Northwest Austin Municipal Utility Distr. One v. Holder Transcript of Oral Arguments
Public Court Documents
April 29, 2009
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Brief Collection, LDF Court Filings. Northwest Austin Municipal Utility Distr. One v. Holder Transcript of Oral Arguments, 2009. 6bc6b3de-bf9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/31f956f8-d35b-4ae8-a29e-5bbe5d0bb231/northwest-austin-municipal-utility-distr-one-v-holder-transcript-of-oral-arguments. Accessed July 06, 2025.
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IN THE SUPREME COURT OF THE UNITED STATES
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NORTHWEST AUSTIN :
MUNICIPAL UTILITY DISTRICT ' :
NUMBER ONE, :
Appellant :
v. : No. 08-322
ERIC H. HOLDER, JR., ATTORNEY :
GENERAL, ET AL. :
— — — — — — — — — — — — — — — — — X
Washington, D.C.
Wednesday, April 29, 2009
The above-entitled matter came on for oral
argument before the Supreme Court of the United States
at 10:13 a.m .
APPEARANCES:
GREGORY S. COLEMAN, ESQ., Austin, Tex.; on behalf of
the Appellant.
NEAL K. KATYAL, ESQ., Deputy Solicitor General,
Department of Justice, Washington, D.C.; on behalf of
the Appellee Holder.
DEBO P. ADEGBILE, ESQ., New York, N.Y.; on behalf of the
Intervenor-Appellees.
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C O N T E N T S
ORAL ARGUMENT OF
GREGORY S. COLEMAN, ESQ.
On behalf of the Appellant
NEAL K. KATYAL, ESQ., ESQ.
On behalf of the Appellee Holder
DEBO P. ADEGBILE, ESQ.
On behalf of the Intervenor-Appellees
REBUTTAL ARGUMENT OF
GREGORY S. COLEMAN, ESQ.
On behalf of the Appellant
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P R O C E E D I N G S
(10:13 a.m .)
CHIEF JUSTICE ROBERTS: We will hear
argument this morning in Case 08-322, Northwest Austin
Municipal Utility District v. Holder.
Mr. Coleman.
ORAL ARGUMENT OF GREGORY S. COLEMAN
ON BEHALF OF THE APPELLANT
MR. COLEMAN: Good morning, Mr. Chief
Justice, and may it please the Court:
After more than 20 years of steadfast
compliance with the Voting Rights Act, Northwest Austin
MUD Number One is entitled to be free from the intrusive
burdens of preclearance. The district is entitled to
seek a bailout because it is a political subdivision
under the Court's decisions in Sheffield and Dougherty
County. This natural parallelism between bailout and
preclearance allows bailout to serve its ameliorative
purposes of encouraging, recognizing, and rewarding
long-term compliance and progress --
CHIEF JUSTICE ROBERTS: It may be — it may
be a political subdivision under those decisions, but
it's certainly not a political subdivision under the
statutory definition.
MR. COLEMAN: Well, we disagree with that,
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Your Honor. We believe that under Dougherty County in
particular, the Court specifically recognized that these
entities such as cities and school boards and utility
districts are political subdivisions and that that term
as it's used --
JUSTICE GINSBURG: Bailout wasn't involved
in those cases. And what do you do with a statute that
has three categories -- the State, political
subdivision, and then there's "governmental unit"? The
district qualifies as a governmental unit. Why would
Congress add that third category if the district came
within "political subdivision"?
MR. COLEMAN: Justice Ginsburg, the term
"governmental unit" doesn't actually appear in the
provision that authorizes bailout. What it says is that
when a political subdivision seeks a bailout that, if it
has any governmental units within it, it must also
ensure that they are compliant before it can have a
bailout. For instance, although the district is not a
political subdivision of the county, it is in the
county, and therefore under the substantive criteria, if
the -- Travis County wanted to bail out, it would have
to demonstrate compliance of all of those governmental
units within it.
JUSTICE GINSBURG: Yes, but the — but the
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statute does use the term "governmental unit" to
encompass districts. And if they were also
subdivisions, why would Congress need to add an
additional category?
MR. COLEMAN: Again, I disagree with Your
Honor that -- that the term "governmental unit" appears
in the provision that defines criteria.
JUSTICE GINSBURG: It appears in the statute
twice, suggesting that Congress had in mind three
categories.
MR. COLEMAN: Again, the statute that
defines who's eligible to bailout says a State, a
political subdivision that has been separately
designated for coverage under 4 (b), and a political
subdivision that has not been separately designated for
coverage.
We were never separately designated for
coverage. And under Sheffield and Dougherty County, we
have long been considered a political subdivision.
Indeed, we are subject to the process of preclearance
only because we were a political subdivision. The
actual requirement that you send in preclearance
submissions is on political subdivisions. We are
subject to lawsuits under section 2 because we are a
political subdivision. We are subject to the
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1 possibility of Federal examiners because we are a
2 political subdivision.
3 At no place in this Voting Rights Act, in
4 any of the dozens of the uses of the term "political
5 subdivision" has this Court or Congress, other than the
6 designation statute, separately suggested that a
7 political subdivision such as the district would not be
8 considered a political subdivision under the terms of
9 the Voting Rights Act.
10 JUSTICE KENNEDY: Well, to the extent we
11 have some latitude in construing the Act, certainly it
12 would be a relevant factor if we concluded that it's
13 just unworkable or impractical to have an uncovered
14 jurisdiction within a county which is a covered
15 jurisdiction. They would have competing election days,
16 competing election formulae. And it would seem to me
17 that that just makes compliance with the Act much more
18 difficult.
19 MR. COLEMAN: Well, certainly we believe
20 that the purposes of the Act suggest that we should be
21 considered a political subdivision eligible to bail out.
22 This interaction between the county and the district --
23 we -- we exist within the county, but we are not part of
24 the county. The county, as we say, is not the boss of
25 us. They don't have any way to ensure or require us to
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1 do things. And as the facts of this case demonstrate,
2 not only did the county have different political
3 interests, but we've also demonstrated that because you
4 have entities that are subject to separate designation,
5 like the county, that have dozens and perhaps in this
6 case over a hundred separate political subdivisions,
7 Travis County could never practically seek a bail out.
8 And in order to give effect to what I call
9 this ameliorative purpose to bail out, the Court should
10 interpret the statute in a way that allows these small
11 entities to bail out. These small entities --
12 JUSTICE ALITO: And how do you account for
13 the fact that if your district were located in a
14 separately covered political subdivision, you clearly
15 could not bail out.
16 MR. COLEMAN: Well, I -- I -- again, the
17 Court doesn't need to reach that question yet, but I'm
18 not sure that the answer is that we clearly couldn't if
19 we were a separately designated or -- excuse me -- if we
20 were in a separately designated county that says --
21 that's it's not in a covered State, right? There is
22 this argument, for instance, that -- that that State
23 could be covered in whole or in part. And certainly,
24 for instance, in California the State is -- is covered
25 in part. And it could be resolved in that way.
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The statute is not exceptionally clear on
it, but the Court doesn't have to reach that because we
are in a fully covered State, and we are -- under all
the provisions of Voting Rights Act, have always been
considered political subdivisions. The district court
said you're a political subdivision for every purpose
except this one. You have to --
JUSTICE GINSBURG: There is -- the district
court had some assistance from the legislative
development of this latest extension. There was a
proposal, was there not, to allow governmental units to
bail out -- to allow anyone who was required to preclear
to bail out?
MR. COLEMAN: I don't know that there was a
specific legislative proposal, Justice Ginsburg. There
was certainly some discussion of that. What -- what is
particularly clear is --
JUSTICE GINSBURG: And what was the reason
that it was resisted?
MR. COLEMAN: I don't know that the record
actually shows that it was resisted. It was simply part
of the discussion during the reauthorization
proceedings. I'm not aware of any specific resistance
relating to that. There weren't any amendments to the
statute, but the amendments in 1982, we do believe are
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1 very important to the Court's consideration of that
2 because the bailout aspects were considered in City of
3 Rome, and in City of Rome the only entities that could
4 bail out were a -- were a State or a separately covered
5 or a separately designated subdivision. And then 2
6 years after that, Congress amends the statute to add
7 this third category, which is political subdivisions
8 that have not been separately designated for coverage.
9 That amendment and that addition is clearly
10 in direct response to City of Rome and, we believe, a
11 clear indication that Congress did intend and, indeed,
12 it said it intended to expand the bailout opportunities.
13 Congress believed that many, if perhaps not most,
14 political subdivisions in 1982 would be eligible for
15 bailout, but because --
16 JUSTICE GINSBURG: The Department of Justice
17 has -- does it -- does it not have a regulation that
18 contradicts your reading? And hasn't that been out
19 there -- wasn't it out there before the 2006 extension?
20 MR. COLEMAN: Yes, Justice Ginsburg, but
21 unlike the Attorney General's regulations that relate to
22 preclearance, bailout is not something that the Attorney
23 General actually has any specific say in. The statute
24 provides for a lawsuit to seek a bailout. It's not like
25 preclearance, where can you get it from either the
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Attorney General or the district court.
Now, the Attorney General may choose, as it
has for several of the Virginia entities, not to resist
that. So you can file a friendly suit once the Attorney
General has been convinced, but --
JUSTICE KENNEDY: If we find that you're not
covered by the bailout provision, that only the county
is, do you really then have standing to proceed to
question the workability of the bailout procedures? I
-- I suppose that would be a threshold argument for you
to question the validity of the Act.
MR. COLEMAN: Well, with respect to our
constitutionality issue, Justice Kennedy, one thing
nobody is contesting here is that we are not subject to
preclearance. And so, if we are not eligible for
bailout, we obviously do and we believe have standing to
assert that the reenactment of the preclearance
provisions is unconstitutional because they, unlike the
bailout, would clearly continue to apply to us.
