)
Allen v. State Board of Elections, 393 U.S. 544 

(1969).......................................................... 9, 42-43
Bartlett u. Strickland, 556 U.S. 1 (2009).................1
Bone Shirt v. Hazeltine, 461 F.3d 1011 (8th 

Cir. 2006).............................................................. 39
Bone Shirt v. Hazeltine, 336 F. Supp. 2d 976 

(D.S.D. 2004)........................................................  39
Broadrick v. Oklahoma, 413 U.S. 601 (1973) .. 49-50
Brown v. Board of School Commissioners,

706 F.2d 1103 (11th Cir. 1983)...................... 14-15
City of Boerne v. Flores, 521 U.S. 507 

(1997)............................................................ passim
City of Pleasant Grove v. United States,

479 U.S. 462 (1987).............................................  14
City of Rome v. United States, 446 U.S. 156 

(1980)............................................................ passim
County Council of Sumter County v. United 

States, 555 F. Supp. 694 (D.D.C. 1983)............. 60
Dillard v. Baldwin County Board of 

Education, 686 F. Supp. 1459 (M.D. Ala.
1988)...................................................................... 17

Dillard v. City of Foley, 926 F. Supp. 1053 
(M.D. Ala. 1995)...................................................  19

Dillard v. Crenshaw County, 748 F. Supp. 819 
(M.D. Ala. 1990) 19



vii
Dillard v. Crenshaw County, 640 F. Supp.

1347 (M.D. Ala. 1986)...................................  16, 53
Dillard v. Town of North Johns, 717 F. Supp.

1471 (M.D. Ala. 1989)....................................  17-18
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).............. 6
Gaston County v. United States, 395 U.S. 285 

(1969)...................................................................  62
Gunn v. Chickasaw County, 705 F. Supp. 315 

(N.D. Miss. 1989)............................................ 27-28
Harris v. Siegelman, 695 F. Supp. 517 (M.D.

Ala. 1988)............................................................. 14
Heald v. District of Columbia, 259 U.S. 114 

(1922)...................................................................  48
Hunter u. Underwood, 471 U.S. 222 (1985).........  14
Kowalski v. Tesmer, 543 U.S. 125 (2004).............  48
League of United Latin American Citizens v. 

Perry, 548 U.S. 399 (2006)................. 9-10, 22, 24
Lopez u. Monterey County, 525 U.S. 266 (1999).. 6, 7
Lucas v. Townsend, 486 U.S. 1301 (1988)............  42
McCulloch v. Maryland, 17 U.S. 316 (1819)............5
Miller v. Johnson, 515 U.S. 900 (1995)..........  45, 46
Mississippi State Chapter, Operation PUSH v. 

Mabus, 932 F.2d 400 (5th Cir. 1991)..................27
Mississippi State Chapter, Operation PUSH v. 

Allain, 674 F. Supp. 1245 (N.D. Miss. 1987)....27
Nevada Department of Human Resources v.

Hibbs, 538 U.S. 721 (2003)...............  46, 50-51, 57



V l l l

New York v. Ferber, 458 U.S. 747 (1982)................  48
Northwest Austin Municipal Utility District 

Number One v. Holder, 557 U.S. 193 
(2009)............................................................ passim

Northwest Austin Municipal Utility District 
Number One v. Mukasey, 573 F. Supp. 2d 
221 (D.D.C. 2008).............................. 28, 40, 42, 54

Parents Involved in Community Schools v. 
Seattle School District No. 1, 551 U.S. 701 
(2007)....................................................................... 3

Reno v. Bossier Parish School Board, 528 U.S.
329 (2000)................................................................9

Rogers v. Lodge, 458 U.S. 613 (1982).....................  10
Shaw v. Reno, 509 U.S. 630 (1993).................. 45, 46
South Carolina v. Katzenbach, 383 U.S. 301 

(1966)............................................................ passim
South Carolina v. United States, Civ. No. 12- 

203, 2012 WL 4814094 (D.D.C. Oct. 10,
2012).......................................................................44

St. Bernard Citizens for Better Government v.
St. Bernard Parish School Board, No. 02- 
2209, 2002 U.S. Dist. LEXIS 16540 (E.D.
La. Aug. 28, 2002)................................................. 29

Tennessee v. Lane, 541 U.S. 509 
(2004).................................................... 5, 46, 49-50

Texas v. Holder, Civ. No. 12-128, 2012 WL 
3743676 (D.D.C. Aug. 30, 2012)........................ 44

Texas v. United States, Civ. No. 11-1303, 2012 
WL 3671924 (D.D.C. Aug. 28, 2012)...................  24



IX

United States v. Charleston County,
316 F. Supp. 2d 268 (D.S.C. 2003).............  33, 34

United States v. Dallas County Commission,
850 F.2d 1433 (11th Cir. 1988).......................... 20

United States v. Georgia, 546 U.S. 151 (2006).....  51
United States v. McGregor, 824 F. Supp. 2d 

1339 (M.D. Ala. 2011)......................................... 15
United States v. Raines, 362 U.S. 17 (I960).... 49, 50
United States v. Wurzbach, 280 U.S. 396 

(1930)...................................................................  50
Village of Arlington Heights v. Metropolitan 

Housing Corporation, 429 U.S. 252 (1977).......  21
Warth v. Seldin, 422 U.S. 490 (1975)....................48
White v. Regester, 412 U.S. 755 (1973).................  55
Williams v. City of Dallas, 734 F. Supp. 1317 

(N.D. Tex. 1990)................................................... 25
Young v. Fordice, 520 U.S. 273 (1997).................  27

Docketed Cases. Court Filings, and 
Docket Entries

Alaska v. Holder, No. l:12-cv-01376-RLW 
(D.D.C).................................................................. 49

Order, League of United Latin American 
Citizens v. Texas, No. 06-cv-1046 (W.D. Tex.
Dec. 5, 2006), ECF No. 8 ..................................... 24

Order, League of United Latin American 
Citizens v. Texas, No. 06-cv-1046 (W.D. Tex.
Dec. 5, 2006), ECF No. 9 ..................................... 24



X

Plaintiffs’ Motion to Dismiss, League of
United Latin American Citizens v. Texas,
No. 06-cv-1046 (W.D. Tex. Dec. 5, 2006),
ECF No. 6...............................................................24

Proposed Consent Decree and Judgment, New 
Hampshire v. Holder, l:12-cv-01854-EGS- 
TBG-RMC (D.D.C. Dec. 21, 2012), ECF No.
10-1.........................................................................61

Stipulation of Dismissal, Arizona v. Holder,
No. l:ll-cv-01559-JDB (D.D.C. Apr. 10, 
2012), ECF No. 4 1 ................................................ 49

Statutes
42 U.S.C. § 1973b(a)(7)...........................................4
42 U.S.C. § 1973b(a)(8)...........................................4
Pub. L. No. 109-246, 120 Stat. 578, § 2(b)(9) 

(2006)....................................................................... 4

Legislative Materials
H.R. Rep. No. 94-196 (1975)..................................  10
H.R. Rep. No. 109-478 (2006), reprinted in 

2006 U.S.C.C.A.N. 618............................. 4, 54, 55
H.R. Rep. No. 109-516 (2006)................................  62
152 Cong. Rec. 14.217-14,321 (2006).............passim
152 Cong. Rec. 15.260-15.407 (2006).......................4
Voting Rights: Hearings Before Subcommittee 

No. 5 of the House Committee on the 
Judiciary. 89th Cong. (Mar. 18. 19. 23. 24.



XI

25, 29, 30, 31, and Apr. 1, 1965)........................ 57
Extension of the Voting Rights Act of 1965: 

Hearing Before the Subcommittee on 
Constitutional Rights of the Senate 
Committee on the Judiciary, 94th Cong.
(Apr. 10, 1975)..................................................... 10

To Examine the Impact and Effectiveness of 
the Voting Rights Act: Hearing Before the 
Subcommittee on the Constitution of the 
House Committee on the Judiciary, 109th 
Cong. (Oct. 18, 2005).........................45, 52, 55, 56

Voting Rights Act: An Examination of the 
Scope and Criteria for Coverage Under the 
Special Provisions of the Act: Hearing
Before the Subcommittee on the 
Constitution, House Committee on the 
Judiciary, 109th Cong. (Oct. 20, 2005).............  56

Voting Rights Act: Section 5 of the Act — 
History, Scope & Purpose: Hearing Before 
the Subcommittee on the Constitution of the 
House Committee on the Judiciary, 109th 
Cong. (Oct. 25, 2005)................................... passim

Voting Rights Act: Evidence of Continuing 
Need: Hearing Before the Subcommittee
on the Constitution of the House Committee 
on the Judiciary, 109th Cong. (Mar. 8,
2006)..............................................................passim

Fannie Lou Hamer, Rosa Parks, and Coretta 
Scott King Voting Rights Act
Reauthorization and Amendments Acts of 
2006: Hearing Before the Subcommittee on



Xll

the Constitution of the House Committee on 
the Judiciary, 109th Cong. (May 4, 2006)... 58, 59

An Introduction to the Expiring Provisions of 
the Voting Rights Act and Legal Issues 
Relating to Reauthorization: Hearing Before 
the Senate Committee on the Judiciary,
109th Cong. (May 9, 2006)............... 42, 52, 56, 63

Modern Enforcement of the Voting Rights Act: 
Hearing Before the Senate Committee 
on the Judiciary, 109th Cong. (May 10,
2006).........................................................  42, 43, 56

The Continuing Need for Section 5 Pre­
clearance: Hearing Before the Senate
Committee on the Judiciary, 109th Cong.
(May 16, 2006)................................... 55, 59, 60, 63

Understanding the Benefits and Costs of 
Section 5 Pre-clearance: Hearing Before the 
Senate Committee on the Judiciary, 109th 
Cong. (May 17, 2006)................................... passim

Reauthorizing the Voting Rights Act’s 
Temporary Provisions: Policy Perspectives 
and Views from the Field: Hearing Before 
the Subcommittee on the Constitution, Civil 
Rights and Property Rights of the Senate 
Committee on the Judiciary, 109th Cong.
(June 21, 2006).............................................. 43, 59

Renewing the Temporary Provisions of the 
Voting Rights Act: Legislative Options after 
LULAC v. Perry: Hearing Before the 
Subcommittee on the Constitution, Civil 
Rights and Property Rights of the Senate



X ll l

Committee on the Judiciary, 109th Cong.
(July 13, 2006)............................................. passim

Other Authorities
U.S. Census Bureau, State Quick Facts, 

Alabama, http:// quickfacts. census. gov/qfd/ 
states/01000.html (last visited Jan. 24,
2013).......................................................................13

U.S. Department of Justice, Objection Letter 
regarding Augusta-Richmond, Georgia, Dec.
21, 2012, http://www.justice.gov/crt/about/ 
vot/sec_5/pdfs/l_122112_ga.pdf........................... 32

U.S. Department of Justice, Objection Letter 
regarding Pitt County School District, 
North Carolina, Apr. 30, 2012,
http://www.justice.gov/crt/about/vot/sec_5/lt 
r/l_043012_nc.php................................................36

U.S. Department of Justice, Section 4 of the 
VRA, http ://www .justice. gov/crt/about/vot/ 
misc/sec_4.php (last visited Jan. 24, 2013).....  61

Voting Rights in Louisiana: 1982-2006 (Mar. 
2006), available at http://www.protect 
ci vilright s. org/p df/voting/LouisianaVRA. p df..... 30

Voting Rights in Texas: 1982-2006
(June 2006), available at
http://www.protectcivilrights.org/pdf/voting/ 
TexasVRA.pdf.................................... 23, 24, 25, 59

Voting Rights in the States, http://www.civil 
rights.org/voting-rights/vra/states.html (last 
visited Jan. 24, 2013) 59

http://www.protectcivilrights.org/pdf/voting/
http://www.civil


SUMMARY OF ARGUMENT
No law better embodies our Constitution’s aspira­

tion for a “more perfect union” than the Voting 
Rights Act of 1965 (“VRA” or “Act”). This aspiration 
remains essential today because racial discrimina­
tion in voting is “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[.]” Bartlett v. Strickland, 556 
U.S. 1, 25 (2009) (plurality opinion).

During its 2006 reauthorization review, Congress 
assembled a “virtually unprecedented legislative re­
cord,” Pet’r Cert. Appendix (“PA”) 114a, closely ex­
amining the evidence to determine whether Section 
5 of the Act is still needed. This analysis was care­
ful, detailed, and included a wide range of views. 
Congress received more testimony and information 
about the voting experience, both in and outside the 
jurisdictions covered by Section 5, than it had during 
any prior reauthorization.

This brief examines the 2006 Congressional re­
cord. That record establishes three key points, 
which make clear that Section 5’s “current burdens” 
remain “justified by current needs.” Nw. Austin 
Mun. Utility Dist. No. One u. Holder, 557 U.S. 193, 
203 (2009).

First, Section 5 remains essential to safeguard 
our democracy from racial discrimination. The re­
cord documents hundreds of examples of persistent 
unconstitutional efforts by covered States and locali­
ties to deny or abridge the right to vote on account of 
race, including widespread efforts to circumvent

1



2
remedies imposed for prior VRA violations, which 
were only blocked by Section 5. See Part II, infra.

Second, case-by-case litigation under Section 2 of 
the VRA is time-consuming, costly, and permits ra­
cial discrimination to take root in the electoral proc­
ess before it can be remedied. It was reasonable for 
Congress to conclude that Section 2 litigation is an 
inadequate response to the persistent and adaptive 
problem of racial discrimination in voting in certain 
parts of our country. See Part III, infra.

