Shelby County v. Holder Brief Amicus Curiae

    No. 12-96

3ht ®fje

Supreme Court of tfje fHmtefc States;
-----------------------4-----------------------

SHELBY COUNTY, ALABAMA,
Petitioner,

ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.,
Respondents.

♦

On Petition For A Writ Of Certiorari 
To The United States Court Of Appeals 
For The District Of Columbia Circuit

--------------♦--------------

BRIEF OF AMICUS CURIAE STATE OF 
ALASKA IN SUPPORT OF PETITION 

FOR A WRIT OF CERTIORARI

--------------♦--------------

Margaret Paton-Walsh 
Counsel of Record 

Joanne M. Grace 
Ruth Botstein 
State of Alaska 
1301 W. 4th Avenue, Suite 200 
Anchorage, AK 99501 
(907) 269-6612
margaret.paton-walsh@alaska.gov
Counsel for Amicus 

State of Alaska

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

mailto:margaret.paton-walsh@alaska.gov


1

TABLE OF AUTHORITIES................................... ii
INTEREST OF AMICUS CURIAE....................... 1
ARGUMENT...........................................................  3
This Court Should Grant Certiorari Because § 5 

Imposes an Extraordinary Burden on Cov­
ered Jurisdictions Without Sufficient Evi­
dence that They Have Serious and 
Established Records of Intentional Voting 
Discrimination, as Alaska’s Experience 
Demonstrates......................................................  3
I. Section 5 Has Significantly Interfered 

With Alaska’s Ability to Conduct Timely 
and Efficient Elections, as Illustrated by 
its 2010 Redistricting Process and the 
2012 Election Cycle..................................... 4

II. Congress Reauthorized § 5’s Application 
to Alaska in 2006 Without the Requisite 
Evidence that the State Has a Record of 
Voting Discrimination................................  10

CONCLUSION........................................................  19

TABLE OF CONTENTS
Page



Cases

Arakaki v. Hawaii, 314 F.3d 1091 (9th Cir.
2002).........................................................................16

Baldus v. Members of Wis. Government Ac­
countability Board, 2012 WL 983685 (E.D.
Wis. Mar. 22, 2012)..................................................17

Black Political Task Force v. Galvin, 300 
F. Supp. 2d 291 (D. Mass. 2004)............................ 16

Bush v. Vera, 517 U.S. 952 (1996)................................5
City ofBoerne v. Flores, 521 U.S. 507 (1997)............11
Georgia v. Ashcroft, 539 U.S. 461 (2003).................... 7
Hickel v. Southeast Conference, 846 P.2d 38 

(Alaska 1992)....................................................... 4, 5
In Re 2011 Redistricting Cases, 274 P.3d 466 

(Alaska 2012)....................................................... 4, 5
In Re 2011 Redistricting Cases, 2012 WL 

2748214 (Alaska 2012).............................................. 6
Kenai Peninsula Borough v. State of Alaska,

743 P.2d 1352 (Alaska 1987).....................................4
Large v. Fremont County, Wyoming, 709 

F. Supp. 2d 1176 (D. Wyo. 2010)............................ 17
Luper v. Municipality of Anchorage, 268 

F. Supp. 2d 1110 (D. Alaska 2003)......................... 15
Miller v. Johnson, 515 U.S. 900 (1995)........................5

ii

TABLE OF AUTHORITIES
Page



I l l

Nick et al. v. Bethel, No. 3:07-cv-0098-TMB (D. 
Alaska).......................................................................18

Northwest Austin Municipal Utility District 
Number One v. Holder, 557 U.S. 193 (2009)....3, 13, 17

Rudolph v. Treadwell, No. 3:10-cv-00268-RRB 
(D. Alaska)................................................................ 10

Samuelsen v. Treadwell, No. 3:12-cv-00118- 
RRB-AK-JKS (D. Alaska).........................8, 9, 12, 13

Shelby County, Alabama v. Holder, 679 F.3d 
848 (D.C. Cir. 2012).........................10, 11, 13, 14, 17

