Shelby County v. Holder Brief Amici Curiae

    No. 12-96

3fa®fje
Supreme Court of tfje tHmtefcr States!

---------------- ♦----------------

SHELBY COUNTY, ALABAMA,

Petitioner,
v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL, et al.,

Respondents.

♦

On Writ Of Certiorari To The 
United States Court Of Appeals 

For The District Of Columbia Circuit

AMICI CURIAE BRIEF OF THE 
ALASKA FEDERATION OF NATIVES, 

ALASKA NATIVE VOTERS AND TRIBES 
IN SUPPORT OF RESPONDENTS

James T. Tucker 
Counsel of Record 
Wilson, Elser, Moskowitz, 

Edelman & Dicker, LLP 
300 South 4th Street—11th Floor 
Las Vegas, NV 89101 
(702) 727-1246
james.tucker@wilsonelser.com

Natalie A. Landreth 
Erin C. Dougherty 
Native American 

Rights Fund 
801 B Street, Suite 401 
Anchorage, AK 99501 
(907) 276-0680
Counsel for Amici

February 1, 2013

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 
OR CALL COLLECT (402) 342-2831

mailto:james.tucker@wilsonelser.com


1

QUESTION PRESENTED

Whether Congress’ decision in 2006 to reauthorize 
Section 5 of the Voting Rights Act (VRA) under the 
pre-existing coverage formula of Section 4(b) of the 
Voting Rights Act exceeded its authority under the 
Fourteenth and Fifteenth Amendments and thus 
violated the Tenth Amendment and Article IV of the 
United States Constitution.



11

QUESTION PRESENTED....................................... i
TABLE OF AUTHORITIES....................................  vi
STATEMENT OF INTEREST................................  1
SUMMARY OF ARGUMENT.................................  2
ARGUMENT..............................................................  4

I. A Facial Challenge To Section 4(b) Is 
Contrary To The Principle Of Judicial 
Restraint And Ignores The Localized Ap­
praisal Of Discrimination Described In 
NAMUDNO .....................................................  4

II. Alaska Became Covered Under Section 
4(b) Because Its Educational Discrimina­
tion Depressed Native Participation In 
Elections, Which Persists Today................  7
A. In 1975, Congress found that Alaska’s

discriminatory schooling resulted in 
high Native limited-English profi­
ciency and illiteracy rates and de­
pressed political participation.............. 8

B. In 2006, Congress found that educa­
tional discrimination continues to re­
sult in high LEP and illiteracy rates 
and low Alaska Native turnout............ 14

C. Post-enactment Native turnout remains
far below the statewide average.............. 18

III. Pre- And Post-Enactment Evidence Re­
veals Alaska Still Has First Generation 
Barriers............................................................  20

TABLE OF CONTENTS
Page



I l l

A. In 2006, Congress considered substan­
tial evidence of first generation barri­

TABLE OF CONTENTS -  Continued
Page

ers to voting by Alaska N atives...........  20
B. Post-enactment evidence confirms 

Congress properly reauthorized Sec­
tion 5 coverage for A laska..................... 25

IV. Section 5 Remains A Necessary And 
Appropriate Prophylactic Measure To 
Prevent Voting Discrimination Against
Alaska N atives............................................... 29
A. Alaska often fails to comply with Sec­

tion 5 ..........................................................  30
B. Alaska’s one objection was very sig­

nificant....................................................... 32
C. More Information Requests prevent

voting discrimination by A laska .........  34
V. The Broadened Bailout Standard Adopt­

ed By The Court In NAMUDNO Limits 
Section 4(b) Coverage To Jurisdictions 
Like Alaska That Need I t ............................. 37

CONCLUSION...........................................................  40

APPENDIX
Table 1. Rates of Limited-English Proficiency 

and Illiteracy in Alaska Census Areas and 
Boroughs Covered under Section 203 of the 
Voting Rights A ct ................................................App. 1



IV

Table 2. Rates of Limited-English Proficiency, 
Illiteracy, and Turnout in Alaska Native Vil­
lages Covered under Section 203 of the Vot­
ing Rights Act, Compared to the Statewide 
Turnout Rate in the November 2012 Presi­
dential Election.................................................. App. 2

Order Re: Plaintiffs’ Motion for a Preliminary 
Injunction Against the State Defendants,
Nick v. State, case no. 3:07-cv-00098-TMB, 
docket no. 327 (D. Alaska July 30, 2008)..... App. 12

Letter of July 14, 2008 from Christopher 
Coates, Chief, Voting Section, to Gail 
Fenumiai, Director, Division of Elections, 
included in Brief of Amici Curiae Alaska Na­
tive Voters and Tribes in Support of Appel­
lees App. 1-5, Northwest Austin Municipal 
Utility District Number One v. Holder, 557 
U.S. 193 (2009) (No. 08-322), 2009 WL 
815235 at * la ....................................................App. 32

Letter of August 1, 2008 from Christopher 
Coates, Chief, Voting Section, to Gail 
Fenumiai, Director, Division of Elections, 
included in Brief of Amici Curiae Alaska Na­
tive Voters and Tribes in Support of Appel­
lees App. 6-13, Northwest Austin Municipal 
Utility District Number One v. Holder, 557 
U.S. 193 (2009) (No. 08-322), 2009 WL 
815235 at *6a....................................................App. 37

TABLE OF CONTENTS -  Continued
Page



V

Page
Letter of September 10, 2008 from Christopher 

Coates, Chief, Voting Section, to Gail 
Fenumiai, Director, Division of Elections, 
included in Brief of Amici Curiae Alaska Na­
tive Voters and Tribes in Support of Appel­
lees App. 14-15, Northwest Austin Municipal 
Utility District Number One v. Holder, 557 
U.S. 193 (2009) (No. 08-322), 2009 WL 
815235 at *14a..................................................App. 45

TABLE OF CONTENTS -  Continued



VI

Cases

Alaska v. Holder, case no. l:12-cv-001376 
(RLW) (D.D.C. 2012)....................................................1

Alaska Democratic Party v. Fenumiai, case no.
3AN-10-11621 (Alaska Super. Ct. 2010)................ 31

Broadrick v. Oklahoma, 413 U.S. 601 (1973).............. 5
Brown v. Board o f Education, 347 U.S. 483 

(1954)............................................................................ 11
City o f Littleton v. Z.J. Gifts D-4, LLC, 541 U.S.

774 (2004).......................................................................5
Doe v. Reed, 130 S.Ct. 2811 (2010)................................. 5
FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990)................5
Gaston County v. United States, 395 U.S. 285 

(1969)............................................................................ 16

Hickel v. Southeast Conference, 846 P.2d 38 
(Alaska 1992)..............................................................33

Hootch v. State Operated School System, case 
no. 72-2450 CIV (Alaska Super. Ct. 1973)...... 10, 11

Kasayulie v. State, case no. 3AN-97-3782 CIV 
(Alaska Super. Ct. 1999)............................................14

Katzenhach v. Morgan, 384 U.S. 641 (1966)...............16
Moore v. State, case no. 3AN-04-9756 CIV 

(Alaska Super. Ct. 2007).....................................14, 15
Nevada Department o f Human Resources v.

Hibbs, 538 U.S. 721 (2003)....................................... 26

TABLE OF AUTHORITIES
Page



Vll

Nick v. State, case no. 3:07-cv-00098-TMB (D. 
Alaska 2007)........... ,........................................... passim

Northwest Austin Municipal Utility District
Number One v. Holder, 557 U.S. 193 (2009) ...passim

Oregon v. Mitchell, 400 U.S. 112 (1970)......................16
Rudolph, et al. v. Fenumiai, case no. 3:10-cv- 

00243-RRB (D. Alaska 2010).................................... 31
Samuelsen v. Treadwell, case no. 3:12-cv- 

00118-RRB-AK-JKS (D. Alaska 2012).....................32
Shelby County, Alabama v. Holder, 679 F.3d 

848 (D.C. Cir. 2012).......................................................7
South Carolina v. Katzenbach, 383 U.S. 301 

(1966)............................................................................. 6, 16
Tennessee v. Lane, 541 U.S. 509 (2004)....................... 26
Tobeluk v. Lind, case no. 72-2450 CIV (Alaska 

Super. Ct. 1976).......................................................... 10, 11
United States v. Salerno, 481 U.S. 739 (1987).............5
Washington State Grange v. Washington State 

Republican Party, 552 U.S. 442 (2008)....................5, 40
Woods v. Cloyd W. Miller Company, 333 U.S.

138 (1948).................................................................... 26

TABLE OF AUTHORITIES -  Continued
Page

Constitutional Provisions and Statutes

U.S. Const, amend. X V ....................
8U.S.C. § 1401(b)..............................
42 U.S.C. § 1973 (Section 2 of VRA)

6, 7, 40
....... 12
..23, 24



V l l l

TABLE OF AUTHORITIES -  Continued
Page

42 U.S.C. § 1973b(a)......................................................38
42 U.S.C. § 1973b(b) (Section 4(b) of VRA)........passim

42 U.S.C. § 1973b(f)(l)................................................... 8
42 U.S.C. § 1973b(f)(3)................................................... 9
42 U.S.C. § 1973b(f)(4)........................22, 25, 28, 29, 37
42 U.S.C. § 1973c (Section 5 of VRA)................. passim

42 U.S.C. § 1973k (Section 13 of VRA)......................39
42 U.S.C. § 19731(c)(3).............................   8
42 U.S.C. § 1973aa-la (Section 203 of VRA) passim

42 U.S.C. § 1973aa-6 (Section 208 of VRA) ....21, 25, 26
48 U.S.C. § 51 (repealed)..............................................12
Act of March 3, 1927, c. 363, § 1, 44 Stat. 1392,

1393.............................................................................. 12
Indian Citizenship Act of June 2, 1924, 43 Stat.

253 ................................................................................12
Pub. L. No. 91-285, 84 Stat. 314 (1970)..................... 13
Fannie Lou Hamer, Rosa Parks, and Coretta 

Scott King Voting Rights Act Reauthoriza­
tion and Amendments Act of 2006 
OVRARAA”), Pub. L. No. 109-246, 120 Stat.
577 (2006)....................................................................30

A laska Const, art. V, § 1 (1959)................................. 12
H.J. Res. 51, 6th Leg., Reg. Sess. (Alaska Aug. 

25, 1970)............................................................... 13



IX

Federal Register

U.S. Department of Justice, Voting Rights Act 
Amendments of 1975, Partial List of Deter­
minations, 40 Fed. Reg. 49,422 (Oct. 22,
1975)...............................................................................9

U.S. Census Bureau, Voting Rights Act 
Amendments of 2006, Determinations under 
Section 203, 76 Fed. Reg. 63,602 (Oct. 13,
2011)....................................................................App. 1, 2

U.S. Census Bureau, 2011 Voting Rights De­
termination File, 76 Fed. Reg. 63,602 (Oct.
13, 2011).............................................................App. 1, 2

TABLE OF AUTHORITIES -  Continued
Page

Legislative H istory

121 Cong. Rec. H4716 (daily ed. June 2, 1975) 
(statement of Rep. Edwards)...................................... 8

152 Cong. Rec. S7962 (daily ed. July 20, 2006) 
(statement of Sen. Specter)........................................17

S. Rep. No . 94-295, reprinted in 1975 
U.S.C.C.A.N. 774 (1975)........................... 9, 10, 12, 13

H.R. Rep. No . 102-655, reprinted in 1992 
U.S.C.C.A.N. 766 (1992).............................................. 16

H.R. Rep. No . 109-478, reprinted in 2006 
U.S.C.C.A.N. 651 (2006)...................................passim



X

Extension o f the Voting Rights Act o f 1965: 
Hearings on S. 407, S, 903, S. 1297, S. 1409, 
and S. 1443 Before the Subcommittee on 
Constitutional Rights o f the Senate Comm, 
on the Judiciary, 94th Cong., 1st Sess 
(1975)...............................................................11, 12, is

Voting Rights Act: Evidence o f Continued Need, 
Hearing Before the Subcommittee on the 
Constitution o f the House Committee on the 
Judiciary, 109th Cong., 2d Sess. (2006).........passim

Modern Enforcement o f the Voting Rights Act, 
Hearing Before the Senate Committee on the 
Judiciary, 109th Cong., 2d Sess. (2006)....  ....passim

Other A uthorities

U.S. Census Bureau, Statistical M odeling 
M ethodology for the V oting Rights A ct 
Section 203 Language A ssistance Determi­

TABLE OF AUTHORITIES -  Continued
Page

nations (Dec. 2011).....................................................19
U.S. Census Bureau, Census 2000 .............................36
U.S. Geological Survey, Geographic Names 

Information System.................................................. 36
State of Alaska, Division of Elections, 2012 

General Election Results, Statement of 
Votes Cast—Official............................................... 19

James Thomas Tucker, The Battle Over 
Bilingual Ballots (2009).....................................9, io



X I

Chad Flanders, How Do You Spell M-U-R-K-O- 
W-S-K-I? Part I: The Question o f Assistance 
to the Voter, 28 A laska L. Rev. 1 (June 2011)........31

Paul F. Hancock & Lora L. Tredway, The 
Bailout Standard o f the Voting Rights Act:
An Incentive to End Discrimination, 17 Urb.
Law. 379 (1985).......................................................... 39

Gordon S. Harrison, Alaska’s Constitutional 
“Literacy Test” and the Question o f Voting 
Discrimination, 22 A laska H ist. 23 (Spring/
Fall 2007).....................................................................13

Stephen Haycox, William Paul, Sr, and the 
Alaska Voters’ Literacy Act o f 1925, 2 Alaska 
H ist. 16 (Winter 1986-1987)..................................... 12

Pat Forgey, Election, redistricting diminishes 
Natives’ power in Alaska Legislature, Alaska 
D ispatch, Dec. 6, 2012...............................................24

Order Re: Plaintiffs’ Motion for a Preliminary 
Injunction Against the State Defendants, Nick 
v. State, case no. 3:07-cv-00098-TMB, docket 
no. 327 (D. Alaska July 30, 2008)..............App. 27, 40

Letter of May 19, 2008 from Christopher 
Coates, Acting Chief, Voting Section, to Gail 
Fenumiai, Director, Division of Elections,
Nick, case no. 3:07-cv-00098-TMB, docket no.
293-14 (D. Alaska July 3, 2008)................................35

TABLE OF AUTHORITIES -  Continued
Page



Xll

Letter of July 14, 2008 from Christopher 
Coates, Chief, Voting Section, to Gail 
Fenumiai, Director, Division of Elections, 
included in Brief of Amici Curiae Alaska Na­
tive Voters and Tribes in Support of Appel­
lees App. 1-5, Northwest Austin Municipal 
Utility District Number One v. Holder, 557 
U.S. 193 (2009) (No. 08-322), 2009 WL 
815235 at * la ...................................... App. 35, 36, 37

Letter of August 1, 2008 from Christopher 
Coates, Chief, Voting Section, to Gail 
Fenumiai, Director, Division of Elections, 
included in Brief of Amici Curiae Alaska Na­
tive Voters and Tribes in Support of Appel­
lees App. 6-13, Northwest Austin Municipal 
Utility District Number One v. Holder, 557 
U.S. 193 (2009) (No. 08-322), 2009 WL 
815235 at *6a...................................... App. 30, 31, 35

Letter of September 10, 2008 from Christopher 
Coates, Chief, Voting Section, to Gail 
Fenumiai, Director, Division of Elections, 
included in Brief of Amici Curiae Alaska Na­
tive Voters and Tribes in Support of Appel­
lees App. 14-15, Northwest Austin Municipal 
Utility District Number One v. Holder, 557 
U.S. 193 (2009) (No. 08-322), 2009 WL 
815235 at *14a................................................. App. 37

Order on Review of 2009 Submissions, Moore v.
State, case no. 3AN-04-9756 CIV (Alaska 
Super. Ct. March 1, 2010).........................................15

TABLE OF AUTHORITIES -  Continued
Page



X l l l

Page
Settlement Agreement, Moore v. State, case no.

3AN-04-9756 CIV (Alaska Super. Ct. Jan.
2012)............................................................................ 15

Brief of Amicus Curiae the State of Alaska in 
Support of Petitioner Shelby County, Alabama 
(“Alaska Amicus”), Shelby County, Alabama v. 
Holder, No. 12-96 (Jan. 2, 2013)..... 10, 16, 27, 38, 39

TABLE OF AUTHORITIES -  Continued



1

STATEMENT OF INTEREST1

The Alaska Federation of Natives (AFN) is the 
largest statewide Native organization in Alaska. Its 
membership includes 178 villages (both federally- 
recognized tribes and village corporations), 13 region­
al Native corporations, and 12 regional nonprofit and 
tribal consortiums. AFN’s mission is to enhance and 
promote the cultural, economic, and political voice of 
Alaska Natives, including advocacy in election laws 
and voting. Its membership includes numerous tribes 
and villages covered by Sections 4(b), 5, and 203 of 
the VRA, which have a direct interest in this case’s 
outcome.

Emmonak Tribal Council, Kasigluk Traditional 
Council, Levelock Village Council, Togiak Traditional 
Council, Willie Kasayulie, Anna Nick, Vicki Otte, and 
Mike Williams are Applicants for Intervention in 
Alaska’s recent facial and as-applied challenge to 
Section 5 in the District Court for the District of 
Columbia, Alaska v. Holder, case no. l:12-cv-001376 
(RLW), which has been stayed pending this case. All 
Applicants are registered voters or, in the case of the 1

1 All parties have consented to the filing of this brief, as 
provided by Rule 37.3(a). Letters of consent have been filed with 
the Clerk of the Court. No counsel for a party authored the brief 
in whole or in part and no such counsel or a party made a 
monetary contribution intended to fund the preparation or 
submission of the brief. No person other than amici curiae, its 
members, or its counsel, made a monetary contribution to its 
preparation or submission.



2

tribes, represent registered voters in Alaska who are 
impacted by the State’s failure to comply with the 
VRA and have a direct interest in the outcome in this 
case.