Third, racial discrimination in voting remains 
concentrated in the jurisdictions that have histori­
cally been covered by Section 5. The evidence of on­
going voting discrimination in Alabama specifically, 
and the covered jurisdictions generally, exceeds, by 
many orders of magnitude, that in the non-covered 
jurisdictions. Shelby County studiously avoids this 
evidence; instead, it selectively points to individual 
jurisdictions outside of Alabama that it asserts 
should not be covered. This argument fails for two 
reasons: (1) this Court’s precedent makes clear that 
Congress need not act with surgical precision; and 
(2) settled rules of constitutional adjudication pro­
hibit Shelby County from basing its challenge on the 
rights or interests of other jurisdictions that are not 
parties to this litigation. See Part IV, infra.

At its core, Shelby County’s attack rests on the 
premise that, in reauthorizing Section 5, Congress 
presumed racial animus in voting persists even 
though it “has been hibernating for two generations.” 
Br. 39. The record is to the contrary. It reveals that, 
notwithstanding undeniable progress, striking vot­
ing discrimination continues and is concentrated in



the covered jurisdictions. Congress has power “to go 
beyond present achievements, however significant, 
and to recognize and confront the flaws and injus­
tices that remain” in order to ensure “that opportu­
nity is not denied on account of race.” Parents In­
volved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 
U.S. 701, 787 (2007) (Kennedy, J., concurring in part 
and concurring in the judgment).

Our political freedoms are not self-sustaining; 
they must be maintained from one generation to the 
next. Section 5 makes this commitment tangible. 
Racial discrimination in voting poses a unique threat 
to our democracy. That threat can and must be met.

ARGUMENT
I. CONGRESS CAREFULLY EXERCISED ITS 

CONSTITUTIONAL AUTHORITY TO REM­
EDY AND DETER RACIAL DISCRIMINA­
TION IN VOTING.
In evaluating whether (and, if so, where) the 

‘"blight of racial discrimination in voting” currently 
persists, South Carolina v. Katzenbach, 383 U.S. 
301, 308 (1966), Congress “approached its task seri­
ously and with great care,” PAl3a (citations and in­
ternal quotation marks omitted). This assessment 
did not assume a need for Section 5’s continuity but 
rather vigorously tested it. Over ten months in 
2005-06, the House and Senate Judiciary Commit­
tees held a combined 21 hearings, receiving testi­
mony from over 90 witnesses—including state and 
federal officials, litigators, scholars, and private citi­
zens—both for and against reauthorization, and

3



4
compiled a 15,000 page record. PA291a.1 Represen­
tative Sensenbrenner (R-WI), then-Chair of the 
House Judiciary Committee, described this record as 
“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 serve as a Member of this body.” 152 
Cong. Rec. 14,230 (2006).

In the end, Congress determined—by the over­
whelming vote of 390-33 in the House and 98-0 in 
the Senate2—that voting discrimination persists in 
the covered jurisdictions, and that without Section 5, 
“minority citizens will be deprived of the opportunity 
to exercise their right to vote, or will have their votes 
diluted, undermining the significant gains made by 
minorities in the last 40 years.” Pub. L. No. 109-246, 
120 Stat. 578, § 2(b)(9) (2006). Congress therefore 
extended Section 5 for 25 years. Sensitive to the pos­
sibility of changed circumstances, Congress further 
committed to reconsidering the continuing need for 
Section 5 in 15 years. 42 U.S.C. § 1973b(a)(7), (8).

As part of its review, Congress also concluded 
that other temporary provisions of the VRA—i.e., 
Sections 6, 7, and 9, which authorized federal exam­
iners to register voters in covered jurisdictions— 
were no longer necessary, given “[sjubstantial pro­
gress” with respect to “minority citizens registering] 
to vote.” H.R. Rep. 109-478, at 6 (2006).

1 Hearings for the 2006 reauthorization were held between 
October 18, 2005 and July 13, 2006. Specific hearings are cited 
herein by date.

2 See 152 Cong. Rec. 14.303-304. 15,325 (2006).



We discuss the record of persistent voting dis­
crimination in the covered jurisdictions, and its con­
centration in the covered compared to the non- 
covered jurisdictions, in Parts II.B and IV.B, infra. 
In light of this record, it was reasonable for Congress 
to determine that Section 5, and the provision in 
Section 4(b) defining Section 5’s geographic scope, 
remain necessary to remedy and deter racial dis­
crimination in voting. That is the end of the consti­
tutional inquiry under this Court’s precedents.

The Fourteenth and Fifteenth Amendments “em- 
powerO ‘Congress,’ not the Court, to determine in the 
first instance what legislation is needed to enforce” 
them. Nw. Austin, 557 U.S. at 205 (citation omit­
ted). Congress’s “conclusions are entitled to much 
deference,” City of Boerne v. Flores, 521 U.S. 507, 
536 (1997), particularly with respect to measures 
addressing racial discrimination in voting. In enact­
ing such measures, Congress acts “at the apex of its 
power” because voting discrimination implicates 
both the principal object of the Reconstruction 
Amendments—the prohibition against racial dis­
crimination—and the need to protect the most fun­
damental right, the right to vote. PA 19a; see also 
Tennessee v. Lane, 541 U.S. 509, 561, 564 (2004) 
(Scalia, J., dissenting) (recognizing that “racial dis­
crimination by the States [is] distinctively violative 
of the principal purpose of the Fourteenth Amend­
ment,” and explaining, “I shall henceforth apply the 
permissive McCulloch [u. Maryland, 17 U.S. 316 
(1819)] standard to congressional measures designed 
to remedy racial discrimination by the States”).

This power to remedy racial discrimination in

5



6
voting encompasses the authority to draw distinc­
tions between States: ‘“The doctrine of the equality 
of States does not bar remedies for local evils,”’ Nw. 
Austin, 557 U.S. at 203 (citation, alterations, and 
emphasis omitted), so long as the distinctions have 
“some basis in practical experience,” Katzenbach, 
383 U.S. at 331.

Therefore, although Section 5 “imposes substan­
tial federalism costs,” Nw. Austin, 557 U.S. at 202 
(citations and internal quotation marks omitted), 
these costs are permissible because the Reconstruc­
tion Amendments are “grounded on the expansion of 
Congress’ powers with the corresponding diminution 
of state sovereignty found to be intended by the 
Framers.” Fitzpatrick v. Bitzer, 427 U.S. 445, 455 
(1976). As this Court has stated, “the Voting Rights 
Act, by its nature, intrudes on state sovereignty. 
The Fifteenth Amendment permits this intrusion, 
however[.]” Lopez v. Monterey Cnty., 525 U.S. 266, 
284-85 (1999); see also id. at 282 (citing City of Rome 
v. United States, 446 U.S. 156, 179 (1980)).

Of course, this Court must remain vigilant to en­
sure that Congress does not impermissibly interfere 
with state sovereignty by redefining the substance of 
the rights provided by the Reconstruction Amend­
ments or by imposing unreasonable remedies. Here, 
Congress did neither. The 2006 reauthorization is 
valid enforcement legislation under Northwest Aus­
tin, Boerne, Rome, and Katzenbach. See, e.g., Boerne, 
521 U.S at 518 (“[Mjeasures protecting voting rights 
are within Congress’ power to enforce the Four­
teenth and Fifteenth Amendments, despite the bur­
dens those measures placeQ on the States.”).



II. SECTIONS 4(B) AND 5 REMAIN JUSTIFIED
BY CURRENT NEEDS.
This Court sustained the original enactment of 

Section 5 and its geographic scope because there was 
“evidence of actual voting discrimination in a great 
majority of the [covered jurisdictions].” Katzenbach, 
383 U.S. at 329. “No more was required to justify 
the application to these areas of Congress’ express 
powers under the Fifteenth Amendment.” Id. When 
the statute was reauthorized in 1970, 1975, and 
1982, “[t]he coverage formula remained the same” 
(except for an expansion in 1975), and this Court 
upheld each reauthorization “against constitutional 
challenges, finding that circumstances continued to 
justify the provisions.” Nw. Austin, 557 U.S. at 200 
(citing, inter alia, Rome, 446 U.S. 156, and Lopez, 
525 U.S. 266).

In 2006, Congress studied the problem of voting 
discrimination in the covered jurisdictions—as well 
as in the non-covered jurisdictions, see Part IV.B— 
more carefully than it had in 1965, or in any other 
reauthorization. As enacted in 1965, Section 5 cov­
ered three different categories of jurisdictions: three 
States (Alabama, Mississippi, and Louisiana), where 
courts had repeatedly found “substantial voting dis­
crimination”; three others (Georgia, South Carolina, 
and portions of North Carolina), where there was 
“more fragmentary evidence of recent voting dis­
crimination mainly adduced by the Justice Depart­
ment”; and a “few remaining States and political 
subdivisions,” where there was no clear evidence of 
discrimination in the record before Congress. 
Katzenbach, 383 U.S. at 329-30.

7



8
In 2006, as discussed below, Congress considered, 

in greater detail, the current conditions throughout 
the covered jurisdictions, and learned that substan­
tial voting discrimination persists in the “great ma­
jority” of those areas. Id. at 329.
A. The 2006 reauthorization record reveals 

widespread unconstitutional conduct in the 
covered jurisdictions.
As the District Court explained, the “virtually 

unprecedented legislative record” reveals “extensive 
evidence of recent voting discrimination” in the cov­
ered jurisdictions. PAll4a. Enforcement of the two 
core provisions of the VRA—(i) Section 5 objections 
or judicial preclearance denials, and (ii) Section 2 
litigation—remedied or deterred nearly 1,300 dis­
criminatory voting measures in the covered jurisdic­
tions during the reauthorization period (1982 to 
2006). See PA44a (noting over 620 objections, 25 ju­
dicial preclearance denials, and over 650 successful 
Section 2 suits). And voting discrimination, by its 
nature, reverberates broadly and deeply. A single 
invidious act can harm numerous citizens; therefore, 
a single Section 5 objection or Section 2 suit can vin­
dicate the rights of “thousands of voters.” PA208a.

Shelby County describes the voting discrimina­
tion in the record in misleading and sanitized terms, 
designed to minimize the gravity of this unique con­
stitutional harm. Before turning to a state-by-state 
description of the record, we address Shelby 
County’s key errors about the nature of the record.

1. Vote Dilution: old poison in new bottles
Most voting discrimination during the reauthori­



zation period involved purposeful efforts to dilute 
the weight of minority citizens’ votes. Shelby 
County maintains that Section 5 cannot be justified 
based on purposeful vote dilution evidence. See Br. 
19-20. That position is contrary to the very purpose 
of the Reconstruction Amendments and the VRA.

When voting is polarized along racial lines, juris­
dictions can implement electoral schemes, such as 
at-large elections, annexations, or racially gerry­
mandered districts, to discriminate against minority 
voters. This Court recognized over four decades ago 
that such “dilution of voting power” can “nullify [mi­
nority voters’] ability to elect the candidate of their 
choice just as would prohibiting some of them from 
voting.” Allen u. State Bd. of Elections, 393 U.S. 
544, 569 (1969).

Vote dilution has been described as “second- 
generation” discrimination to distinguish it from 
vote denial (e.g., “first-generation” registration bar­
riers). But there is nothing new about it. From Re­
construction to the present, covered jurisdictions 
have repeatedly turned to vote dilution to under­
mine minority gains in registration and turnout. 
See PA4a. These tactics “are in fact decades-old 
forms of gamesmanship,” PA28a, a way of “pour[ing] 
old poison into new bottles,” Reno v. Bossier Parish 
Sch. Bd., 528 U.S. 329, 366 (2000) (Souter, J., con­
curring in part, dissenting in part).

It is axiomatic that purposeful schemes to nullify 
votes cast by Black voters because they are Black (or 
of any other racial group) violate the Equal Protec­
tion Clause. See, e.g., League of United Latin Am. 
Citizens (“LULAC”) v. Perry, 548 U.S. 399, 440

9



10
(2006); Rogers v. Lodge, 458 U.S. 613, 623-24 
(1982).3 As such, they are proper subjects of Con­
gressional action to enforce the Reconstruction 
Amendments. Indeed, “Congress relied on evidence 
of these purposefully dilutive mechanisms in each of 
its prior reauthorizations of Section 5.” PA252a.
And this Court has expressly upheld the reauthori­
zation of Section 5 on that basis. See Rome, 446 U.S. 
at 181 (sustaining the 1975 reauthorization because, 
although Black registration had risen dramatically 
since 1965, there remained a prevalence of ‘“meas­
ures [that] dilute increasing minority voting 
strength’”) (quoting H.R. Rep. No. 94-196, at 10-11 
(1975)).4

2. Section 5 objections and Section 2 litiga­
tion are probative of unconstitutional 
conduct.

The Court of Appeals recognized that “to sustain 
section 5, the record must contain evidence of a pat­
tern of constitutional violations.” PA33a (internal 
quotation marks and citation omitted). After “thor­
oughly scrutinizing the record,” PA 48a, the Court of 
Appeals determined that, contrary to Shelby

3 The Fifteenth Amendment prohibits the denial or abridg­
ment of the right to vote on account of race, making clear that 
purposeful vote dilution likewise violates the Fifteenth Amend­
ment.

4 Shelby County acknowledges that Rome considered the 
‘“number and nature of [Section 5] objections’” to be ‘“reliable 
evidence of actual voting discrimination,”’ Br. 27 (alteration in 
original) (citations omitted), but it ignores that “a substantial 
majority” of those Section 5 objections concerned vote dilution, 
April 10, 1975 Hearing, at 123-24 (Katzenbach).



County’s assertions, Br. 35-36, the evidence from 
Section 5 objections and Section 2 litigation is highly 
probative of a widespread pattern of persistent un­
constitutional conduct.5

At least 423 Section 5 objections between 1980 
and 2004 were based, at least in part, on discrimina­
tory intent. PA33a.6 Congress’s reliance on this 
evidence was entirely consistent with Katzenbach, 
which held that Congress may properly rely on “evi­
dence [of discrimination] adduced by the Justice De­
partment, ’ 383 U.S. at 330, and Rome, which sus­
tained the 1975 reauthorization based largely on 
evidence adduced through Section 5 objections, 446 
U.S. at 181.