South Carolina v. Katzenbach, 383 U.S. 301 
(1966)..................................................................17, 18

United States v. Berks County, Pennsylvania,
277 F. Supp. 2d 570 (E.D. Pa. 2003)....................... 17

United States v. Blaine County, Montana, 363 
F.3d 897 (9th Cir. 2004)...........................................16

United States v. City of Euclid, 580 F. Supp. 2d 
584 (N.D. Ohio 2008)...............................................16

United States v. State of Louisiana, 265 
F. Supp. 703 (E.D. La. 1966)................................... 15

United States v. Village of Port Chester, 704 
F. Supp. 2d 411 (S.D.N.Y. 2010)

TABLE OF AUTHORITIES -  Continued
Page

16



IV

United States Constitution

U.S. Const, amend. XIV...........................................7, 9
U.S. Const, amend. XV.................................... 9, 17, 18

Statutes

§ 2 of the VRA, 42 U.S.C. § 1973(a)..................passim
§ 4 of the VRA, 42 U.S.C. § 1973b(b)............... passim
§ 5 of the VRA, 42 U.S.C. § 1973c(a), 1973c(d) ....passim
42 U.S.C. § 1973b(a).............................................14, 15
42 U.S.C. § 1973f........................................................ 15

Regulations

28 C.F.R. §51.9............................................................. 8

United States Supreme Court Rules

37.2................................................................................ 1

Alaska Constitution

Article VI, § 1...............................................................4
Article VI, § 2 ...............................................................4
Article VI, § 6 ...............................................................4
Article VI, § 8 ...............................................................4
Article VI, § 11............................................................. 7

TABLE OF AUTHORITIES -  Continued
Page



V

Page
Alaska Rules of Appellate Procedure

216.5.......................................................................................... 7

Other Authorities

KRISTEN Clarke, The Congressional Record 
Underlying the 2006 Voting Rights Act: How 
Much Discrimination Can the Constitution 
Tolerate? 43 Harv. C.R.-C.L. L. Rev. 285 
(2008)....................................................................................10

TABLE OF AUTHORITIES -  Continued



1

INTEREST OF AMICUS CURIAE1
Amicus Curiae Alaska is a covered jurisdiction 

under the formula set out in § 4(b) of the Voting 
Rights Act (“VRA”). 42 U.S.C. § 1973b(b). For this 
reason, Alaska must comply with § 5 of the VRA, 
which requires it to seek approval from the Depart­
ment of Justice for every proposed change to its 
election procedures—ranging from implementation of 
new state redistricting plans to grammatical changes 
to forms. 42 U.S.C. § 1973c. Over the past thirty 
years, the Alaska Division of Elections has made 
nearly 500 preclearance submissions, some major, 
some minor, to secure this federal approval for chang­
es to state laws and practices. Alaska faces challenges 
unique to its own territory, including remote precincts 
inaccessible by roads, severe weather, and a small 
population spread over a vast area. These and other 
challenges often create issues that require quick and 
practical resolutions—not always covered in existing, 
precleared law—by state officials who understand 
which practices are sensible and likely to succeed. 
But because it is covered by § 5, Alaskan officials 
have been frustrated in their efforts to best serve the 
Alaskan public by attorneys in Washington, D.C. who 
most likely have never set foot in this state.

1 Consistent with Rule 37.2, counsel for the State of Alaska 
gave more than ten days’ notice of the state’s intent to file this 
amicus brief to the counsel of record for all parties.



2

But § 5’s impact on Alaska extends far beyond 
the administrative burden and loss of local control 
over elections. It requires the state to engineer elec­
tion districts based on factors related to race, which 
both offends state and federal constitutional prohibi­
tions against race discrimination and compromises 
the Alaska Constitution’s neutral, non-partisan 
principles of redistricting. Further, § 5 interferes with 
Alaska’s ability to conduct timely and orderly elec­
tions. Indeed, it so significantly impeded Alaska’s 
ability to create new districts after the 2010 census 
that the state was not able to finalize a redistricting 
plan in time for the 2012 elections and nearly had to 
postpone them.