JUSTICE SCALIA: Well, has preclearance been
denied to you?
MR. COLEMAN: Well, we didn't seek a
preclearance --
JUSTICE SOUTER: Exactly. I mean, I -- if
-- if you're basing it simply on your subjection to
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1 preclearance and there's no contest between you and the
2 government over preclearing anything, I'm not sure why
3 you would be in court.
4 MR. COLEMAN: Well, there is certainly a
5 possibility we may seek to preclear things in the
6 future, but this is primarily --
7 JUSTICE SOUTER: Then isn't -- isn't that
8 the time for litigating?
9 MR. COLEMAN: No, Justice Souter. This is
10 primarily a facial challenge to the statute. We are
11 subject to the obligations of preclearance. And we
12 believe that we --
13 JUSTICE SOUTER: But it's not affecting
14 anything you're doing on a day-to-day basis, as I
15 understand it. There's no claim that -- that your
16 district is doing anything improper. No claim is being
17 made against you. And I guess your whole argument would
18 be maybe some day we want to preclear again, and maybe
19 we wouldn't be as successful as we had been in each of
20 the instances before. But I don't see how that gets you
21 in court.
22 MR. COLEMAN: I agree with -- I disagree
23 with that as well, Justice Souter. While it has not
24 been highlighted in the briefs, there is deep in the
25 record discussion during a MUD board meeting of
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potentially some changes, and discussion on that was
table pending the outcome of this lawsuit.
JUSTICE GINSBURG: What was the last time
the district applied for preclearance, the last year?
MR. COLEMAN: The contract in 2004 by which
we asked the county to actually perform the elections
itself, that was precleared, Your Honor.
JUSTICE GINSBURG: And so 2004 is the last
year. So between 2004 and 2009 the district has not
sought preclearance?
MR. COLEMAN: That's correct. This lawsuit
JUSTICE SCALIA: But you're subject to
preclearance and you cannot make changes without going
to the Attorney General and asking for his permission.
MR. COLEMAN: That's correct.
JUSTICE SCALIA: Is it any different from,
from a -- a Federal law prohibiting certain speech? Do
you have to subject yourself to the -- to the penalty
for that speech before you can attack the law? I don't
think so.
MR. COLEMAN: No, Justice Scalia.
JUSTICE SOUTER: But the suit -- correct me
if I'm wrong, and I may be wrong on this, but I thought
this suit eventuated from the fact that you had been
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denied bailout and that your entire case was brought on
the refusal of bailout. I did not understand that you
had brought a general declaratory judgment action or
a — or a facial attack in gross, as it were, on the
statute. Am I wrong about your pleadings?
MR. COLEMAN: I do think you're wrong about
that, Justice Souter. We had not been denied bailout.
The suit sought bailout. The only way to seek a bailout
is through the lawsuit --
JUSTICE SOUTER: Right.
MR. COLEMAN: -- and this lawsuit seeks the
bailout and the declaratory judgment that if we cannot
bail out --
JUSTICE SOUTER: You separately asked for
declaratory judgment?
MR. COLEMAN: Yes. There are different
claims in the lawsuit, Your Honor. And indeed, the
standing point is--
JUSTICE GINSBURG: You don't challenge — if
you have bailout, say we accept your reading of the
statute, you are not contesting the constitutionality of
the act if it matched your obligation to preclear with
the right to bail out.
MR. COLEMAN: Well, that's not exactly right
either, Justice Ginsburg. We certainly contest and
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contend that preclearance is unconstitutional. We
acknowledge that if the Court were to give us bailout
that the Court might choose on its own not to reach the
constitutional issues because we would receive relief.
JUSTICE GINSBURG: But I -- I thought I just
heard you say even if you got the bailout the extension
for another 25 years would still be unconstitutional.
Is that -- or are you saying that the accommodation, the
modification, would suffice to make the statute
constitutional?
MR. COLEMAN: No. We do not say that the
modification would make the statute constitutional. Our
position is both that we are entitled to bailout and we
have an alternative claim that we have asserted that is
independent, it's not dependent on the first one, that
preclearance is unconstitutional.
JUSTICE SOUTER: Well Mr. Coleman, this is
important to me. Do you -- do you acknowledge that if
we find on your favor on the bailout point we need not
reach the constitutional point?
MR. COLEMAN: I do acknowledge that, Justice
Souter.
CHIEF JUSTICE ROBERTS: Well, presumably you
wouldn't have standing to raise it because you wouldn't
be subject to the preclearance requirement.
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1 MR. COLEMAN: Right. But because we had all
2 the claims together in one lawsuit, we had to assert
3 them all together, and that's what we've done.
4 Getting to the heart of this preclearance
5 issue, if I may, Katzenbach recognized that preclearance
6 really was an extraordinary remedy and it recognized
7 that is a remedy that would not otherwise be appropriate
8 but for the extraordinary emergency circumstances that
9 existed at the time. Nobody has challenged that. But
10 we are in a different day. The kinds of --
11 JUSTICE SOUTER: Mr. Coleman, may I just
12 raise a basic point here. And I'll be candid with you
13 that it affects my view of your argument. I just want
14 to start with it. Your argument is largely based on the
15 assumption that things have significantly changed and
16 that therefore Congress could not by whatever test we
17 use extend the -- extend section 5.
18 But what we've got in the record in front of
19 us -- I don't have a laundry list to read, but I mean,
20 we've got I think at the present time a 6-point -- a
21 16-point registration difference on Hispanic and
22 non-Hispanic white voters in Texas. We've got a record
23 of some 600 interpositions by the -- by the Justice
24 Department on section 5 proceedings, section 5
25 objections, over a period of about 20 years. We got a
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record that about two-thirds of them were based on the
Justice Department's view that it was intentional
discrimination. We've got something like 600 section 2
lawsuits over the same period of time.
The point that I'm getting at is I don't
understand, with a record like that, how you can
maintain as a basis for this suit that things have
radically changed. They may be better. But to say that
they have radically changed to the point that this
becomes an unconstitutional section 5 exercise within
Congress's judgment just seems to me to -- to deny the
empirical reality. I mean, what it your answer to that?
MR. COLEMAN: Our answer, Your Honor, is --
is a very clear one and that is there is a difference
between a nondiscrimination statute and a
noncircumvention statute. Section 2, section 203, the
prohibition on the uses of tests and devices, these are
clear nondiscrimination provisions that are textually
linked back to the -- to the constitutional
prohibitions. Section 5 was never intended to be a
nondiscrimination statute. Section 5 is a
noncircumvention statute, notwithstanding the volume --
JUSTICE SOUTER: Well, the evidence that
I've been getting into is a pretty good indication -- I
would have thought Congress thought so and I would have
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1 thought so too -- that there is something to be
2 concerned about on the issue of circumvention; that in
3 fact the attitudes have not so radically changed as to
4 render circumvention irrelevant.
5 MR. COLEMAN: I honestly disagree with you,
6 Justice Souter, on that. Notwithstanding --
7 JUSTICE GINSBURG: But there was -- but
8 there was -- Congress fastened on that issue and it
9 referred to second generation discrimination, which is a
10 frequent pattern with discrimination. You start with
11 the blatant overt discrimination, and then in time
12 people recognize that that's -- that won't go any more,
13 so the discrimination becomes more subtle, less easy to
14 smoke out. But it doesn't go from blatant overt
15 discrimination to everything is equal.
16 MR. COLEMAN: Justice Ginsburg, the Court in
17 Katzenbach recognized that Congress had been trying for
18 several years to try to fix this problem and it walked
19 through, as this Court has walked through innumerable
20 times, that section 5 is simply not about
21 nondiscrimination, but it was about the unremitting and
22 ingenious defiance of statutes in a way that made
23 ordinary enforcement mechanisms, including litigation,
24 simply ineffective, that no matter what the courts did,
25 in the South the enforcement mechanisms were unable to
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allow minority individuals to register and get out and
vote, that no matter what happened -- preclearance put a
stop to that.
But notwithstanding this record, which I'd
like to speak to the volume of separately --
JUSTICE BREYER: No, I'll ask you that
question because I'd like to hear your answer to that.
MR. COLEMAN: Notwithstanding that record,
it is not the kind of record -- Congress put together
what it believed was a discrimination record, but not a
circumvention record. There is no indication, for
instance, in these types of examples that have been
offered in the briefs and were offered in the
congressional hearings that these aren't things that can
be fixed through ordinary enforcement mechanisms through
section 2 litigation.
JUSTICE GINSBURG: But if you take the
multiple devices -- take the one as simple as moving the
election day so that it will coincide with the -- with
the holiday of a predominantly minority college. To go
after every change of that order with a section 2
lawsuit -- of the two devices, surely section 5 is more
effective to smoke that out.
MR. COLEMAN: Two points on that, Justice
Ginsburg. First, with respect to the Waller County
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1 issue, that was an issue that was very swiftly addressed
2 by Texas officials itself in cooperation with the NAACP.
3 The Texas secretary of state and the Texas attorney
4 general came down very swiftly on that issue. The
5 second point is --
6 JUSTICE GINSBURG: Perhaps they -- perhaps
7 they wouldn't if the only tool in the arsenal were
8 section 2, if everything had to be a Federal lawsuit.
9 MR. COLEMAN: And that gets at the heart of
10 one of our arguments, Justice Ginsburg. That is --
11 JUSTICE BREYER: Can I ask you this question
12 for a second, please? And just take 2 minutes to answer
13 it or not. You don't have to answer it, but it seems to
14 me this is the question. This whole issue depends on
15 the evidence before Congress. So, in reading the
16 briefs, I have six categories of evidence. Compared to
17 the City of Rome, the registration turnout still has two
18 States, Virginia and Texas, with significant
19 disparities.