----------------« ----------------

SUMMARY OF ARGUMENT

Amici submit this brief for two reasons: (1) to 
correct Petitioner’s misrepresentations about Alaska 
in support of its argument that the coverage formula 
is inappropriate, and (2) to respond to Alaska’s ami­
cus brief that falsely claims it has no history of voting 
discrimination and thus Section 5 is not a congruent 
and proportional response. Indeed, even the Court of 
Appeals seemed unaware of Alaska’s substantial 
record of discrimination. Thus, Amici—who are or 
have been parties in voting rights cases against the 
State of Alaska—correct the record here. The unvar­
nished truth is that Alaska is a textbook case for why 
the coverage formula remains valid and Section 5 
remains a necessary response to widespread educa­
tional and voting discrimination against Alaska 
Native citizens.

Amici make five points. First, a facial challenge 
to Section 4(b) is contrary to the longstanding princi­
ple of judicial restraint. Such a challenge is also 
inappropriate in light of this Court’s recent holding 
in Northwest Austin Mun. Util. Dist. No. One 
CNAMUDNO) v. Holder, 557 U.S. 193, 203 (2009), 
that Section 4(b) must be assessed with reference to a



3

covered jurisdiction’s own unique record of discrimi­
nation.

Second, Alaska was not accidentally “swept in” to 
Section 5 but became covered because of its long 
history of educational discrimination, resulting in a 
legacy in which thousands of Alaska Natives cannot 
understand college-level English used on ballots and 
voting information. The gulf between statewide 
turnout and Native turnout has barely narrowed 
since 1975, largely because of Alaska’s violations of 
the VRA. Today, seven years after reauthorization, 
Alaska Native turnout is 17 percent below the 
statewide average, and some places with a higher 
Limited English Proficiency (“LEP”) population are 
more than 30 percent below.

Third, during reauthorization Congress had 
substantial evidence of first generation barriers to 
voting in Alaska, many of which persist today. Thus it 
is not accurate to assert, as Petitioner does, that 
Congress based its decision solely on second genera­
tion barriers. Indeed, most evidence about Alaska in 
the record demonstrated that it never complied with 
the mandates of the VRA, Section 203 in particular.

Fourth, although there are few objections and 
More Information Requests (MIRs) in Alaska’s record, 
they have been critical in preventing retrogression 
and voter disenfranchisement. Therefore, Section 5 
remains critically important to prevent voting dis­
crimination against Alaska Natives.



4

Finally, Alaska’s amicus brief focuses on the 
bailout standard, which it calls “a mirage.” Bailout 
may be a mirage for Alaska, not because the standard 
is too high, but because Alaska’s discrimination is 
unrelenting. Violations are often ignored for years, or 
even decades in the case of Section 203. The broad­
ened bailout standard adopted by this Court in 
NAMUDNO properly limits 4(b) coverage to jurisdic­
tions that truly deserve it—jurisdictions like Alaska.

---------------- ♦----------------

ARGUMENT
I. A Facial Challenge To Section 4(b) Is 

Contrary To The Principle Of Judicial Re­
straint And Ignores The Localized Ap­
praisal Of Discrimination Described In 
NAMUDNO.

The Question Presented is not limited to whether 
Congress acted within the scope of its broad constitu­
tional authority in covering Petitioner under Section 
4(b). Instead, it asks more generally whether Con­
gress did so when it reauthorized “the pre-existing 
coverage formula of Section 4(b)” in 2006. The Ques­
tion Presented thereby suggests a facial challenge to 
the coverage formula. Such a consideration would 
mark a significant departure from the Court’s reluc­
tance to entertain facial challenges. It also would 
ignore the Court’s earlier admonition that a geo­
graphic trigger such as Section 4(b) must be assessed 
with reference to a covered jurisdiction’s own particu­
lar record of discrimination.



5

The Court has repeatedly emphasized that “facial 
challenges to legislation are generally disfavored,” 
FW/PBS, Inc. v. Dallas, 493 U.S. 215, 223 (1990), 
overruled on other grounds by City of Littleton v. Z.J. 
Gifts D-4, LLC, 541 U.S. 774 (2004), and are to be 
used “sparingly and only as a last resort.” Broadrick 
v. Oklahoma, 413 U.S. 601, 613 (1973). As the Chief 
Justice has observed, facial challenges are “contrary 
to the fundamental principle of judicial restraint.” 
Washington State Grange v. Washington State Repub­
lican Party, 552 U.S. 442, 450 (2008). “They ‘often 
rest on speculation,’ can lead courts unnecessarily to 
anticipate constitutional questions or formulate broad 
constitutional rules, and may prevent governmental 
officers from implementing laws ‘in a manner con­
sistent with the Constitution.’ ” Doe v. Reed, 130 S.Ct. 
2811, 2838 (2010) (Thomas, J., dissenting) (quoting 
Washington State Grange, 552 U.S. at 450-51). Con­
sequently, a “facial challenge to a legislative Act is, of 
course, the most difficult challenge to mount success­
fully, since the challenger must establish that no set 
o f circumstances exists under which the Act would be 
valid.” United States v. Salerno, 481 U.S. 739, 745 
(1987) (emphasis added).

These principles apply with particular force to 
the Court’s present consideration of whether Section 
4(b) is constitutional. When the Court last confronted 
the constitutionality of the reauthorized Section 5 in 
NAMUDNO, it was “keenly mindful” of its “institu­
tional role” in determining whether to review legisla­
tion enacted by a “coequal branch of government.”



6

557 U.S. at 204-05. It acknowledged that the “Fif­
teenth Amendment empowers ‘Congress,’ not the 
Court, to determine in the first instance what legisla­
tion is intended to enforce it.” Id. at 205 (citation 
omitted). It found that “Congress amassed a sizable 
record in support of its decision to extend the pre­
clearance requirements” including what the District 
Court found was “document[ed] contemporary racial 
discrimination in covered states.” Id. (citation omit­
ted). Therefore, the Court exercised the principle of 
constitutional avoidance and limited itself to a con­
struction of the VRA’s bailout provisions. Id. at 205- 
06.

NAMUDNO emphasized that the VRA’s “dispar­
ate geographic coverage” must be “sufficiently related 
to the problem that it targets.” Id. at 203. It is per­
missible to make distinctions between states if reme­
dies are necessary for “ local evils which have 
subsequently appeared.’ ” Id. (quoting South Carolina 
v. Katzenbach, 383 U.S. 301, 328-29 (1966)) (empha­
sis in original). That “requires a showing that a 
statute’s disparate geographic coverage is sufficiently 
related to the problem that it targets.” NAMUDNO, 
557 U.S. at 203. Application of the preclearance 
requirements to one State may be “unconstitutional 
in another.” Id. Each of these points weighs heavily 
against a facial challenge, particularly for reauthori­
zation of a statutory provision the Court has upheld 
repeatedly, see id. at 200 (collecting citations), and 
which Congress supported with a substantial record



7

of local discrimination including, as described herein, 
Alaska. Id. at 204.

II. Alaska Became Covered Under Section 
4(b) Because Its Educational Discrimina­
tion Depressed Native Participation In 
Elections, Which Persists Today.

Alaska did not become covered by Section 5 by 
chance. Nor was Alaska “swept in” to coverage de­
spite “little or no evidence of current problems,” as 
the Court of Appeals stated in dictum. Shelby Cnty., 
Alabama v. Holder, 679 F.3d 848, 881 (D.C. Cir. 
2012). These statements stand in marked contrast to 
the well-developed record of discrimination consid­
ered by Congress in amending Section 4 in 1975 and 
in reauthorizing it in 2006. In addition, they high­
light the danger posed by the Third Branch’s consid­
eration of a facial challenge to Section 4(b)’s coverage 
formula. Departing from what the Court has de­
scribed as its limited “institutional role,” such cate­
gorical conclusions would substitute the Court’s 
judgment for that of Congress, the branch charged 
with enforcing the guarantees of the Fifteenth 
Amendment. NAMUDNO, 557 U.S. at 204-05. They 
also neglect evidence of the “local evils” identified by 
Congress in covering Alaska. Id. at 203 (emphasis in 
original). Alaska’s continuing record of educational 
discrimination and first generation voting barriers 
necessarily must limit Petitioner to an as-applied 
challenge.



8

A. In 1975, Congress found that Alaska’s 
discriminatory schooling resulted in 
high Native limited-English proficien­
cy and illiteracy rates and depressed 
political participation.

In 1975, Congress amended the Section 4(b) 
coverage formula to address the “pervasive” problem 
of “voting discrimination against citizens of language 
minorities.” 42 U.S.C. § 1973b(f)(l). Coverage was 
extended to minority citizens “from environments in 
which the dominant language is other than English.” 
Id. Those citizens had “been denied equal educational 
opportunities by State and local governments, result­
ing in severe disabilities and continuing illiteracy in 
the English language.” Id. Congress found that 
“language minority citizens are excluded from partic­
ipating in the electoral process” where elections are 
conducted “only in English.” Id. In many areas, that 
exclusion was “aggravated by acts of physical, eco­
nomic, and political intimidation.” Id. Therefore, the 
term “test or device” in Section 4(b) was amended to 
be “virtually identical” to the original trigger, except 
it was expanded to “also mean the use of English-only 
election materials in jurisdictions where more than 5 
percent of the voting age citizen population is com­
prised of members of any single language m inority 
group.”’ 121 Cong. R ec . H4716 (daily ed. June 2,

“Language minorities” include “persons who are American 
Indian, Asian American, Alaskan Natives or of Spanish herit­
age.” 42 U.S.C. § 19731(c)(3).



9

1975) (statement of Rep. Edwards); see 42 U.S.C. 
§ 1973b(f)(3).

“[T]he purpose of suspending English-only and 
requiring bilingual elections [was] not to correct the 
deficiencies of prior educational inequality. It [was] to 
permit persons disabled by such disparities to vote 
now.” S. R ep . No. 94-295 at 34 (1975), reprinted in 
1975 U.S.C.C.A.N. 774, 800. The prohibition would 
“fill that hiatus until genuinely equal educational 
opportunities are afforded language minorities” 
allowing them to understand election information in 
English. Id. The amendment to Section 4(b)’s formula 
resulted in statewide coverage in Alaska for Alaska 
Natives and in Arizona and Texas for persons of 
Spanish Heritage. Nineteen political subdivisions of 
six states remain covered by Section 4(b) for language 
minority citizens.3 See U.S. Department of Justice, 
Voting Rights Act Amendments of 1975, Partial List of 
Determinations, 40 Fed. Reg. 49,422 (Oct. 22, 1975).

In 1975, Congress identified “substantial” evi­
dence of discriminatory practices against Alaska 
Natives. S. R ep . No. 94-295 at 31, reprinted in 1975 
U.S.C.C.A.N. at 797. That evidence came in four 
forms. First, Alaska Natives suffered from severe 
and systemic educational discrimination. The Senate

3 Originally, 24 political subdivisions were covered for 
language minorities. By 1978, five covered counties in two 
states, New Mexico and Oklahoma, bailed out. See James 
Thomas Tucker, The Battle Over Bilingual Ballots 74-75 
(2009) (hereinafter “Tucker”).



10

Report described Alaska’s practice of offering only 
non-Native children “public secondary schools in their 
own communities.” Id. at 29-30, reprinted in 1975 
U.S.C.C.A.N. at 795-96 (citing Hootch v. State Oper­
ated Sch. Sys., case no. 72-2450 CIV (Alaska Super. 
Ct. 1973)); see also T ucker , at 235-57 (summarizing 
Alaska’s history of educational discrimination).

Alaska subsequently settled Hootch, making 
several admissions. It acknowledged the pervasive­
ness of a century of segregated schooling.4 See Set­
tlement Agreement at 9-30, Hootch, settled sub 
nom, ex rel. Tobeluk v. Lind, case no. 72-2450 CIV 
(Alaska Super. Ct. Sept. 13, 1976) (“Hootch Settle­
ment”), available at http://www.alaskool.org/native_ 
ed/law/tobeluk.html. It was premised upon “resent­
ment [that] grew among the relatively few whites 
over emphasis on education for Natives and a belief 
that integrated schools would give only inferior 
education.” Id. at *[[ 9. In 1959, the year of statehood, 
only six out of 34 public secondary schools were in 
communities where at least half the population was 
Native. Id. at ‘J 12. By the mid-1970s, there were 
2,783 secondary school-age children who lived in 
villages without daily access to a secondary school. 
Over 95 percent were Native; statewide, only 120

4 Alaska euphemistically refers to this as “long-distance 
schooling.” Brief of Amicus Curiae the State of Alaska in Sup­
port of Petitioner Shelby County, Alabama at 28, Shelby Cnty., 
Alabama v. Holder, No. 12-96 (Jan. 2, 2013) (hereinafter “Alaska 
Amicus”).

http://www.alaskool.org/native_


11

non-Native children had no access to a secondary 
school. Id. at *11 19. If Native children did not “wish to 
leave home, [were] not able to leave home, or refuse[d] 
to leave home to attend boarding school . . . they [were] 
denied secondary school education,” resulting in “a 
highly disproportionate number of Alaska Natives . . . 
not . . . attending secondary schools.” First Amended 
Complaint at <151, Hootch, case no. 72-2450 CIV 
(Alaska Super. Ct. Oct. 5, 1972). Hootch was not 
settled until 1976, when Alaska agreed to establish a 
public secondary school in all 126 Native villages that 
wanted one. Hootch Settlement, Hootch, case no. 72- 
2450 CIV. The schools were not completed until the 
mid-1980s, nearly three decades after Brown v. Board 
of Education, 347 U.S. 483 (1954).

Second, Alaska Natives suffered from illiteracy 
rates rivaling rates of southern Blacks. According to 
the 1960 Census, 38.6 percent of Alaska’s Native 
population age 25 years and older failed to complete 
the fifth grade, rendering them illiterate, higher than 
the rates for Black voters in Alabama, Florida, North 
Carolina, and Virginia. See Extension of the Voting 
Rights Act o f 1965: Hearings on S. 407, S. 903, S. 
1297, S. 1409, and S. 1443 Before the Subcomm. on 
Const’l Rts. o f the Senate Comm, on the Judiciary 
(“1975 Senate Hearings”), 94th Cong., 1st Sess., at 
664 (1975) (Ex. 23 to the statement of J. Stanley 
Pottinger). Conversely, only 1.2 percent of non- 
Natives were illiterate. Id. By 1970, Alaska Natives’ 
illiteracy rate was “approximately 36 percent,” ex­
ceeding the rate for Black voters in every state cov­
ered by Section 5. Id.



12

Third, the illiteracy of Natives was exacerbated 
by their high LEP rates. Thousands of LEP Native 
voters spoke over 18 languages including Central 
Yup’ik, Inupiaq, Siberian Yup’ik, Suypiaq, Tlingit, 
and Tutchone. 1975 Senate Hearings at 531 (state­
ment of Sen. Mike Gravel). Most required an inter­
preter. Id. at 526. But lack of English proficiency or 
literacy was an insufficient reason to disenfranchise 
them, id., which largely resulted from state- 
sponsored educational discrimination. S. Rep. No. 94- 
295 at 28-29, reprinted in 1975 U.S.C.C.A.N. at 794- 
95.

Fourth, Congress considered Alaska’s constitu­
tional literacy test and its impact on Native voters. 
The Alaska Voters’ Literacy Act of 1925 was enacted 
to disenfranchise Natives newly granted citizenship 
by the federal government. See Indian Citizenship Act 
of June 2, 1924, 43 Stat. 253 (codified at 8 U.S.C. 
§ 1401(b)). The Act achieved its purposes by requiring 
voters to demonstrate they were “able to read and 
write the English language.” Stephen Haycox, Wil­
liam Paul, Sr., and the Alaska Voters’ Literacy Act of 
1925, 2 Alaska Hist. 16, 17, 28-30 (Winter 1986- 
1987). Non-Natives later lobbied Congress to enact 
the law for the Territory. See Act of Mar. 3, 1927, c. 
363, § 1, 44 Stat. 1392, 1393 (codified at 48 U.S.C. 
§ 51) (repealed). Alaska adopted this literacy test in 
its state constitution, providing that applicants must 
“read or speak the English language” to vote. Alaska 
CONST, art. V, § 1 (1959). “[MJany Alaskans, Natives 
and non-Natives alike” viewed the literacy test as “an



13

affront” with “its racist overtones.” Gordon S. Harri­
son, Alaska’s Constitutional “Literacy Test” and the 
Question of Voting Discrimination, 22 Alaska Hist. 
23, 30 (Spring/Fall 2007). High LEP rates among 
Alaska Natives made even a requirement to speak 
English a significant barrier to voting. 1975 Senate 
Hearings at 526, 531 (statement of Sen. Gravel). 
Senator Gravel acknowledged there was “some evi­
dence” of discrimination because “this provision did 
creep into law,” which facilitated “the possibility of 
disenfranchising people.” Id. at 525-26, 529. Alaska 
did not repeal its constitutional literacy test until two 
months after Congress amended the VRA to ban all 
literacy tests nationwide. See Pub. L. No. 91-285, 84 
Stat. 314 (June 22, 1970); H.J. Res. 51, 6th Leg., Reg. 
Sess. (Alaska Aug. 25, 1970).

Alaska’s discrimination against Natives pro­
foundly affected their ability to participate in its 
English-only elections. Alaska was covered under 
Section 5 statewide in 1965 and again in certain 
areas in 1970 because voter turnout was below fifty 
percent in 1964 and 1968. S. Rep. No. 94-295 at 12- 
13, reprinted in 1975 U.S.C.C.A.N. at 777-78. In 1968, 
Alaska’s voter turnout was 49.9 percent, lower than 
every southern state except Georgia, South Carolina, 
and Texas. See 1975 Senate Hearings at 717-18 (Ex. 
40 to the statement of J. Stanley Pottinger). In 1972, 
Alaska’s voter turnout decreased to 48.2 percent, 
comparable to low participation rates in the South. 
See id.



14

B. In 2006, Congress found that educa­
tional discrimination continues to re­
sult in high LEP and illiteracy rates 
and low Alaska Native turnout.