Alaska has been subject to § 5’s burdensome 
federal oversight despite a dearth of evidence before 
Congress—either in 1965 when Congress enacted § 5 
or as it has subsequently reauthorized it—that the 
state has a record of voting discrimination that would 
justify any remedial measures, much less the oppres­
sive federal control effected by § 5. As a result, the 
state has recently filed suit in the United States 
District Court for the District of Columbia challeng­
ing the constitutionality of § 5. See State of Alaska v. 
Holder, l:12-cv-01376-RLW (D.D.C.). Grant of this 
petition could resolve the important question of law 
at the heart of Alaska’s lawsuit.



3

ARGUMENT
This Court Should Grant Certiorari Because 
§ 5 Imposes an Extraordinary Burden on 
Covered Jurisdictions Without Sufficient 
Evidence that They Have Serious and Estab­
lished Records of Intentional Voting Discrimi­
nation, as Alaska’s Experience Demonstrates.

Section 5 of the VRA as reauthorized in 2006 
implicates important principles of federalism and 
equal sovereignty and, perhaps even more significant­
ly, the appropriate application of the Reconstruction 
Amendments upon whose authority it relies. This 
Court has already expressed concern about, but has 
not ruled on, § 5’s constitutionality. Nw. Austin Mun. 
Util. Dist. No. One v. Holder, 557 U.S. 193, 204 (2009) 
(“The Act’s preclearance requirements and its cover­
age formula raise serious constitutional questions . . . . ”). 
Because § 5 significantly interferes with the elections 
of covered jurisdictions such as Alaska, the Court 
should grant certiorari in this case and determine 
§ 5’s constitutionality.

Section 5’s crippling effect on Alaska’s effort to 
redistrict in 2010, described below, illustrates the 
extraordinary burden that it imposes. But as a “rem­
edy,” § 5 is not a rational means—much less a con­
gruent and proportional one—to resolve any actual 
problem, as Congress did not have before it in 2006 
any record of voting discrimination by Alaska.



4

I. Section 5 Has Significantly Interfered 
With Alaska’s Ability to Conduct Timely 
and Efficient Elections, as Illustrated by 
its 2010 Redistricting Process and the 
2012 Election Cycle.

While the time, hassle, and expense of preparing 
and submitting preclearance submissions for review 
and approval by the DOJ undeniably place significant 
administrative burdens on covered jurisdictions, § 5’s 
negative impacts run much deeper than logistical 
troubles. Alaska’s 2010 redistricting experience is a 
paradigmatic example. Section 5 prevented Alaska 
from redistricting according to legitimate, non- 
discriminatory principles of fair representation; 
forced it to abandon fundamental principles en­
shrined in its own constitution; and nearly required it 
to postpone its elections.

After the 2010 decennial census, the Alaska 
Redistricting Board redrew all of Alaska’s electoral 
districts, as required by Alaska’s Constitution. Alaska 
Const., art. VI., §§ 1, 2, 8. The Alaska Constitution 
identifies specific traditional redistricting principles 
that combat the natural tendency toward partisan­
ship in the redistricting process: electoral districts 
must be contiguous, compact, and relatively socio­
economically integrated. Alaska Const., art. VI, § 6; 
In re 2011 Redistricting Cases, 274 P.3d 466, 467 
(Alaska 2012); Hickel v. Southeast Conference, 846 
P.2d 38. 44-47 (Alaska 1992); Kenai Peninsula Bor­
ough v. State. 743 P.2d 1352. 1360-61 (Alaska 1987). 
These requirements were designed to combat gerry­
mandering and to "help to ensure that the election



5

district boundaries fall along natural or logical lines 
rather than political” ones, ensuring public trust in 
the redistricting process. Hickel, 846 P.2d at 45; see 
also 2011 Redistricting Cases, 274 P.3d at 467-68.