20 As to minority officeholders, there is a big
21 improvement, but if you look at Mississippi, Louisiana,
22 and South Carolina and a couple of others, it is still
23 not great.
24 The DOJ objections: The number of DOJ
25 objections has fallen a lot, but it still exists.
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In terms of election observers, which were
not mentioned in City of Rome, we have their statistics
that two-thirds of the observers are focused on five of
the six States that are covered. In terms of
polarized voting, not mentioned in Rome, we still have
testimony that the polarization is significant and
common in certain places.
And as to successful section 2, section 5
suits, once again not mentioned in the City of Rome, but
since 1982 there were at least 105 successful section 5
suits and 653 successful section 2 suits. All right.
I just summarized that because I'd like to
hear in a couple of minutes, or five, or whatever you
want to take. I'm trying to lead you to what I think is
the heart of the case. It seems evidentiary. That is
what I read. What is your response?
MR. COLEMAN: Well, I'm obviously not going
to have time to respond to all of that, Justice Breyer.
JUSTICE BREYER: Whatever you want.
MR. COLEMAN: But, for instance, with
respect to the first point that you raised, which is
voter registration and turnout issues, those numbers
don't tell the whole story. In fact -- in fact, with
respect to both black and Hispanic voters, the record in
covered jurisdictions is above the national average.
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1 Massachusetts, for instance, you might be learned to
2 know, has a white-black voter registration and turnout
3 differential that is in the high 20s, far in excess of
4 any covered jurisdiction. And that's part of what
5 Congress didn't do.
6 So in addition to the argument we have that the
7 record Congress produced is really a nondiscrimination
8 record and not a circumvention record, we also have the
9 argument that we've made that it is simply irrational
10 for Congress to go back and say the Voting Rights Act of
11 1965 was intended to make sure that minority voters
12 could register and vote and that's going to be our
13 number one priority.
14 As Justice Ginsburg recognized, Congress
15 believes that that has been satisfied. But now we are
16 going to go back and in determining who's going to be
17 covered under the 2006 amendment, we are going to use
18 the same data from the 1964 election.
19 It would have been as if Congress in 1965
20 said: We anticipate that there are problems here; and,
21 in order to define coverage, we are going to look at the
22 Roosevelt-Hoover election in 1932 and registration and
23 turnout then, because we think that is the best way to
24 evaluate --
25 JUSTICE KENNEDY: Well, Justice Breyer —
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Justice Breyer did refer you to some other more current
statistics, submissions, Title V suits, and so forth.
You might want to address those. And in that context,
was there any control data to compare preclearance rates
or preclearance events in colored -- in covered
jurisdictions as opposed to uncovered jurisdictions?
MR. COLEMAN: That's —
JUSTICE KENNEDY: And that — that's part of
the showing, it seems to me, that the Congress has to
make, that these States that are now covered and that
were covered are markedly different from the noncovered
jurisdictions. Was there anything in the record before
the Congress or the district court to address that
point?
MR. COLEMAN: The only comparative data that
existed was of two kinds. There was a -- there was a --
some data that grouped all covered jurisdictions into
one lump and all noncovered jurisdictions into another
lump and counted up section 2 lawsuits. And the
difference was about 17 successful -- 17 more successful
section 2 suits in covered jurisdictions than in
noncovered jurisdictions. That's not a big difference.
What Congress didn't do, though, is look at
specific noncovered jurisdictions, for instance, the
ones I've cited, and say, how do these compare to
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1 covered jurisdictions?
2 And the other thing it didn't do is say:
3 Among covered jurisdictions and noncovered
4 jurisdictions, let's look among -- let's separate out
5 among these jurisdictions and see where the problem
6 locations are and what areas we think might, if -- if
7 preclearance is going to be constitutional, might be
8 subject. There is absolutely no evidence in the record
9 of that. Preclearance once again is based on the
10 results -- well, whether there was a test or device in
11 the 1960s and the results of the 1964, 1968, and 1972
12 presidential elections.
13 JUSTICE GINSBURG: What kind of coverage
14 formula would be adequate? You are attacking Congress'
15 preservation of the same coverage formula. But what
16 other coverage formula could it come up with?
17 MR. COLEMAN: Well, just to give one example
18 -- and I'm not -- not recommending this -- but if, for
19 instance, the same coverage formula had been applied to
20 the 2000 and 2004 elections, equalizing for citizen
21 voting age population, the only covered State would have
22 been Hawaii. Under that formula, using modern data,
23 modern information, none of these States would have been
24 covered if you account for noncitizen voting age
25 population.
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JUSTICE GINSBURG: There was -- and maybe
the government will refer to it -- I thought, quite a
bit of evidence comparing covered and noncovered in this
record.
MR. COLEMAN: I wouldn't say quite a bit,
Your Honor. What it did is it lumped all covered
jurisdictions together and all noncovered jurisdictions.
JUSTICE GINSBURG: Well, you said all that
there was was a number of section 2 suits, but I think
there was quite a bit more than that.
MR. COLEMAN: I -- I actually dispute that.
There is a lot of discussion of that information, Your
Honor, but it's not that much information. And, again
it doesn't -- it doesn't take into account any attempt
to say: How does the panhandle of Texas do against
Florida, against parts of northeast Georgia or northwest
Alabama? How are these -- it makes no attempt
whatsoever. It is simply all covered jurisdictions as a
lump and all noncovered jurisdictions as a lump, and
Congress had no basis to make that -- that declaration.
JUSTICE GINSBURG: In your -- in your answer
you said if they used the 2004 the only State would be
Hawaii. But I asked you what formula would pass if
Congress wants to get at -- wants to protect the gains
that have been made but are still fragile against
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backsliding? If that's its objective, what can it
cover?
MR. COLEMAN: It needed to make an
evaluation of where there is an actual risk of
backsliding and where there is actual evidence of
circumvention. We don't believe that. We don't --
JUSTICE SOUTER: What about the evidence
that Justice Breyer summarized, that I alluded to? I
mean those -- that is simply evidence of racial attitude
and it seems to me in the real world that can be taken
as evidence that if the -- if the section 5 safeguard is
taken away, the pushback is going to start.
MR. COLEMAN: That evidence --
JUSTICE SOUTER: It has never stopped.
MR. COLEMAN: That evidence justifies strict
enforcement of nondiscrimination statutes, but it does
not justify a presumption that State and local officials
in these areas are so racist that they cannot be relied
on to pass and enforce fair voting laws.
JUSTICE SOUTER: They couldn't -- they
couldn't be relied upon apparently in the some 200 cases
in which the voting change was withdrawn after DOJ
obj ection.
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information that goes out over 30 years and across
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thousands upon thousands of jurisdictions --
JUSTICE SOUTER: This wasn't information
over 30 years. My recollection -- and I could be wrong
on this, but my recollection is that those were
statistics from about 20 years prior to the
reauthorization.
MR. COLEMAN: From -- from 1982 forward.
JUSTICE SOUTER: Yes, that's correct.
MR. COLEMAN: So you have 25 years across
thousands of jurisdictions. But the objection rate is
on the order of single digits per 10,000 submissions.
It simply as a matter of comparison with 1965 doesn't
work.
May I reserve the rest of my time, Your
Honor.
CHIEF JUSTICE ROBERTS: Thank you,
Mr. Coleman.
Mr. Katyal.
ORAL ARGUMENT OF NEAL K. KATYAL
ON BEHALF OF THE APPELLEE HOLDER
MR. KATYAL: Thank you, Mr. Chief Justice,
and may it please the Court:
And let me begin where Mr. Coleman left off,
because I don't think that his argument adequately
grapples either with this Court's consistent upholding
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of the provision at issue 4 times over 4 decades or with
Congress's action in 2006. Congress's reauthorization
in 2006 was the paradigmatic attempt of what to do in
Congress. It didn't redefine a rate, nor did it cast
aspersions at Supreme Court doctrine. Rather, it took
that doctrine seriously, both this Court's teachings
with respect to the Voting Rights Act specifically, as
well as the -- as the scope of the Congress's
Reconstruction enforcement powers, and arrived at a
considered judgment.
After 16,000 pages of testimony, 21
different hearings over 10 months, Congress looked at
the evidence and determined that their work was not
done .
CHIEF JUSTICE ROBERTS: Counsel, the -- the
-- our -- our decision in City of Boerne said that
action under section 5 has to be congruent and
proportional to what it's trying to remedy. Here, as I
understand it, one-twentieth of 1 percent of the
submissions are not precleared. That, to me, suggests
that they are sweeping far more broadly than they need
to, to address the intentional discrimination under the
Fifteenth Amendment.
MR. KATYAL: I -- I disagree with that,
Mr. Chief Justice. I think what that represents is that
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section 5 is actually working very well; that it
provides a deterrent. This was a debate in Congress.
Indeed, Mr. Coleman himself testified before Congress
and said the low objection rate is evidence that it
isn't congruent to proportional.
The Congress disagreed with that. What it
found instead was that section 5 was deterring the
problem.
CHIEF JUSTICE ROBERTS: Well, that's like
the old — you know, it's the elephant whistle. You
know, I have this whistle to keep away the elephants.
You know, well, that's silly. Well, there are no
elephants, so it must work.
I mean, if you have 99.98 percent of these
being precleared, why isn't that reaching far too
broadly.
MR. KATYAL: Well, let me suggest another
example. Yesterday the Administrative Office for the
United States Courts said there were approximately
17,500 requests for Title 3 wiretaps in the past 10
years. Four of them had been rejected. That's a .023
percent rejection rate.