Successful Section 2 litigation is also probative of 
unconstitutional conduct. As the Court of Appeals 
explained, Section 2’s ‘“results test’ . . . requires con­
sideration of factors very similar to those used to es­

11

5 Shelby County mischaracterizes the decision below, claim­
ing the Court of Appeals inappropriately deferred to Congress 
as to the probative value of this evidence. Br. 34. But Shelby 
County cites a section of the opinion addressing the deference 
owed Congress in the choice of remedies, not whether evidence 
is probative of unconstitutional conduct. Id.

6 Such objections are almost always premised on affirma­
tive evidence of discriminatory purpose, and not the failure by 
submitting jurisdictions to disprove intent. See generally Part 
II.B, infra. Although Shelby County contends that these objec­
tions were based on DO As improper “maximization” approach 
to minority representation, Br. 35, a review of the Section 5 
objection letters since 1982 reveals that a very small number— 
almost exclusively from the early 1990s—were even arguably 
based on a maximization theory. See October 25, 2005 (History) 
Hearing, at 225-2595.



12
tablish discriminatory intent based on circumstan­
tial evidence.” PA37a (citations omitted). Moreover, 
“courts will avoid deciding constitutional questions 
if, as is the case in virtually all successful section 2 
actions, the litigation can be resolved on narrower 
grounds.” Id. (citations and internal quotation 
marks omitted).7
B. A state-by-state review of the evidence re­

veals substantial ongoing discrimination in
the great majority of covered jurisdictions.
The record establishes that discrimination con­

tinues to infect the democratic process in the covered 
jurisdictions and that this discrimination resists 
case-by-case efforts at remediation. Shelby County’s 
assertions that there is no evidence of covered juris­
dictions attempting to circumvent a previous voting 
remedy by implementing a new discriminatory tac­
tic, see Br. 20, 33, are false. The record is replete 
with such evidence, including over a dozen circum­
vention examples in Alabama alone. This discrimi­
nation by state and local actors demeans the liberty 
and equality rights of full citizenship, and, therefore, 
corrodes our democracy.

A representative, but not exhaustive, selection of 
the many “modern instances” of “substantial voting 
discrimination presently occur [ing] in certain sec­
tions of the country” follows. Boerne, 521 U.S. at

7 Congress also considered other sources of evidence that 
the Court of Appeals deemed probative of purposeful discrimi­
nation. See PA35a-36a (more information requests); id. at 38a- 
40a (federal observers); id. at 40a-41a (Section 5 enforcement 
litigation).



530; Katzenbach, 383 U.S. at 328. The overwhelm­
ing majority of these examples come from the Con­
gressional record; we also include a sample of voting 
discrimination that has occurred since the Act’s re­
authorization. Because this case arises out of Ala­
bama, and because the record of ongoing discrimina­
tion in that State is a sufficient basis for rejecting 
Shelby County’s facial challenge to Section 5’s geo­
graphic scope, see Part IV.A, infra, we begin there.

1. Alabama
Alabama undeniably “earned its spot on § 5’s 

original coverage list.” Br. of Alabama as Amicus 
Curiae in Supp. of Pet’r, at 2.

The record before Congress in 2006 makes clear 
that voting discrimination persists in Alabama. 
During the reauthorization period, nearly 240 dis­
criminatory voting laws in Alabama were blocked by 
Section 5 objections (46) or remedied by Section 2 
litigation (192). July 13, 2006 Hearing, at 367, 371; 
March 8, 2006 Hearing, at 251. Alabama had the 
highest rate of successful Section 2 suits per resident 
of any State in the country. PA53a. White polling 
officials used racial epithets to describe Black voters 
in the presence of federal observers, including a poll 
worker who said: ‘“ [Njiggers don’t have principle
enough to vote and they shouldn’t be allowed.’” 
PA243a (citation omitted); see also PAl94-95a. Afri­
can Americans constitute over a quarter of Ala­
bama’s population,8 yet Alabama has no Black

13

8 See U.S. Census Bureau, State Quick Facts, Alabama, 
http://quickfacts.census.gov/qfd/states/01000.html.

http://quickfacts.census.gov/qfd/states/01000.html


14
statewide elected officials. Nearly all Black officials 
are elected from majority-minority districts. July 
13, 2006 Hearing, at 388-89.

This Court twice found purposeful racial dis­
crimination in Alabama during the reauthorization 
period. In City of Pleasant Grove v. United States, 
479 U.S. 462, 469 (1987), the Court affirmed the dis­
trict court’s finding that Pleasant Grove engaged in 
“racially motivated” annexations—meaning the City 
annexed areas that had or were likely to have white 
voters, but refused to annex areas with Black voters. 
This was not an isolated incident but consistent with 
the City’s “unambiguous opposition to racial integra­
tion.” Id. at 465.

Two years earlier, this Court invalidated a provi­
sion of Alabama’s Constitution, which disfranchised 
citizens for misdemeanors “involving moral turpi­
tude,” and had been applied to bar plaintiffs from 
voting for life because they had presented a bad 
check. Hunter v. Underwood, 471 U.S. 222, 224 
(1985). Writing for the Court, then-Justice 
Rehnquist explained that the “original enactment 
was motivated by a desire to discriminate against 
blacks on account of race and the section continues 
to this day to have that effect.” Id. at 233.

Other courts found intentional discrimination in 
voting in Alabama during the reauthorization pe­
riod. See, e.g., Harris v. Siegelman, 695 F. Supp. 
517, 525 & n.6 (M.D. Ala. 1988) (holding that Ala­
bama’s appointment of poll workers unconstitution­
ally discriminated against Blacks, and noting com­
pelling evidence that “white poll officials continue to 
harass and intimidate black voters”); Brown v. Bd. of



Sch. Comm’rs, 706 F.2d 1103, 1106-07 (11th Cir. 
1983) (finding the Alabama legislature intentionally 
discriminated against Black voters in Mobile 
County).

Purposeful discrimination by Alabama lawmak­
ers persists to the present day. In United States v. 
McGregor, 824 F. Supp. 2d 1339, 1347 (M.D. Ala. 
2011), the court found “compelling evidence that po­
litical exclusion through racism remains a real and 
enduring problem in [Alabama],” “entrenched in the 
high echelons of state government.” The court re­
jected testimony by several white Alabama state leg­
islators as lacking credibility, finding they were mo­
tivated by “pure racial bias” as they sought to “re- 
duc[e] African-American voter turnout.” Id. at 1345. 
Several white legislators and their interlocutors 
were caught on tape comparing Black voters to “illit­
erate [s]” and “Aborigines.” Id.

Section 5 objections have revealed a similar pat­
tern of discriminatory intent in Alabama. In 1991, 
the Department of Justice (“DOJ”) objected to Ala­
bama’s Congressional redistricting plan. The State, 
which had also drawn a Section 5 objection during 
the previous redistricting cycle, failed to provide a 
plausible nonracial explanation for fragmenting con­
centrated Black populations. The evidence indicated 
that the “underlying principle of the Congressional 
redistricting was a predisposition on the part of the 
state political leadership to limit black voting poten­
tial to a single district.” October 25, 2005 (History) 
Hearing, at 385.

Many other Section 5 objections blocked racial 
gerrymanders and other measures designed to seg­

15



16
regate voters along racial lines. See, e.g., id,., at 319- 
20 (“racially based” deannexation promulgated by 
the Alabama legislature for the City of Prichard was 
“specially designed to restrict participation . . .  to 
white voters”); id. at 330-31 (Roanoke’s districting 
plan “essentially segregates the City into two parts 
by creating an overwhelmingly white three-member 
district and a heavily black two-member district”); 
id. at 341 (Mayor of Dothan acknowledged that a dis­
tricting plan was rejected because there was a 
‘“strong feeling in the white community’” that it 
“would allow blacks too much of an electoral oppor­
tunity”).

Circumvention and the Dillard litigation
One of the most significant voting developments 

in Alabama during the reauthorization period was 
the Dillard litigation. That litigation, and the re­
sponse to it, is a microcosm of the defiance that per­
sists in Alabama, and in the covered jurisdictions 
more broadly.

In Dillard v. Crenshaw County, 640 F. Supp. 
1347, 1357 (M.D. Ala. 1986), the court recognized 
that “[f]rom the late 1800s through the present, [Ala­
bama] has consistently erected barriers to keep black 
persons from full and equal participation in the so­
cial, economic, and political life of the state.” These 
barriers included vote dilution schemes, which were 
enacted as early as the 1870s when Black men tem­
porarily secured the right to vote. See id. at 1358. 
They became even more pervasive in the middle of 
the twentieth century, when, in the wake of this 
Court’s ban on all-white primaries in 1944, and fed­
eral civil rights laws enacted in the 1950s and 1960s,



many counties—working in conjunction with the 
Alabama legislature—adopted at-large elections in­
tended to dilute Black enfranchisement. Id. at 1356- 
57.

When Black citizens brought suit in the 1980s, 
purposefully discriminatory at-large elections oper­
ated throughout Alabama, and “continue [d] . . .  to 
have their intended racist effect.” Dillard v. Bald­
win Cnty. Bd. of Educ., 686 F. Supp. 1459, 1468 
(M.D. Ala. 1988). The Dillard litigation ultimately 
encompassed over 180 cities, counties, and school 
boards employing at-large election systems tainted 
by racially discriminatory purpose. July 13, 2006 
Hearing, at 373; see also Baldwin Cnty. Bd. of Educ., 
686 F. Supp. at 1461. Over 170 jurisdictions ulti­
mately entered consent decrees agreeing to adopt 
new methods of election. July 13, 2006 Hearing, at 
373-74.

Over the next twenty years, however, numerous 
jurisdictions, including Shelby County and one of its 
largest municipalities, attempted to circumvent 
these decrees.

In one notorious example, prior to the first elec­
tion under the new voting system in North Johns, 
the Town’s white mayor helped every candidate 
other than the two Black candidates comply with 
new filing requirements. Dillard v. Town of North 
Johns, 717 F. Supp. 1471, 1473-75 (M.D. Ala. 1989). 
In seeking assistance from the town clerk, one Black 
candidate was referred to an office that had no forms 
and whose staff suggested that he did not have to 
file. Id. at 1475. After the two Black candidates 
won, the mayor refused to swear them in, and the

17



18
town clerk sued to prevent them from taking office. 
Id. The district court found that “North Johns . . . 
intentionally discriminated against [the Black can­
didates] because of their race.” Id. at 1476.

Like North Johns, the City of Greensboro con­
ceded that its at-large elections were unlawful as 
part of the Dillard litigation. See July 13, 2006 
Hearing, at 263-64. While the implementation of a 
remedial plan was pending, and after the 1990 Cen­
sus revealed that the City had become majority 
Black, Greensboro attempted to circumvent the fed­
eral decree with a new discriminatory plan. To en­
sure Black voters would be limited to electing only 
two of five council members, the City “fragmented 
black population concentrations in order to lower the 
black percentage in [the swing council district].” 
October 25, 2005 (History) Hearing, at 395; July 13, 
2006 Hearing, at 264. Two separate objections in 
1992 and 1994 were required to block this quota- 
based discrimination. October 25, 2005 (History) 
Hearing, at 394, 412. In a separate incident in 1992, 
poll officials in Greensboro attempted to close a poll­
ing place to prevent Black workers at a local fish 
plant from voting before polls closed. July 13, 2006 
Hearing, at 264; see also id. at 379-80 (describing ef­
forts by Chilton County, the home of an active Ku 
Klux Klan, to circumvent Dillard in 2003).

Other jurisdictions in Alabama attempted to cir­
cumvent Dillard through racially selective annexa­
tions. After Dillard litigation invalidated the City of 
Foley’s at-large elections, the City drew objections in 
1989 and 1993 for its “practice of annexing areas 
that can be expected to contain predominantly white



population, while discouraging the annexation of 
areas of predominantly black population.” October 
25, 2005 (History) Hearing, at 406; see also Dillard v. 
City of Foley, 926 F. Supp. 1053, 1059 (M.D. Ala. 
1995) (approving new consent decree prohibiting 
racially selective annexations). Similarly, a combi­
nation of a Dillard consent decree and two Section 5 
objections in the early 1990s remedied racially selec­
tive annexations promulgated by Valley, an “irregu­
larly shaped” city which carved white residential 
areas out of Chambers County. October 25, 2005 
(History) Hearing, at 358, 364-65, 367-68; July 13, 
2006 Hearing, at 376-77; see also id. at 376 (similar 
racially selective annexations in the City of Cam­
den).

Shelby County
For decades, Shelby County relied on at-large 

elections to minimize Black political influence, and it 
initially denied Section 2 liability in the face of Dil­
lard litigation. After trial, it settled by instituting, 
among other things, single-member districts. Dil­
lard v. Crenshaw Cnty., 748 F. Supp. 819, 821-22 
(M.D. Ala. 1990). Shortly thereafter, the County 
Commission attempted to abandon the settlement 
agreement, but the court adopted a special master’s 
recommendation approving it. Id. Six of the 
County’s municipalities, including the City of Calera, 
likewise abandoned at-large elections as a result of 
Dillard consent decrees. Joint Appendix (“JA”) 41a.

More recently, in 2008, Section 5 prevented Ca­
lera from circumventing Dillard. The City submit­
ted a redistricting plan that eliminated the sole ma- 
jority-Black district, and it also conceded that it had

19



20
already adopted 177 annexations without seeking 
preclearance. PA147a. DOJ interposed an objection, 
but the City disregarded it and held an election 
based on the unprecleared changes. The election re­
sulted in the defeat of the sole Black member of the 
City Council. PA148a. DOJ then brought a Section 
5 enforcement action, which resulted in a consent 
decree that finally remedied Calera’s circumvention 
of the Dillard decree. Id. Defendant-Intervenors are 
five Black ministers from Shelby County and an 
elected official who represents the district eliminated 
and ultimately restored by virtue of Section 5.