But the Alaska Redistricting Board must com­
promise these principles in order to comply with § 5, 
vastly complicating the redistricting process. Al­
though Alaska law requires that these foundational 
redistricting principles yield only to the extent neces­
sary for compliance with the VRA, 2011 Redistricting 
Cases, 274 P.3d at 467-68; Hickel, 846 P.2d at 51 
n.22—a limitation consistent with this Court’s ad­
monition that a jurisdiction may not unnecessarily 
depart from traditional redistricting principles to 
create districts using race as “the predominant, 
overriding factor,” Miller v. Johnson, 515 U.S. 900, 
920-22 (1995); see also Bush v. Vera, 517 U.S. 952, 
958-59 (1996)—in practice the preclearance process 
has essentially displaced these state constitutional 
requirements.

For example, in 2011 the redistricting board 
attempted to ensure that Alaska’s new plan would 
secure § 5 preclearance by first drawing several 
districts along racial lines to maintain minority 
voting strength. 2011 Redistricting Cases, 274 P.3d at 
467. The Alaska Supreme Court found that this 
approach frustrated the court’s ability to determine 
whether the plan compromised state constitutional 
principles of contiguity, compactness, and relative 
socio-economic integration beyond the minimum 
extent necessary to secure preclearance. Id. Yet even 
after the board redrew the plan with closer consideration



6

of these constitutional requirements, neither the 
board nor the court could set aside the overriding 
concern that the DOJ would deny preclearance and 
indefinitely delay Alaska’s scheduled elections. In re 
2011 Redistricting Cases, 2012 WL 2478214 (Alaska) 
(Winfree, J., and Stowers, J., dissenting) (includes 
majority order dated May 10, 2012) [hereinafter 2011 
Redistricting Dissents].

Over strenuous dissents, the Alaska Supreme 
Court eventually approved an interim plan that is 
plainly inconsistent with the state constitution’s 
requirements, but that may have been necessary to 
ensure preclearance by the DOJ. Id. As one Alaska 
Supreme Court justice remarked, “[T]he court blinked 
in the face of threats of VRA objections to DOJ.” Id. at 
*7 (Stowers, J., dissenting). The specter of DOJ 
disapproval and the state’s overarching responsibility 
to provide a timely election for Alaskans therefore 
produced an interim redistricting plan for Alaska that 
violates its own core constitutional principles.

Even more troubling, the explicit command of § 5 
that changes may not “diminish[ ] ” a minority group’s 
ability “to elect their preferred candidates of choice,” 
42 U.S.C. § 1973c(d), required the redistricting board 
to act in apparent defiance of both state and federal 
constitutional prohibitions against race discrimina­
tion. See, e.g., 2011 Redistricting Dissents at *3 
(Alaska 2012) (Stowers, J., dissenting) (noting “the 
tension between complying strictly with the Alaska 
Constitution (which prohibits discrimination based 
on race, even when discrimination may promote a



7

minority’s ability to maintain its historical, numerical 
level of representation in the Alaska Legislature) and 
the contrary requirement of the federal Voting Rights 
Act (which mandates that in states subject to VRA 
oversight, a minority’s historical, numerical level of 
representation in the legislature may not be dimin­
ished by a redistricting plan because this could be 
considered illegally retrogressive under federal law)” 
(citations omitted)); Georgia v. Ashcroft, 539 U.S. 461, 
491 (2003) (Kennedy, J., concurring) (“Yet considera­
tions of race that would doom a redistricting plan 
under the Fourteenth Amendment or § 2 seem to be 
what save it under § 5.”). Section 5 therefore required 
Alaska to compromise its core redistricting principles 
far beyond the extent necessary under § 2’s substan­
tive non-discrimination standards.