But I don't think one could use those
numbers and say, oh, that means that Title 3 doesn't
deter or prevent abusive wiretaps. What it suggests
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instead, if Congress would have found -- I agree that if
we were just standing up with no record whatsoever,
that's one thing, but if Congress heard testimony, they
found example after example of --
JUSTICE SCALIA: No, the parallel — the
parallel isn't there. I mean, there are laws against
intentional discrimination. So there should be laws
against wiretapping. There should also be laws against
intentional discrimination. But where the -- the
argument here is not that those laws be eliminated.
It's just that the preclearance requirements be
eliminated.
MR. KATYAL: Absolutely. And Congress found
with respect to those intentional -- laws that prevent
intentional vote discrimination, which is section 2,
which you hear Mr. Coleman relying on today, that that
is ineffective for the same reasons that this Court has
found them repeatedly in South Carolina v. Katzenbach,
in City of Rome.
JUSTICE SCALIA: A long time ago. How much
of the evidence that Congress amassed was specifically
circumvention evidence?
MR. KATYAL: Quite a bit of evidence about
the ineffectiveness of section 2 as a remedy. So -- and
the statement for the intervenors -- there's a 500-page
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statement filed before the district court which excerpts
the congressional record. In the pages 270 to 279 you
see a long series of -- a long analysis by Congress
about how section 2 is ineffective, that it costs too
much to bring the litigation, that there are few
attorneys that will handle it, that -- that there isn't
enough money and that --
JUSTICE ALITO: Well, if section 2 is
ineffective, then why didn't Congress extend section 5
to the entire country? Could Congress have reauthorized
section 5 without identifying significant differences
between the few jurisdictions that are covered and the
rest of the country?
MR. KATYAL: I don't believe so. I think
Congress had to make some showing. And here there are
explicit legislative findings that say that section 5 is
needed in these areas --
JUSTICE SCALIA: Not comparative, however.
Not comparative with the rest of the country except
in -- in --
MR. KATYAL: Well, I disagree with that for
several reasons. First of all, and most I think what
this utility district can argue about is Texas, and
Congress found very specific evidence about
discrimination in the State of Texas. They found that
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1 they led the country in the number of objections. They
2 found that the -- that the registration rates, as
3 Justice Souter said, between Hispanics and whites was
4 great.
5 JUSTICE ALITO: Well, it's 18 percent. If
6 these statistics are correct, the difference between
7 Latino registration and white registration in Texas was
8 18.6 percent, which is not good, but it's substantially
9 lower than the rate in California, which is not covered,
10 37 percent; Colorado, 28 percent; New Mexico, 24
11 percent; the nationwide average, 30 percent.
12 MR. KATYAL: Well, again, I think that what
13 Congress found is that the rate in Texas coupled with
14 its historical amount of discrimination together
15 justified -- justified the reauthorization of section 5.
16 CHIEF JUSTICE ROBERTS: Well, let me focus
17 on that historical aspect. Obviously no one doubts the
18 history here and that the history was different. But at
19 what point does that history seek -- stop justifying
20 action with respect to some jurisdictions but not with
21 respect to others that show greater disparities?
22 MR. KATYAL: Again, I think what this Court
23 has -- has answered that question in Katzenbach by
24 saying it may be the case that there are other
25 jurisdictions discriminate more, Congress can deal with
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the problem one step at a time. And the -- and Congress
has said that the Court should be particularly worried
about trying to predict the future and say that
discrimination is now over. We have fairly good --
CHIEF JUSTICE ROBERTS: Well, so your answer
is that Congress can impose this disparate treatment
forever because of the history in the south?
MR. KATYAL: Absolutely not.
CHIEF JUSTICE ROBERTS: When can they --
when can they -- when do they have to stop?
MR. KATYAL: Well, Congress here said 25
years was -- 25 years was the appropriate
reauthorization period.
CHIEF JUSTICE ROBERTS: Well, they said five
years originally and then another 20 years. I mean, at
some point it begins to look like the idea is that this
is going to go on forever.
MR. KATYAL: Well, again, if Congress can't
make the findings, then I think this Court would be well
within its powers to -- to strike it down. But here the
Court is being asked to do something that has never been
done before, which is to use its Fifteenth -- to say
that Congress exceeded the balance of its Fifteenth
Amendment powers and its Fourteenth Amendment powers in
an area involving race and voting. That has never
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happened before.
JUSTICE KENNEDY: Well, is the burden that
the Act puts on the State irrelevant consideration?
MR. KATYAL: It certainly is. We don't --
JUSTICE KENNEDY: How many people in the
Department of Justice -- what's the Department of
Justice budget for preclearance processes each year, do
you know?
MR. KATYAL: I don't know what the budget
is. I can tell you there are -- there are approximately
30 attorneys who work in the voting --
JUSTICE KENNEDY: Thirty attorneys. Do you
quarrel with the assessment -- the testimony before the
Senate Judiciary Committee that it costs the States and
the municipalities a billion dollars over 10 years to
comply?
MR. KATYAL: Again, I don't quarrel with
that, but Congress certainly --
JUSTICE KENNEDY: But you think that is --
that is relevant?
MR. KATYAL: I -- I certainly think the
burden on the States is relevant. Also relevant is the
fact that the States are now not coming before the Court
and objecting the way they were in South Carolina v.
Katzenbach.
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JUSTICE KENNEDY: But yet -- yet the
Congress has made a finding that the sovereignty of
Georgia is less than the sovereign dignity of Ohio. The
sovereignty of Alabama, is less than the sovereign
dignity of Michigan. And the governments in one are to
be trusted less than the governments than the other.
And does the United States take that position today?
MR. KATYAL: I wouldn't put it at all in
those terms. I would say what Congress found is that
there is a historical amount of discrimination coupled
with recent evidence and comparative data between
covered and noncovered jurisdictions that justifies
continuation of a remedy that States now overwhelmingly
appreciate.
JUSTICE KENNEDY: Well, then my point
stands. You say that there is a basis for treating
States quite differently as to the -- this fundamental
right that we all agree on with respect to voting. And
what's happened in part is that because of section 5
preclearance, say, a minority opportunity district is
protected in covered jurisdictions and not in noncovered
jurisdictions.
MR. KATYAL: But — but —
JUSTICE KENNEDY: This is — this is a great
disparity in treatment, and the government of the United
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States is saying that our States must be treated
differently. And you have a very substantial burden if
you're going to make that case.
MR. KATYAL: Justice Kennedy, their burden
is the same as it has always been in South Carolina
versus Katzenbach and City of Rome. The burden is on
Congress to say is continuation of this landmark
achievement, one of the most transformative acts in
American history, still justified, because with this act
what Congress -- what Congress did was essentially
redeem itself in the eyes of the world.
JUSTICE KENNEDY: No one -- no one questions
the validity, the urgency, the essentiality of the
Voting Rights Act. The question is whether or not it
should be continued with this differentiation between
the States. And that is for Congress to show.
MR. KATYAL: And Congress did show precisely
that. They showed, for example, Justice Kennedy,
that -- that the differential between covered and
noncovered States with respect to section 2 lawsuits was
57 percent of successful section 2 lawsuits were filed
in covered jurisdictions, even though they are 25
percent of the population --
CHIEF JUSTICE ROBERTS: Well, why didn't
Congress then extend the Act to Massachusetts, whereas
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your brother told us the disparity between Hispanic and
non-Hispanic voting is far greater than jurisdictions
that are covered?
MR. KATYAL: Because that -- because, again,
that is only one aspect of the overall problem, the
amount of registration rates or something like that.
What Congress has historically done ever since the
inception of the Voting Rights Act is target those
States where discrimination is so rooted that it is hard
to get rid of without preclearance.
Preclearance will transform the landscape
and enfranchise millions of Americans. And Congress
heard evidence and said, after 16,000 pages of
testimony, that the extension in these specific areas
was necessary in order to root out and prevent
discriminatory changes.
JUSTICE ALITO: Wouldn't you agree that
there is some oddities in this coverage formula?
Isn't -- is it not the case that in New York City the
Bronx is covered and Brooklyn and Queens are not?
MR. KATYAL: There -- there -- there are
certainly some oddities, as there always have been, from
Katzenbach and from City of Rome. And what this Court
has said is that Congress can act on the state-by-state
level and -- and that there is a remedy for the problem,
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which is the bailout provision --
JUSTICE SCALIA: Oh, let's talk about the
bailout provision. That -- that was inserted in 1982.
MR. KATYAL: That's correct.
JUSTICE SCALIA: How many years is that?
Over a quarter of a century, there have been 15 bailouts
that have gone through? All of them in the State of
Virginia?
MR. KATYAL: There -- there have been 18
under the new provision, which is --
JUSTICE SCALIA: You bring this before us as
a justification for the legislation.
MR. KATYAL: I am saying --
JUSTICE SCALIA: It's obviously quite
impracticable --
MR. KATYAL: Again --
JUSTICE SCALIA: -- for anybody to bail out.
MR. KATYAL: Justice Scalia, that precise
argument was made to Congress in 2006 and it was
rejected. And it --
JUSTICE SCALIA: The question is whether
it's right, not whether Congress rejected it.
(Laughter.)
MR. KATYAL: And I think it's not right
because what the testimony found was that States are
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able to bail out, but they don't, and this goes back to
my point to Justice Kennedy, because today States are
finding that preclearance actually serves their
interests; it increases --
JUSTICE SCALIA: It fends off Section 2
suits, I assume. I mean, that's great. You get a
declaratory judgment, here -- you know, a benediction,
and you skip off without having to face suits. That may
be one reason. Another reason may be that they like the
packing of minorities and the other -- the other
districting tricks that can be -- that can be pulled
because - because of the requirements of the Voting
Rights Act.