When Section 4(b) was reauthorized in 2006, 
Congress considered substantial evidence of ongoing 
educational discrimination against Native voters. 
Fannie Lou Hamer, Rosa Parks, and Coretta Scott 
King Voting Rights Act Reauthorization and Amend­
ments Act of 2006 (“VRARAA”), Pub. L. No. 109-246, 
120 Stat. 577 (2006). Court decisions found “degraded 
educational opportunities” for Alaska Natives, result­
ing in graduation rates lagging far behind non- 
Natives. H.R. Rep. No. 109-478, at 50-51, reprinted in 
2006 U.S.C.C.A.N. 651. Congress cited to Kasayulie v. 
State, which found in 1999 that Alaska had “discrep­
ancies in funding made available to Native and non- 
Native students.” Id. at 51, reprinted in 2006 
U.S.C.C.A.N. 651 (citing Order Granting Plaintiffs’ 
Motions for Partial Summary Judgment on Facilities 
Funding, Kasayulie v. State, case no. 3AN-97-3782 
CIV (Alaska Super. Ct. Sept. 1, 1999)). Despite “the 
affirmative duty on the State to provide public educa­
tion,” funding discrepancies between non-Native 
urban areas and the Native villages “unconstitution­
ally discriminated against Alaska Natives.” H.R. Rep. 
No. 109-478, at 51, reprinted in 2006 U.S.C.C.A.N. 
651. There also was evidence of ongoing funding 
disparities in Moore v. State, case no. 3AN-04-9756 
CIV (Alaska Super. Ct. 2007), which was pending 
during reauthorization. See Voting Rights Act:



15

Evidence o f Continued Need, Hearing Before the 
Subcomm. on the Const, o f the House Comm, on the 
Judiciary (“Continued Need”), 109th Cong., 2d Sess., 
at 1336 (2006).

In Moore, Alaska was found to have violated its 
“constitutional responsibility to maintain a public 
school system” by failing to oversee the quality of 
secondary education in Alaska Native villages and to 
provide a “meaningful opportunity to learn the mate­
rial” on a graduation exam. Decision and Order at 
194-95, Moore, case no. 3AN-04-9756 CIV (Alaska 
Super. Ct. June 21, 2007). Nearly three years later, 
the Alaska superior court found the State still had 
not demonstrated that its remedial steps would 
“result in compliance with this constitutional re­
sponsibility.” Order on Review of 2009 Submissions, 
Moore v. State, case no. 3AN-04-9756 CIV (Alaska 
Super. Ct. March 1, 2010). The case was not settled 
until 2012. See Settlement Agreement, Moore v. State, 
case no. 3AN-04-9756 CIV (Alaska Super. Ct. Jan. 
2012), available at http://www.eed.state.ak.us/news/ 
releases/2012/moore_settlement_signed.pdf.

Alaska’s continued educational discrimination 
profoundly affected the ability of Native voters to 
read election materials. In 2004, only 47.5 percent of 
all Native students graduated from high school 
compared to the statewide average of 62.9 percent. 
H.R. R ep . No. 109-478 at 50-51, reprinted in 2006 
U.S.C.C.A.N. 651. In 2005, just 19.5 percent of all 
Native seniors statewide “were proficient in reading 
comprehension” in a high school graduation test.

http://www.eed.state.ak.us/news/


16

Continued Need, 109th Cong., 2d Sess., at 1335; 
Modern Enforcement o f the Voting Rights Act, Hearing 
Before the Senate Comm, on the Judiciary (“.Modern 
Enforcement”), 109th Cong., 2d Sess., at 79 (2006).

Notwithstanding this substantial evidence, 
Alaska now questions what educational discrimina­
tion has to do with voting and its coverage under 
Section 4(b). Alaska Amicus at 28, Shelby Cnty., No. 
12-96. The Court has answered this question on 
several occasions, finding that Congress reasonably 
exercised its authority in Section 4 to remedy the 
effects of English literacy tests on voters suffering 
from educational discrimination. See Oregon v. Mitch­
ell, 400 U.S. 112, 134-35 (1970) (unanimously uphold­
ing the nationwide ban on literacy tests); Gaston 
Cnty. v. United States, 395 U.S. 285, 291-92 (1969) 
(upholding the Section 4 formula, which used voting 
rates to identify jurisdictions with “racially disparate 
school systems”); Katzenbach v. Morgan, 384 U.S. 
641, 658 (1966) (upholding suspension of New York’s 
literacy test for Puerto Rican voters educated in 
Spanish); South Carolina v. Katzenbach, 383 U.S. at 
314, 327-30 (upholding the Section 4 trigger to identi­
fy jurisdictions with a “significant danger” of voting 
discrimination, as documented by “a low voting rate”).

Congress developed a strong link between educa­
tional discrimination and low voter participation by 
Alaska Natives. Where education barriers are pre­
sent, they have “a deleterious effect on the ability of 
language minorities to become English proficient and 
literate.” H.R. Rep. No. 102-655 at 6, reprinted in



17

1992 U.S.C.C.A.N. 766, 770. In 2006, Congress con­
sidered the effects of unequal educational opportuni­
ties on Alaska Natives. According to census data, the 
average LEP rate among Native voters in 59 villages 
and regions was 22.6 percent. See Continued Need, 
109th Cong., 2d Sess., at 2169. Forty percent of all 
Native areas had LEP rates “greater than 50 per­
cent.” Id. Among LEP Native voters, 28.3 percent 
were illiterate, nearly 21 times the national illiteracy 
rate. Id. at 2163, 2170. There was a strong correlation 
between limited-English proficiency and illiteracy, 
with 40 percent of Native areas having “illiteracy 
rates greater than 50 percent.” Id. at 2170.

Congress determined that because of Alaska’s 
discrimination, Native voters continued “to experi­
ence hardships and barriers to voting and casting 
ballots because of their limited abilities to speak 
English and high illiteracy rates . . . particularly 
among the elders.” H.R. R ep. N o . 109-478, at 45-46, 
reprinted in 2006 U.S.C.C.A.N. 650-51. Those barri­
ers contributed to Native voter turnout of 44.8 per­
cent in the 2004 election, compared to non-Native 
turnout of 68.4 percent. 152 Cong . R ec . S7962 (daily 
ed. July 20, 2006) (statement of Sen. Arlen Specter). 
This substantial record of Alaska’s educational dis­
crimination establishes the constitutionality of the 
State’s continued coverage under Section 4(b).



18

C. Post-enactment Native turnout re­
mains far below the statewide aver­
age.

In NAMUDNO, the Court observed that in some 
covered jurisdictions, turnout among white and 
minority voters is nearly equal. 557 U.S. at 201. That 
is not true in the seven regions of Alaska with large 
numbers of Native voters. In the 2012 Presidential 
Election, among 100 Native villages required to 
provide language assistance under Section 203 of the 
VRA, just four achieved turnout rates at or above the 
statewide rate of 59.6 percent.0 See Appendix 1-11. 
Over three-quarters had turnout more than 10 per­
cent lower than the statewide turnout rate. See 
Appendix 2-11. Fifty-nine villages had turnout over 
15 percent lower. See Appendix 2-11.

The gulf in voter turnout was greatest in Native 
villages with the highest LEP and illiteracy rates, a 
pattern repeated across the State. In Bethel, voter 
turnout was 25.7 percent below the statewide rate; 
41.8 percent of voters there are LEP in Yup’ik, with 
an illiteracy rate of 33.9 percent. See Appendix 3. In 
Barrow, turnout was 22.8 percent below the statewide 
rate; there, 20.4 percent of voters are LEP in Inupiat, 
with an illiteracy rate of 12.5 percent. See Appendix 
3. The turnout in all 44 Native villages with LEP 5

5 The Census Bureau identified 104 Native villages covered 
by Section 203. Election data is unavailable for four villages. See 
Appendix 2-11.



19

rates exceeding 10 percent fell far below statewide 
turnout. See Appendix 2-11. On average, 16.1 percent 
of LEP voters in those villages were illiterate, nearly 
fourteen times the national illiteracy rate among all 
voting-age citizens of 1.16 percent. See Appendix 2-11; 
U.S. Census B ureau , Statistical M odeling M ethod­
ology for the V oting R ights A ct Section  203 Lan ­
guage A ssistance D eterminations 35 (Dec. 2011). 
The 44 villages had average turnout of just 39.9 
percent, about 20 percent lower than the statewide 
rate of 59.6 percent. See Appendix 2-11; State of 
A laska , D ivision of E lections, 2012 G eneral E lec­
tion R esults, Statement of V otes Cast— O fficial, 
available at http://www.elections.alaska.gov/results/ 
12GENR/index.shtml (listing the results of all races 
appearing on the ballot by district and precinct). 
Statewide, in the 104 villages located in seven regions 
covered for language assistance under Section 203, 
turnout among nearly 30,000 Native voters was just 
41.8 percent, or 17.8 percent below statewide turnout. 
See id.

The 2012 Election demonstrates that “dramatic 
improvements” have not occurred in Native voting. 
NAMUDNO, 557 U.S. at 201. Educational discrimi­
nation is not the only barrier. LEP voters denied 
equal schooling are confronted with election practices 
imposing the sort of English literacy tests or devices 
the VRA was intended to eradicate, along with other 
discrimination. H.R. R ep. No. 109-478 at 52, reprint­
ed in 2006 U.S.C.C.A.N. 652-53.

http://www.elections.alaska.gov/results/


2 0

III. Pre- And Post-Enactment Evidence Re­
veals Alaska Still Has First Generation
Barriers.
A. In 2006, Congress considered substan­

tial evidence of first generation barri­
ers to voting by Alaska Natives.

Congress developed a voluminous record of 
discrimination against Alaska Natives when reau­
thorizing Section 4(b) in 2006. Petitioner ignores that 
record, contending that few “first generation” barriers 
to voting remained and that reauthorization rested 
on only “second generation” barriers. Brief for Peti­
tioner at 41, 45, Shelby Cnty., No. 12-96 (Dec. 26, 
2012). Compounding that error, Petitioner argues the 
coverage formula is not “rational” because it does not 
correlate with results from “second generation” 
lawsuits (Section 2 claims) in covered jurisdictions. 
Id. at 40-48. The record showed that first generation 
barriers remain widespread in Alaska, affecting tens 
of thousands of Native voters.

The House Report observed that “many of the 
first generation barriers to minority voter registra­
tion and voter turnout that were in place prior to the 
VRAhave been eliminated.” NAMUDNO, 557 U.S. at 
201 (citing H.R. R ep. No. 109-478, at 12). That may 
be true in some jurisdictions, but not in Alaska. The 
Alaska Native population still experiences:

• Unequal voter registration opportuni­
ties, including English-only registration 
materials and poll workers who fail to 
register voters;



2 1

• Unequal access to election materials, in­
cluding information available only via 
the Internet, which is inaccessible to 
most rural Natives;

• Unequal access to election information 
through lack of voting assistance in Na­
tive languages, except for one census 
area recently under a court-ordered re­
medial program;

• Unequal early voting opportunities, of­
fered nearly exclusively in non-Native 
urban areas and not in Native villages;

• Unequal polling place access, through 
closures and “precinct realignments” 
that would require some Natives to 
travel more than 70 miles by plane to 
vote;

• Unequal in-person voting opportunities, 
including designation of villages with 
high LEP rates as “Permanent Absentee 
Voting” sites with no election workers; 
and

• Unequal voter assistance, denying vot­
ers with physical limitations or illiteracy 
assistance from their person of choice, 
contrary to Section 208 of the VRA.

Congress considered evidence of these first 
generation barriers during the 2006 Reauthorization. 
The record for Alaska alone was substantial. See 
Continued Need, 109th Cong., 2d Sess., at 1308-62; 
Modern Enforcement, 109th Cong., 2d Sess., at 18-20,



2 2

25-27, 29-30, 73-81, 124-26. In the 31 years since the 
1975 amendments, Alaska never complied with many 
provisions of the VRA. Modern Enforcement, 109th 
Cong., 2d Sess., at 18, 26, 30, 77-78, 126. Alaska still 
conducted English-only elections in heavily-LEP 
regions despite the clear mandate to provide assis­
tance in Native languages pursuant to Sections 4(f)(4) 
and 203, with elections in English functioning like 
“an old-fashioned literacy test” or a “test or device.” 
Id. at 77-79, 125-26. Alaska’s entire language assis­
tance “program” was that “minority voters in Alaska 
may ask for oral assistance with translation of Eng­
lish ballot measures, and assistance may or may not 
be available at that time.” Id. at 79. The complete 
lack of translated information even caused many 
Alaska Native LEP voters to mistakenly vote for an 
English-only Constitutional amendment because they 
could not understand the ballot language. Id. at 26- 
27. Untranslated ballot language written at a twelfth 
grade level or higher was virtually incomprehensible 
in Yup’ik-speaking areas, where the illiteracy rate 
was 16 times or more the national average. Id. at 78- 
79.

Other first generation barriers impacted Alaska 
Native voters. In the 2004 Election, 24 Alaska Native 
villages did not even have polling places. Some that 
did sometimes had to cut voting hours short to haul 
their one voting machine to the other side of a river 
or to the next village so other people could vote. Id. at 
124. Turnout in Native villages varied but was as low 
as 12 percent in some places. Id. at 73. Given these



23

many barriers, it was no surprise that, as of 2000, no 
Native candidate had “been elected to office from a 
majority white district.” Id. at 34. The lack of white 
support resulted “in a disparity between the number 
of white elected officials and the number” of Alaska 
Natives elected to office. Id. In sum, the congressional 
record refutes Petitioner’s unfounded claim that there 
was no evidence of first generation barriers presented 
during the 2006 Reauthorization.

Because Petitioner ignores the evidence of first 
generation barriers in Alaska, its criticisms of the 
coverage formula rely on Section 2 lawsuits else­
where. Brief for Petitioner at 41, 47-48, 50, Shelby 
Cnty., No. 12-96. Employing this metric, Petitioner 
singles out Alaska as not having “a single reported 
Section 2 suit” or “a single reported suit with a find­
ing of racially polarized voting.” Id. at 47-48. Peti­
tioner fails to mention that unlike other covered 
jurisdictions, Alaska has few organized governmental 
bodies. Its statewide legislative redistricting plan is 
the only one in the State that includes significant 
numbers of Native and non-Native voters.6 Prior to 
the latest round of redistricting, Alaska’s legislative 
redistricting plan was the product of a very signifi­
cant Section 5 objection.

6 Alaska has a single congressional representative elected 
at-large and no congressional redistricting plan.

The unconstitutional interim plan currently in place 
further degraded Native representation, so that Alaska’s 
legislature is now 90 percent white, even though Alaska is only 

(Continued on following page)



24

Moreover, while successful Section 2 suits may be 
one indicator of ongoing problems, it does not follow 
that their absence reflects a lack of violations, as 
Petitioner contends. Brief for Petitioner at 47-48, 
Shelby Cnty., No. 12-96. Meritorious litigation is often 
not brought because voting litigation is complex, 
expensive, and labor-intensive. As voting rights 
attorney Robert McDuff explained:

Voting rights is intensely complex litigation 
that is both costly and time-consuming. To be 
appropriately presented, these cases require 
costly experts including historians, social 
scientists and statisticians, among oth­
ers. . . . there are not enough lawyers who 
specialize in this area to carry the load. . . .
[I]t is incredibly difficult for minority voters 
to pull together resources needed to push 
private challenges under the Act. Without 
the mechanism of Section 5 in place to bar 
retrogressive voting changes from implemen­
tation, we will likely witness the resurgence 
of discriminatory voting changes that will 
not be adequately or evenly addressed by 
private litigation under Section 2.

Modern Enforcement, 109th Cong., 2d Sess., at 96. 
That is particularly true in Alaska, where the viola­
tions are numerous and ongoing. Post-enactment,

67 percent white. See Pat Forgey, Election, redistricting dimin­
ishes Natives’ power in Alaska Legislature, Alaska Dispatch, 
Dec. 6, 2012, http://www.alaskadispatch.com/article/election-
redistricting-diminishes-natives-power-alaska-legislature.

http://www.alaskadispatch.com/article/election-


25

four LEP Alaska Native voters and four Alaska tribes 
in just one census area sued election officials for 
violating Sections 4(f)(4), 5, 203 and 208 of the VRA. 
The case took almost three years, two million dollars 
in attorney time, $250,000 in out-of-pocket costs, and 
nearly 700 docket entries. Settlement Agreement and 
Release of All Claims Under §§ 203, 4(f)(4), 5 and 208 
of the VRA, Nick v. State, case no. 3:07-cv-00098- 
TMB, docket no. 787-2 (D. Alaska Feb. 16, 2010). The 
time and costs were prohibitive and demonstrate why 
voting discrimination lawsuits are not more common, 
even in a scofflaw jurisdiction like Alaska.

B. Post-enactment evidence confirms 
Congress properly reauthorized Sec­
tion 5 coverage for Alaska.

The 2006 Reauthorization was a watershed 
moment for Alaska. It shed light on many problems 
that had festered for decades and prompted voting 
litigation that continues to this day. Federal court 
supervision over Alaska election official’s fledgling 
efforts to begin complying with Sections 4(f)(4), 203, 
and 208 of the VRA in just one census area ended 
only one month ago. Enforcement efforts may soon 
commence in other regions. Those areas have suffered 
not only from decades of neglect by Alaska’s election 
officials, but also by seemingly benign policies that 
result in unequal treatment of Natives in diminished 
registration and voting opportunities. Although post­
enactment, this evidence is highly relevant to showing



26

why Congress concluded that continued coverage of 
Alaska under Section 4(b) was necessary.

The Court has recognized repeatedly that post­
enactment evidence is relevant to Congress’s exercise 
of its broad powers under the Reconstruction 
Amendments. See Tennessee v. Lane, 541 U.S. 509, 
524-25 & nn.6-8, 11, 13-14 (2004); Nevada Dep’t o f 
Human Res. v. Hibbs, 538 U.S. 721, 733-34 & nn.6-9 
(2003); Woods v. Cloyd W. Miller Co., 333 U.S. 138, 
143 n.6 (1948). Therefore, the evidence Congress 
considered during reauthorization is not the only 
important factor. For Alaska, the post-enactment 
evidence is especially relevant because it grew out of 
evidence in the Congressional record.