The intrusive effect of § 5 then continued, hinder­
ing the state’s ability to hold timely elections in 2012. 
Despite expedited judicial procedures built into 
Alaska law, see Alaska Const., art. VI, § 11 (provid­
ing that challenge to redistricting plan must be filed 
within thirty days of plan’s adoption and that courts 
give redistricting cases priority over everything else); 
ALASKA R. Ajpp. Proc. 216.5 (establishing deadlines 
for expedited appeals in redistricting cases), litigation 
over the plan did not produce an order finally desig­
nating an interim plan until May 22, 2012. The board 
submitted this plan to the DOJ for preclearance three 
days later, requesting expedited review.

Alaska was then placed in an untenable position. 
The state was obligated under state and federal law



8

to meet statutory election deadlines, covering a full 
schedule of preparatory tasks such as candidate 
filing, eligibility challenges, ballot printing, and 
absentee ballot mailings. At the same time, § 5 pro­
hibited it from performing any preparations depend­
ent on the redistricting plan before the plan was 
precleared. Whatever the state chose to do—prepare 
for the election or not prepare for the election—would 
violate the law. The state faced massive disruption 
and disenfranchisement if primary elections were not 
held as scheduled, but delaying preparations pending 
preclearance of the redistricting plan would have 
altered many state law deadlines. Those changes 
themselves would have required preclearance, and 
the DOJ gives itself expansive timelines for consider­
ing preclearance requests. 28 C.F.R. § 51.9.2 With no 
good choices available, Alaska moved forward with 
preparatory steps for the election without prior 
approval of the DOJ.

A week after the candidate filing deadline, on 
June 7, 2012, private parties sued the Alaska Divi­
sion of Elections for implementing the plan without 
preclearance. Samuelsen v. Treadwell, No. 3:12-cv- 
00118-RBB-AK-JKS (D. Alaska). They demanded an 
injunction prohibiting any farther election preparations

This regulation allows the DOJ sixty days to respond to a 
preclearance submission. The sixty-day clock can be reset by the 
DOJ at any time with a request for more information. Multiple 
such requests are permitted. As a result, a jurisdiction can never 
be sure how long the preclearance process will take.



9

until the DOJ precleared the redistricting plan. They 
did not allege that the redistricting plan violated the 
substantive requirements of the Fourteenth or Fif­
teenth Amendments, or that the plan was discrimina­
tory toward minority voters; they sued on the sole 
ground that the state was implementing an 
unprecleared change in election procedures and 
therefore was in violation of § 5. Id. at Docket 1. The 
lawsuit was eventually mooted by DOJ’s early pre­
clearance of the interim plan, two days before the 
state’s deadline to mail advanced absentee ballots. 
Had the plaintiffs succeeded in obtaining the injunc­
tion and had the DOJ not precleared the plan when it 
did, Alaska likely would not have been able to hold a 
timely 2012 primary or general election. Thus, even 
though the plaintiffs did not allege that the redistrict­
ing plan actually abridged or denied the right to vote 
of any Alaskans, this § 5 litigation jeopardized Alas­
ka’s ability to hold timely elections.

As Alaska’s recent experience illustrates, § 5’s 
requirements—and the extended review period per­
mitted the DOJ for preclearance—can place jurisdic­
tions in impossible situations. Because every proposed 
change, no matter how minor, and no matter the 
reason for it, must be submitted at least 60 days 
before it needs to be implemented, § 5 requires states 
like Alaska to either abandon hope of a timely election 
cycle or risk a technical § 5 violation that could trigger 
the kind of federal court enforcement action that was 
filed against Alaska. Similarly, covered jurisdictions 
often are unable to respond to unexpected developments



10

that occur close to elections, because they must wait 
for federal permission to do so or violate § 5. See, e.g., 
Rudolph v. Treadwell, Case No. 3:10-cv-00268-RRB 
(D. Alaska) (Docket 1) (alleging state’s compliance 
with Alaska Supreme Court Order less than a week 
before election violated § 5 because DOJ had not yet 
precleared court-ordered change).

Such significant interference with state elections 
and state sovereignty can be justified only by an 
egregious record of intentional voting discrimination. 
But as described below, Congress plainly lacked 
sufficient evidence that Alaska had such a record in 
2006 when it most recently reauthorized § 5.