MR. KATYAL: Well, I don't think that's a
quite fair characterization. After all, here, Congress
in 2006 -- all Senators voted for this bill, and indeed
90 of the 110 Representatives from covered jurisdictions
voted for it, so if the Court is concerned about --
JUSTICE SCALIA: Well, they get elected
under this system. Why should that they take it away?
MR. KATYAL: Excuse me?
JUSTICE SCALIA: I say, everybody who voted
for this -- this system was elected under this system.
Should it be surprising that they think it it's a good
thing?
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1 MR. KATYAL: Well, I think that we shouldn't
2 this Court should be loathe to second-guess the
3 motivations of Congress under
4 JUSTICE GINSBURG: We have we have before
5 us the representations of the county in which the
6 district is located, and of several of the covered
7 jurisdictions, that they don't seek bailout because they
8 think that the benefits, many of which have nothing to
9 do with districting, outweigh whatever burden
10 preclearance puts on them. It's first, bringing
11 minority groups into the discussion of what the change
12 will be in the first place, and then warding off the
13 kind of examples that appear in the -- in the Louis -- I
14 think we -- we can't impugn their integrity by saying
15 that that host of reasons, having nothing to do with
16 redistricting, is why they are not asking for bailout.
17 MR. KATYAL: That's precisely right, Justice
18 Ginsburg, and what the covered jurisdictions also say is
19 something about how this -- the test before this Court
20 shouldn't be the narrowest time slice of today, but
21 rather the test should be to think about historically
22 what has happened.
23 JUSTICE SCALIA: We are not insisting that
24 they -- the other side is not insisting that they be
25 kicked out. If they want to voluntarily stay in, fine.
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In fact, you should let other States and other
jurisdiction opt in if they want to.
MR. KAYTAL: But —
JUSTICE SCALIA: If you want to make this a
voluntary system that's something entirely different,
but the question is assuming a State or -- or a covered
jurisdiction does not want to be in, do you have the
right to coerce them to be in? That's all we are
talking about.
MR. KAYTAL: Yes, and —
JUSTICE SCALIA: If they want to stay in,
that's fine.
MR. KATYAL: And this Court has recognized
and the brief of the covered jurisdictions recognizes
the fact that it's a separate sovereign requiring in
this provides an additional deterrent element and
increases the integrity of the elections.
If I could return to the point I was saying
a moment ago, what these covered jurisdictions are
saying is that this moment in time isn't the right test.
Rather you should look at the overall historical
record --
JUSTICE KENNEDY: Well, the overall
historical record, Katzenbach said there had been
unremitting and ingenious defiance, and that was
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1 certainly true as of the time of the Voting Rights Act.
2 Democracy was a shambles in those -- that's not true
3 anymore, and to say that the States are willing to yield
4 their sovereign authority and their sovereign
5 responsibilities to govern themselves doesn't work.
6 We've said in Clinton s New York that
7 Congress can't surrender its powers to the President,
8 and the same is true with reference to the States.
9 Wouldn't you agree?
10 MR. KATYAL: That is correct. And here this
11 Court has repeatedly said this isn't any sort of
12 surrendering of power. It was justified because of the
13 record of discrimination. South Carolina v Katzenbach,
14 Justice Kennedy, I don't quite think said that defiance
15 was the precondition; rather it found that the onerous
16 amount of case-by-case litigation itself wasn't enough.
17 And I would caution this Court because this Court has
18 had examples before in which the historical record
19 looked good at a narrow moment in time. If we think
20 back 100 years to Reconstruction, 95 percent of
21 African-Americans in franchise, 600 black members in the
22 State legislatures, 8 black members of Congress, 8 black
23 justice in the South Carolina Supreme Court. Things
24 looked good, and that led this Court in the civil rights
25 cases over Justice Harlan's lone dissent to say the era
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1 of special protection was over.
2 JUSTICE ALITO: Could I ask you this
3 question about -- about bailout? I mean we have --
4 there's a very odd aspect to this case. We have an
5 immense constitutional question and then on the other
6 hand you have this little utility district, which -- and
7 you'll correct me if I'm wrong, but as far as I got from
8 the briefs, they have never done anything wrong, and
9 they would like to bail out and the Voting Rights Act
10 was intended to permit jurisdictions that were not
11 committing transgressions to bail out. Now if the
12 statute doesn't allow them to do it, the statute doesn't
13 allow them to do it, but is there any good reason why a
14 district like that should not be permitted to bail out?
15 MR. COLEMAN: Again, this Court has
16 repeatedly said that this Congress, of the United
17 States, can legislate on the State-by-State level.
18 After all, the text of the Fifteenth Amendment speaks of
19 "any State." So I think the relevant test is the amount
20 of discrimination in Texas, and there the evidence is
21 not just registration rates; it's the fact that they
22 lead the country in objections under section 5, that the
23 greatest deterrent effect of the more information
24 process is in the State of Texas.
25 JUSTICE ALITO: If it's the case that there
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1 is no discrimination going on, no evasion going on in
2 this little utility district, is there any good reason
3 why they shouldn't be able to bail out?
4 MR. KATYAL: Yes, absolutely, because that's
5 what City of Rome argued in 1980, and what this Court
6 said in rejecting precisely that argument over Justice
7 Powell's dissent, was that it's not that discrimination
8 can't be to be at the individual unit-by-unit level. It
9 rather, if Congress so chooses, can do it on a more
10 broad level.
11 JUSTICE SCALIA: That was 1980?
12 MR. KATYAL: That's correct.
13 JUSTICE GINSBURG: Why --
14 JUSTICE SCALIA: The bailout provision was
15 adopted in 1982, 27 years ago. There have been 15
16 bailouts since then. Is that what you think Congress
17 contemplated when it enacted the bailout provision in
18 1982?
19 MR. KATYAL: First of all there was a
20 bailout provision at issue in 1980. It was amended in
21 1982. And yes, I think Congress contemplated a process
22 -- the legislative record on this is very clear.
23 JUSTICE SCALIA: Less than one a year?
24 MR. KAYTAL: -- that -- no, what they
25 contemplated was to make it easier for political
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divisions to bail out, and what Congress -- what
Congress anticipated, certainly more than one a year,
that didn't materialize. And again, I think, Justice
Scalia, the reason why it didn't materialize is because
States generally -- general appreciate Section 5's
preclearance process as well as its -- covered
j urisdictions.
CHIEF JUSTICE ROBERTS: Counsel, I thought
-- I thought our opinion in City of Boerne said that the
problem that Section 5 legislation addresses has to be
widespread and persisting. Do you think the record that
is before us today shows widespread and persisting
discrimination in voting?
MR. KATYAL: I do. I think that Congress,
Congress' reports, it's 16,000-page track record --
JUSTICE KENNEDY: In covered States as
opposed to noncovered States, if I can add that to the
Chief Justice's question, please.
MR. KATYAL: I do agree that they went State
by State and showed -- showed tremendous amounts of
discrimination in those places. Of course I disagree
with the notion that this utility district can point to
any one place in the country, be it Massachusetts or
some corner in Georgia, and say well, the evidence
wasn't there. I think Congress has far more latitude
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1 under its Fifteenth and Fourteenth Amendment powers.
2 JUSTICE KENNEDY: Just one thing on bailout.
3 It's like Eurystheus keeps telling Hercules, "Oh, you
4 did a good job, but now you've got another -- got
5 another thing to do." That's the bailout provision.
6 Anybody who has tried to fill out a government form
7 realizes they make a mistake, so that the DOJ rejects
8 it, that counts as a rejection. You have to have a --
9 what, a clean record for how many -- how many years --
10 before you can preclear? I mean, this is simply
11 impracticable. And it seems to me a cornerstone of the
12 Act and of your argument for upholding the Act, and if
13 we find that it doesn't work, that it's just -- it's
14 just an illusion, that gives me serious pause.
15 MR. KATYAL: Justice Kennedy, the only
16 evidence in the record is that the bailout provision
17 works nothing like the way that it might be
18 hypothesized. That is, every single county, every
19 single political subdivision that has asked for a
20 bailout has received one, and in 2006 there was an even
21 amendment offered to minimize the bailout provision.
22 That amendment was rejected overwhelmingly, and the
23 reason it was rejected was that jurisdictions that are
24 covered have now come to appreciate the power of Section
25 5 to deter voting discrimination, and that's why
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Congress made a judgment --
JUSTICE SCALIA: What I understand it, is
this incorrect? As I understand it for Travis County to
get a bailout, it would -- it has within Travis County
something like 106 political subdivisions that are
covered, and Travis County would have to go to all of
those 106 and demonstrate that there has been no
violation by any of those 106 for the preceding whatever
it is, five years, whatever the bailout provision is.
You think that's -- you think that's
feasible?
MR. KATYAL: For the way the statute works,
they have to go to the 107 subunits, which is absolutely
feasible because they are under contract with all 107
subunits to administer their elections. They have all
of the voting data to put together that bailout, and in
previous --
JUSTICE SCALIA: Travis County is not the
superior of many of those subunits, as it is not of this
district here. This district is a subdivision of the
State, but not of Travis County.
MR. KATYAL: Again, I think that's a
distinction without a difference. They have all of the
registration data and everything else necessary to make
the bailout provision. And the only record Congress and
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the only record before this Court is that every single
entity that has sought a bailout has received one.
JUSTICE GINSBURG: And the number is 18 now?
MR. KATYAL: The number is 18.
CHIEF JUSTICE ROBERTS: Thank you, counsel.
Mr. Adegbile.
ORAL ARGUMENT OF DEBO P. ADEGBILE
ON BEHALF OF THE INTERVENOR-APPELLEES
MR. ADEGBILE: Mr. Chief Justice, and may it
please the Court:
Our long experience demonstrates that racial
discrimination in voting has been persistent and
adaptive. Only after careful assessment of the record
did Congress find that the case-by-case method was
inadequate and that section 5 continued to do important
work within the covered jurisdictions.