Another Shelby County jurisdiction, the City of 
Alabaster, also engaged in repeat violations, drawing 
an objection for its discriminatory annexations in 
2000, after Section 5 blocked similar efforts in the 
1970s. July 13, 2006 Hearing, at 386 n.98; see also 
October 25, 2005 (History) Hearing, at 435-37.

Selma revisited
Attempts to evade case-by-case remedies were 

not limited to Dillard jurisdictions. In separate liti­
gation, federal courts found that the at-large election 
schemes in Dallas County violated Section 2. United 
States v. Dallas Cnty. Comm’n, 850 F.2d 1433, 1435- 
37 (11th Cir. 1988) (referring to prior opinions). The 
Dallas County seat is Selma, which is recognized as 
the birthplace of the Voting Rights Act.

Dallas County repeatedly attempted to circum­
vent the court’s rulings. First, in 1986, without an 
opportunity for public comment, the County promul­
gated a districting plan for its County Commission 
that fragmented cohesive Black neighborhoods and



split an existing precinct. DOJ interposed an objec­
tion, explaining “the circumstances here suggest that 
the county commission’s actions were motivated, at 
least in significant part, by racial considerations.” 
October 25, 2005 (History) Hearing, at 311; see also 
id. at 328 (objection to County Board of Education 
redistricting plan, which “concentrate [d]” Black vot­
ers into one supermajority-minority district to 
“minimizeO the opportunity for blacks to participate 
equally in the political process”).

Undeterred, the County next implemented a 
voter purge which, had it not been blocked by Sec­
tion 5, would have allowed citizens to be disfran­
chised “simply because they failed to pick up or re­
turn a voter update form, when there was no valid 
requirement that they do so.” Id. at 356. Citing the 
factors for intentional discrimination from Village of 
Arlington Heights v. Metropolitan Housing Corpora­
tion, 429 U.S. 252 (1977), DOJ rejected this dis­
criminatory purge. October 25, 2005 (History) Hear­
ing, at 356.

Finally, after the 1990 Census revealed that the 
Black population of Dallas County increased from 
54.5% to 57.8% and the Black population of Selma 
increased from 52.1% to 58.4%, the County and City 
attempted to impose racial quotas to prevent Blacks 
from electing candidates of choice to a majority of 
seats on governing bodies. July 13, 2006 Hearing, at 
378-79. Between 1992 and 1993, DOJ interposed 
five objections, two for the City Council and three for 
the County School Board, to stop these quotas. Oc­
tober 25, 2005 (History) Hearing, at 388-93, 397-405. 
DOJ determined that the City was “motivated by the

21



22
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. This concerted effort to 
abridge the voting rights of the Black majority in 
Selma and Dallas County illustrates that voting dis­
crimination is often particularly intense as minority 
voters are poised to make inroads in elected bodies. 
See also, LULAC, 548 U.S. at 440; infra at 27 (dis­
cussing Kilmichael, Mississippi).

Similar to Dallas County, Tallapoosa County re­
peatedly failed to comply “with legal requirements 
(constitutional, statutory, and court mandated) de­
signed to protect the right to vote and to ensure mi­
nority voters . . .  an equal electoral opportunity,” 
prompting a Section 5 enforcement action, a Section 
5 objection, and Section 2 litigation. October 25, 
2005 (History) Hearing, at 429. These measures fi­
nally brought about, in 1994, a Section 2 consent de­
cree that led to the election of the first Black County 
Commissioner in the twentieth century. Id. at 430. 
But in 1998, Tallapoosa County flouted the consent 
decree and adopted a new plan “calculated to mini­
mize participation by the public in general, and the 
black community in particular.” Id. at 431.

This pattern was repeated in other areas, includ­
ing Marengo County, id. at 308 (Section 5 objection 
to attempts to circumvent a Section 2 remedy by 
adopting “contorted” districts), and Greene County, 
id. at 294-96 (objection to circumvention of a court- 
ordered remedy).

The experience in Alabama, and Shelby County 
itself, demonstrates that Section 5 has been a neces­



sary engine of progress in the face of tangible and 
persisting threats to minority voting. Section 5 is 
not an anachronism, but an essential contemporary 
safeguard.

2. Comparable persistent and adaptive dis­
crimination in numerous covered States

Beyond Alabama, the record before Congress 
demonstrates that voting discrimination remains an 
“insidious and pervasive evil” in other covered 
States. Katzenbach, 383 U.S. at 309. In five of the 
eight other wholly-covered States, Section 5 objec­
tions and Section 2 litigation blocked over 100 dis­
criminatory voting laws per State. Much of the pro­
hibited conduct involved a pattern of successive dis­
criminatory acts, which, but for the Section 5 rem­
edy, would have abridged the right to vote of hun­
dreds of thousands of citizens at the state or local 
level.

Texas
Between the 1982 reauthorization and 2006, the 

VRA blocked more than 300 discriminatory voting 
laws in Texas (105 objections, March 8, 2006 Hear­
ing, at 272; and 206 successful Section 2 actions, id. 
at 251). Violations occurred repeatedly at both the 
state and local level, with Texas and 28 of its coun­
ties drawing multiple Section 5 objections. Voting 
Rights in Texas: 1982-2006 (“Texas Report”), at 16 
(June 2006), available at http://www.protectcivil 
rights.org/pdf/voting/TexasVRA.pdf.

Texas has drawn an objection to each of its de­
cennial State House redistricting plans, and in most 
cycles at least one additional statewide plan, since it

23

http://www.protectcivil


24
became covered in 1975. See October 25, 2005 (His­
tory) Hearing, at 2177-80; Texas Report at 48. In 
2003, Texas engaged in a mid-decade Congressional 
redistricting. Just as Latinos in one Congressional 
district “were poised to elect their candidate of 
choice,” Texas “took away the Latinos’ opportunity 
because Latinos were about to exercise it.” LULAC, 
548 U.S. at 438, 440. This Court noted that Texas’s 
plan “bears the mark of intentional discrimination 
that could give rise to an equal protection violation.” 
Id. at 440.

Section 5 thwarted Texas’s subsequent efforts to 
evade the Section 2 remedy adopted as a result of 
LULAC. In 2006, Texas attempted to curtail early 
voting in the LULAC remedial district, but it was 
blocked by a Section 5 enforcement action. See 
Orders and Pis.’ Mot. to Dismiss, LULAC v. Texas, 
No. 06-cv-1046 (W.D. Tex. Dec. 5, 2006), ECF Nos. 6, 
8, 9. Last year, a three-judge court unanimously 
concluded that Texas’s latest Congressional redis­
tricting plan and its State Senate plan were “enacted 
with discriminatory purpose,” Texas v. United 
States, Civ. No. 11-1303, 2012 WL 3671924, at *18, 
*26 (D.D.C. Aug. 28, 2012), based on, inter alia, evi­
dence that Texas once again sought to prevent La­
tino voters from electing a candidate of their choice 
in the LULAC remedial district. The court also 
found evidence that Black and Latino representa­
tives were excluded from the decisionmaking proc­
ess, and that majority-minority districts were 
stripped of their economic centers and district 
offices, whereas “[n]o such surgery was performed 
on” majority-white districts. See id. at *16, *19-*21.



Cities in Texas have frequently used racial ger­
rymanders and annexations to discriminate against 
minority voters. In Williams v. City of Dallas, 734 F. 
Supp. 1317, 1409 (N.D. Tex. 1990), for example, the 
court held that the City’s districting plan “intention­
ally packs and cracks the African-American popula­
tion with the effect of diluting their vote for the pur­
pose of maintaining the political power of whites.” 
In a 1997 objection, DOJ explained that the City of 
Webster’s “annexation [policies] appear to have been 
tainted . . .  by an invidious racial purpose”: The City 
manager “actually stated that the reason Block 10IB 
would not be annexed was because of its ethnic com­
position.” October 25, 2005 (History) Hearing, at 
2492, 2490.

The City of Seguin was more creative. It adopted 
an eight-member districting plan in response to 
three separate lawsuits between 1978 and 1993, 
which challenged its discriminatory methods of elec­
tion. After the 2000 Census revealed that Latinos 
had become a majority in five of eight districts, the 
City proposed dismantling a Latino-majority district. 
When DOJ indicated preclearance was unlikely, the 
City withdrew its request but, without seeking pre­
clearance, manipulated the filing period to prevent 
any Latino/a candidate from competing in the dis­
trict. A Section 5 enforcement action was required to 
block this blatant discrimination. Texas Report at 
30.

The City of Freeport and the Haskell Consoli­
dated School District (covering three counties) pro­
vide additional examples of circumvention. DOJ in­
terposed objections in 2002 and 2001 respectively

25



26
when these jurisdictions attempted to return to at- 
large elections, which they had abandoned in set­
tling Section 2 litigation. October 25, 2005 (History) 
Hearing, at 2528-30; id. at 2513-17; see also id. at 
2300-03 (1991 objection where, shortly after a Sec­
tion 2 suit forced a water district in Lubbock County 
to abandon at-large elections, the district enacted a 
polling place change requiring voters in predomi­
nately Black neighborhoods to travel to remote ven­
ues, and it proffered pretextual reasons for the 
change).

Mississippi
In Mississippi, more than 175 discriminatory vot­

ing laws were blocked between 1982 and 2006 (112 
objections, March 8, 2006 Hearing, at 1711; and 67 
successful Section 2 cases, id. at 251). No Black can­
didate has been elected to statewide office since Re­
construction in Mississippi, which has the highest 
Black population percentage in the country. Id. at 
1711, 1717. Twenty-five Mississippi counties drew 
repeated Section 5 objections during the reauthori­
zation period, including seven counties with four or 
more objections. Id. at 1714.

Discrimination and circumvention have been bla­
tant at the state level. In 1991, Mississippi’s House 
and Senate redistricting plans drew Section 5 objec­
tions, because, inter alia, the redistricting process 
was “characterized by overt racial appeals.” October 
25, 2005 (History) Hearing, at 1412. Legislators re­
ferred to one plan on the House floor as the “black 
plan” and, privately, the “nigger plan.” March 8, 
2006 Hearing, at 1718-19.



27
That same year, the Fifth Circuit affirmed a Sec­

tion 2 remedy ending Mississippi’s dual-registration 
requirement for municipal and non-municipal elec­
tions. The requirement had been adopted nearly 100 
years earlier as part of the “Mississippi Plan” to 
deny Black people the right to vote; it was amended 
and reenacted in 1984. The law still had its in­
tended effect. Many Blacks—who disproportionately 
lacked access to automobiles or telephones-—were 
not registered because of the burdens of the dual reg­
istration system. Miss. State Chapter, Operation 
PUSH v. Allain, 674 F. Supp. 1245, 1249-55 (N.D. 
Miss. 1987), aff’d sub nom., Miss. State Chapter, Op­
eration PUSH v. Mabus, 932 F.2d 400 (5th Cir. 
1991). In 1995, Mississippi again tried to establish a 
dual registration system, and it refused to seek pre­
clearance until ordered by this Court. Young v. 
Fordice, 520 U.S. 273 (1997). This effort to evade a 
Section 2 remedy, which had been “couched in ra­
cially charged terms,” was blocked by Section 5. Oc­
tober 25, 2005 (History) Hearing, at 1603.

Intentional discrimination and circumvention 
have also been common at the local level in Missis­
sippi. In Kilmichael, the white mayor and all-white 
Board of Aldermen sought to take the extraordinary 
step of cancelling elections in 2001, just as Blacks, 
who following the 2000 Census had become a major­
ity of the City, were on the verge of electing a candi­
date of choice for the first time. A Section 5 objection 
prevented Kilmichael from doing so. Id. at 1616-19.

Elsewhere in Mississippi, a court determined that 
Chickasaw County’s redistricting plan—which was 
drawn so that all districts were majority-white—



28
violated Section 2. Gunn v. Chickasaw Cnty., 705 F. 
Supp. 315, 322, 324 (N.D. Miss. 1989). The County 
then attempted three separate times—in 1990, 1993, 
and 1995—to circumvent the Section 2 decree, with 
new discriminatory plans aimed at the same goal of 
minimizing Black political influence. Section 5 ob­
jections were necessary each time. March 8, 2006 
Hearing, at 1715-16.

Similar events took place in Oxford, October 25, 
2005 (History) Hearing, at 1609 (Section 5 objection 
blocking 1998 redistricting plan, annexation, and 
cancelation of an election, with the “purpose [of] 
maintaining] and strengthening] white control of a 
City on the verge of becoming majority black”), and 
McComb, id. at 1613-14 (objection blocking a 1999 
polling place change in this largely segregated City 
with no readily available public transportation, 
which would have forced minority voters to walk 
over four miles).

Louisiana
Over 110 discriminatory voting laws were blocked 

in Louisiana during the reauthorization period (96 
objections, March 8, 2006 Hearing, at 1611; and 17 
successful Section 2 cases, id. at 251). Section 5 
blocked more than half (33) of Louisiana’s 64 par­
ishes from engaging in serial voting rights viola­
tions. Id. at 1612.

As of 2006, “not one redistricting plan for the 
Louisiana House of Representatives had ever been 
precleared as originally submitted.” Nw. Austin 
Mun. Util. Dist. No. One v. Mukasey, 573 F. Supp. 2d 
221, 251 (D.D.C. 2008) (citation omitted). After the



29
2000 Census, Louisiana officials established a quota 
for white representation in their House plan, inten­
tionally eliminating a majority-Black district on the 
theory that “white voters in Orleans Parish were en­
titled to proportional representation, though African 
Americans elsewhere were not.” March 8, 2006 
Hearing, at 1607-08, 1621-22. Ten years earlier, 
Louisiana’s House redistricting plan selectively ap­
plied redistricting criteria with the same “purpose of 
minimizing] the voting strength of a minority 
group.” Id. at 1613.