II. Congress Reauthorized § 5’s Application 
to Alaska in 2006 Without the Requisite 
Evidence that the State Has a Record of 
Voting Discrimination.

The D.C. Circuit majority and some commenta­
tors have touted the extensive record of voting dis­
crimination in the covered jurisdictions amassed by 
Congress for the Act’s 2006 reauthorization. See, e.g., 
Shelby County, Alabama v. Holder, 679 F.3d 848, 857 
(D.C. Cir. 2012); Kristen Clarke, The Congressional 
Record Underlying the 2006 Voting Rights Act: How 
Much Discrimination Can the Constitution Tolerate?, 
43 Harv. C.R.-C.L. L. Rev. 385 (2008). But this ag­
gregated evidence obscures the irrationality of the 
scope of § 5 coverage, a point that again is particular­
ly well illustrated by Alaska. The record supporting 
the 2006 reauthorization shows that Congress could



11

have had no basis to conclude that Alaska’s record on 
voting discrimination was so egregious as to warrant 
§ 5 coverage. Aaid that reality illuminates the bank­
ruptcy of the entire § 5 formula. Congress simply 
declined to reconsider the appropriate reach of this 
extraordinary intrusion on an area of traditional 
state concern.

In affirming § 5’s constitutionality, the circuit 
court majority in this case discussed a variety of 
evidence that Congress had before it in 2006, includ­
ing voter registration and turnout statistics; the 
number of minority elected officials; racially polarized 
voting; successful § 2 lawsuits; DOJ objections to 
preclearance submissions; DOJ requests for addition­
al information; the deployment of federal observers 
tasked with monitoring elections; and § 5 enforce­
ment actions. Shelby County, 679 F.3d at 863. It 
reviewed this evidence because it acknowledged that 
to survive constitutional scrutiny, § 5’s burdens likely 
must be “congruent and proportional to the injury to 
be prevented,” id. at 859 (quoting City of Boerne v. 
Flores, 521 U.S. 507, 520 (1997) (alterations omit­
ted)), and this data purportedly evidenced the threat 
of current injury. Even assuming that evidence is 
relevant, but see Pet. 26-28, 30-34, the court employed 
a sleight of hand when assessing it: the court aggre­
gated the data across all covered jurisdictions so that 
a problem in one could be attributed to all, rather 
than treating each state individually. This aggregated 
perspective obscures the fundamental flaws in the 
coverage formula and conceals the irrationality of



12

continuing to designate covered jurisdictions based on 
decades-old data.

Alaska illustrates the shortcoming of this meth­
odology. If Congress had considered information 
specific to Alaska rather than aggregated statistics, it 
would have seen that Alaska’s coverage is unjustified. 
Although Alaska does not collect information about 
the race of voters and therefore can only estimate 
minority registration and turnout rates, the best 
available estimates show that Alaska Natives vote at 
rates comparable to non-Natives. Samuelsen v. 
Treadwell, No. 3:12-cv-00118-RBB-AK-JKS, at Docket 
26, Exhibits N, O. These estimates are consistent 
with the state’s strong record of electing Alaska 
Natives to state office, which compares favorably with 
most non-covered jurisdictions. In 2006, when the 
VRA was reauthorized, seven Alaska Native legisla­
tors sat in a body of sixty, making the ratio of the 
proportion of Alaska Native legislators (11.6%) 
against the Alaska Native share of voting-age popula­
tion (13.7%) almost one-to-one (.847).

Similarly, the record before Congress in 2006 
showed that a successful § 2 lawsuit had never been 
filed in Alaska; the DOJ had objected to only one 
preclearance submission in more than thirty years; 
only one § 5 lawsuit had ever been filed in Alaska 
(against the Municipality of Anchorage, a jurisdiction 
over whose elections the state exercises no control), 
and no federal observers had ever been certified for 
an election in Alaska. Thus, the evidence before 
Congress of Alaska’s record on relevant matters does 
not provide a rational basis for § 5 coverage of the



13

state, much less a congruent and proportional re­
sponse to any actual problem. See Shelby County, 679 
F.3d at 859.