There are a couple of things that I want to
call the Court's attention to in light of the discussion
that we've been having. First, the pernicious nature of
voting discrimination is such that small changes in the
rules of the game can affect many people. In addition,
the Court has observed, as Congress has on multiple
occasions when reauthorizing the Act, that the
case-by-case method is slow and inadequate to the task.
Indeed, Justice Kennedy's opinion in Boerne spoke to
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this problem of the case-by-case method.
I want to --
JUSTICE KENNEDY: I think that's absolutely
right. Section 2 cases are very expensive. They are
very long. They are very inefficient. I think this
section 5 preclearance device has -- has shown -- has
been shown to be very very successful. The question is
whether or not it can be justified when other States are
not covered today.
MR. ADEGBILE: As -- as the Court said in
Katzenbach when it first was presented with this
question of the coverage formula, Congress is permitted
to use so much of its power as is necessary to target
the problem as it finds it. The discrimination that was
manifest in the covered jurisdictions was different in
character at that time and -- but Congress did not stop
and get frozen in time in 1965. The periodic
reauthorizations have given Congress an opportunity to
revisit the progress.
CHIEF JUSTICE ROBERTS: So is it your -- is
it your position that today southerners are more likely
to discriminate than northerners?
MR. ADEGBILE: I wouldn't frame it in that
way, Justice -- Chief Justice Roberts. I think the
record does reveal that discrimination in the covered
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1 jurisdictions has a repetitive form. There are very --
there are brief talks about over six dozen examples.
Those are illustrative and not exhaustive, but
repetitious violations, that is, violations in covered
jurisdictions after a section 2 case --
CHIEF JUSTICE ROBERTS: So your answer is
yes ?
MR. ADEGBILE: I think that it's fair to say
that the pattern has been more repetitious violations in
the covered jurisdictions and -- and more one off
discrimination in other places.
That is not to say that there isn't voting
discrimination in other States. The record shows that
there is discrimination in other States. But the -- but
Congress found that the nature of the way the
discrimination is practiced, viewed through the lens of
history, is that repetitive violations happen. For
example, after this Court decided the LULAC case, a case
that was litigated over a number of months and very
expensive and complicated, the State then tried to
shorten the period for early voting. And the plaintiffs
in that case needed to file a section 5 enforcement
action, post-2000 redistricting, to give effect to this
Court's judgment.
CHIEF JUSTICE ROBERTS: So — but I guess
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that point depends upon the assumption that shortening
the time period for early voting is discriminatory as
opposed to good policy.
MR. ADEGBILE: I think in the context of
that circumstance, Justice -- Chief Justice Roberts, the
issue was that you had a long-standing incumbent and
that the early voting -- the timing of the early voting
period was such that it was going to conflict with a --
a holiday of — of a --
CHIEF JUSTICE ROBERTS: So that was largely
to protect the incumbent.
MR. ADEGBILE: To protect the incumbent, but
to disadvantage the community that was prepared to
exercise its voice, as this Court found in the LULAC
opinion. That is to say --
CHIEF JUSTICE ROBERTS: Well, incumbent —
MR. ADEGBILE: -- the incumbent was not the
candidate of choice.
CHIEF JUSTICE ROBERTS: Incumbent protection
takes place in the North as well as the South.
MR. ADEGBILE: By all means, but the -- but
the incumbent protection in this instance was designed
to cut off the minority community, the Latino voters who
had been disadvantaged by virtue of that plan. But
certainly that is not the only example.
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JUSTICE SCALIA: Mr. Adegbile, what was -- I
read it in the briefs, and I forget what it was. What
was the vote on this 2006 extension -- 98 to nothing in
the Senate, and what was it in the House? Was —
MR. ADEGBILE: It was -- it was 33 to 390, I
believe.
JUSTICE SCALIA: 33 to 390. You know, the
-- the Israeli Supreme Court, the Sanhedrin, used to
have a rule that if the death penalty was pronounced
unanimously, it was invalid, because there must be
something wrong there. Do you ever expect -- do you
ever seriously expect Congress to vote against a
reextension of the Voting Rights Act? Do you really
think that any incumbent would -- would vote to do that?
MR. ADEGBILE: Well --
JUSTICE SCALIA: Twenty-five years from now?
Fifty years from now? When?
MR. ADEGBILE: Justice Scalia, I think some
members of Congress did of course vote against the Act.
JUSTICE SCALIA: Thirty-three members of the
House and nobody in the Senate.
MR. ADEGBILE: Thirty-three members of the
House, indeed. But I think the -- the reason that they
voted for it is what's more important. Congress did not
assume that section 5 was necessary. It took a very
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careful examination to see how it was operating, and the
determination was that in the absence of section 5,
because of the repetitive violations, because of 620
objections -- there was evidence that approximately 60
percent of those show some evidence of intentional
discrimination.
If you take away the prophylaxis, the
discrimination will return in a way that we don't need
to revisit. The history has been that voting
discrimination manifests itself through repetitive
efforts and --
JUSTICE GINSBURG: But the question is, do
you agree that this is unlike access to buildings by
people who are in wheelchairs? There has to come a
point where it will end, and perhaps Congress was just
picking up on what this court said a few years before in
the University of Michigan law school case, this court
came up with a 25-year figure so maybe Congress thought
this court thinks 25 years is about right, must be about
right.
MR. ADEGBILE: Congress had a more specific
reason as I understand the record. There was a specific
amendment proposed to shorten the time to 10 years.
Then Chairman of the judiciary committee James
Sensenbrenner rose to it explain part of the experience
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most of the infractions not all but most when many
voting changes are necessary through reapportionment.
Not all of them involved reapportionment but many of
them are necessitated and the judgment was that it was
going to capture two censuses and they also looked back
to see how much discrimination they found from 1962 to
reauthorization.
And indeed Congress has been a little bit
surprised they have not been able to dislodge more of
the discrimination. They acknowledged the progress.
Progress didn't happen by itself and the experience had
been that it was helping us to move forward and that is
reflected I think in the State's brief to come to
Justice Kennedy's point. I think there is an intrusion.
This Court's decisions have recognized that Section 5
does intrude but even in Bernie as the court
distinguished Section 5 of the Voting Rights Act from
the, many of the statutes that were there at issue in
this case, RFRA, certainly other cases followed, the
court kept returning to section 5 because the problem
had been demonstrated by Congress. The gravity of the
harm was so severe that Congress needed a special
mechanism to dislodge it because if we don't have the
vote as this court's decisions have recognized, our
whole system is undermined.
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JUSTICE BREYER: So what is the reason in
your opinion if you had to summarize it in ray sentence
or two, you would say that the reason that Congress
didn't go into other States and decide which ones to add
to this or go into these States district by district and
decide which ones to subtract from this, the reason that
Congress didn't modify voting rights statute but simply
renewed it?
MR. ADEGBILE: Is that it wanted to stay the
course of ridding the covered jurisdictions from
discrimination. Katzenbach spoke in items of the case.
Subsequent have spoke about ridding the country of this
scourge as it manifested itself in the covered
jurisdictions and I think this was some State-by-State
analysis and the reports of the covered jurisdictions
that do it --
JUSTICE ALITO: Would you say from your
experience and I'm sure you're very knowledgeable about
this that there is no great are discrimination in voting
in Virginia than in North Carolina or in Tennessee or in
Arkansas or in Ohio?
MR. ADEGBILE: I can't precisely quantify
the quantum of discrimination in each of those stays but
I think that Congress' judgment was there had been a
demonstrated pattern of discrimination in the covered
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jurisdictions, covering formula had --
JUSTICE SCALIA: Wasn't Virginia the first
State in the Union to elect a black governor.
MR. ADEGBILE: Yes, indeed it was.
JUSTICE SCALIA: And it has a black chief
justice of the supreme court currently.
MR. ADEGBILE: Yes, Justice Scalia, I take
the point. But I think it's not quite fair to say. As
my predecessor at the podium made the point, that there
have been African-Americans to rise to high office
throughout our history, but that occasion of a single
person sitting in a seat doesn't change the experience
on the ground for everyday citizens.
It is -- it has an important salutory effect
and it tells us about the possibilities of our
Constitution, but it doesn't mean that voters that are
trying to vote in a school board election in Louisiana
are going to have an easy time of it where racially
polarized voting is as extreme as it is and when
election officials manipulate the rules of the game to
try and disadvantage the minority community.
JUSTICE KENNEDY: Well, the brief filed by
the NAACP Legal Defense Fund, the first 15 pages I think
makes a good demonstration of discrete discriminatory
acts; and the brief filed by Nathaniel, Professor
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Percelly, makes an important point about crossovers in
different -- my concern is it's just not clear to me
that Congress addressed this for the rest of the
country. That's my concern.
MR. ADEGBILE: I think the close -- the best
evidence of the comparison question to which you're
returning is the section 2 cases that were examined in a
report that was submitted to Congress. And as
Appellants recognize in their brief, 600 --
notwithstanding the powerful section 5 remedy, there
were 653 successful section 2 cases in covered
jurisdictions, and the success rate in covered
jurisdictions was much higher than in noncovered
jurisdictions.
So when you put together the objections, the
requests for more information followed by withdrawals,
the section 5 enforcement actions, the section 2 cases,
it is a picture that far exceeds the record that was
before this august body when considering enactments of
Congress in other contexts in Hibbs and in Lane, and the
record was of intentional discrimination, not simply
disparities but purposeful efforts to disadvantaged
minority groups. And I think that's the fundamental
difference between the covered jurisdictions and the
noncovered.