Louisiana also discriminated against voters of 
color at the local level. For example, in 2001, Lou­
isiana enacted legislation facilitating a redistricting 
plan for the St. Bernard Parish School Board. A 
court found that the plan, which eliminated the only 
district where Black voters had an opportunity to 
elect a candidate of choice, violated Section 2. Id. at 
1618 (citing St. Bernard Citizens for Better Gov’t v. 
St. Bernard Parish Sch. Bd., No. 02-2209, 2002 U.S. 
Dist. LEXIS 16540 (E.D. La. Aug. 28, 2002)). In the 
course of the litigation, a white state senator, Lynn 
Dean, the highest ranking public official in the Par­
ish who was involved in the voting change, testified 
that he uses the term “nigger,” and “ha[d] done so 
recently.” Id., at 1618; see also St. Bernard Citizens 
for Better Gov’t, 2002 U.S. Dist. LEXIS 16540, at 
*33. Louisiana also drew eight objections between 
1988 and 1994 related to its efforts to implement at- 
large or multi-member elections for circuit court 
judges in numerous parishes, and it even held at- 
large elections for judgeships without seeking pre­
clearance. See October 25, 2005 (History) Hearing,



30
at 853-54, 897-98, 904-05, 911-916, 926-46, 953-55, 
1000-02, 1037-40, 1086-89, 1095-97.

The reauthorization record likewise documents 
repeated attempts by local governments in Louisiana 
to employ racial gerrymanders and other measures 
designed to segregate voters on the basis of race. 
For example, in 2002, Section 5 objections prevented 
DeSoto Parish and the City of Minden from enacting 
redistricting plans that officials admitted were in­
tentionally designed to limit or reduce Black political 
influence. Id. at 1157-60 (DeSoto Parish); id. at 
1150-52 (Minden). In Shreveport, six objections be­
tween 1994 and 1997 were required to prevent 
racially selective annexations that would have en­
sured that the City remained majority-white. Id. at 
1086-89, 1113-18, 1123-30. Similarly, four objections 
were required between 1991 and 1994 to block East 
Carroll Parish’s attempts to pack African-American 
voters—who constituted a majority of the Parish— 
into a minority of school board districts. Id. at 985- 
86, 1013-1015, 1032-33, 1083-85.9

Georgia

More than 150 discriminatory voting laws in 
Georgia were blocked during the reauthorization pe­
riod (including 91 objections, March 8, 2006 Hearing, 
at 1502; and 69 successful Section 2 cases, id. at 9

9 For a fuller description of the extent and nature of voting 
discrimination in Louisiana, which was presented to Congress, 
see Voting Rights in Louisiana: 1982-2006 (Mar. 2006), avail­
able at http://www.protectcivilrights.org/pdf/voting/Louisiana 
VRA.pdf. See also n.20, infra.

http://www.protectcivilrights.org/pdf/voting/Louisiana


251). In addition, 11 counties were successfully sued 
multiple times under Section 2. Id. at 1524.

In Georgia, where the chair of the state legisla­
ture’s redistricting committee infamously told his 
colleagues, “I don’t want to draw nigger districts,” 
PA31a (citations and internal quotation marks omit­
ted), numerous counties sought to use racial quotas 
to dilute Black voting power; Section 5 stopped them. 
For example, in 2001, the City of Albany adopted 
“explicit redistricting criteria . . . ‘maintaining] eth­
nic ratios, intended to ‘limit black political strength 
in the city.” October 25, 2005 (History) Hearing, at 
847 (citation omitted).

Similarly, Augusta drew a Section 5 objection in 
1987, because its “annexation policy centered] on a 
racial quota system requiring that each time a black 
residential area [was] annexed into the city, a corre­
sponding number of white residents must be an­
nexed in order to avoid increasing the city’s black 
population percentage.” Id. at 642. Augusta went so 
far as to conduct door-to-door surveys to identify 
white residential areas for annexation. See id. The 
next year, the City settled Section 2 litigation and 
adopted a new method of election. March 8, 2006 
Hearing, at 1516 n.78.

Two more Section 5 objections, however, were 
necessary to prevent the City from circumventing 
the settlement, through: (1) a consolidation with the 
majority-white surrounding county, where the “pri­
mary . . . motivation” was to respond to “the prospect 
that the City, which has a black population majority, 
finally would have an election system that fairly re­
flected black voting strength,” October 25, 2005 (His-

31



32
tory) Hearing, at 662; and (2) a “calculated [effort] to 
take advantage of [a voting schedule] that would 
suppress the black turnout,” id. at 655. In 2012, yet 
another attempt to reschedule elections in Augusta- 
Richmond to a date with expected low Black turnout 
led to a DOJ objection, because the “pretextual rea­
sons” for the change suggested that it was “adopted, 
at least in part, with a discriminatory purpose.” 
DOJ, Objection Ltr., Dec. 21, 2012,
http://www.justice.gov/crt/about/vot/sec 5/pdfs/l 122 
112_ga.pdf.

Similar events transpired in the City of Millen. 
After litigation required Millen to abandon at-large 
elections, March 8, 2006 Hearing, at 1524 n.120, the 
City proposed delaying the election in a majority- 
Black City Council district, leaving that district un­
represented for two years, October 25, 2005 (History) 
Hearing, at 744. The City then proposed moving a 
polling place to an inaccessible location in a pre­
dominantly white neighborhood outside the City lim­
its. DOJ concluded that the selection of the new 
polling location “appears to be designed, in part, to 
thwart recent black political participation.” Id. at 
816.

Section 5 prevented many other intentionally dis­
criminatory measures throughout Georgia, in places 
such as Webster County, id. at 831 (2000 objection 
blocking school board’s attempt to redraw districts, 
after an election in which voters elected a third 
Black board member for the first time, because the 
board’s reasons were “merely pretexts for intention­
ally decreasing the opportunity of minority voters to 
participate in the electoral process”), and Effingham

http://www.justice.gov/crt/about/vot/sec


County, March 8, 2006 Hearing, at 1508 (1992 objec­
tion blocking County from adding at-large seats to a 
single-member district plan, which previously had 
been adopted in response to a Section 2 lawsuit, 
where nonracial explanations were “tenuous”). And 
Georgia itself was blocked three times in 1990-1991 
from switching to at-large elections for superior 
court judges, where “substantial information . . . 
suggest [ed a] racially discriminatory purpose.” Oc­
tober 25, 2005 (History) Hearing, at 675; see also id. 
at 684-86, 695-97.

South Carolina
More than 100 discriminatory voting laws were 

blocked in South Carolina during the reauthoriza­
tion period (74 objections, March 8, 2006 Hearing, at 
272; and 33 successful Section 2 cases, id. at 251). 
Once again, Section 5 was needed to prevent re­
peated attempts to undermine Section 2 remedies.

In United States v. Charleston County, 316 
F. Supp. 2d 268, 286-89 n.23 (D.S.C. 2003), the court 
found that Charleston County’s at-large system for 
County Council elections violated Section 2, and it 
also made several findings of intentional discrimina­
tion concerning “intimidation and harassment” of 
Black voters by poll workers. The following year, 
DOJ objected under Section 5 when South Carolina 
enacted legislation for Charleston County School 
Board elections, which adopted “‘an exact replica”’ of 
the at-large system for the County Council that had 
been found to violate Section 2. PA237a (citation 
omitted). March 8, 2006 Hearing, at 175-76. This 
was the culmination of a series of efforts by the 
County’s state legislative delegation to alter the

33



34
method of election for, or reduce the powers of, the 
Charleston County School Board after the 2000 elec­
tion resulted in Black people gaining a majority of 
seats on the Board for the first time in history. 
Charleston Cnty., 316 F. Supp. 2d at 290 n.23. No­
tably, although the earlier Section 2 litigation lasted 
several years and cost millions of dollars, Section 5 
brought a prompt end to this brazen effort at cir­
cumvention to again abridge the voting rights of 
Charleston County’s Black citizens. March 8, 2006 
Hearing, at 176.

Similarly, after a successful Section 2 action chal­
lenging at-large districts for the Spartanburg County 
Board of Education, and following the first-ever elec­
tion of Black candidates to that body, the state legis­
lature voted to disband the Board and devolve its 
powers to an appointed panel. DOJ objected, as 
“[t]he sequence of events . . . g[ave] rise to an obvious 
inference of discriminatory purpose.” October 25, 
2005 (History) Hearing, at 2042.

There were many other instances of intentional 
discrimination relating to local government bodies, 
including in: Union County, where the circum­
stances of a 2002 redistricting plan promulgated by 
the state legislature for the County “implie[d] an in­
tent to retrogress,” id. at 2086; the Town of North, 
where, in 2003, “race appear[ed] to be an overriding 
factor in how the town responds to annexation re­
quests,” March 8, 2006 Hearing, at 1954-55 (citation 
and internal quotation marks omitted); and Marion 
and Lee Counties, both of which placed quotas in 
1993 on how many Black residents could be included 
in districts that would determine majority control of



government bodies, October 25, 2005 (History) Hear­
ing, at 1992-95, 1996-99.

Other South Carolina jurisdictions requiring a 
combination of Section 2 (or constitutional) litigation 
and at least one Section 5 objection or enforcement 
action to remedy discrimination, included: Heming­
way (most recent objection in 1994); Orangeburg 
(1992); Town of Johnson (1992); and Richland 
County (1988). See March 8, 2006 Hearing, at 1970, 
1033-39, 1015-17, 1963-64.

• k i e *

In sum, the record demonstrates that hundreds of 
discriminatory acts took place during the reauthori­
zation period—not only in Alabama but also in each 
of five other fully-covered States. A substantial 
number of these instances of discrimination reflected 
serial violations of minority voting rights—often at 
precisely the moment when minority voters were on 
the verge of exercising political power.

3. Significant voting discrimination also 
persists in additional jurisdictions.

Congress also received substantial evidence of 
ongoing discrimination in most of the remaining cov­
ered jurisdictions—indeed, significantly more than 
the “fragmentary” evidence of discrimination for sev­
eral States reviewed by this Court in Katzenbach, 
383 U.S. at 329-30. Again, the record in each of 
these States reveals serial efforts to prevent minor­
ity citizens from full participation in our democracy.

North Carolina
Over 75 discriminatory voting laws were blocked

35



in North Carolina’s covered counties between 1982 
and 2006 (43 objections, March 8, 2006 Hearing, at 
270-73, and 36 successful Section 2 cases, id. at 
1762-65).

“As black voter registration increased [in North 
Carolina], other official forms of discrimination were 
enacted.” Id. at 1756. Indeed, during the reauthori­
zation period, DOJ interposed four separate dis­
criminatory-purpose objections to method-of-election 
changes adopted by North Carolina for covered coun­
ties. See October 25, 2005 (History) Hearing, at 
1711-13, 1736-40, 1772-73, 1787-90.

One of those counties, Pitt County, later entered 
a consent decree resolving a separate Section 2 chal­
lenge to its method of election. But just last year, 
DOJ interposed a discriminatory purpose objection 
to a new state law changing the method of election 
for the Board of the Pitt County School District, cit­
ing the “County’s history of challenges . . . under the 
Voting Rights Act” and noting that the “manner in 
which the change was adopted was a complete de­
parture from the normal procedure.” DOJ, Objection 
Ltr., Apr. 30, 2012, http://www.justice.gov/crt/about/ 
vot/sec_5/ltr/l_ 043012_nc.php.

Similar examples abound. In 2002, Harnett 
County attempted to eliminate its sole majority- 
Black district, which had been created as part of a 
Section 2 remedy. October 25, 2005 (History) Hear­
ing, at 1837-40. In 1993, only two months after set­
tling a Section 2 challenge to its at-large elections, 
the Mt. Olive Board of Commissioners abandoned a 
redistricting plan to which the parties had agreed, 
offering pretextual explanations and going so far as

36

http://www.justice.gov/crt/about/


to “petition [ a] court to prohibit [the board’s sole 
Black member] from participating in board discus­
sions or voting on the method of election issues 
raised by the Section 2 litigation.” Id. at 1824. And 
in 1987, after previously agreeing to abandon at- 
large elections in response to a Section 2 suit, Bladen 
County took “extraordinary measures to adopt an 
election plan which minimizes minority voting 
strength. ’ Id. at 1762. Section 5 prevented each of 
these attempts at circumvention.

Evidence of serial voting rights problems, which 
were only remedied by Section 2, Section 5, or a com­
bination of the two, also exists for Beaufort County 
(2002), Anson County (1992), Onslow County (1987), 
Wilson County (1986), and Elizabeth City (1986). 
See March 8, 2006 Hearing, at 1746, 1783, 1746, 
1749, 1748, 1775, 1733-34, and 1987; see also id. at 
1747, 1750, 1763, 1769 (noting withdrawal of pre­
clearance submissions between 1991 and 2001 by 
Edgecombe, Halifax, and Martin Counties, which 
had each been subject to a prior Section 5 objection).

Arizona

Twenty discriminatory voting laws were blocked 
in Arizona during the reauthorization period (18 ob­
jections, id., at 1416; and two successful Section 2 
cases, id. at 251). Since 1982, DOJ has also deployed 
more than 1,200 observers to Arizona to ensure and 
protect the ability of American Indian and Latino 
voters to participate in elections. Id. at 1412.