Alaska was keenly aware of the widespread 
problems identified to Congress yet it did nothing to 
remedy them. Less than a year after reauthorization, 
four LEP Yup’ik-speaking Native voters and four 
federally recognized Alaska Native tribes sued Alas­
ka’s Division of Elections in Nick v. State for violating 
Sections 5, 203, and 208 of the VRA in the Bethel 
Census Area. The region’s population was 85.5 per­
cent American Indian and Alaska Native. First 
Amended Complaint at ‘I 25, Nick, case no. 3:07-cv- 
00098-TMB, docket no. 201 (D. Alaska May 22, 2008). 
Among citizen voting-age population, 20.8 percent 
were LEP. Id. at  ̂34. Almost a quarter of LEP voters 
were illiterate, nearly sixteen times the national 
illiteracy rate. Id.



27

The literacy barriers the plaintiffs faced were not 
the result of happenstance but the product of Alaska’s 
educational discrimination. Each individual Plaintiff 
had been denied a public school education because 
Alaska did not provide middle or high schools in their 
individual villages until the 1980s. Plaintiff Anna 
Nick left home briefly to attend school but only 
reached the fifth grade. Id. at f  6. The remaining 
individual plaintiffs completed the second, third, and 
fourth grades. Id. at ‘I f  7-9. There are thousands of 
Alaska Native voters just like them. See Appendix 1- 
11. More than 30 years after the VRA was extended to 
language minorities, and just one year after reauthor­
ization, those LEP Native voters were still subjected 
to English-only elections.

Tellingly, Alaska omits any mention of the Nick 
case in its brief, instead misleading the Court by 
asserting it has “no history of voting discrimination.” 
Alaska Amicus at 26, Shelby Cnty., No. 12-96. A 
federal court found otherwise in Nick in 2008, citing 
the State’s lack of responsiveness in remedying 
discrimination against Alaska Natives and enjoining 
further violations of the Act. See Appendix 12-31. The 
evidence revealed that Alaska provided all voter 
registration and voting information in English-only, 
despite its use of touch-screen voting units capable of 
“speaking” eight different languages. Plaintiffs’ 
Motion for a Preliminary Injunction at 10-11, Nick, 
case no. 3:07-cv-00098-TMB, docket no. 202 (D. 
Alaska May 22, 2008). Between 2000 and 2007, 
translators generally were unavailable and untrained.



28

Id. at 11-14. Alaska provided no Yup’ik translations, 
forcing poll workers to translate ballots written in 
college-level English “on the spot.” Id. at 7. That led 
to widely diverging translations that denied plaintiffs 
and other Native voters effective language assistance 
even when translators were available. Id. at 7, 15-16.

In July 2008, a federal court issued a preliminary 
injunction to bar Alaska from further violations of the 
VRA. The court found the Plaintiffs met their burden 
and demonstrated they were likely to succeed on the 
merits of their 203 and 4(f)(4) claims:

The State has failed to: provide print and 
broadcast public service announcements 
(PSA’s) in Yup’ik, or to track whether PSA’s 
originally provided to a Bethel radio station 
in English were translated and broadcast in 
Yup’ik; ensure that at least one poll worker 
at each precinct is fluent in Yup’ik and capa­
ble of translating ballot questions from Eng­
lish into Yup’ik; ensure that “on the spot” 
oral translations of ballot questions are com­
prehensive and accurate; or require manda­
tory training of poll workers in the Bethel 
census area, with specific instructions on 
translating ballot materials for Yup’ik- 
speaking voters with limited English profi­
ciency.

Appendix 22-23. The court was troubled that “State 
officials became aware of potential problems with 
their language-assistance program in the spring of 
2006,” during reauthorization but their “efforts to 
overhaul the language assistance program did not



29

begin in earnest until after this litigation.” Appendix 
23. The court cited three reasons for its injunction: (1) 
Alaska had been covered by Section (4)(f)(4) “for 
many years”; (2) “the State lacks adequate records to 
document past efforts to provide language assistance 
to Alaska Native voters”; and (3) Alaska’s post­
litigation efforts to come into compliance were “rela­
tively new and untested.” Appendix 23-24. The court 
concluded “the evidence of past shortcomings justifies 
the issuance of injunctive relief to ensure that Yup’ik- 
speaking voters have the means to fully participate in 
the upcoming State-run elections.” Appendix 24. The 
Nick injunction remained in place until December 31, 
2012.8

IV. Section 5 Remains A Necessary And Ap­
propriate Prophylactic Measure To Pre­
vent Voting Discrimination Against Alaska 
Natives.

Section 5 is a “vital prophylactic tool” protecting 
Amici “from devices and schemes that continue to be 
employed” in Alaska, which is covered statewide for 
Alaska Natives. H.R. Rep. No. 109-478 at 21, re­
printed in 2006 U.S.C.C.A.N. 631. Preclearance has 
protected Alaska Natives from discriminatory redis­
tricting practices, closure of necessary polling sites,

8 Although federal court oversight has expired, the proce­
dures cannot be changed without Section 5 preclearance. 
Consequently, the Nick plaintiffs and other Native voters rely 
upon Section 5 to keep their fragile victory intact.



30

and retrogressive language assistance procedures. 
Section 5’s importance cannot be measured just by 
the number of objections, but also “the number of 
voting changes that have never gone forward as a 
result of Section 5.” Id. at 24, reprinted in 2006 
U.S.C.C.A.N. 633. Its “deterrent effect” is “substan­
tial.” Id. In renewing Section 5, Congress examined 
evidence of “continued discrimination” including 
interposed objections, “requests for more information 
submitted followed by voting changes withdrawn 
from consideration,” and Alaska’s lack of compliance. 
VRARAA, Pub. L. No. 109-246, § 2(b)(4)(A), 120 Stat. 
577. Alaska is unique not because it has numerous 
objections, but because it fails to submit critical 
changes for preclearance at all.

A. Alaska often fails to comply with Sec­
tion 5.

Alaska has fewer objections and More Infor­
mation Requests (MIR) because it has often failed to 
submit voting changes for preclearance. For example, 
when the State submitted new language assistance 
procedures for preclearance during the Nick litiga­
tion, the U.S. Department of Justice observed that 
the “last precleared bilingual election procedures” for 
Alaska Natives were under a plan “precleared by 
letter dated October 5, 1981.” Appendix 38. However, 
Department officials noted that discovery in Nick, 
“admissions by State elections officials,” and asser­
tions by officials in a letter withdrawing the changes



31

indicated that “Alaska is not currently fully imple­
menting the 1981 plan and is instead implementing 
new and different procedures.” Appendix 38. The 
Department requested that Alaska indicate its 
planned action “to take regarding the changes affect­
ing voting that have not been submitted for judicial 
review or preclearance.” Appendix 44. State officials 
ignored the Department’s request. The Nick plaintiffs 
were compelled to pursue their Section 5 claim 
against Alaska, which were ultimately settled in 
early 2010.

Alaska has been sued twice in recent years for 
implementing voting changes before those changes 
were precleared under Section 5. In the 2010 General 
Election, Alaska’s Division of Elections provided poll 
workers with a list of write-in candidates and their 
political affiliations, something it had never done 
before. See Complaint, Alaska Democratic Party v. 
Fenumiai, case no. 3AN-10-11621 (Alaska Super. Ct. 
Oct. 24, 2010); Complaint for Declaratory and Injunc­
tive Relief, Rudolph, et al. v. Fenumiai, 3:10-cv- 
00243-RRB (D. Alaska Nov. 1, 2010). Notably, incum­
bent Senator Lisa Murkowski ran as a write-in 
candidate in that election, and the Division’s move 
was widely viewed as an attempt to help Senator 
Murkowski, whose surname was difficult for illiterate 
and LEP voters to spell. See Chad Flanders, How Do 
You Spell M-U-R-K-O-W-S-K-I? Part I: The Question 
of Assistance to the Voter, 28 A laska L. R ev . 1 (June 
2011). In 2012, the Division of Elections began im­
plementing an entire redistricting plan without



32

preclearance. Complaint at 26, Samuelsen v. 
Treadwell, case no. 3:12-cv-00118-RRB-AK-JKS, 
docket no. 1 (D. Alaska June 7, 2012). Before submit­
ting the plan, election officials opened and closed 
candidate qualifying, and sent notices to voters. Both 
incidents reveal that Alaska’s election officials treat 
Section 5 coverage as an afterthought that can be 
freely ignored.

B. Alaska’s one objection was very signif­
icant.

A Section 5 objection does not just stop enforce­
ment of the discriminatory voting change at issue, it 
often discourages State officials from enforcing simi­
lar discriminatory changes in the future. The Attor­
ney General’s objection to the 1990s statewide 
redistricting plan illustrates the lasting deterrent 
effect that a Section 5 objection has in Alaska. The 
State’s initial plan, which was prepared in secret, 
diluted the voting strength of Alaska Natives. See 
Continued Need, 109th Cong., 2d Sess., at 1345-46. 
Several Native groups complained to the Justice 
Department about the “anti-Native” plan. Id. at 1346- 
47. The Department responded by sending an MIR 
asking that Alaska address concerns such as: the 
plan’s reduction of the number of Alaska Native 
majority districts; the retrogressive effects of at least 
one district on Native voting strength; the “extraordi­
nary” deference towards incumbent legislators’ dis­
tricts except those of Native legislators, whose



33

districts had been combined; and the State’s prepara­
tion of the redistricting plan without public input. Id. 
at 1347.

A State trial court subsequently rejected the 
original redistricting plan as unconstitutional and the 
Alaska Supreme Court ordered implementation of an 
interim plan. Id. In Hickel v. Southeast Conference, 
846 P.2d 38 (Alaska 1992), the State’s highest court 
struck down 11 districts in the interim plan, but left 
intact State District 36, which reduced the voting 
strength ofYup’iks. Continued Need, 109th Cong., 2d 
Sess., at 1347. In 1993, the Attorney General inter­
posed an objection to the retrogression in District 36 
and its companion Senate District R, which reduced 
the Native voting age population from 55.7 percent to 
50 percent despite the presence of extremely racially 
polarized voting there. Id. at 1348. Section 5 thereby 
served as the only line of defense between the retro­
gressive redistricting plan and its discriminatory 
impact on Alaska Natives. Id.

The 1993 objection compelled Alaska to take “an 
entirely different approach to the process” in the 2000 
redistricting cycle. Modern Enforcement, 109th Cong., 
2d Sess., at 81. It “hired a national voting rights 
expert to ensure that its proposed plan did not violate 
the VRA or reduce the ability of Alaska Natives to 
elect candidates of their choice.” Id. State officials 
adopted a plan that did not “reduce the ability of 
Alaska Natives to elect candidates of their choice” 
and appointed a Native to the redistricting board 
to represent the nearly 20 percent of the State’s



34

population excluded from the 1990 redistricting 
process. Id.; see Continued Need, 109th Cong., 2d 
Sess., at 1318-19, 1350-51. That one “objection was 
felt statewide and continues to have an impact today.” 
Modern Enforcement, 109th Cong., 2d Sess., at 81.

C. More Information Requests prevent 
voting discrimination by Alaska.

More Information Requests also play an im­
portant role in preventing voting discrimination 
against Alaska Natives. MIRs are an “administrative 
mechanism” used by the Department of Justice to 
obtain additional information needed to determine 
whether preclearance of a voting change is warranted 
under Section 5. H.R. R ep. No. 109-478 at 40, reprint­
ed in 2006 U.S.C.C.A.N. 645. Their use forces “cov­
ered jurisdictions to take action” that can include 
withdrawing “a proposed change from consideration 
because it is discriminatory,” submitting “a new or 
amended non-discriminatory voting plan,” or simply 
not making a change at all. Id.

Alaska routinely withdraws discriminatory 
voting changes after receiving an MIR, a pattern that 
has continued since reauthorization. In March 2008, 
Alaska attempted to circumvent the language claims 
brought in the Nick litigation. State officials made a 
short submission of a language plan without any 
explanation for their failure to implement the plan 
precleared by the Department in 1981. See First 
Amended Complaint at Attachments B-C, Nick, case



35

no. 3:07-cv-00098-TMB, docket nos. 201-3, 201-4 (D. 
Alaska May 22, 2008). In May 2008, the Justice 
Department issued a detailed MIR letter identifying 
16 categories of facts suggesting the absence of en­
forcement of the prior plan. See Letter of May 19, 
2008 from Christopher Coates, Acting Chief, Voting 
Section, to Gail Fenumiai, Director, Division of Elec­
tions, Nick, case no. 3:07-cv-00098-TMB, docket no. 
293-14 (D. Alaska July 3, 2008). Instead of respond­
ing, the State abruptly withdrew its submission, 
preventing implementation of its retrogressive proce­
dures. See Appendix 37-44. In the process, Alaska 
derided the request, arguing that “DOJ’s questions on 
past practices are inappropriate.” Opposition to 
Motion for Preliminary Injunction at 9 n.19, Nick, 
case no. 3:07-cv-00098-TMB, docket no. 249 (D. 
Alaska May 22, 2008). State officials later attempted 
to circumvent the MIR by submitting the State’s 
changes piecemeal, which the Department of Justice 
also rejected. According to the Department, it was 
necessary to review the entire plan together to de­
termine whether it provided effective equal registra­
tion and voting opportunities to Alaska Natives. See 
Appendix 39-40.

In recent years, Section 5 has prevented Alaska 
from implementing a number of discriminatory 
polling place changes. In May 2008, the State submit­
ted for preclearance a plan to eliminate precincts in 
several Native villages. See Appendix 32-36. State 
officials proposed to (1) “realign” Tatitlek, a communi­
ty in which about 85 percent of the residents are



36

Alaska Native, to the predominately white communi­
ty of Cordova, located over 33 miles away and not 
connected by road; (2) consolidate Pedro Bay, where a 
majority of residents are Alaska Native, with Iliamna 
and Newhalen, located approximately 28 miles away, 
are not connected by road, and were the subject of a 
critical initiative on the August 2008 ballot; and (3) 
consolidate Levelock, in which about 95 percent of 
residents are Alaska Native, with Kokhanok, approx­
imately 77 miles apart and not connected by road.9 In 
sum, Alaska was attempting to combine precincts 
accessible to one another only by air or boat with high 
concentrations of Alaska Native voters.

The Department of Justice responded with a MIR 
letter requesting information about reasons for the 
voting changes, distances between the polling places, 
and their accessibility to Alaska Native voters. 
Appendix 32-36. The Department inquired about “the 
methods of transportation available to voters travel­
ing from the old precinct to the new consolidated 
precinct” asking that if there were no roadways 
connecting them that the State “indicate how voters 
will get to the consolidated location.” Appendix 34. 
The MIR suggested that Alaska's election officials had 
not consulted with Native voters about the changes

Population data from the 2000 Census can be found at 
http:, www.census.gov/. Distance data is calculated using the 
U.S. Geological Survey, Geographic Names Information 
System. See http: vrMAv.infoplease.com atlas calculate-distance. 
html.

http://www.census.gov/


37

and requested a “detailed description” of efforts “to 
secure the views of the public, including members of 
the minority community, regarding these changes.” 
Appendix 34-35. Finally, the MIR documented that 
when Department of Justice personnel communicated 
with State officials, they learned that Alaska also was 
taking steps to implement an unsubmitted voting 
change designating “specified voting precincts” as 
“permanent absentee by-mail precincts.” Appendix 
35. Rather than responding and submitting the 
additional voting changes for Section 5 review, the 
State abruptly withdrew the submission two weeks 
later. See Appendix 45-46.

The MIRs issued to Alaska may be few in number 
in recent years, but they were significant. They 
prevented the State from circumventing the federal 
courts in its efforts to remedy the State’s violations of 
Sections 203 and 4(f)(4), and they prevented the 
“realignment” of precincts requiring Native voters to 
fly to vote. Section 5 has prevented many voting 
changes that would have disenfranchised Alaska 
Native voters. V.

V. The Broadened Bailout Standard Adopted 
By The Court In NAM UDNO  Limits Sec­
tion 4(b) Coverage To Jurisdictions Like 
Alaska That Need It.

In NAMUDNO, the Court broadened eligibility 
for jurisdictions to be removed from Section 4(b) 
coverage, concluding that “piecemeal bailout is now



38

permitted” under the VRA following the 1982 
Amendments. 557 U.S. at 211. In particular, the 
Court held that “all political subdivisions . . . are 
eligible to file a bailout suit.” Id.

Nevertheless, Alaska complains bailout remains 
too difficult, referring to it as “a mirage.” Alaska 
Amicus at 29, Shelby Cnty., No. 12-96. That may be 
true for Alaska, not because the standard is too 
difficult but because its discrimination continues. If 
the day arrives when Alaska’s record is clean, it 
should apply for a bailout of coverage, just as it can 
do if it wants to terminate federal observer coverage 
in the Bethel region. These points highlight why a 
facial challenge of Section 4(b) is improper; jurisdic­
tions each have unique records and numerous ways to 
lessen or remove the “yoke of federal oversight,” as 
Alaska calls it. Id. at 26. Individual jurisdictions 
simply must have a record to support it.

Alaska has twice attempted to bailout from 
Section 5 since being covered in 1975. It dropped both 
lawsuits without being denied bailout. “In 1982, 
Congress amended the bailout provision to encourage 
jurisdictions to end their discriminatory practices and 
to integrate minority voters into the electoral pro­
cess.” H.R. R ep. No. 109-478 at 25, reprinted in 2006 
U.S.C.C.A.N. 634. The bailout standard requires that 
jurisdictions demonstrate that they have been free of 
voting discrimination for ten years. See 42 U.S.C. 
§ 1973b(a). In 1978 and again in 1984, Alaska dis­
missed its lawsuits after the evidence showed that 
the State denied equal electoral opportunities to



39

Native voters. See Paul F. Hancock & Lora L. 
Tredway, The Bailout Standard o f the Voting Rights 
Act: An Incentive to End Discrimination, 17 U rb . Law . 
379, 403, 415 (1985). Strangely, Alaska now contends 
it dismissed the actions because discovery was too 
burdensome. Alaska Amicus at 30-31, Shelby Cnty., 
No. 12-96. However, Alaska’s covered status “has 
been and continues to be within the control of the 
jurisdiction.” H.R. R ep . No. 109-478 at 25, reprinted 
in 2006 U.S.C.C.A.N. 634. Its ongoing violations are 
not those of a jurisdiction with “a genuinely clean 
record” for which coverage can be terminated now. 
Nevertheless, once Alaska makes the VRA’s unful­
filled promise of equal access a reality for Alaska 
Native voters, bailout would be appropriate. Id. Until 
that day arrives, the bailout mechanism is function­
ing exactly as it should in maintaining Alaska’s 
coverage.