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you're talking about include both intentional and impact
cases. And the Constitution that section 5 is designed
to implement covers only intentional discrimination. So
even the examples you have given sweep broadly as a
prophylactic measure and then the section 5 preclearance
of course sweeps even more broadly. So we do have a
situation, despite the evidence that was -- that you
have cited, where less than one-twentieth of 1 percent
of the submissions that the States make are denied
preclearance.
Again, it seems to me that that means that
section 5 sweeps very, very broadly.
MR. ADEGBILE: I think there are two
responses. First, the relevant assessment is not simply
the rate. As the lower court found, the rate of
objections even at the time of the 1975 re-authorization
in Rome was very small. Judge Tatel spoke to this point
in his opinion and in the oral argument. The rate has
always been small. But what section 5 is designed to do
is to vindicate the principles of our Constitution, and
the gravity of the harm is such that if we have 620
examples of discrimination and 60 percent of those are
intentional discrimination together with some of the
other indicia and under this Court's cases Congress is
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entitled to look broadly, not simply at the decided
case, but to look broadly and to be the factfinder of
this important information.
This is a pattern. It's a widespread
pattern of intentional discrimination, and I think that
that is something that this Court needs to focus on as
it works through this important and serious issue.
JUSTICE BREYER: Thank you.
I have another question. How long did it
take Congress to compile this 13,000-page record?
MR. ADEGBILE: Approximately 10 months,
Justice Breyer.
JUSTICE BREYER: And how long would it have
taken Congress in your opinion to have compiled the
record to figure out what's happening in this respect in
every State or in these States district by district?
MR. ADEGBILE: I think that I can't put a
precise time on it, but it would have been certainly a
couple more years. The time that is necessary to
compile these investigations and the expertise that's
necessary to assemble them and cull the data takes some
time in my personal experience.
CHIEF JUSTICE ROBERTS: So your position is
that it makes no difference if discrimination in the
noncovered jurisdiction is more widespread and more
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persistent; it doesn't matter, because Congress can
focus solely on the jurisdictions that have been covered
since 1965?
MR. ADEGBILE: I make a slightly different
point. I don't think that it doesn't matter at all. I
think Congress has to act reasonably, but in light of
the record before it its judgment to stay the course in
the covered jurisdictions because of the way voting
discrimination has manifested itself in those
jurisdictions, that judgment is reasonable on the record
it had before it. It made a judgment in effect that
section 2 has proven more adequate to the task in other
jurisdictions that don't have the same history of
repetitive violations.
CHIEF JUSTICE ROBERTS: So I guess your
answer is that they can address the covered
jurisdictions that have been covered since 1965 without
looking at all to the rest of the country?
MR. ADEGBILE: I think that if things were
flipped and discrimination was much worse outside, that
would reflect on the reasonableness of Congress'
judgment. But that's a fact situation that was not
present before Congress.
CHIEF JUSTICE ROBERTS: Thank you, counsel.
MR. ADEGBILE: Thank you.
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you 5 minutes.
REBUTTAL ARGUMENT OF GREGORY S. COLEMAN
ON BEHALF OF THE APPELLANT
MR. COLEMAN: But, as Justice Alito pointed
out, Congress didn't know, because it didn't ask,
whether discrimination is worse in Tennessee or Arkansas
than in Virginia and other States. Nobody knows sitting
here today.
I respectfully disagree that Congress
couldn't have put together that effort. What we really
do hear is that this, this badge that is preclearance,
this Congressional judgment that State and local
officials in covered jurisdictions who in my experience
are strongly --
JUSTICE BREYER: You should have a chance to
answer the same question. You heard my question, the
time question. What's your estimate?
MR. COLEMAN: Oh, I strongly disagree with
that. AEI put in a number of reports that evaluated
things on the ground in a variety of noncovered
jurisdictions such as Milwaukee. I certainly think
within the time that Congress took to look at this if
they had been interested they could have easily
evaluated this. It would have been easily available to
CHIEF JUSTICE ROBERTS: Mr. Coleman, have
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them.
JUSTICE ALITO: Well, they now have 25 years
to look at, or 24 years, to look at the rest of the
country. Are they doing that? Are they holding
hearings ?
MR. COLEMAN: No, nobody is doing that. In
answer to Justice Ginsburg's question, that's what
Congress did in 1982. It said 25 years. That 25 years
has gone by. Times have changed.
JUSTICE GINSBURG: Well, this Court said —
-- it was not 1982, it was two thousand something. This
Court thought from two thousand something 25 years was a
reasonable period.
MR. COLEMAN: Congress' justification simply
does -- I think as we've heard from counsel, in light of
our mobile society and the fact that people don't live
in the same place people lived 40 years ago. This is a
bad --
JUSTICE STEVENS: Let me ask this question
just as sort of background. Does your case challenge at
all the standards that Congress has used throughout the
statute for causing States to become covered
jurisdictions?
MR. COLEMAN: Well the only standards that
exist are whether they use a test or devise in the
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1960s .
challenged those as a basis for making a State or county
or election district covered?
JUSTICE STEVENS: Correct. Have you ever
MR. COLEMAN: I don't think we've challenged
the action that took place --
JUSTICE STEVENS:
that some States are covered
certain requirements that the
didn't understand the case to
method by which States became
MR. COLEMAN: No,
challenge that. In fact --
JUSTICE STEVENS:
there are a lot of States out
covered?
Well, you have a history
and some are not because of
statute imposed. And I
involve a challenge to the
-- become covered.
Justice Stevens, we do
Then why is it relevant
there that are not
MR. COLEMAN: Because this Court's
discussions of these issues in Morris and in Garrett and
even in Hibbs indicate that it does matter what the
evidence shows with respect to a coverage determination,
and Congress' decision to not update it, which we
believe was for political reasons, simply bears no
resemblance to reality. And looking back to see who was
registered and who was voting in the '60s doesn't --
JUSTICE STEVENS: Are you arguing the
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1 statute is unconstitutional because Congress failed to
2 extend it to other -- other parts of the country?
3 MR. COLEMAN: No, I don't think that's our
4 argument. I think our argument is it's partially
5 unconstitutional because it even failed to look at the
6 coverage criteria and that it used the criteria
7 literally off the books from the '60s and '70s without
8 even looking at the information.
9 Again, if Congress had done that in 1965 and
10 said, we want to look at this Franklin-Hoover -- excuse
11 me -- this Franklin Roosevelt-Hoover election in 1932, I
12 think the Court would have been pretty surprised that
13 that was the best and most relevant information that
14 Congress could come up with.
15 This idea of -- of a badge that really runs
16 with the land is -- is something that we -- we think is
17 inherently unjustifiable.
18 I'd also like to address the point about
19 racial bloc voting. Racial bloc voting is not
20 discrimination, and it's not unconstitutional. And,
21 indeed, the way the Court has interpreted section 2 --
22 and I realize there are divisions in the Court about
23 this --
24 JUSTICE GINSBURG: The district will -- the
25 district will never be involved in racial bloc voting
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for districting purposes because it doesn't -- it's
boundaries don't change.
MR. COLEMAN: That's true, Justice Ginsburg.
But in terms of this facial challenge, it is important
for the Court to understand and to consider the fact
that Congress really thumbed its nose at the Court in
terms of rejecting the constitutional concerns that the
Court raised in -- in Miller and in Bossier Parish and
in Georgia versus Ashcroft.
The new enactment has been changed in a way
that -- that really requires covered jurisdictions to
engage more and more in race-based redistricting and
race-based -- and it's not only redistricting, Justice
Ginsburg -- in race-based decisionmaking. And so here
we are 40 years --
JUSTICE GINSBURG: Why wouldn't one
construing the Act as it was passed in 2006, say, well,
Congress obviously had in mind that this would be
enforced consistent with this Court's decision in Shaw,
this Court's decision in Miller?
MR. COLEMAN: We believe that the
interpretation of the Act or -- excuse me -- the passage
of the amendments in 2006 go far beyond what
preclearance was in 1965. We have a more restrictive
form of preclearance that requires State and local
64
Alderson Reporting Company
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1 governments to engage in more, not less, race-based
2 decisionmaking with respect to elections. And that, as
3 the Court has noted, creates additional constitutional
4 issues with the Court -- with the statute.
5 CHIEF JUSTICE ROBERTS: Thank you, counsel.
6 The case is submitted.
7 (Whereupon, at 11:26 a.m., the case in the
8 above-entitled matter was submitted.)