As of 2006, Arizona had drawn Section 5 objec­
tions to at least one of its statewide redistricting 
plans every decade since it became a fully covered

37



State. In 2002, DOJ concluded that Arizona’s legis­
lative redistricting plan not only dismantled three 
majority-Latino districts, but that circumstances 
“raised concerns [that one redistricting decision] may 
also have been taken, at least in part, with a retro­
gressive intent.” October 25, 2005 (History) Hearing, 
at 500. Ten years earlier, DOJ similarly concluded 
that Arizona’s redistricting plan discriminated 
against Latino voters and that the State offered 
“ [insufficient nonracial explanations” for rejecting 
non-discriminatory alternatives. Id. at 476-77.

The record also reflects that race and ethnicity 
continue to affect minority access to the polls in Ari­
zona. In 2004, for example, Latino voters experi­
enced widespread discrimination through intimida­
tion and mass challenges, including poll workers 
asking minority voters (but not Anglo voters) for 
identification. March 8, 2006 Hearing, at 3979-80.

South Dakota
Following a 1975 proclamation from South Da­

kota’s attorney general against complying with Sec­
tion 5, the State implemented over 600 voting 
changes affecting covered counties without seeking 
preclearance, many of which impermissibly compro­
mised Native American voters’ rights. Id. at 1990- 
91, 2005. Native American voters were forced in 
2002 to file a Section 5 enforcement lawsuit result­
ing in a consent decree, which finally ended 26 years 
of noncompliance. Id.

Two years later, a court held that South Dakota’s 
2001 legislative redistricting plan, which packed Na­
tive American voters into a single district where they

38



39
constituted 90% of the voting-age population, vio­
lated Section 2. Bone Shirt v. Hazeltine, 336 F. 
Supp. 2d 976, 980, 1052 (D.S.D. 2004), aff’d, 461 
F.3d 1011 (8th Cir. 2006). The court also noted hos­
tile and intimidating treatment by poll workers, as 
well as discriminatory comments made by state leg­
islators, including a 2002 statement by one legislator 
who, referring to Native Americans, stated, “I’m not 
sure we want that sort of person in the polling 
place.” Id. at 1026 (citation and internal quotation 
marks omitted); see also PA237a-238a.

Virginia
Thirty discriminatory voting laws were blocked in 

Virginia during the reauthorization period (15 objec­
tions, March 8, 2006 Hearing, at 272; and 15 suc­
cessful Section 2 cases, id. at 251).

This discrimination again included serial voting 
rights violations. In 2001, despite racially polarized 
voting, Northampton County sought to move from 
six single-member districts—three of which were 
majority-minority—to three majority-white dual­
member districts. DOJ objected, concluding that the 
County’s stated justification for the proposal was in­
accurate and that it inexplicably abandoned consid­
eration of non-retrogressive alternatives. October 
25, 2005 (History) Hearing, at 2584-87. The County 
responded with two more retrogressive plans, which 
drew objections in May and October 2003. See id. at 
224, 2592-95; see also March 8, 2006 Hearing, at 
2040.

Similarly, in 1993, Newport News drew a dis­
criminatory-purpose objection when it attempted to



40
implement at-large elections for its school board—its 
second method-of-election objection in four years. 
October 25, 2005 (History) Hearing, at 2573-75. The 
next year, the City entered a consent decree wherein 
it “admitted that the at-large system violated section 
2 as well as the Fourteenth and Fifteenth Amend­
ments.” Nw. Austin, 573 F. Supp. 2d at 261 (citation 
and internal quotation marks omitted).

In 1999, Dinwiddie County drew an objection to a 
proposal to move a polling station to an all-white 
church in a remote location because “[t]he sequence 
of events leading up to the decision to change the 
polling place . . . tendjed] to show a discriminatory 
purpose.” October 25, 2005 (History) Hearing, at 
2581.10

k k k

Shelby County asserts that there are only “iso­
lated” instances of persistent discrimination in the 
covered jurisdictions and that circumvention of vot­
ing remedies has disappeared. Br. 38. These asser­
tions ignore the “reliable evidence of actual voting 
discrimination” in the record. Katzenbach, 383 U.S. 
at 329. The record conclusively demonstrates that 
widespread intentional discrimination, and the eva­

10 There was also evidence of continuing discrimination in 
covered jurisdictions not discussed in the text. See, e.g., July 
13, 2006 Hearing, at 111 (2002 objection to intentionally retro­
gressive method-of-election change in Monterey County, Cali­
fornia); March 8, 2006 Hearing, at 1466, 1497 (2002 objection to 
retrogressive statewide redistricting in Florida affecting Collier 
County); id. at 1348 (1993 objection to retrogressive statewide 
redistricting in Alaska).



41
sion of prior remedial measures, persists in the vast 
majority of covered jurisdictions. Accordingly, not­
withstanding significant progress, Congress rea­
sonably concluded that the “improvements are insuf­
ficient and . . . conditions continue to warrant pre­
clearance.” Nw. Austin, 557 U.S. at 203.
III.SECTION 5 IS AN “APPROPRIATE” 

RESPONSE TO THE RECORD OF ONGO­
ING VOTING DISCRIMINATION.
After reviewing all of the evidence before it, Con­

gress reasonably determined that Section 5 remains 
“appropriate legislation” to prevent, redress, and de­
ter unconstitutional misconduct.
A. Case-by-case enforcement remains inade­

quate.
Central to Congress’s determination was its con­

clusion that “‘case-by-case enforcement alone . . . 
would leave minority citizens with [an] inadequate 
remedy.’” PA45a (alterations in original; citation 
omitted). As demonstrated in Part II.B, supra, the 
Congressional record is replete with evidence of se­
rial violations of voting rights, in which jurisdic­
tions—after having resolved Section 2 claims, or 
having drawn a Section 5 objection—attempted to 
circumvent the prior voting remedy with a new dis­
criminatory measure.

This circumvention is one significant reason why 
“case-by-case litigation [is] inadequate to combat 
widespread and persistent discrimination in voting.” 
Katzenbach, 383 U.S. at 328; see also id. at 313-15. 
But preclearance is also justified because of the



42
“slow, costly character of case-by-case litigation” in 
the voting context. Boerne, 521 U.S. at 526.

Section 2 suits are among the most complex and 
resource-intensive of all actions brought in federal 
court, often taking five years or more to litigate, with 
costs running into the millions of dollars. See, e.g., 
May 10, 2006 Hearing, at 96 (McDuff); May 9, 2006 
Hearing, at 141 (McDonald); May 17, 2006 Hearing, 
at 20, 80 (Derfner). Especially at the local level, vot­
ers of color generally lack access to the resources and 
expertise necessary for successful Section 2 litiga­
tion. October 25, 2005 (History) Hearing, at 84 
(Earls). During the reauthorization period, 86.2% of 
Section 5 objections (539 out of 625) were made to 
voting changes at the local level—where elections 
often are less about partisan debates and more about 
issues such as police protection and the distribution 
of educational resources. See Nw. Austin, 573 
F. Supp. 2d at 284-85 (calculation based on Maps 5A 
and 5B).

In sum, “[pjermitting [an unprecleared] election 
to go forward would place the burdens of inertia and 
litigation delay on those whom the [VRA] was in­
tended to protect.” Lucas v. Townsend, 486 U.S. 
1301, 1305 (1988) (Kennedy, J., in chambers).

Nor is there anything in the “the record to sup­
port . . . speculation” that DOJ could scale up its Sec­
tion 2 enforcement adequately to compensate for the 
loss of the effective preclearance remedy. PA46a. 
This Court has recognized that the VRA’s “laudable 
goal[s] could be severely hampered . . .  if each citizen 
were required to depend solely on litigation insti­
tuted at the discretion of the Attorney General.” Al­



len, 393 U.S. at 556. Indeed, during the reauthoriza­
tion period, DOJ participated as a plaintiff or 
intervenor in only 91 Section 2 cases, see October 25, 
2005 (History) Hearing, at 2835-39, 2846, a small 
fraction of the total number of Section 2 suits during 
that timeframe. See JA51a (noting there were 800 
successful Section 2 cases).
B. Current needs justify current burdens.

Congress also carefully considered the burdens 
imposed by Section 5. Absolutely no evidence was 
presented to support one witness’s conclusory asser­
tion, which Shelby County cites, that preclearance 
has cost covered jurisdictions over $1 billion. See Br. 
25 (citing May 10, 2006 Hearing, at 110). In fact, 
Congress learned that, “in most cases the preclear­
ance process is routine and efficient!], resulting in 
prompt approval by the Attorney General and rarely 
if ever delaying elections.” PA20a (citation and in­
ternal quotation marks omitted). Even in the “infre­
quent” cases where “more extensive” information is 
required, preclearance submissions generally take 
little “more than half an hour.” June 21, 2006 Hear­
ing, at 12 (testimony by Don Wright, General Coun­
sel, North Carolina Board of Elections).

Indeed, many election officials in covered juris­
dictions recognize that Section 5 enhances the integ­
rity of the political process and helps avoid litigation. 
Id. at 12-13; see also May 17, 2006 Hearing, at 94 & 
n.l. A joint letter from the Council of State Gov­
ernments, the National Conference of State Legisla­
tures, the National Association of Secretaries of 
State, the National Association of Counties, the Na­
tional League of Cities, and the U.S. Conference of

43



44
Mayors noted that, notwithstanding substantial pro­
gress, voting discrimination persists; these organiza­
tions urged Congress to reauthorize Section 5. 152 
Cong. Rec. 14,232-33 (2006). In Northwest Austin, 
six fully or partially-covered States (including Ari­
zona, which has filed an amicus brief on behalf of 
Shelby County in this case) informed this Court: 
“‘[T]he benefits of Section 5 greatly exceed the mini­
mal burdens Section 5 may impose on States and 
their political subdivisions.’” PA276a-77a (citation 
omitted).

Recent events confirm that, rather than the 
blunt instrument Shelby County describes, preclear­
ance is a flexible remedy that permits States to pur­
sue nondiscriminatory policy objectives. Texas’s 
voter identification law—“the most stringent in the 
country,” which a three-judge court found “imposes 
strict, unforgiving burdens on the poorQ and racial 
minorities”—was denied preclearance. Texas v. 
Holder, Civ. No. 12-128, 2012 WL 3743676, at *33 
(D.D.C. Aug. 30, 2012). By contrast, South Caro­
lina’s voter identification measure was precleared for 
elections after November 2012, due to ameliorative 
features—added during preclearance—that rendered 
it “significantly more friendly to voters” than 
Texas’s. South Carolina u. United States, Civ. No. 
12-203, 2012 WL 4814094, at *15 (D.D.C. Oct. 10, 
2012); see also id. at *22 (Bates, J., concurring) (“The 
Section 5 process here did not force South Carolina 
to jump through unnecessary hoops. Rather, the 
history of [the voter identification law] demonstrates 
the continuing utility of Section 5 of the Voting 
Rights Act in deterring problematic, and hence en­
couraging non-discriminatory, changes in state and



local voting laws.”). DOJ has also precleared photo 
identification laws in Arizona, Georgia, Louisiana, 
Michigan, and New Hampshire. Resp. Br. in Opp. to 
Cert. 32.

Finally, Congress learned that, contrary to the 
assertions of Shelby County’s amici, Section 5 does 
not require excessive consideration of race in redis­
tricting.11 Section 5 does not maintain majority- 
minority districts reflexively or in perpetuity. The 
statute prevents the elimination of existing majority- 
minority districts only where substantial racially po­
larized voting exists, such that a majority-minority 
district remains necessary for minority voters to 
have an opportunity to elect a candidate of their 
choice. See, e.g., March 8, 2006 Hearing, at 301-02; 
October 18, 2005 Hearing, at 177-79.

Moreover, although DOJ may have misinter­
preted Section 5’s standard in a small number of 
statewide redistricting objections in the early 1990s, 
see n.5, supra, DOJ has taken this Court’s prece­
dents in Shaw v. Reno, 509 U.S. 630 (1993), and 
Miller v. Johnson, 515 U.S. 900 (1995), seriously; 
there has not been a single “maximization” objection 
since then. In the overwhelming majority of objec­
tions throughout the reauthorization period, DOJ 
applied the statute correctly: as a crucial tool to dis­
mantle electoral structures long maintained to ex­
clude too many of our fellow Americans from full en­

45

11 Shelby County forfeited any argument concerning Con­
gress’s two amendments to the Section 5 standard by failing to 
raise it below. PA66a-67a. In any event, those amendments 
are not implicated in this case. PA66a-68a.



joyment of their citizenship rights. See generally 
Part II, supra.12

None of this is to deny the federalism costs im­
posed by Section 5. Shelby County is correct that 
preclearance would not be appropriate enforcement 
legislation to remedy the problem of disabled per­
sons having access to judicial services, at issue in 
Lane, or the problem of gender disparities in leave 
policies, at issue in Nevada Department of Human 
Resources v. Hibbs, 538 U.S. 721 (2003). See Br. 38.

But racial discrimination in voting—which de­
means our democratic freedoms—is different. The 
records at issue in Hibbs and Lane “‘paleQ in com­
parison’” to the record of persistent racial discrimi­
nation in voting before Congress in 2006, PA263a 
(citation omitted)—a record “at least as strong as 
that held sufficient to uphold the 1975 reauthoriza­
tion of Section 5 in City of Rome,” PA256a; see also 
PA260a.