Alaska also argues bailout is more difficult since 
federal observers were appointed in 2009. Alaska 
Amicus at 7, Shelby Cnty., No. 12-96. However this 
argument fails on two points. First, the appointment 
of observers is not “unreviewable,” as Alaska main­
tains. Alaska Amicus at 6-7, Shelby Cnty., No. 12-96. 
Section 13 of the VRA provides a jurisdiction may 
terminate coverage by petitioning the Attorney Gen­
eral or by bringing a declaratory judgment action in 
the District of Columbia. See 42 U.S.C. § 1973k. 
Alaska has done neither, making its complaints ring 
hollow. Second, the Attorney General’s certification 
was derived from statutory violations of voting in the



40

Bethel region, which Alaska knew about and failed to 
remedy. Appendix 12-31. Far from “arbitrary,” the 
certification was based on a court’s detailed findings, 
most of which were based on Alaska’s own evidence.

----------------- ♦------------------

CONCLUSION

The Court should exercise “judicial restraint” and 
limit its review of Petitioner’s challenge to whether 
Section 4(b), as applied to Petitioner, is constitution­
al. Washington State Grange, 552 U.S. at 450. That 
approach properly balances the substantial deference 
owed to Congress in exercising its broad powers 
under the Fifteenth Amendment, see NAMUDNO, 
557 U.S. at 204, while permitting covered jurisdic­
tions to pursue their own challenges, as Alaska has 
already begun to do.

Alaska’s rhetoric to the contrary is refuted by the 
reality of its sad legacy of excluding Native voters. 
There is a substantial record of “local evils” of educa­
tional and voting discrimination in Alaska supporting 
its continued coverage under Section 4(b). Id. at 203 
(citation omitted). Ignoring that record, as Petitioner 
and Alaska suggest, would depart from the Court’s 
“institutional role” and mark a serious encroachment 
into powers properly exercised by a “coequal branch



of government.” Id. at 204-05. Amici respectfully 
submit that the Court should decline that invitation.

Respectfully submitted,
James T. Tucker 
Counsel o f  Record 
W ilson, Elser, Moskowitz, 

Edelman & Dicker, LLP 
300 South 4th Street—11th Floor 
Las Vegas, NV 89101 
(702) 727-1246
james.tucker@wilsonelser.com

Natalie A. Landreth 
Erin C. Dougherty 
Native American 

Rights Fund 
801 B Street, Suite 401 
Anchorage, AK 99501 
(907) 276-0680
Counsel for Amici

February 1, 2013

mailto:james.tucker@wilsonelser.com


App. 1

Table 1. Rates of Limited-English Proficiency and Illiteracy in Alaska Census Areas and Boroughs Covered under Section 
203 of the Voting Rights Act.
Source: U.S. Census Bureau, 2011 Voting Rights Determination File, available at http://mvw.census.gov/rdo/data/voting_rights_determination_ 
file.html (providing data for Voting Rights Act Amendments of 2006, Determinations under Section 203, 76 Fed. Reg. 63,602 (Oct. 13, 2011)).
Legend:
“Language” refers to the Alaska Native or American Indian language in the Census Area or Bureau that is covered under Section 
203. “CVAP” refers to the number of U.S. citizens who 18 years of age or older (voting age). “CVAP that is LEP” refers to the number of 
voting-age U.S. citizens who are Limited-English Proficient in the covered language. “CVAP % that is LEP” refers to the percentage of 
all U.S. citizens of voting-age who are LEP in the covered language. “% LEP CVAP that is illiterate” refers to the percentage of U.S. 
citizens of voting-age who are LEP in the covered language and have not completed more than the fifth primary grade.

Census Area 
or Borough Language CVAP CVAP that 

is LEP
CVAP % 

that is LEP
% LEP CVAP 

that is illiterate

Bethel All languages 10700 3350 31.30% 11.60%
Bethel Inupiat 300 70 23.30% 14.30%
Bethel Yup’ik 7435 3110 41.80% 11.60%

Dillingham All languages 3225 415 12.90% 30.10%
Dillingham Yup’ik 2050 375 18.30% 32.00%

Nome All languages 6185 585 9.50% 13.70%
Nome Inupiat 2725 240 8.80% 16.70%
Nome Yup’ik 1195 265 22.20% 11.30%

North Slope All languages 7025 830 11.80% 12.00%
North Slope Inupiat 2710 575 21.20% 11.30%
North Slope Alaska Native -  Unspecified 605 130 21.50% 23.10%

Northwest Arctic All languages 4835 475 9.80% 11.60%
Northwest Arctic Inupiat 3420 420 12.30% 10.70%
Wade Hampton All languages '4335 610 14.10% 22.10%

http://mvw.census.gov/rdo/data/voting_rights_determination_


App. 2

Census Area 
or Borough Language CVAP CVAP that 

is LEP
CVAP % 

that is LEP
% LEP CVAP 

that is illiterate

Wade Hampton Inupiat 470 70 14.90% 28.60%
Wade Hampton Yup’ik 3195 515 16.10% 21.40%
Yukon-Koyukuk All languages 4010 195 4.90% 15.40%
Yukon-Koyukuk Athabascan 2665 170 6.40% 14.70%

Table 2. Rates of Limited-English Proficiency, Illiteracy, and Turnout in Alaska Native Villages Covered under Section 
203 of the Voting Rights Act, Compared to the Statewide Turnout Rate in the November 2012 Presidential Election.
Sources: U.S. Census Bureau, 2011 Voting Rights Determination File, available at http://www.census.gov/rdAdata/votmgiUghts_determination_ 
file.html (providing data for Voting Rights Act Amendments of 2006, Determinations Under Section 203, 76 Fed. Reg. 63,602 (Oct. 
13, 2011)); State of Alaska, Division of Elections, Election Results for the Nov. 2012 Presidential Election, available at 
http://www.elections.alaska.gov (last visited Jan. 27, 2013).

Legend:
“CVAP % that is LEP” refers to the percentage of all U.S. citizens of voting-age who are LEP in the covered language. “% LEP 
CVAP that is illiterate” refers to the percentage of U.S. citizens of voting-age who are LEP in the covered language and have not com­
pleted more than the fifth primary grade. “Turnout % of Reg. Voters in 2012 Pres. Election” refers to the percentage of registered voters 
in the Alaska Native village who voted in the 2012 Presidential Election. “% above or below Statewide Turnout %” refers to the per­
centage that the village’s turnout in the 2012 Presidential Election was above or below the statewide turnout rate of 59.6 percent.

Blank fields indicate that the Census Bureau has suppressed data for privacy reasons and/or that turnout data is unavailable 
because the Native village does not have its own polling place.

Alaska
Native
Village

Census Area 
or Borough

Language Covered Under 
Section 203 of VRA

CVAP % 
that is LEP

% LEP CVAP 
that is 

Illiterate

Turnout % of 
Reg. Voters in 

2012 Pres. 
Election

% above or 
below Statewide 

Turnout %

Akiachak Bethel American Indian 39.7% 10.3% 36.0% -23.6%

Akiachak Bethel Yup’ik 42.0% 10.3% 36.0% -23.6%

http://www.census.gov/rdAdata/votmgiUghts_determination_
http://www.elections.alaska.gov


App. 3

Alaska
Native
Village

Census Area 
or Borough

Language Covered Under 
Section 203 of VRA

CVAP % 
that is LEP

% LEP CVAP 
that is 

Illiterate

Turnout % of 
Reg. Voters in 

2012 Pres. 
Election

% above or 
below Statewide 

Turnout %

Akiak Bethel American Indian, Yup’ik 52.3% -7.3%

Alakanuk Wade Hampton American Indian 15.1% 18.2% 47.6% -12.0%

Alakanuk Wade Hampton Yup’ik 15.6% 20.0% 47.6% -12.0%

Aleknagik Dillingham American Indian, Yup’ik 33.6% -26.0%

Algaaciq 
(St. Mary’s) Wade Hampton American Indian, Yup’ik 34.7% -24.9%

Allakaket Yukon-
Koyukuk

American Indian, 
Athabascan

33.6% -26.0%

Ambler Northwest
Arctic

American Indian, Inupiat 46.0% -13.6%

Anaktuvuk
Pass North Slope American Indian, Inupiat 36.0% -23.6%

Andreafsky 
(St. Mary’s) Wade Hampton American Indian, Yup’ik 34.7% -24.9%

Aniak Bethel American Indian 34.7% 11.8% 40.6% -19.0%

Aniak Bethel Yup’ik 40.6% -19.0%

Atmautluak Bethel American Indian, Yup’ik 39.1% -20.5%

Atqasuk North Slope American Indian, Inupiat 38.1% -21.5%

Barrow North Slope American Indian 20.4% 12.5% 36.8% -22.8%

Barrow North Slope Inupiat 21.4% 10.3% 36.8% -22.8%

Beaver Yukon-
Koyukuk

American Indian, 
Athabascan

44.4% -15.2%

Bethel Bethel American Indian 32.1% 12.4% 33.9% -25.7%

Bethel Bethel Yup’ik 41.8% 11.6% 33.9% -25.7%



App. 4

Alaska
Native
Village

Census Area 
or Borough

Language Covered Under 
Section 203 of VRA

CVAP % 
that is LEP

% LEP CVAP 
that is 

Illiterate

Turnout % of 
Reg. Voters in 

2012 Pres. 
Election

% above or 
below Statewide 

Turnout %

Brevig
Mission Nome American Indian 9.8% 20.0% 50.2% -9.4%

Brevig
Mission Nome Inupiat 7.5% 26.7% 50.2% -9.4%

Buckland Northwest
Arctic

American Indian 11.1% 16.0% 25.7% -33.9%

Buckland Northwest
Arctic

Inupiat 12.5% 16.0% 25.7% -33.9%

Chefornak Bethel American Indian 41.7% 10.0% 43.1% -16.5%

Chefornak Bethel Yup’ik 42.6% 10.0% 43.1% -16.5%

Chevak Wade Hampton American Indian 14.6% 26.7% 42.8% -16.8%

Chevak Wade Hampton Inupiat 14.6% 30.8% 42.8% -16.8%

Chuathbaluk Bethel American Indian, Yup’ik 35.9% -23.7%

marks Point Dillingham American Indian, Yup’ik 31.7% -27.9%

Crooked
Creek Bethel American Indian, Yup’ik 45.7% -13.9%

Deering
Northwest

Arctic
American Indian, Inupiat 41.0% -18.6%

Dillingham Dillingham American Indian 15.1% 30.0% 45.2% -14.4%

Dillingham Dillingham Yup’ik 18.2% 32.0% 45.2% -14.4%

Eek Bethel American Indian, Yup’ik 41.7% -17.9%

Ekwok Dillingham American Indian, Yup’ik 45.6% -14.0%

Emmonak Wade Hampton American Indian 15.4% 21.4% 43.4% -16.2%

Emmonak Wade Hampton Yup’ik 15.9% 21.4% 43.4% -16.2%



App. 5

Alaska
Native
Village

Census Area 
or Borough

Language Covered Under 
Section 203 of VRA

CVAP % 
that is LEP

% LEP CVAP 
that is 

Illiterate

Turnout % of 
Reg. Voters in 

2012 Pres. 
Election

% above or 
below Statewide 

Turnout %

Fort Yukon Yukon-
Koyukuk American Indian 6.8% 16.0% 38.2% -21.4%

Fort Yukon Yukon-
Koyukuk Athabascan 5.9% 20.0% 38.2% -21.4%

Galena Yukon-
Koyukuk American Indian 6.7% 26.7% 71.7% 12.1%

Galena Yukon-
Koyukuk Athabascan 71.7% 12.1%

Gambell Nome American Indian 22.1% 11.8% 48.1% -11.5%
Gambell Nome Yup’ik 23.0% 11.8% 48.1% -11.5%
Golovin Nome American Indian, Inupiat 70.6% 11.0%

Goodnews
Bay Bethel American Indian 40.0% 6.7% 40.5% -19.1%

Goodnews
Bay Bethel Yup’ik 40.5% -19.1%

Grayling Yukon-
Koyukuk

American Indian, 
Athabascan 48.7% -10.9%

Holy Cross Yukon-
Koyukuk

American Indian, 
Athabascan 41.1% -18.5%

Hooper Bay Wade Hampton American Indian 12.0% 20.0% 41.9% -17.7%
Hooper Bay Wade Hampton Yup’ik 16.1% 21.4% 41.9% -17.7%

Hughes Yukon-
Koyukuk

American Indian, 
Athabascan 70.0% 10.4%

Huslia Yukon-
Koyukuk

American Indian, 
Athabascan 57.8% -1.8%



App. 6

Alaska
Native
Village

Census Area Language Covered Under 
or Borough Section 203 of VRA

Inalik
(Diomede)
Kaktovik
Kalskag

Kaltag

Kasigluk
Kasigluk

Kiana

Kiana

Kipnuk
Kipnuk

Kivalina

Kivalina

Kobuk

Kongiganak
Kongiganak

Kotlik
Kotlik

Nome

North Slope 
Bethel
Yukon-

Koyukuk
Bethel
Bethel

Northwest 
Arctic_____

Northwest
Arctic
Bethel
Bethel

Northwest
Arctic

Northwest
Arctic

Northwest
Arctic
Bethel
Bethel

Wade Hampton 
Wade Hampton

American Indian, Inupiat

American Indian, Inupiat
American Indian, Yup’ik

American Indian, 
Athabascan

American Indian
_______  Yup’ik_________

American Indian

Inupiat

American Indian 
Yup’ik

American Indian

Inupiat

American Indian, Inupiat

American Indian 
Yup’ik

American Indian 
Yup’ik

CVAP % 
that is LEP

40.3%
"41.7%

12.5%

% LEP CVAP 
that is 

Illiterate

12.0%
12.0%

16.0%

Turnout % of 
Reg. Voters in 

2012 Pres. 
Election

34.7%

47.3%
57.3%

43.9%

30.4%
30.4%

33.9%

% above or 
below Statewide 

Turnout %

-24.9%

~H2.3%~
-2.3%

-15.7%

-29.2%
-29.2%

-25.7%

13.5%

40.8%
42.0%

11.6%

16.0%

~1U3%~
10.3%

16.0%

33.9%

36.8%
36.8%

43.3%

-25.7%

~ 22. 8% ~

-22.8%

-16.3%

11.6% 16.0% 43.3% -16.3%

41.2%
41.7%
15.4%
16.1%

9.5%
10.0%

20.0%
22.2%

41.5%

43.8%
43.8%
43.5%
43.5%

-18.1%

-15.8%
-15.8%
-16.1%
-16.1%



App. 7

Alaska
Native
Village

Census Area Language Covered Under 
or Borough Section 203 of VRA

Kotzebue

Kotzebue

Koyuk j 
Koyuk

Koyukuk

Kwethluk 
Kwethluk j 

Kwigilbngok 
Kwinhagak 
(Quinhagak) 
Kwinhagak 
(Quinhagak)