9
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A 40:16 65:3 alluded 25:8 Appellee 1:22 assert 10:17
able 38:1 43:3 address 22:3,13 alternative 2:6 26:20 15:2
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Alderson Reporting Company
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bad 61:18 18:10 Bronx 36:20 caution 41:17 circumstance
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Alderson Reporting Company
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24:5,11 25:3
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68
Alderson Reporting Company
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69
Alderson Reporting Company
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generally 44:5
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48:21 40:1 41:3,8 7:148:6 9:5 superior 46:19 60:7
sovereign 34:3,4 42:17 44:5,16 45:19 46:20 suppose 10:10 term 4:4,13 5:1
40:15 41:4,4 44:17 48:8 subdivisions 4:4 supreme 1:1,15 5:6 6:4
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34:4 54:5 57:10 9:7,14 46:5 51:8 55:6 34:9 64:4,7
speak 18:5 58:16 60:8 subject 5:20,24 sure7:18 11:2 test 15:16 23:10
speaks 42:18 61:22 62:8,11 5:25 7:4 10:14 21:11 54:18 39:19,21 40:20
special 42:1 62:15 11:11 12:13,19 surely 18:22 42:1961:25
53:22 State's 53:13 14:25 23:8 surprised 53:9 testified 28:3
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9:23 22:24 36:24 42:17 submissions surprising 38:24 27:11 29:3
30:24 36:14 54:14 5:23 22:2 surrender 41:7 33:13 36:14
52:21,22 statistics 20:2 26:11 27:20 surrendering 37:25
specifically 4:2 22:2 26:5 31:6 57:10 41:12 tests 16:17
27:7 29:21 statute4:7 5:1,8 submitted 56:8 sweep 57:5 Tex 1:18
speech 12:18,20 5:11 6:6 7:10 65:6,8 sweeping 27:21 Texas 15:22
spoke 47:25 8:1,25 9:6,23 Subsequent sweeps 57:7,13 19:2,3,3,18
54:11,12 57:18 11:10 13:5,21 54:12 swiftly 19:1,4 24:15 30:23,25
standards 61:21 14:9,12 16:15 substantial 35:2 system 38:20,23 31:7,13 42:20
61:24 16:16,21,22 substantially 38:23 40:5 42:24
standing 10:8,16 42:12,12 46:12 31:8 53:25 text 42:18
13:18 14:24
29:2
stands 34:16
54:7 61:22
62:9 63:1 65:4
statutes 17:22
substantive 4:21
subtle 17:13
subtract 54:6
T
textually 16:18
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47:5 58:8T 2:1,1
start 15:14 25:16 53:18 subunits 46:13 table 12:2 59:24,25 65:5
17:1025:12 statutory 3:24 46:15,19 take 18:17,18 thing 10:13 23:2
state 4:8 5:12 stay 39:25 40:11 success 56:12 19:12 20:14 29:3 38:25
7:21,22,24 8:3 54:9 59:7 successful 11:19 24:14 34:7 45:2,5
9:4 19:3 23:21 stays 54:23 20:8,10,11 38:20 52:7 things 7:1 11:5
24:22 25:17 steadfast 3:11 22:20,20 35:21 55:7 58:10 15:15 16:7
30:25 33:3 step 32:1 48:7 56:11 taken 25:10,12 18:1441:23
37:7 40:6 Stevens 61:19 suffice 14:9 58:14 47:17 59:19
41:22 42:19,24 62:2,7,12,14 suggest 6:20 takes 50:20 60:21
44:19,20 46:21 62:25 28:17 58:21 think 12:21 13:6
49:20 55:3 stop 18:3 31:19 suggested 6:6 talk 37:2 15:20 20:14
58:16 60:13 32:1048:16 suggesting 5:9 talking 40:9 21:23 23:6
62:3 64:25 stopped 25:14 suggests 27:20 57:2 24:9 26:24
statement 29:25 story 20:23 28:25 talks 49:2 27:25 28:23
30:1 strict 25:15 suit 10:4 12:23 target 36:8 30:14,22 31:12
States 1:1,15 strike 32:20 12:25 13:8 48:13 31:22 32:19
19:18 20:4 strongly 60:15 16:7 task 47:24 59:12 33:19,21 37:24
77
Alderson Reporting Company
Official - Subject to Final Review
38:14,24 39:1
39:8,14,21
41:14,1942:19
43:16,21 44:3
44:11,14,25
46:10,10,22
48:3,5,24 49:8
50:4 51:14,18
51:23 53:13,14
54:14,24 55:8
55:23 56:5,23
57:14 58:5,17
59:5,6,19
60:22 61:15
62:5 63:3,4,12
63:16
thinks 52:19
third 4:11 9:7
Thirty 33:12
Thirty-three
51:20,22
thought 12:24
14:5 16:25,25
17:1 24:2 44:8
44:9 52:18
61:12
thousand 61:11
61:12
thousands 26:1
26:1,10
three 4:8 5:9
threshold 10:10
thumbed 64:6
time 11:8 12:3
15:9,20 16:4
17:11 20:18
26:14 29:20
32:1 39:20
40:2041:1,19
48:16,17 50:2
52:23 55:18
57:17 58:18,19
58:22 60:18,23
times 17:20 27:1
61:9
timing 50:7
Title 22:2 28:20
28:24
today 29:16 34:7
38:2 39:20
44:12 48:9,21
60:9
told 36:1
tool 19:7
track 44:15
transform 36:11
transformative
35:8
transgressions
42:11
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46:3,4,6,18,21
treated 35:1
treating 34:16
treatment 32:6
34:25
tremendous
44:20
tricks 38:11
tried 45:6 49:20
true 41:1,2,8
64:3
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try 17:18 55:21
trying 17:17
20:14 27:18
32:3 55:17
turnout 19:17
20:22 21:2,23
Twenty-five
51:16
twice 5:9
two 18:22,24
19:1722:16
53:5 54:3
57:14 61:11,12
two-thirds 16:1
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unable 17:25
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51:10
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10:18 14:1,7
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46:2,3 52:22
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5:1,6
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28:19 34:7,25
42:16
units 4:17,24
8:11
unit-bv-unit
43:8
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63:17
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17:21 40:25
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6:13
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45:12
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use 5:1 *15:17
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61:25
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viewed 49:16
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violation 46:8
violations 49:4,4
49:9,17 52:3
59:14
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19:18 37:8
54:20 55:2
60:8
virtue 50:24
voice 50:14
volume 16:22
18:5
voluntarily
39:25
voluntary 40:5
vote 18:2 21:12
29:15 51:3,12
51:14,19 53:24
55:17
voted 38:16,18
38:22 51:24
voter 20:22 21:2
voters 15:22
20:24 21:11
50:23 55:16
voting 3:12 6:3
6:9 8:4 20:5
21:10 23:21,24
25:19,22 27:7
32:25 33:1 1
34:18 35:14
36:2,8 38:12
41:1 42:9
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52:9 53:2,17
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walked 17:18,19
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22:3 39:25
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63:10
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warding 39:12
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1: 11,21
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26:2 41:16
44:25 55:2
way 6:25 7:10
7:25 13:8
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33:2445:17
46:12 48:24
49:15 52:8
59:8 63:21
64:10
Wednesday
1:12
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weren't 8:24
we've 7:3 15:3
15:18,20,22
16:3 21:941:6
47:1961:15
62:5
whatsoever
24:18 29:2
wheelchairs
52:14
whistle 28:10,11
white 15:22 31:7
whites 31:3
white-black
21:2
78
Alderson Reporting Company
Official - Subject to Final Review
widespread
44:11,12 58:4
58:25
willing 41:3
wiretapping
29:8
wiretaps 28:20
28:25
withdrawals
56:16
withdrawn
25:22
work 26:13
27:13 28:13
33:11 41:5
45:13 47:16
workability
10:9
working 28:1
works 45:17
46:12 58:7
world 25:10
35:11
worried 32:2
worse 59:20
60:7
wouldn't 11:19
14:24,24 19:7
24:5 34:8
36:1741:9
48:23 64:16
wrong 12:24,24
13:5,6 26:3
42:7,8 51:11
______ X
x 1:2,10
Y
year 12:4,9 33:7
43:23 44:2
years 3:11 9:6
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17:18 25:25
26:3,5,9 28:21
32:12,12,15,15
33:15 37:5
41:20 43:15
45:9 46:9
51:16,17 52:16
52:19,23 58:19
61:2,3,8,8,12
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Yesterday 28:18
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41:6
____________ ( L _____
023 28:21
08-322 1:7 3:4
1 _____
1 27:19 57:9
1027:12 28:20
33:15 52:23
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10,000 26:11
10:13 1:163:2
10041:20
105 20:10
10646:5,7,8
107 46:13,14
11:2665:7
110 38:17
13.000- page
58:10
1537:643:15
55:23
16,000 27:11
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16.000- page
44:15
16-point 15:21
17 22:20,20
17,500 28:20
1831:5 37:9
47:3,4
18.631:8
193221:22
63:11
1960s 23:11 62:1
1962 53:6
196421:18
23:11
196521:11,19
26:12 48:17
59:3,17 63:9
64:24
1968 23:11
1972 23:11
1975 57:17
1980 43:5,11,20
1982 8:25 9:14
20:10 26:7
37:3 43:15,18
43:21 61:8,11
2
2 5:24 9:5 16:3
16:16 18:16,21
19:8,12 20:8
20:11 22:19,21
24:9 29:15,24
30:4,8 35:20
35:21 38:5
48:4 49:5 56:7
56:11,17 59:12
63:21
203:11 15:25
26:5 32:15
20s 21:3
200 25:21
2000 23:20
2004 12:5,8,9
23:20 24:22
2006 9:1921:17
27:2,3 37:19
38:16 45:20
51:3 64:17,23
2009 1:12 12:9
203 16:16
2127:11
2431:10 61:3
25 14:7 26:9
32:1 1,12 35:22
52:1961:2,8,8
61:12
25-year 52:18
262:6
27 43:15
270 30:2
279 30:2
2831:10
29 1:12
3_____
3 2:4 28:20,24
30 25:25 26:3
31:11 33:11
3351:5,7
3731:10
39051:5,7
4_____
4 27:1,1
4(b) 5:14
4061:17 64:15
47 2:8
__ 5______
5 15:17,24,24
16:10,20,21
17:20 18:22
20:8,10 25:11
27:17 28:1,7
30:9,11,16
31:15 34:19
42:22 44:10
45:25 47:15
48:6 49:22
51:25 52:2
53:15,17,20
56:10,17 57:3
57:6,13,20
60:2
5's 44:5
500-page 29:25
5735:21
6______
6-point 15:20
60 2:11 52:4
57:23
60s 62:24 63:7
600 15:23 16:3
41:21 56:9
620 52:3 57:22
653 20:11 56:11
______7
70s 63:7
____ 8
8 41:22,22
______ 9
90 38:17
9541:20
9851:3
99.98 28:14
79
Alderson Reporting Company