Notwithstanding the powerful record demonstrat­
ing the current need for Section 5, Shelby County 
urges this Court to substitute its judgment for that 
of Congress about how best to remedy a uniquely 
grave and persisting constitutional problem, which 
long experience shows is particularly difficult to

46

12 Shelby County wrongly characterizes Shaw claims as in­
volving “discrimination against white voters,” which is the 
premise underlying its assertion that there were six instances 
of such discrimination in the record. Br. 32. Shaw claims are 
based on the injury caused to voters of all races when race is 
unnecessarily the predominant factor in districting. See Miller, 
515 U.S. at 911-13.



eradicate in covered jurisdictions. The text of the 
Constitution and this Court’s precedents, however, 
do not permit Shelby County to do so. See Nw. Aus­
tin, 557 U.S. at 204-05.
IV.THE GEOGRAPHIC SCOPE OF PRE­

CLEARANCE IS PROPERLY TAILORED TO 
REACH ALABAMA AND THE OTHER COV­
ERED JURISDICTIONS.
Congress reasonably reauthorized the geographic 

coverage provision contained in Section 4(b) of the 
VRA. Contrary to Shelby County’s assertions, per­
sistent voting discrimination is far more prevalent in 
the covered than the non-covered jurisdictions. 
Shelby County’s facial challenge to Section 4(b) also 
fails for an independent, threshold reason. The re­
cord of persistent and adaptive voting discrimination 
in Alabama and, indeed, Shelby County, establishes 
that the County is properly covered by Section 5; the 
County cannot challenge 4(b) by arguing that it 
should not cover other jurisdictions not before the 
Court.
A. The record of discrimination in Ala­

bama forecloses Shelby County’s facial chal­
lenge.
Shelby County is covered because Alabama is a 

fully-covered State, and the County has not bailed 
out. PA145a. As discussed in Part II.B.l, supra, de­
spite substantial progress, racial discrimination in 
voting remains a problem both in Alabama generally 
and Shelby County particularly. There were over 
235 discriminatory measures remedied by Section 2 
suits or Section 5 objections during the reauthoriza­

47



tion period. Alabama has the second highest rate of 
successful Section 2 litigation of any State in the 
country when considering published cases, and the 
highest rate in the country when considering all 
cases. See PA53a, PA92a. In light of the record, 
even Judge Williams, who dissented in the Court of 
Appeals, did not dispute that Alabama could be 
properly covered by Section 5. See PA93a.

Shelby County does not, and indeed cannot, ar­
gue otherwise. Instead, it contends that the record 
of discrimination in other jurisdictions, especially 
Alaska and Arizona, is insufficient to justify cover­
age of those jurisdictions. See Br. 47-48, 50. That 
argument, however, is not a valid basis for Shelby 
County to challenge Section 4(b). A party challeng­
ing the constitutionality of a state or federal statute 
must show that [the party] is within the class of 

persons with respect to whom the act is unconstitu­
tional and that the alleged unconstitutional feature 
injures [it].” Heald v. District of Columbia, 259 U.S. 
114, 123 (1922). Thus, “a party ‘generally must as­
sert his own legal rights and interests, and cannot 
rest his claim to relief on the legal rights or interests 
of third parties.’” Kowalski v. Tesmer, 543 U.S. 125, 
129 (2004) (quoting Warth u. Seldin, 422 U.S. 490 
499 (1975)).13

48

13 The First Amendment overbreadth doctrine is an excep­
tion, grounded in the concern that third parties ‘“may well re­
frain from exercising their rights for fear of criminal sanctions 
by a statute susceptible of application to protected expression 
New York v. Ferber, 458 U.S. 747, 768-69 (1982) (citation omit­
ted). That concern is plainly not applicable here: Alaska has a 
constitutional challenge to its Section 5 coverage pending, and



Whether viewed as an issue of third-party stand­
ing, or an expression of the strong preference for as- 
applied challenges, the point is the same: Litigants 
may not challenge the constitutionality of a statute 
on the ground that it interferes with the rights or 
interests of third parties not before the Court. See, 
e.g., Broadrick v. Oklahoma, 413 U.S. 601, 610-11 
(1973); United States v. Raines, 362 U.S. 17, 21 
(1960).

Under these settled rules of constitutional adju­
dication, that Alabama is properly subject to Section 
5 coverage is fatal to Shelby County’s facial chal­
lenge to Section 4(b). In Raines, this Court held that 
state election officials could not challenge a provision 
of the Civil Rights Act of 1957 on the ground that the 
statute impermissibly allowed the federal govern­
ment to enjoin purely private conduct. 362 U.S. at 
20-25. “[I]f the complaint here called for an applica­
tion of the statute clearly constitutional under the 
Fifteenth Amendment, that should have been an end 
to the question of constitutionality.” Id. at 24-25.

Reaffirming Raines, this Court in Lane sustained 
Title II of the Americans with Disabilities Act (ADA) 
as valid enforcement legislation in the context pre­
sented in that particular case (i.e., as applied to 
court access for the disabled)—while declining to 
consider whether Title II was constitutional as ap­
plied to other contexts not before the Court. See

49

Arizona filed such a challenge but then withdrew it. See 
Alaska v. Holder, No. l:12-cv-01376-RLW (D.D.C); Stipulation 
of Dismissal, Arizona v. Holder, No. l:ll-cv-01559-JDB (D.D.C. 
Apr. 10, 2012), ECFNo. 41.



Lane, 541 U.S. at 530-31 & n.19 (citing Raines, 362 
U.S. at 24-25).

Chief Justice Rehnquist dissented on this point in 
Lane, but his reasoning provides no support to 
Shelby County here. He contended that the Lane 
majority “artificially constrict[ed] the scope of the 
statute” to make it “mirror a recognized constitu­
tional right” (court access), even though “Title II’s 
indiscriminate substantive provisions” applied 
broadly to “all ‘services,’ ‘programs,’ or ‘activities’ of 
any ‘public entity.’” Id. at 551, 552 n .ll. In Chief 
Justice Rehnquist’s view, the appropriate question 
was whether all of Title II’s “substantive provisions 
can constitutionally be applied to the . . . State” chal­
lenging it. Id. at 552 n .ll.

That concern is not present here. Section 5 is de­
signed to remedy racial discrimination in voting, a 
“recognized constitutional right.” Id. at 551. And 
the record of discrimination in Alabama establishes 
that Section 5 s substantive provisions may properly 
be applied to Shelby County. If, as Shelby County 
claims, Section 5 should not be applied in other ju­
risdictions that are not parties to this case, there 
“‘will be time enough to consider [that argument] 
when raised by someone whom it concerns.’” Broad- 
rick, 413 U.S. at 609 (quoting United States v. Wurz- 
bach, 280 U.S. 396, 399 (1930) (Holmes, J.)); see gen­
erally Hibbs, 538 U.S. at 743 (Scalia, J., dissenting) 
(arguing that, if Fourteenth Amendment enforce­
ment legislation is facially constitutional because it 
can be validly applied to some jurisdictions, a State 
may still bring an as-applied challenge contending 
that the statute should not be applied to it because

50



the State itself had not engaged in unconstitutional 
conduct).

This jurisprudential principle is confirmed by 
United States v. Georgia, 546 U.S. 151 (2006). In 
that case, the plaintiff-inmate alleged actual consti­
tutional violations, and this Court unanimously held 
that Title II of the ADA was valid enforcement legis­
lation with respect to violations of prisoners’ consti­
tutional rights, without considering whether the 
provision is valid in other cases. Id. at 158-59. 
Georgia thus reaffirms the rule that courts should 
only consider whether enforcement legislation is 
valid with respect to the parties before them. That 
rule is fatal to Shelby County’s 4(b) challenge.
B. Substantial differences persist between

covered and non-covered jurisdictions.
In any event, the evidence before Congress dem­

onstrated that voting discrimination remains “con­
centrated in the jurisdictions singled out for pre­
clearance,” Nw. Austin, 557 U.S. at 203, which, in 
the aggregate, continue to have far worse problems 
of voting discrimination, and, individually, represent 
the worst voting rights offenders. As the District 
Court recognized, “the 21st century problem of vot­
ing discrimination remains more prevalent in those 
jurisdictions that have historically been subject to 
the preclearance requirement.” PA12a.

1. Quantitative evidence
The best way to study voting discrimination in 

the non-covered jurisdictions is to consider suits filed 
under Section 2, which applies nationwide. In 2006, 
Congress considered a study (the “Katz Study”)

51



documenting every single reported case filed under 
Section 2 in both the covered and non-covered juris­
dictions.14 See October 18, 2005 Hearing, at 964- 
1124. In no prior reauthorization had Congress con­
sidered such a comparative study of conditions in the 
covered and non-covered jurisdictions.

a. Successful Section 2 suits

The Katz Study revealed that, “although covered 
jurisdictions account for less than 25 percent of the 
country’s population, they accounted for 56 percent 
of successful section 2 litigation.” PA49a. It also in­
dicated that Section 2 plaintiffs were approximately 
33% more likely to succeed in suits filed in the cov­
ered jurisdictions as compared to the non-covered 
jurisdictions. PA51a.

Shelby County argues that the difference in the 
percentage of successful Section 2 suits originating 
from covered jurisdictions (56% of all cases) com­
pared to non-covered jurisdictions (44%) demon­
strates relative parity between them. Br. 51. But 
Shelby County ignores both the need to consider the 
relevant sizes of the covered and non-covered juris­
dictions. as well as Section 5's prophylactic effect.

The non-covered jurisdictions have populations 
three times larger than the covered jurisdictions.15

52

B\ "reported or “published cases, we mean cases avail­
able on Westlaw or Lexis.

The covered jurisdictions contain less than one quarter of 
the nation's total population. October 18, 2005 Hearing, at 974. 
ar.n roughly 36% of the nation's minority population, see May 9. 
2006 Hearing, at 43-44 (Davidson).



53
When controlling for the relative sizes of the covered 
and non-covered jurisdictions, “the rate of successful 
section 2 cases in covered jurisdictions (.94 per mil­
lion residents) is nearly four times the rate in non- 
covered jurisdictions (.25 per million residents).” 
PA49a-50a. A study of unpublished cases (“McCrary 
Study”)16 reveals that this actually understates the 
true disparity: “[Approximately 81 percent [of all 
successful Section 2 cases] were filed in covered 
jurisdictions,” PA51a, which means that there were 
in fact 12 times as many successful Section 2 cases in 
the covered jurisdictions on a per capita basis.17

16 Almost all of the data in the McCrary Study is found in 
the Congressional record (i.e., all unpublished cases from the 
covered jurisdictions, JA42a; and 61 out of 99 unpublished 
cases (62%) from the non-covered jurisdictions. JA46a). Shelby 
County has “identified no errors or inconsistencies in the data 
analyzed by McCrary.” PA54a. The McCrary Study simply 
confirms what is already clear from the Katz Study: that the 
per capita rate of successful Section 2 suits is dramatically 
higher in the covered jurisdictions.

3 These figures include cases resolved through settlements. 
As Shelby County points out. settlements happen for a vanety 
of reasons. See Br. 52-53. But Shelby County fails to acknowl­
edge that one o f the most important reasons is the defers ca n  s 
recognition that the plaintiff s claims have a likelihood of sur- 
cess. For example, the approximately - < 0 ju n adarunras that 
reached settlements in the Di. lard jingauoc did s: after a court 
found that at-large elections throughout Alabama, nan twsr 
tam ed by racially discriminatory purpose Set b . . . n  t*y. t  
S-pz at ] 36Cfc see also -/hh' M  ifesm tg. at c S- -  That
tZHST?: IE  SOnPESed , ii£O # 0.1

H gaflT JIIIIif t-JTJE r S B t t f f i  n .

E g :  i -



54
This disparity is particularly striking, as one 

“would expect to see fewer successful section 2 cases 
in covered jurisdictions,” PA55a, because: (i) Section 
5 “blocked hundreds of intentionally discriminatory 
changes,” Nw. Austin, 573 F. Supp. 2d at 258; 
(ii) “the mere existence of section 5 encourage [s] the 
legislature to ensure that any voting changes would 
not have a discriminatory effect,” PA42a (citation 
and internal quotation marks omitted); and (iii) cov­
ered-jurisdiction-status facilitates the dispatch of 
federal election observers, who “have played a criti­
cal role preventing and deterring 14th and 15th 
amendment violations.” H.R. Rep. No. 109-478.

In sum, although Section 5 makes an apples-to- 
apples comparison of covered and non-covered juris­
dictions impossible, the quantitative evidence dem­
onstrates that voting discrimination is far more 
prevalent in the covered jurisdictions. During the 
reauthorization period, in the covered jurisdictions, 
there were over 650 successful Section 2 suits, 620 
Section 5 objections, and 25 judicial preclearance de­
nials: in the non-covered jurisdictions, there were 
fewer than 150 successful Section 2 suits. See 
PA44a: JA50a-51a. In the aggregate, any fair read­
ing of the experience in covered jurisdictions de­
scribes a more entrenched and grave threat to voters 
of color.

b. Racially polarized voting and racial 
appeals

The Katz Study also revealed that racially polar­
ized voting ("RP\ ) is much more pronounced in cov­
ered than in non-covered jurisdictions. RPY is im­
portant because it is a necessary precondition for



55
vote dilution; as discussed, where voting in a juris­
diction is polarized along racial lines, government 
officials can intentionally discriminate against mi­
nority voters through racial gerrymanders or meth­
ods of election that “cancel out or minimize the vot­
ing strength of [minority voters].” White v. Regester, 
412 U.S. 755, 765 (1973).

Adjusted for population, there are approximately 
three times as many Section 2 cases with RPV find­
ings in the covered jurisdictions as in the non- 
covered jurisdictions.18 Moreover, RPV was more 
severe in covered jurisdictions, with white bloc vot­
ing of 80% or more in nearly 90% of elections involv­
ing candidates of different races in covered jurisdic­
tions; by contrast, only 40% of the elections involving 
candidates of different races in non-covered areas 
involved such extreme white bloc voting. May 16, 
2006 Hearing, at 48. And Congress learned that 
RPV was generally increasing, not decreasing, in 
covered jurisdictions. See H.R. Rep. No. 109-478, at 
34; May 17, 2006 Hearing, at 132-33 (Persily). Two 
striking examples of RPV, “indicative of the racial 
cleavage that exists in Alabama to this day, were 
the 2003 and 2004 unsuccessful voter referenda to 
remove unconstitutional Jim Crow provisions of Ala­
bama’s Constitution, including poll tax language. 
■July 13, 2006 Hearing, at 367, 372.