Lower
Kalskag

Manokotak
Manokotak

Marshall
Marshall
Mekoryuk

Minto

Northwest
Arctic

Northwest
Arctic
Nome
Nome

Yukon-
Koyukuk

Bethel
Bethel
Bethel

American Indian

Inupiat

American Indian 
Inupiat

American Indian, 
Athabascan

American Indian 
Yupdk

American Indian, Yup ik

Bethel American Indian

Bethel Yup’ik

Bethel American Indian, Yup ik

Dillingham 
Dillingham 

Wade Hampton 
Wade Hampton 

Bethel
Yukon-

Koyukuk

American Indian_____
Yup’ik

American Indian
______  Yup’ik_________
American Indian, Inupiat

American Indian, • 
Athabascan

CVAP % 
that is LEP

% LEP CVAP 
that is 

Illiterate

Turnout % of 
Reg. Voters in 

2012 Pres. 
Election

% above or 
below Statewide 

Turnout %



App. 8

Alaska
Native
Village

Census Area 
or Borough

Language Covered Under 
Section 203 of VRA

Mountain
Village

Wade Hampton American Indian

Mountain
Village

Wade Hampton Yup’ik

Napakiak Bethel American Indian

Napakiak Bethel Yup’ik

Napaskiak Bethel American Indian

Napaskiak Bethel Yup’ik

Nenana
Yukon-

Koyukuk
American Indian, 

Athabascan

New
Koliganek

Dillingham American Indian, Yup’ik

New
Stuyahok

Dillingham American Indian

New
Stuyahok

Dillingham Yup’ik

Newtok Bethel American Indian, Yup’ik

Nightmute Bethel American Indian

Nightmute Bethel Yup’ik

Noatak
Northwest

Arctic
American Indian

Noatak .
Northwest

Arctic
Inupiat

CVAP % 
that is LEP

% LEP CVAP 
that is 

Illiterate

Turnout % of 
Reg. Voters in 

2012 Pres. 
Election

% above or 
below Statewide 

Turnout %

15.4% 21.4% 41.5% -18.1%

16.7% 21.4% 41.5% -18.1%

41.9% 11.1% 35.0% -24.6%

40.5% 11.8% 35.0% -24.6%

41.3% 10.5% 40.8% -18.8%
40.8% -18.8%

47.3% -12.3%

46.0% -13.6%

17.2% 30.0% 44.6% -15.0%

17.5% 30.0% 44.6% -15.0%

42.8% -16.8%

36.7% 7.3% 50.4% -9.2%

42.3% 7.3% 50.4% -9.2%

12.1% 11.4% 49.3% -10.3%

12.5% 11.4% 49.3% -10.3%



App. 9

Alaska
Native
Village

Census Area Language Covered Under 
or Borough Section 203 of VRA

Noorvik

Noorvik

Northwest
Arctic

Northwest
Arctic

Nuiqsut North Slope

Nulato

Nulato

Nunam Iqua 
Nunapitchuk 
Nunapitchuk 

Oscarville 
Pilot Station 
Pilot Station 
Pitkas Point 

Platinum 
Point Hope 
Point Hope 
Point Lay

Ruby

Yukon-
Koyukuk
Yukon-

Koyukuk
Wade Hampton 

Bethel 
Bethel 
Bethel

Wade Hampton 
Wade Hampton 
Wade Hampton 

Bethel 
North Slope 
North Slope 
North Slope

Yukon-
Koyukuk

American Indian

Inupiat

American Indian, Inupiat, 
Unspecified Alaska Native

American Indian

Athabascan

American Indian, Yup’ik 
American Indian 

Yup’ik
American Indian, Yup’ik 

American Indian 
Yup’ik

American Indian, Yup’ik 
American Indian, Yup’ik 

American Indian
Inupiat________

American Indian, Inupiat
American Indian, 

Athabascan

CVAP % 
that is LEP

% LEP CVAP 
that is 

Illiterate

Turnout % of 
Reg. Voters in 

2012 Pres. 
Election

% above or 
below Statewide 

Turnout %

12.0% 8.9% 39.0% -20.6%

12.3% 8.9% 39.0% -20.6%

43.5% -16.1%

5.6% 40.0% 42.3% -17.3%

5.6% 40.0% 42.3% -17.3%

55.8% -3.8%

33.9% 10.5% 38.5% -21.1%

42.2% 10.5% 38.5% -21.1%

15.4% 20.0% 50.5% -9.1%

15.9% 20.0% 50.5% -9.1%

21.5% 11.8% 39.8% -19.8%

20.5% 12.5% 39.8% -19.8%
32.0% -27.6%

35.9% -23.7%



App. 10

Alaska
Native
Village

Census Area 
or Borough

Language Covered Under 
Section 203 of VRA

CVAP % 
that is LEP

% LEP CVAP 
that is 

Illiterate

Turnout % of 
Reg. Voters in 

2012 Pres. 
Election

% above or 
below Statewide 

Turnout %

Russian
Mission Wade Hampton American Indian, Yup’ik 51.8% -7.8%

St. Michael Nome American Indian 7.1% 26.7% 34.7% -24.9%
St. Michael Nome Yup’ik 34.7% -24.9%
Savoonga Nome American Indian 21.4% 11.1% 57.3% -2.3%
Savoonga Nome Yup’ik 22.8% 11.1% 57.3% -2.3%
Scammon

Bay Wade Hampton American Indian 15.2% 28.6% 53.0% -6.6%

Scammon
Bay Wade Hampton Yup’ik 15.6% 28.6% 53.0% -6.6%

Selawik Northwest
Arctic American Indian 11.4% 8.0% 37.6% -22.0%

Selawik Northwest
Arctic Inupiat 12.0% 8.0% 37.6% -22.0%

Shageluk Yukon-
Koyukuk

American Indian, 
Athabascan 49.2% -10.4%

Shaktoolik Nome American Indian, Inupiat 54.7% -4.9%
Shishmaref Nome American Indian 8.1% 16.0% 57.4% -2.2%
Shishmaref Nome Inupiat 8.3% 16.0% 57.4% -2.2%

Shungnak Northwest
Arctic American Indian, Inupiat 51.7% -7.9%

Sleetmute Bethel American Indian, Yup’ik 49.2% -10.4%
Stebbins Nome American Indian 20.7% 6.7 % 36.7% -22.9%
Stebbins Nome Yup’ik 22.2% 6.7% 36.7% -22.9%



App. 11

Alaska
Native
Village

Census Area 
or Borough

Language Covered Under 
Section 203 of VRA

CVAP % 
that is LEP

% LEP CVAP 
that is 

Illiterate

Turnout % of 
Reg. Voters in 

2012 Pres. 
Election

% above or 
below Statewide 

Turnout %

Stony River Bethel American Indian, Yup’ik

Tanana Yukon-
Koyukuk

American Indian, 
Athabascan 48.1% -11.5%

Teller Nome American Indian 7.4% 40.0% 38.6% -21.0%
Teller Nome Inupiat 38.6% -21.0%
Togiak Dillingham American Indian 17.6% 31.3% 36.2% -23.4%
Togiak Dillingham Yup’ik 18.6% 31.3% 36.2% -23.4%

Toksook Bay Bethel American Indian 40.4% 13.0% 47.8% -11.8%
Toksook Bay Bethel Yup’ik 41.8% 13.0% 47.8% -11.8%

Tuluksak Bethel American Indian 41.3% 10.5% 29.8% -29.8%
Tuluksak Bethel Yup’ik 42.2% 10.5% 29.8% -29.8%

Tuntutuliak Bethel American Indian 42.5% 11.8% 49.5% -10.1%
Tuntutuliak Bethel Yup’ik 41.0% 12.5% 49.5% -10.1%

Tununak Bethel American Indian 40.5% 13.3% 40.8% -18.8%
Tununak Bethel Yup’ik 42.9% 13.3% 40.8% -18.8%

Twin Hills Dillingham American Indian, Yup’ik
Unalakleet Nome American Indian 8.9% 11.4% 51.6% -8.0%
Unalakleet Nome Inupiat 8.6% 13.3% 51.6% -8.0%
Wain wright North Slope American Indian 21.5% 14.3% 44.3% -15.3%
Wainwright North Slope Inupiat 20.6% 6.2% 44.3% -15.3%

Wales Nome American Indian, Inupiat 60.4% 0.8%
White

Mountain Nome American Indian, Inupiat 42.8% -16.8%



App. 12

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF ALASKA

Case No. 3:07-cv-0098 TMB 
ORDER

Re: Plaintiffs’ Motion 
for a Preliminary 

Injunction Against 
the State Defendants

(Filed Jul. 30, 2008)

I. MOTION PRESENTED
At Docket 202, Plaintiffs seek a preliminary in­

junction requiring the Defendants to adopt certain 
measures related to the minority language and voter 
assistance rights guaranteed by the Voting Rights Act 
of 1965 (“VRA”). Specifically, the Plaintiffs urge the 
Court to order mandatory relief to ensure that Yup’ik- 
speaking voters in the Bethel Census area receive 
effective language assistance under sections 2031 and 
(4)(f)(4)1 2 of the VRA, and that eligible voters receive 
assistance during the voting process, including in the 
voting booth, as guaranteed by section 2083 of the 
VRA. Defendants oppose the motion, on which oral 
argument was heard July 8, 2008.

Nick, et al.
Plaintiffs,

vs.
Bethel, et al.

Defendants.

1 42 U.S.C. § 1973aa-la.
2 42 U.S.C. § 1973b(f)(4).
3 42 U.S.C. § 1973aa-6.



App. 13

In light of the fact that the State’s August 26, 
2008 primary election is rapidly approaching, the 
Court issues this ruling with regard to the State De­
fendants only. The portion of the Plaintiffs’ motion 
seeking injunctive relief against the Bethel Defen­
dants* 5 remains under consideration.

As to the State Defendants, the Court has 
determined that the Plaintiffs are entitled to injunc­
tive relief in connection with the upcoming state-run 
elections. The Court therefore GRANTS the Plaintiffs’ 
motion with regard to the State Defendants and 
directs the State to comply with the relief described 
in section IV.B. of this order.

II. LEGAL STANDARD

A party moving for preliminary injunction must 
show that a legal remedy is inadequate, meaning 
that the moving party is faced with an immediate 
and irreparable injury for which they cannot be

The “State Defendants” include Sean Parnell, in his offi­
cial capacity as state Lieutenant Governor; Whitney Brewster, 
in her official capacity as Director of the state Division of Elec­
tions; Becka Baker, in her official capacity as Elections Supervi­
sor of the Nome Regional Elections Office; and Michelle Speegle, 
in her official capacity as Elections Supervisor of the Fairbanks 
Regional Elections Office.

The “Bethel Defendants” include Bethel, Alaska and Lori 
Strickler, in her official capacity as municipal clerk of Bethel.



App. 14

compensated with money damages.6 “[A] preliminary 
injunction should issue . . . upon a clear showing 
of either (1) probable success on the merits and pos­
sible irreparable injury, or (2) sufficiently serious 
questions going to the merits to make them fair 
grounds for litigation and a balance of hardships 
tipping decidedly toward the party requesting the 
preliminary relief.”7 Under this second test, it must 
be shown, at a minimum, that “even if the balance of 
hardships tips decidedly in favor of the moving party, 
it must be shown as an irreducible minimum that 
there is a fair chance of success on the merits.”8

Thus, the standard for a preliminary injunction 
balances the moving party’s likelihood of success 
against the relative hardship to the parties.9 “If the 
harm that may occur to the [moving party] is suffi­
ciently serious, it is only necessary that there be a 
fair chance of success on the merits.”10 *

See Dymo Industries, Inc. v. Tapeprinter, Inc., 326 F.2d 
141, 143 (9th Cir. 1964).

7 Aguirre v. Chula Vista Sanitary Serv. & Sani-Trainer, 
Inc., 542 F.2d 779, 781 (9th Cir. 1976) (citing Gresham v. 
Chambers, 501 F.2d 687, 691 (2nd Cir. 1974)); Walczak v. EPL 
Prolong, Inc., 198 F.3d 725, 731 (9th Cir. 1999).

8 Martin v. Int’l. Olympic Comm., 740 F.2d 670, 675 (9th 
Cir. 1984).

9 See Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 
1115, 1118 (9th Cir. 1999)

10 William Inglis & Sons Baking Co. v. ITT Continental
Baking Co., Inc., 526 F.2d 86, 88 (9th Cir. 1975).



App. 15

In the instant case, the Court must also consider the 
nature of the relief sought by the Plaintiffs. Where 
a party seeks mandatory relief that “goes well be­
yond maintaining the status quo pendente lite, courts 
should be extremely cautious about issuing a prelim­
inary injunction.”11 Mandatory preliminary relief is to 
be issued only where “the facts and law clearly favor 
the moving party.”12

III. BACKGROUND

On June 11, 2007, the Plaintiffs initiated this 
action seeking declaratory and injunctive relief with 
respect to election-related policies and procedures 
used by the state of Alaska and the city of Bethel 
in the Bethel census area. The Plaintiffs’ original 
complaint asserted violations of the VRA’s bilingual 
language and voter-assistance guarantees. The Plain­
tiffs later amended their complaint to add an addi­
tional cause of action, alleging that the Defendants 
violated the “preclearance” requirements of section 513 
of the VRA. A three-judge panel was then appointed 
to hear the section 5 claim, as required by federal 
law.14

12 Stanley v. University of Southern Calif., 13 F.3d 1313, 
1320 (9th Cir. 1994).

42 U.S.C. § 1973c.
42 U.S.C. § 1973c; 28 U.S.C. § 2284.14



App. 16

On May 22, 2008, the Plaintiffs filed the motion 
for a preliminary injunction at issue here, along with 
a 29-page proposed order addressing the purported 
shortcomings of the Defendants’ efforts to provide 
language assistance to Yup’ik-speaking voters in the 
Bethel region. The Plaintiffs seek injunctive relief in 
connection with three upcoming state-run elections: 
the August 26, 2008 primary, the October 7, 2008 Re­
gional Educational Attendance Area (REAA) and 
Coastal Resources Service Area (CRSA) elections; and 
the November 4, 2008 general election.

The Plaintiffs did not seek expedited review of 
their request for injunctive relief until June 9, 2008. 
Following a Court-convened status conference, the 
Plaintiffs filed a status report with a much-reduced 
list of actions sought as relief for the August 26, 2008 
primary election. The pared down list includes: the 
appointment of federal election observers, the hiring 
of a bilingual elections coordinator fluent in English 
and Yup’ik, the development of a Yup’ik glossary of 
common election terms, the airing of pre-election pub­
licity and announcements in Yup’ik, consultation with 
Plaintiffs’ counsel and tribal leaders to ensure the ac­
curacy of any materials translated into Yup’ik, man­
datory poll worker training on the VRA’s bilingual 
language requirements, and pre- and post-election 
reports summarizing the State’s efforts to comply 
with these measures. The Plaintiffs also seek, for 
each polling place within the Bethel census area, the 
provision of a sample ballot translated into Yup’ik 
and the display of a poster written in Yup’ik and



App. 17

English notifying voters of the availability of lan­
guage and voting assistance.

Even while opposing the Plaintiffs’ motion for 
a preliminary injunction, the State has, during the 
course of this litigation, taken substantial steps to 
overhaul its minority language assistance program 
(“MLAP”) for Alaska Native voters. The revised 
MLAP includes many -  but not all -  of the actions 
sought by the Plaintiffs in their status report. The 
State’s plan does not, however, call for the translation 
of all written election materials into Yup’ik, because 
the State contends this is not required under the 
VRA. The State moved for summary judgment on this 
issue, which the Court granted before the hearing on 
July 8, 2008; in a written ruling issued on July 23, 
2008, the Court found that Yup’ik is a “historically 
unwritten” language for purposes of the VRA and, 
therefore, the VRA requires the Defendants to pro­
vide oral -  but not written -  assistance to Yup’ik- 
speaking voters. While granting summary judgment 
to the State Defendants on this issue, the Court noted 
that they may need to print some election-related 
materials in Yup’ik, such as sample ballots, to provide 
“effective” language assistance, as required by federal 
regulations implementing the VRA.15

Because it initially appeared that the Plaintiffs’ 
original motion for a preliminary injunction implicitly 
involved the section 5 claim, the three-judge panel

15 28 C.F.R. § 55.2.



App. 18

appointed to hear that claim participated in the July 
8, 2008 hearing. But the parties’ arguments at the 
hearing, and the Plaintiffs’ filing of a separate motion 
for a preliminary injunction on the section 5 claim 
shortly before the hearing, made clear that the issues 
raised in this motion are distinct from the section 5 
claim. Because of this, Judge Burgess, to whom this 
case was originally assigned, retained jurisdiction 
over the Plaintiffs’ original motion for a preliminary 
injunction. The Plaintiffs’ second motion seeking 
injunctive relief -  which deals exclusively with the 
section 5 claim -  remains pending before the three- 
judge panel.

IV. DISCUSSION

As noted above, a party seeking a preliminary 
injunction must show either the possibility of an ir­
reparable injury and a likelihood of succeeding on the 
merits, or sufficiently serious questions going to the 
merits and a balance of hardships tipping decidedly 
in their favor. Given the importance accorded an in­
dividual’s constitutional right to vote, the Court finds 
at the outset that the Plaintiffs have satisfied the 
“irreparable harm” prong of the first preliminary 
injunction standard. The “right to vote freely for the 
candidate of one’s choice is of the essence of a demo­
cratic society, and any restrictions on that right strike 
at the heart of representative government.”16 Denial

16 Reynolds u. Sims, 377 U.S. 533, 555 (1964).



App. 19

of the right to participate in an election is by its 
nature an irreparable injury.1'

A. Probable Success on the Merits

Shifting to the second prong of the analysis, the 
Plaintiffs assert that there is “overwhelming evi­
dence” of the State Defendants’ failure to provide ef­
fective language and voter assistance in violation of 
sections 4(f)(4), 203 and 208 of the VRA. The State 
Defendants respond that injunctive relief should be 
denied because they are in the process of improv­
ing their MLAP and, therefore, the Plaintiffs cannot 
establish a likelihood of success on the merits.

The requirements of sections 4(f)(4) and 203 of 
the VRA are essentially identical. They bar covered 
jurisdictions from providing English-only voting in­
structions and materials in any public election; all 
“voting materials” provided in English must also be 
provided in each language triggering coverage under 
the VRA. Specifically, the VRA’s provisions direct that 
whenever a State or political subdivision “provides 
any voting notices, forms, instructions, assistance, or 
other materials or information relating to the elec­
toral process, including ballots, it shall provide them 
in the language of the applicable minority group as 
well as in the English language . . . ” Both sections 
also include the following exemption:

17 Id. at 585.



App. 20

Provided, That where the language of the 
applicable minority group is oral or unwrit­
ten or in the case of Alaskan Natives and 
American Indians, if the predominant lan­
guage is historically unwritten, the State or 
political subdivision is only required to fur­
nish oral instructions, assistance, or other 
information relating to registration and vot­
ing.18

Because the Court has ruled that Yup’ik is a “his­
torically unwritten” language, this exemption applies 
and the Defendants are required to provide oral as­
sistance only to Yup’ik-speaking voters.

Compliance with the VRA’s bilingual provisions 
is measured by an “effectiveness” standard. The crit­
ical question is whether materials are provided in a 
such a way that voters from applicable language 
groups are “effectively informed of and participate 
effectively in voting-connected activities” and whether 
a covered jurisdiction has taken “all reasonable steps 
to achieve that goal.”19 In addition, the U.S. Attorney 
General has issued regulations on oral assistance and 
election-related publicity, which state:

(a) General. Announcements, publicity, and 
assistance should be given in oral form to 
the extent needed to enable members of the 
applicable language minority group to partic­
ipate effectively in the electoral process.

18 42 U.S.C. §§ 1973b(fX4) and 1973aa-la(c) (emphasis added).
19 28 C.F.R. § 55.2.



App. 21

(b) Assistance. The Attorney General will 
consider whether a jurisdiction has given 
sufficient attention to the needs of language 
minority group members who cannot effec­
tively read either English or the applicable 
minority language and to the needs of mem­
bers of language minority groups whose lan­
guages are unwritten.

(c) Helpers. With respect to the conduct of 
elections, the jurisdiction will need to deter­
mine the number of helpers (i.e., persons to 
provide oral assistance in the minority lan­
guage) that must be provided. In evaluating 
the provision of assistance,, the Attorney 
General will consider such facts as the num­
ber of a precinct’s registered voters who are 
members of the applicable language minority 
group, the number of such persons who are 
not proficient in English, and the ability of a 
voter to be assisted by a person of his or her 
own choice. The basic standard is one of ef­
fectiveness.20

It is undisputed that the state of Alaska is a 
“covered jurisdiction” under Section 4(f)(4) for Alaska 
Natives, and that the Bethel census area, which in­
cludes the city of Bethel, is a “covered jurisdiction” 
under Section 203 for Alaska Natives and the Yup’ik 
language.21 Section 208 of the VRA applies to all 
jurisdictions, and not just those deemed “covered” for

20 28 CFR § 55.20.
See 28 C.F.R. Pt. 55, App.21



App. 22

the language assistance provisions. It provides that 
voters who need assistance because they are blind, 
disabled, or unable to read or write, may receive as­
sistance from a person of their choice, other than 
their employer, agent of their employer, or an agent of 
their union.22

Based on the evidence presented, the Court finds 
that the Plaintiffs have met their burden and estab­
lished that they are likely to succeed on the merits 
on the language assistance claims brought under 
sections 203 and 4(f)(4) of the VRA, and the voter 
assistance claims brought under section 208 of the 
VRA. In reaching this conclusion, the Court relies 
on affidavits, depositions and other evidence show­
ing that the State has failed to: provide print and 
broadcast public service announcements (PSA’s) in 
Yup’ik, or to track whether PSA’s originally provided 
to a Bethel radio station in English were translated 
and broadcast in Yup’ik;22 ensure that at least one poll 
worker at each precinct is fluent in Yup’ik and capa­
ble of translating ballot questions from English into 
Yup’ik;24 * ensure that “on the spot” oral translations 
of ballot questions are comprehensive and accurate;23 
or require mandatory training of poll workers in 
the Bethel census area, with specific instructions on

22 42 U.S.C. § 1973aa-6.
23 Dkt. 202, Ex. 191 at 127-28, 148.
24 Dkt. 202, Ex. 191 at 166; Ex. 159 at 73; Ex. 183 at 

HI 198-99. See also Dkt. 90 at 1 17.
Dkt. 202, Ex. 159 at 76-77.25



App. 23

translating ballot materials for Yup’ik-speaking vot­
ers with limited English proficiency.26 *

After considering this evidence and the parties’ 
arguments at the July 8, 2008 hearing, the Court also 
rejects the State Defendants’ contention that injunc­
tive relief should be denied because the State is in the 
midst of revamping its MLAP. The evidence shows 
that State officials became aware of potential prob­
lems with their language-assistance program in the 
spring of 2006, after the Native American Rights 
Fund issued a report describing the State’s alleged 
failure to comply with the VRA’s minority language 
provisions. Yet the State’s efforts to overhaul the 
language assistance program did not begin in earnest 
until after this litigation began. Whitney Brewster, 
director of the State’s Division of Elections, testified 
during her deposition that the Division began work­
ing to improve the MLAP in April 2006. These efforts 
were put on hold, however, while the Division pre­
pared for elections in the fall of 2006 and a statewide 
special election in April 2007.2‘ Therefore, while the 
State contends that an injunction is unnecessary, the 
court disagrees in light of the fact that: 1) the State 
has been covered by Sections 203 and 4(f)4 for many 
years now; 2) the State lacks adequate records to 
document past efforts to provide language assistance 
to Alaska Native voters; and 3) the revisions to the

26 Dkt. 202, Ex. 191 at 169-71; Ex. 159 at 60, 63.
Dkt. 202, Ex. 191 at 70-71.27



App. 24

State’s MLAP, which are designed to bring it into 
compliance, are relatively new and untested. For all 
these reasons, the Court concludes that injunctive 
relief is both appropriate and necessary. The Court 
acknowledges that the State has undertaken signifi­
cant efforts to improve its language assistance pro­
gram. But by the State’s own admission, the overhaul 
remains a work in progress. In opposing the Plain­
tiffs’ motion, the State asserts that it is “in the pro­
cess of adopting enhancements,” and counsel for the 
State acknowledged during the July 8, 2008 hearing 
that officials are still working to train and recruit poll 
bilingual poll workers and to assemble a Yup’ik glos­
sary of election-related terms. Until these measures 
and others are fully in place, the evidence of past 
shortcomings justifies the issuance of injunctive relief 
to ensure that Yup’ik-speaking voters have the means 
to fully participate in the upcoming State-run elec­
tions.28

In addition to the language-assistance claims 
brought under sections 203 and 4(f)(4) of the VBA, 
Plaintiffs have demonstrated that they are likely to 
prevail on their section 208 voter-assistance claim as

28 The Court also rejects the State’s arguments that in­
junctive relief should be denied on the grounds of laches and 
unclean hands. The State asserts that the Plaintiffs unreason­
ably delayed filing for injunctive relief and “tried to block” the 
Division’s implementation of improvements by filing critical 
comments with the U.S. Department of Justice in response to 
the State’s effort to obtain “preclearance” of its new procedures. 
The Court finds these arguments to be without merit.



App. 25

well. That claim asserts that poll workers have reg­
ularly failed to allow voters (or apprise voters of their 
right) to bring an individual of their choice into the 
voting booth to assist them in the voting process. 
While the evidence on this claim is more anecdotal, it 
nonetheless satisfies the Plaintiffs’ burden for injunc­
tive relief. This evidence primarily consists of affida­
vits and deposition testimony showing that some poll 
workers in the Bethel census area do not understand 
that blind, disabled or illiterate voters have the right 
to receive assistance from a “helper” of their choosing. 
For example, Plaintiff Anna Nick has heard poll 
workers in Akiachak tell other voters that they “can­
not bring anyone with them into the booth because 
their vote must remain private.”29 Similarly, Elena 
Gregory, a resident of the village of Tuluksak, reports 
being told by a poll worker that she “could not help 
the others vote if they did not understand” the ballots 
written in English.30 In her declaration, she states: “I 
have voted in an election where the poll worker told 
me that elders could not have help interpreting or 
reading the ballots, and that everyone had to be 50 
feet away from the person voting.”31 And in the city of 
Bethel of the village of Kwigillingok, election workers 
have failed to offer assistance to voters who needed 
it, and who were entitled to it under section 208.32

90 at M  19-20.
164 at 1 8.

89 at 1 24. See also Dkt. 161 at 'l l  22, 23.

29 Dkt.
30 Dkt.
31 Id.
32 Dkt.



App. 26

Although courts have denied injunctions based on 
isolated instances of election-related misconduct, the 
evidence here appears to go well beyond that. Multi­
ple individuals, in different districts and with differ­
ent poll workers, have reported strikingly similar 
experiences. These accounts suggest that the vio­
lations of section 208 — which deny voters rights 
guaranteed by the VEA -  are more than disparate 
incidents. As a result, an injunction appears to be an 
appropriate way to provide relief. Notably, as the 
Court will explain in the following section, most of 
the ordered relief simply obligates the State, under 
penalty of contempt, to do what it already promised 
to do at the July 8, 2008 oral argument. Accordingly, 
the burden imposed by this injunction will be minor.

B. Injunctive Relief

Having established that Plaintiffs are entitled 
to some form of injunctive relief, the Court turns 
next to the specific relief sought by the Plaintiffs. As 
noted above, the Plaintiffs submitted a pared-down 
list of requested actions in their June 6, 2008 status 
report to the Court. At oral argument, counsel for the 
State Defendants indicated that the State has al­
ready taken significant steps to implement a number 
of these actions. As a result, the issues in this case 
have narrowed considerably, and the remedial actions 
on which the parties remain at odds are relatively 
few. Based on the July 8, 2008 hearing and the par­
ties’ briefs, the Court orders the State Defendants 
to implement the following actions:



App. 27

1. Provide mandatory poll worker train­
ing. Poll workers shall be instructed on the 
VRA’s guarantees of language and voter as­
sistance. In addition, poll workers serving as 
translators should be trained on the methods 
and tools available for providing complete 
and accurate translations.

2. Hire a language assistance coor­
dinator fluent in Yup’ik. In addition to 
implementing the State’s revised language 
assistance program in the Bethel region, the 
coordinator should act as a liaison to the 
tribal councils and Yup’ik-speaking commu­
nity to ensure the State’s efforts result in ef­
fective language assistance.

3. Recruit bilingual poll workers or 
translators. At least one poll worker or 
translator fluent in Yup’ik and English shall 
be assigned to each polling place within the 
Bethel census area for the upcoming State- 
run elections.

4. Provide sample ballots in written 
Yup’ik. At least one such ballot shall be 
available at each precinct within the Bethel 
census area to aid poll workers in translating 
ballot materials and instructions for Yup’ik- 
speaking voters with limited English profi­
ciency.

5. Provide pre-election publicity in Yup’ik.
Election-related announcements provided in 
English shall be broadcast or published in 
Yup’ik as well. Pre-election publicity should



App. 28

specifically inform Yup’ik speakers that lan­
guage assistance will be available at all poll­
ing locations within the Bethel census area.

6. Ensure the accuracy of translations.
The State must consult with Yup’ik language 
experts to ensure the accuracy of all trans­
lated election materials.

7. Provide a Yup’ik glossary of election 
terms. During oral argument, counsel for 
the State Defendants indicated that the 
State has already compiled a draft version of 
a Yup’ik glossary of election-related terms. At 
least one copy of this glossary shall be pro­
vided to each polling place within the Bethel 
census area to assist bilingual poll workers 
and translators.

8. Submit pre-election and post-election 
progress reports. The State Defendants 
shall submit information on the status of ef­
forts to comply with this Court-ordered pro­
gram of relief and, more generally, the VRA’s 
language and voter assistance provisions.
The information should be specific and pro­
vided in a verifiable form, e.g., a precinct- 
by-precinct list of the names of designated 
bilingual poll workers or translators for the 
upcoming fall elections. Progress reports 
must be filed with the Court 15 days before 
each election (beginning with the August 26, 
2008 statewide primary), and again 30 days 
after each election.

The Court’s reasons for requesting the pre- and 
post-election progress reports are two-fold: First, they



App. 29

will assist the Court in gauging compliance with 
the measures ordered here and with sections 4(f)(4), 
203 and 208 of the VRA. Second, the reports will 
aid the three-judge panel in assessing the baseline 
for Plaintiffs’ section 5 preclearance claims. As men­
tioned above, the Plaintiffs’ motion for a preliminary 
injunction on that claim remains pending before the 
panel.

In ordering this injunctive relief, the Court de­
clines the Plaintiffs’ request for federal election ob­
servers. Under 42 U.S.C. § 1973a(a) the Court has 
authority to appoint federal election observers “if the 
Court determines that the appointment of such ex­
aminers is necessary to enforce” the voting guaran­
tees of the fourteenth and fifteenth amendments.33 
Given the significant efforts made by the State to re­
vamp the language assistance program for Alaska 
Natives, and the progress reports required in connec­
tion with this order, the Court concludes that federal 
observers are not necessary at this time.

The Court also denies the Plaintiffs’ request that 
the State be required to display a poster at each 
polling location within the Bethel census area an­
nouncing, in Yup’ik and English, the availability of 
language assistance. The State asserts that such a 
requirement would contradict the VRA’s written- 
assistance exemption for “historically unwritten” lan­
guages. Without addressing this argument, the Court

33 42 U.S.C. § 1973a(a).



App. 30

is satisfied that the State is pursuing adequate al­
ternative means to inform Yup’ik-speaking voters 
about the availability of language assistance via pre­
election publicity, poll worker training, and buttons 
for poll workers.

V. CONCLUSION

For the reasons stated above, the Court GRANTS 
the Plaintiffs’ Motion for a Preliminary Injunction at 
Docket 202 as to the State Defendants and orders the 
specific relief listed in Section IV.B. of this order.34

44 Although courts typically require the plaintiff to post a 
bond before obtaining a preliminary injunction, see Fed. R. Civ. 
P. 65(c), this procedure may be excused when the defendant fails 
to request a bond, or when a case presents “exceptional” circum­
stances. Both apply here. First, the Defendants have effectively 
waived the requirement by failing to request a bond in their 
opposition. See Aoude v. Mobile Oil Corp., 862 F.2d 890, 896 
(1st Cir. 1988); Connecticut Gen. Life Ins. Co. v. New Images of 
Beverly Hills, 321 F.3d 878, 82 (9th Cir. 2003) (appellate court 
will not consider issued not raised in the trial court). Further, 
bonds may also be excused in exceptional cases, such as suits to 
protect the public interest, Pharmaceutical Soc. of State of New 
York, Inc. v. New York State Dept, of Social Services, 50 F.3d 
1168, 1175-75 (suit to ensure that State complied with federal 
Medicaid Act), or cases in which a bond would effectively deny 
access to judicial review, see Save Our Sonoran, Inc. v. Flowers, 
408 F.3d 1113, 1126 (9th Cir. 2005) ([Requiring nominal bonds 
is perfectly proper in public interest litigation”). The Court finds 
that these exceptional circumstances exist here: Plaintiffs have 
brought a public interest lawsuit, seeking only equitable and 
declaratory relief, to enforce the voting rights guaranteed them­
selves (and others) under federal law. Accordingly, the Court 

(Continued on following page)



App. 31

Dated at Anchorage, Alaska, this 30th day of July 
2008.

/s/ Timothy Burgess_________
Timothy M. Burgess 
United States District Judge

concludes that a bond is unnecessary. See Roth v. Bank of the 
Commonwealth, 583 F.2d 527, 538 (6th Cir. 1988).



App. 32

[SEAL] U.S. Department of Justice
Civil Rights Division

CC:MSR:SMC:jdh 
DJ 166-012-3 
2008-2739 
2008-3714

Voting Section -  NWB
950 Pennsylvania Avenue, NW
Washington, DC 20530

July 14, 2008
Gail Fenumiai, Esq.
Director, Division of Elections
P.O. Box 110017
Juneau, Alaska 99811-0017
Dear Ms. Fenumiai:

This refers to the consolidation of the Tatitlek 
Precinct into the Cordova Precinct, and the subse­
quent polling place change, precinct realignment and 
precinct name change to the Cordova-Tatitlek Pre­
cinct; consolidation of the North Prince of Wales Pre­
cinct into the Klawock Precinct, and the subsequent 
polling place change, and precinct realignment; con­
solidation of the Pedro Bay Precinct into the Iliamna- 
Newhalen Precinct, and the subsequent polling place 
change precinct realignment and precinct name 
change to the Iliamna Lake North Precinct; and the 
consolidation of the Levelock Precinct into the 
Kokhanok Precinct, and the subsequent polling place 
change, precinct realignment and precinct name 
change to the Iliamna Lake south Precinct, for the 
State of Alaska, submitted to the Attorney General



App. 33

pursuant to Section 5 of the Voting Rights Act, 42 
U.S.C. 1973c. We received your submission on May 
13, 2008.

With regard to the changes affecting the North 
Prince of Wales Precinct, the Attorney General does 
not interpose any objection to the specified change. 
However, we note that Section 5 expressly provides 
that the failure of the Attorney General to object does 
not bar subsequent litigation to enjoin the enforce­
ment of the change. Procedures for the Administra­
tion of Section 5 of the Voting Rights Act (28 C.F.R. 
51.41).

With regard to the remaining specified changes, 
our analysis indicates that the information sent is 
insufficient to enable us to determine that the pro­
posed changes do not have the purpose and will not 
have the effect of denying or abridging the right to 
vote on account of race, color, or membership in a 
language minority group, as required under Section 
5. The following information is necessary so that we 
may complete our review of your submission: 1

1. A detailed explanation of the proposed 
changes including: (a) the criteria used to determine 
that the Tatitlek, Pedro Bay and Levelock Precincts 
should be eliminated; (b) reasons for the selection of 
the precincts these would be consolidated into; (c) a 
description of any alternative(s) precincts considered 
for the consolidation and the reason(s) why each such 
alternative was not recommended or approved; and 
(d) the factual basis, including any reports, studies,



App. 34

analyses, or views (whatever formal or informal), for 
the State’s determination that the proposed changes 
will not have a retrogressive effect on minority voters.

2. A map for each of the consolidations, which 
depicts the existing voting precincts and the locations 
of their current polling places, and any other loca­
tions considered as potential polling places for these 
consolidated precincts. The maps should be accompa­
nied by a listing of the names and addresses of the 
current polling place locations along with the dis­
tance between each current location and the location 
with which it is being consolidated.

3. Please indicate the methods of transportation 
available to voters traveling from the old precinct to 
the new consolidated precinct. If no roadways connect 
the two, please indicate how voters will get to the 
consolidated location.

4. Please provide any methodology the State 
used to determine that there are no Alaskan Native- 
speakers in the impacted precincts, which are covered 
by the provisions of Section 203 of the Voting Rights 
Act. Please provide names of community members spo­
ken to regarding the presence or absence of limited- 
English proficient voters, including their daytime 
telephone numbers.

5. A detailed description of the efforts, both 
formal and informal, made by the State to secure the 
views of the public, including members of the minor­
ity community, regarding these changes. Describe the 
substance of any comments or suggestions received,



App. 35

provide the names and daytime telephone numbers of 
the persons making the comments or suggestions, 
and articulate the State’s response, if any.

6. Voter registration and turnout data, by race, 
for elections since 1998 for the precincts being elimi­
nated and subsequently consolidated.

During your recent conversation with Ms. Stephanie 
Celandine, of our staff, regarding these consolida­
tions, you noted that the specified voting precincts 
affected by the consolidations would be designated as 
permanent absentee by-mail precincts. According to 
our records, this change affecting voting has not been 
submitted to the United States District Court of the 
District of Columbia for judicial review or to the At­
torney General for administrative review as required 
by Section 5 of the Voting Rights Act, 42 U.S.C. 
1973c. If our information is correct, it is necessary 
that this change be brought before the District Court 
for the District of Columbia or submitted to the 
Attorney General for a determination that it does not 
have the purpose and will not have the effect of dis­
criminating on account of race, color, or membership 
in a language minority group. Changes which affect 
voting are legally unenforceable without Section 5 
preclearance. Clark v. Roemer, 500 U.S. 646 (1991); 
Procedures for the Administration of Section 5 of the 
Voting Rights Act (28 C.F.R. 51.10).