-- There were a roughly equal number of RFt findings in 
the covered and non-covered jurisdictions, see October 1 & 2:05  
Hearing, at 981: given relative population size, suer m rrrgs 
were three times more common per capita in the eoverec ;m s- 
cietaons.



Given the much higher level of RPV in the cov­
ered jurisdictions, it is unsurprising that there were 
also more judicial findings of racial appeals by can­
didates in those jurisdictions, see October 18, 2005 
Hearing, at 1003. Indeed, Congress learned that 
racial appeals—including candidates’ emphasizing 
their opponent’s race by disseminating literature 
with their opponent’s picture, sometimes darkened— 
remain common in certain covered jurisdictions. 
See, e.g., May 17, 2006 Hearing, at 17 (Derfner); May 
10, 2006 Hearing, at 22 (McDuff); May 9, 2006 Hear- 
ing, at 44 (Davidson); October 20, 2005 Hearing, at 
85 (Derfner).

2. Shelby County’s state-by-state argument is 
meritless.

Likely recognizing that the aggregate data docu­
ments substantially more voting discrimination in 
the covered jurisdictions, Shelby County contends 
that the Section 2 data, when disaggregated by 
State, shows that, [e]ven if preclearance might re­
main an appropriate response to ongoing discrimina­
tion in some jurisdictions,” other covered jurisdic­
tions (not including Alabama) have better records 
than some non-covered jurisdictions. Br. 40. But, as 
discussed in Part IV.A, supra, Shelby County may 
not argue Section 4(b) is facially unconstitutional be­
cause it should not cover third parties not before the 
Court.

Moreover, Shelby County’s jurisdiction-by- 
jurisdiction approach is foreclosed by this Court's 
YRA precedents. As explained in Northwest Austin, 
at issue is whether the geographic scope is "suffi­
ciently related to the problem of persistent voting

56



discrimination, not whether it is perfectly related to 
it or surgically precise. 557 U.S. at 203. Indeed, 
“the fit was hardly perfect in 1965.” PA60a. 
Katzenbach sustained the coverage provision even 
though both Congress and the Court were aware 
that some non-covered areas, including Texas, Flor­
ida, Tennessee, and Kentucky, had documented his­
tories of racial discrimination in voting, March 19, 
1965 (House) Hearing, at 75, whereas some covered 
jurisdictions did not. See Katzenbach, 383 U.S. at 
329-30. This Court explained that it is “irrelevant 
that the coverage formula excludes certain localities 
. . . for which there is evidence of voting discrimina­
tion.” Id. at 330-31. Indeed, given that Congress 
may enact nationwide legislation in response to evi­
dence of discrimination in only a minority of States, 
see Hibbs, 538 U.S. at 731, surely Congress may seek 
to confine remedial legislation to those jurisdictions 
where such legislation is especially needed, even if 
some level of arguable imprecision results.

In any event, Shelby County mischaracterizes the 
data, ranking States according to the total number of 
Section 2 filings or adjudicated violations in each 
State, Br. 47, but again failing to control for the dif­
ferent sizes of States. Controlling for population 
size, the Katz Study revealed that the four jurisdic­
tions with the highest rates of successful Section 2 
litigation were covered (South Dakota, Mississippi, 
Alabama, and Louisiana), as were five of the six 
highest. See PA91a-93a. When facts from the 
McCrary Study are included, the results are even 
more impressive: The eight jurisdictions with the
highest per capita rates of successful Section 2 litiga­
tion, and 11 of the highest 14, are covered or have

57



58
been bailed-in to coverage. See PA51a-53a. All of 
this with Section 5 in operation.

When limiting the comparative analysis to elec­
tronically-reported cases alone, the “middle-range 
covered States appear comparable to some non- 
covered jurisdictions,” but this is “only because sec­
tion 5’s deterrent and blocking effect screens out dis­
criminatory laws before section 2 litigation becomes 
necessary.” PA59-60a. In fact, “these middle-range 
covered jurisdictions appear to be engaged in much 
more unconstitutional discrimination.” PA59a. For 
example, as the Court of Appeals explained, Georgia 
and South Carolina each had only three successful 
electronically-reported Section 2 cases between 1982 
and 2004, but they each had over 70 Section 5 objec­
tions (not to mention a respective 66 and 30 unpub­
lished Section 2 cases) during that period. PA58a- 
59a.19

3. Qualitative evidence
Throughout Congress’s nearly year-long delibera­

tive process, the legislative record was “open and 
available for all groups of all opinions” to present 
their views, May 4, 2006 Hearing, at 70. But there is 
no evidence indicating any non-covered areas experi­
enced voting discrimination on par with the covered 
jurisdictions. Congress received state-by-state re­

13 Although the Section 2 and 5 standards are not identical. 
iee PA94a (Williams. J.. dissenting), both prohibit intentional 
uscrunination. As discussed, two-thirds of Section 5 objections 
n  the ^authorization period involved such purposeful dis- 
mnunation—often involving efforts to circumvent a Section 1 
remedy.



59
ports concerning current conditions in covered juris­
dictions20 and in several non-covered jurisdictions.21 
The difference is stark: Reports concerning the cov­
ered jurisdictions demonstrate substantial ongoing 
discrimination and dozens of repeat offenders; by 
contrast, the reports from non-covered jurisdictions 
do not reveal similar problems.

Voting rights experts testified that “there is a 
clear differentiation between covered and non- 
covered jurisdictions.” See, e.g., May 16, 2006 Hear­
ing, at 55 (Earls). “Covered jurisdictions show a con­
tinuing pattern of enacting laws and procedures de­
signed to suppress and dilute the voting strength of 
minority voters.” Id. By contrast, “there is no evi­
dence of significant and continuing violations of mi­
nority voting rights at the state and local level in 
non-covered jurisdictions.” Id. at 48; see also -June 
21, 2006 Hearing, at 98 (Canon) (“[Tjhere is a clear 
difference between covered and non-covered states in 
terms of discrimination.”). One political scientist, 
who served as an expert in dozens of redistricting 
cases, explained that, in his experience, it was far

20 See March 8, 2006 Hearing, at 1308-2092 (Arizona. 
Alaska^ Georgia. Louisiana. M ississippi North Carolina. New 
York. South Carolina. South Dakota. \ irginia): -J~.} -3. 2006
Hearing, at 103-19, 365-402 (California. Alabama t: id. at 357- 
60, and supra at 23 (citing Texas Report Ttrks to tnese re­
ports are available at the following website: • oT.ng rhgkIs ir. 
the States. httjE//»ovwvewiingkt6 .orgvonmg-rigrt&'vra states
1rami

-• See 4, 2006 Hearing, at 132-752 .At m b b . 755-7C 
Cfcanonx 235-57 fTesxz****>ec October 21 200s Sm ar; 
Hearing a* 57 *?i latoofim



60
less common for non-covered jurisdictions intention­
ally to “change voting arrangements in such a fash­
ion as to dilute minority votes in a context of 
[racially polarized voting].” May 16, 2006 Hearing, 
at 26, 29 (Arrington).
C. The geographic scope remains rational in

theory.
Finally, Shelby County argues that the Section 

4(b) coverage provision “is no longer rational in the­
ory,” Br. 40, because it is triggered by historical low 
registration rates, rather than by directly incorporat­
ing metrics relating to the form of discrimination 
most prevalent today, i.e., vote dilution.

This argument misunderstands the theory behind 
the coverage approach. In 1965, there were several 
“States and political subdivisions which in most in­
stances were familiar to Congress by name” because 
of their long histories of voting discrimination, and 
Congress “eventually evolved” (i.e., reverse- 
engineered) Section 4(b) to “describe these areas.” 
Katzenbach, 383 U.S. at 328-29; see also PA124a. 
Congress adopted a coverage approach based largely 
on registration and turnout rates because, at that 
time, “depressed turnout and registration levels” 
were considered “an indicator of the larger problem 
of entrenched discrimination in voting,” but improv­
ing registration and turnout was “not the end itself.” 
May 17, 2006 Hearing, at 33 (Days).

Section 5 always “had a much larger purpose 
than to increase voter registration.” Cnty. Council of 
Sumter Cnty. v. United States. 555 F. Supp. 694, 707 
(D.D.C. 1983). Its goal is “to banish the blight of



racial discrimination in voting”—in whatever form it 
appears—where it is most prevalent. Katzenbach. 
383 U.S. at 308. For this reason, the Act permits ju­
risdictions to “bail out” and terminate coverage if 
they have clean records with respect to discrimina­
tion, not simply with respect to registration and 
turnout.22

In examining the “evidence of actual voting dis­
crimination,” id. at 330, Congress learned that, not­
withstanding improvements, voting discrimination 
remains most severe in the same areas that histori­
cally have been subject to Section 5 coverage. Main­
taining the preexisting scope of coverage was, there­
fore, a reasonable way of identifying those jurisdic­
tions where voting discrimination is most prevalent 
today. As Representative Sensenbrenner explained, 
Congress’s decision-making as to the scope of cover­
age was “‘not’ predicated on [registration] statistics,” 
but on “recent and proven instances of discrimina­
tion in voting rights compiled in the . . . 12,000-page 
record.” 152 Cong. Rec. 14,275 (2006).

61

22 Notably, since 1982, when the bailout criteria became 
“substantially more permissive,” PA9a, every jurisdiction that 
has sought bailout has been approved, and no bailed-out juris­
diction has later been subjected to clawback. See March 8, 
2006 Hearing, at 2684 (Hebert). Since this Court’s decision in 
Northwest Austin, 19 cities and counties, including over 100 
sub-jurisdictions, in Alabama, North Carolina, Georgia, Vir­
ginia, California, and Texas have been granted bailout. See 
DOJ, Section 4 o f the VRA, http://www.justice.gov/crt/about/ 
vot/misc/see_4.php. A statewide bailout (New Hampshire) has 
been approved by DOJ and is pending. See Proposed Consent 
Decree and Judgment, New Hampshire v. Holder, l:12-cv- 
01854-EGS-TBG-RMC (D.D.C. Dec. 21, 2012), ECF No. 10-1.

http://www.justice.gov/crt/about/


It is irrelevant that the coverage trigger does not 
directly incorporate vote dilution metrics. This 
Court has held that, so long as the coverage provi­
sion identifies the correct jurisdictions in practice, it 
need not be based on the precise forms of discrimina­
tion necessitating coverage. In Gaston County v. 
United States, 395 U.S. 285, 291-92 (1969), the 
Court, speaking through Justice Harlan, explained 
that it was permissible for Congress to ban literacy 
tests in the covered jurisdictions because those areas 
suffered from racial disparities in education, even 
though the coverage triggers do not directly incorpo­
rate any measures of educational disparities. “It is 
of no consequence that Congress might have dealt 
with the effects of educational discrimination by em­
ploying a coverage formula different from the one it 
enacted.” Id. at 291.

Thus, in 2006, after engaging in a lengthy debate, 
Congress rejected an amendment that purported to 
update the coverage triggers based on more recent 
comparative registration rates. H.R. Rep. No. 109- 
516, at 2 (2006). Congress determined that such ef­
forts to “update” the coverage data would have been 
highly irrational. For instance, the only fully- 
covered State would have been Hawaii, a State with­
out “any history of [voting] discrimination.” 152 
Cong. Rec. 14,277 (2006) (Rep. Case (D-HI)).

In the words of Representative Sensenbrenner, 
such a proposal would “sever[ the coverage provi­
sion’s] connection to jurisdictions with proven dis­
criminatory histories,” and “turnQ the Voting Rights 
Act into a farce.” 152 Cong. Rec. 14,274 (2006). 
Over a dozen witnesses appearing before the Senate

62



Judiciary Committee agreed with Representative 
Sensenbrenner’s assessment. See, e.g., May 9, 2006 
Hearing, at 76 (Issacharoff); May 16, 2006 Hearing, 
at 110 (Pildes); May 17, 2006 Hearing, at 135 (Per- 
sily). For these reasons, the House of Representa­
tives voted 318 to 96 not to tie coverage to recent 
comparative registration rates and to maintain the 
preexisting coverage provision, ensuring that the 
worst ongoing offenders remain subject to Section 5. 
152 Cong. Rec. 14,300-301 (2006).

CONCLUSION
The VRA reauthorization record contains evi­

dence of undeniable progress, but, just as clearly, it 
documents persistent and adaptive voting discrimi­
nation, which remains concentrated in certain parts 
of the country. We do not dishonor our progress by 
demanding more of it. In reauthorizing the Voting 
Rights Act, Congress appropriately exercised its 
powers under the Reconstruction Amendments. The 
judgment of the Court of Appeals should be affirmed.

Respectfully Submitted,
Sherrilyn Ifill 
Director- Counsel 

Debo P. A degbile 
Counsel of Record 

Elise C. Boddie 
Ryan P. Haygood 
Dale E. Ho
Natasha M. Korgaonkar 
Leah C. A den 
NAACP Legal Defense & 
Educational Fund, Inc.

63



64
99 Hudson Street, 16th FI. 
New York, NY 10013 
(212) 965-2200 
dadegbile@naacpldf.org

Joshua Civin
NAACP Legal Defense & 
Educational Fund, Inc. 

1444 I St., NW, 10th FI. 
Washington, DC 20005

Of Counsel:

Samuel Spital 
W illiam J. Honan 
Harold Barry Vasios 
Marisa Marinelli 
Robert J. Burns 
Holland & Knight LLP 
31 West 52nd Street 
New York, NY 10019

January 25, 2013

mailto:dadegbile@naacpldf.org