The Attorney General has sixty days to consider 
a completed submission pursuant to Section 5. This 
sixty-day review period will begin when we receive



App. 36

the information specified above. See the Procedures 
for the Administration of Section 5 of the Voting 
Rights Act (28 C.F.R. 51.37). However, if no response 
is received within sixty days of this request, the 
Attorney General may object to the proposed changes 
consistent with the burden of proof placed upon the 
submitting authority. See also 28 C.F.R. 51.40 and 
51.52(a) and (c). Changes which affect voting are le­
gally unenforceable unless Section 5 preclearance has 
been obtained. Clark v. Roemer, 500 U.S. 646 (1991); 
28 C.F.R. 51.10. Therefore, please inform us of the 
action the State of Alaska plans to take to comply 
with this request.

If you have any questions concerning this letter 
or if we can assist you in obtaining the requested 
information, you should call Ms. Celandine of our 
staff. Refer to File Nos. 2008-2739 and 2008-3714 in 
any response to this letter so that your correspon­
dence will be channeled properly.

Sincerely,
Is/ Maureen S. [Illegible] 
for Christopher Coates 

Chief, Voting Section



App. 37

[SEAL] U.S. Department of Justice
Civil Rights Division

CC:TFM:SBD:LB:jdh Voting Section -  NWB 
DJ 166-012-3 950 Pennsylvania Avenue, NW
2008-1726 Washington, DC 20530

August 1, 2008
VIA FACSIMILE & FIRST CLASS MAIL
Gail Fenumiai 
Director
Division of Elections 
State of Alaska 
P.O. Box 110017 
Juneau, Alaska 99811-0017
Dear Ms. Fenumiai:

This refers to the changes in bilingual election 
procedures for the State of Alaska (“State”), submit­
ted to the Attorney General pursuant to Section 5 of 
the Voting Rights Act, 42 U.S.C. 1973c. We received 
your response to our May 19, 2008 request for addi­
tional information on June 9, 2008.

Your June 9, 2008, letter withdraws your sub­
mission of the State’s revised Minority Language 
Assistance Program (“MLAP”) from Section 5 review. 
Accordingly, no determination by the Attorney Gen­
eral is required concerning this matter. See Proce­
dures for the Administration o f Section 5 of the Voting 
Rights Act, 28 C.F.R. 51.25(a). Please be advised, 
however, that the State of Alaska is required to



App. 38

provide bilingual election materials and minority 
language assistance in the Native American and 
Alaska Native languages under Sections 4(f)(4) and 
203 of the Voting Rights Act. Therefore, to the extent 
that the State seeks to implement new procedures, 
preclearance of those procedures will be required 
before they may be implemented.

The last precleared bilingual election procedures 
for the State are the 1981 plan for the Alaska Native 
languages, precleared by letter dated October 5, 1981, 
and the 2002 and 2003 plans for the Tagalog lan­
guage, precleared by letters dated October 22, 2002 
and November 17, 2003. However, according to dis­
covery conducted in the case, Nick, et al. v. Bethel, et 
al. (D. AK, 3:07-CV-00098-TMB) (“Nick”), admissions 
by State elections officials, and assertions in your 
letter dated June 9, 2008, regarding “conditions 
existing at the time of the submission” and the State’s 
continued implementation of “enhancements,” it ap­
pears that the State of Alaska is not currently fully 
implementing the 1981 plan and is instead imple­
menting new and different procedures. Any proce­
dures deviating from the prior precleared procedures 
are changes affecting voting for which preclearance is 
required. See Clark v. Roemer, 500 U.S. 646 (1991).

According to our records, some of those changes 
affecting voting in the state’s minority language pro­
gram that have been implemented since 1981 have 
not been submitted to the United States District 
Court for the District of Columbia for judicial review 
or to the Attorney General for administrative review



App. 39

as required by Section 5 of the Voting Rights Act. If 
our information is correct, it is necessary that these 
changes either be brought before the District Court 
for the District of Columbia or submitted to the At­
torney General for a determination that they do not 
have the purpose and will not have the effect of 
discriminating on account of race, color, or member­
ship in a language minority group. Changes which 
affect voting are legally unenforceable without Sec­
tion 5 preclearance. Id.-, 28 C.F.R. 51.10.

Should you elect to make a submission to the At­
torney General for administrative review rather than 
seek a declaratory judgment from the District Court 
for the District of Columbia, it should be made in 
accordance with Subparts B and C of the procedural 
guidelines, 28 C.F.R. Part 51. At that time we will 
review your statewide bilingual procedures; however, 
any documentation previously provided need not be 
resubmitted.

The State of Alaska has recently submitted por­
tions of its statewide bilingual procedures for Section 
5 review in submissions dated June 2, 2008 (bilingual 
assistance forms and posters), June 10, 2008 (bilin­
gual vote-by-mail materials), June 13, 2008 (bilingual 
vote-by-mail instructions), June 23, 2008 (Native 
Language and Tagalog audio on voting machines, and 
Native language audio CDs in polling places), and 
July 21, 2008 (using Native language audio CD re­
cordings on automated phone system and website). 
With regard to these changes, please refer to the sep­
arate letter to you dated today, in which we state that



App. 40

it would be inappropriate for the Attorney General to 
make a preclearance determination until the related 
changes have been submitted for Section 5 review.

We are aware of the Order entered on July 30, 
2008, in the Nick litigation, requiring the State to im­
plement certain bilingual elections procedures within 
the Bethel Census Area in the Yup’ik language. While 
those specific federal court-ordered procedures do not 
have to be submitted for Section 5 review, any proce­
dures outside the scope of the Order that are changes 
affecting voting are legally unenforceable without 
Section 5 preclearance. Id.

Additionally, your letter dated June 9, 2008, con­
tains some misconceptions regarding the Section 5 
process, specifically the standard and scope of review 
of Section 5 submissions by the Attorney General, the 
process involving comments from outside parties, and 
reason for and purpose of the more information letter.

The Voting Rights Reauthorization Act of 20061 
made clear that the standard of review under Section 
5 includes any discriminatory purpose and not simply 
“retrogressive purpose” as explained in Reno v. Bossier 
Parish School Board, 528 U.S. 320 (2000). The appli­
cable legal standard for determining whether dis­
criminatory purpose exists is Village of Arlington 
Heights v. Metropolitan Housing Development Corp.,

1 Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Vot­
ing Rights Act Reauthorization and Amendments Act of 2006, 
Pub. L. No. 109-246, sec. 5, 5(c), 120 Stat. 577, 581



App. 41

429 U.S. 252, 266 (1977). This approach requires an 
inquiry into 1) the impact of the decision; 2) the 
historical background of the decision, particularly if it 
reveals a series of decisions undertaken with discrim­
inatory intent; 3) the sequence of events leading up to 
the decision; 4) whether the challenged decision de­
parts, either procedurally or substantively, from the 
normal practice; and 5) contemporaneous statements 
and viewpoints held by the decision-makers. Id. at 
266-68.

Likewise, the discriminatory effect of a voting 
change must be measured by whether there is retro­
gression from a “benchmark” practice which is legally 
enforceable under Section 5, either by virtue of hav­
ing been precleared or not being subject to preclear­
ance. The Attorney General’s review of a submission 
thus requires the covered jurisdiction to accurately 
and completely identify the relevant benchmark prac­
tice. 28 C.F.R. 51.27(b), 51.54.

The Supreme Court has emphasized with respect 
to a covered jurisdiction that seeks judicial or admin­
istrative preclearance of a voting change under Sec­
tion 5, “irrespective of which avenue of preclearance 
the covered jurisdiction chooses, it has the same bur­
den of demonstrating that the changes are not moti­
vated by a discriminatory purpose and will not have 
an adverse impact on minority voters . . . ” McCain v. 
Lybrand, 465 U.S. 236, 247 (1984).



App. 42

A request for more information, like the Depart­
ment’s May 19, 2008 letter, seeks to assist the sub­
mitting jurisdiction in meeting its burden of 
establishing an absence of discriminatory purpose 
and discriminatory effect, where such information 
was not clearly presented in the initial submission. 
Therefore, the questions contained in the May 19, 
2008 letter are relevant to the Section 5 analysis and 
necessary for the Attorney General to determine 
whether the submitted changes were motivated by 
any discriminatory purpose or will have a discrimina­
tory effect as compared to the relevant benchmark. 
Moreover, we believe that the State of Alaska’s re­
sponse to the questions contained in the May 19, 2008 
letter are necessary for the Department to review the 
State’s submissions relating to or including bilingual 
election procedures, and to make a determination as 
to discriminatory purpose and retrogressive effect.

Likewise, the scope of review of Section 5 sub­
missions by the Attorney General is broad and in­
cludes all information and documentation before him, 
including information provided by the submitting 
jurisdiction, information provided by outside parties 
in the form of comment, and any other relevant 
information obtained through a variety of public and 
internal means. 28 C.F.R. 51.26 through 51.30. In its 
letter dated March 18, 2008, the State informed the 
Attorney General that it was involved in the Nick 
private litigation regarding the very issues submitted 
for review. Court filings in that litigation are publicly 
available and were reviewed during the Attorney



App. 43

General’s consideration of the State’s submission, as 
were comments from third parties.

The Procedures for Section 5 review contemplate 
and encourage comments from third parties and the 
Attorney General reviews, as a matter of course, 
those comments received during the sixty day period. 
28 C.F.R. 51.26 through 51.33. Both the Section 5 
Procedures and the Freedom of Information Act, 5 
U.S.C. 552, allow for persons outside of the Depart­
ment to obtain a copy of the submission and any com­
ments upon request, subject to certain restrictions of 
privacy and confidentiality. 28 C.F.R. 51.29. An indi­
vidual or group who provides information concerning 
a change affecting voting may choose to keep their 
identity confidential. 28 C.F.R. 51.29(d). Additionally, 
the Attorney General may, in his discretion, inform 
the submitting authority of comments made by third 
parties, as was done in this matter. 28 C.F.R. 51.36. 
However, no jurisdiction has a standing request to be 
notified of all comments received for all submissions.

Lastly, the Section 5 Procedures provide a means 
for the Attorney General to seek clarification and ad­
ditional information from a jurisdiction, when neces­
sary, including when issues are raised during the 
sixty-day review process or information provided by 
the submitting authority is insufficient. 28 C.F.R. 
51.37. Such procedures also allow the jurisdiction and 
opportunity to respond to and rebut allegations so 
that the Attorney General can make a fully informed 
determination. Id. During the review of the State’s 
submission dated March 18, 2008, those issues set



App. 44

forth in the Department’s letter dated May 19, 2008, 
came to light and the Attorney General sought the 
State’s response to and clarification of same.

To enable us to meet our responsibility to enforce 
the Voting Rights Act, please inform us of the action 
the State of Alaska plans to take regarding the 
changes affecting voting that have not been submit­
ted for judicial review or preclearance. If you have 
any questions, you should call Ms. Lema Bashir (202- 
305-0063) of our staff. Please refer to File No. 2008- 
1726 in any response to this letter so that your corre­
spondence will be channeled properly.

Since the Section 5 status of Alaska’s minority lan­
guage assistance program is before the court in Nick, 
et al. v. Bethel, et al. (D. AK, 3:07-CV-00098-TMB), we 
are providing a copy of this letter to the court and 
counsel of record in that case.

Sincerely,
/s/ [Illegible] 

for
Christopher Coates 
Chief, Voting Section

cc: Court and Counsel of Record



App. 45

[SEAL] U.S. Department of Justice
Civil Rights Division

CC:MSR:SMC:par 
DJ 166-012-3 
2008-2739 
2008-3714

Voting Section -  NWB
950 Pennsylvania Avenue, NW
Washington, DC 20530

September 10, 2008
Ms. Gail Fenumiai 
Director, Division of Elections 
RO. Box 110017 
Juneau, Alaska 99811-0017
Dear Ms. Fenumiai:

This refers to the consolidation of the Tatitlek 
Precinct into the Cordova Precinct, and the subse­
quent polling place change, precinct realignment and 
precinct name change to the Cordova-Tatitlek Pre­
cinct; consolidation of the Pedro Bay Precinct into the 
Iliamna-Newhalen Precinct, and the subsequent poll­
ing place change, precinct realignment and precinct 
name change to the Iliamna Lake North Precinct; 
the consolidation of the Levelock Precinct into the 
Kokhanok-Iguigig Precinct, and the subsequent poll­
ing place change, precinct realignment and precinct 
name change to the Iliamna Lake South Precinct; and 
resulting designation of the Tatitlek, Pedro Bay and 
Levelock Precincts as permanent absentee by-mail 
precincts for the State of Alaska, submitted to the 
Attorney General pursuant to Section 5 of the Voting



App. 46

Rights Act, 42 U.S.C. 1973c. We received your re­
sponse to our July 14, 2008, request for additional 
information on July 30, 2008.

Your July 30, 2008, letter withdraws your sub­
mission from Section 5 review. Accordingly, no de­
termination by the Attorney General is required 
concerning this matter. See the Procedures for the 
Administration of Section 5 (28 C.F.R. 51.25(a)).

Sincerely,
/s/ Maureen S. [Illegible] 
for Christopher Coates 

Chief, Voting Section





2311 Douglas Street 
Omaha, Nebraska 68102-1214

E-Mail Address: 
cpc@cocklelaw.com

1-800-225-6964 
(402) 342-2831 

Fax: (402) 342-4850

(OcklePrintingO.
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Since 1923

No. 12-96

Web Site
www.cocklelaw.com

SHELBY COUNTY, ALABAMA,
Petitioner,

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

Respondents.

AFFIDAVIT OF SERVICE

I, Patricia Billotte, o f  lawful age, being duly sworn, upon my oath state that I did, on the 1st day o f  February, 2013, send out 
from Omaha, NE 5 package(s) containing 3 copies o f  the AMICI CURIAE BRIEF OF THE ALASKA FEDERATION OF 
NATIVES, ALASKA NATIVE VOTERS AND TRIBES IN SUPPORT OF RESPONDENTS in the above entitled case. 
All parties required to be served have been served by third-party commercial carrier for delivery within 3 calendar days. 
Packages were plainly addressed to the following:

SEE ATTACHED

To be filed for:
JAMES T. TUCKER 
Counsel o f Record 
WILSON, ELSER, MOSKOWITZ, 
EDELMAN & DICKER, LLP 

300 South 4th Street— 1 1th Floor 
Las Vegas, NV 89101 
(702) 727-1246
james.tucker@wilsonelser.com

NATALIE A. LANDRETH 
ERIN C. DOUGHERTY 
NATIVE AMERICAN 
RIGHTS FUND 

801 B Street, Suite 401 
Anchorage, AK 99501 
(907)276-0680

Counsel for Amici

Subscribed and sworn to before me this 1st day o f  February, 2013.
1 am duly authorized under the laws o f the State o f  Nebraska to administer oaths.

Notary Public Affiant

ANDREW COCKLE 
General Notary 

State of Nebraska
My Commission Expires Apr 9, 2014 

m <m w w w m w m m w ....
27668

mailto:cpc@cocklelaw.com
http://www.cocklelaw.com
mailto:james.tucker@wilsonelser.com


Attorneys for Petitioner:

Bert W. Rein 
Counsel o f  Record 
Wiley Rein LLP 
1776 K Street, N.W.
Washington, DC 20006
(202) 719-7000
brein@wileyrein.com
Party name: Shelby County, Alabama

Attorneys for Respondents:

Debo P. Adegbile 
Counsel o f  Record
NAACP Legal Defense & Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2249 
dadegbile@naacpldf.org
Party name: respondent-Intervenors Earl Cunningham, et al.

Jon M. Greenbaum 
Counsel o f  Record
Lawyers' Committee for Civil Rights Under Law 
1401 New York Avenue, NW 
Suite 400
Washington, DC 20005 
(202)662-8315
jgreenbaum@lawyerscommittee.org
Party name: Respondent-Intervenor Bobby Lee Harris

Laughlin McDonald 
Counsel o f  Record
American Civil Liberties Union Foundation
230 Peachtree Street NW
Atlanta, GA 30303-1504
(404)523-2721
hncdonald@aclu.org
Party name: Respondent-Intervenors Bobby Pierson, et al.

mailto:brein@wileyrein.com
mailto:dadegbile@naacpldf.org
mailto:jgreenbaum@lawyerscommittee.org
mailto:hncdonald@aclu.org


Donald B. Verrilli Jr.
Counsel o f  Record 
Solicitor General
United States Department o f  Justice 
Rm. 5614
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001 
(202)514-2217
SupremeCtBriefs@USDOJ.gov
Party name: Eric H. Holder, Jr., Attorney General

mailto:SupremeCtBriefs@USDOJ.gov


2311 Douglas Street 
Omaha, Nebraska 68102-1214

1-800-225-6964 
(402) 342-2831 

Fax: (402) 342-4850

(Ockle Printing^ .
Law Brief Specialists 

Since 1923

E-Mail Address: 
cpc@cocklelaw.com

Web Site
www.cocklelaw.com

No. 12-96

SHELBY COUNTY, ALABAMA,
Petitioner,

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

Respondents.

CERTIFICATE OF COMPLIANCE

As required by Supreme Court Rule 33.1(h), I certify that the AMICI CURIAE BRIEF OF 

THE ALASKA FEDERATION OF NATIVES, ALASKA NATIVE VOTERS AND TRIBES IN 

SUPPORT OF RESPONDENTS in the above entitled case complies with the typeface requirement 

o f  Supreme Court Rule 33.1(b), being prepared in New Century Schoolbook 12 point for the text 

and 10 point for the footnotes, and this brief contains 8940 words, excluding the parts that are 

exempted by Supreme Court Rule 33.1(d), as needed.

Subscribed and sworn to before me this 1st day o f February, 2013.
I am duly authorized under the laws o f the State o f Nebraska to administer oaths.

ANDREW COCKLE 
General Notary 

State of Nebraska
My Commission Expires Apr 9,2014

Notary Public Affiant
m  w m w 27668

mailto:cpc@cocklelaw.com
http://www.cocklelaw.com