Indeed, much of the evidence presented to Con­
gress about Alaska in 2006 related to issues irrele­
vant to § 5 coverage, such as higher poverty rates or 
poorer educational outcomes among minorities. 
Samuelsen v. Treadwell, No. 3:12-cv-118-RBB-AK- 
JKS, at Docket 25, Exhibit E. But § 5 coverage must 
be based on evidence of current state discrimination, 
as “the Act imposes current burdens and must be 
justified by current needs.” Nw. Austin, 557 U.S. at 
203. And the evidence must be related to voting 
discrimination. Generalized evidence of disparities in 
life outcomes is insufficient to justify the federal 
infringement on state sovereignty represented by § 5. 
As this Court explained, “a departure from the fun­
damental principle of equal sovereignty requires a 
showing that a statute’s disparate geographic cover­
age is sufficiently related to the problem that it tar­
gets.” Id. (emphasis added). Extending § 5 coverage 
based on problems such as poverty would stretch 
federal power well beyond the limits of congruence 
and proportionality.

Alaska also starkly demonstrates that the VRA’s 
bailout provision is “no more than a mirage.” Nw. 
Austin, 557 U.S. at 215 (Thomas, J., concurring in 
part and dissenting in part). The circuit court in this 
case acknowledged the concern that the VRA imposes 
§ 5’s burdens on jurisdictions that no longer are the 
root of “[t]he evil that § 5 is meant to address,” Shelby 
County, 679 F.3d at 873 (quoting Nw. Austin, 557



14

U.S. at 203), but the court dismissed this concern 
based in part on the VRA provision allowing jurisdic­
tions to bail out if they can demonstrate a clean 
voting record under § 4(a), 42 U.S.C. § 1973b. Shelby 
County, 679 F.3d at 873-74. But the bailout provision 
cannot preserve § 5’s constitutionality for two rea­
sons: the standards for bailing out require absolute 
perfection, and failure can result from circumstances 
beyond the control of the covered jurisdiction.

To qualify for bailout, a jurisdiction must show 
that during the previous ten years: (A) it has not used 
a test or device with the purpose or effect of denying 
or curtailing the right to vote because of race or color; 
(B) no federal court has found that the right to vote 
has been denied or curtailed because of race or color 
anywhere in the jurisdiction; (C) federal examiners 
have not been certified to the jurisdiction; (D) it 
has complied with §5; and (E) the DOJ has not 
objected to any preclearance submission. 42 U.S.C. 
§§ 1973b(a)(l)(A)-(E). In addition, the “jurisdiction 
also has the burden of presenting ‘evidence of minori­
ty participation, including evidence of the levels of 
minority group registration and voting, changes in 
such levels over time, and disparities between minority- 
group and non-minority-group participation.’ 42 
U.S.C. § 1973b(a)(2).” Nw. Austin, 557 U.S. at 214 
(Thomas, J., concurring in part and dissenting in 
part).

Under this standard, a single misstep in any of a 
v ide v ariety of categories precludes a jurisdiction 
from qualifying for a bailout for the next ten years,



15

and even after successfully bailing out, a jurisdiction 
must maintain its perfect record for another ten years 
to avoid the claw-back provision of 42 U.S.C. 
§ 1973b(a)(5).3 Moreover, bailout can be unobtainable 
to a jurisdiction based on conduct of election authori­
ties over which it has no control. See 42 U.S.C. 
§ 1973b(a)(l)(D) (providing that for a jurisdiction to 
qualify for bailout, all of its sub-jurisdictions must 
also have perfect records). For example, Alaska’s 
ability to bail out was blocked by the actions of the 
Municipality of Amchorage, which in 2002 violated § 5 
by failing to submit a change to its charter before its 
mayoral election. See Luper v. Municipality of An­
chorage, 268 F. Supp. 2d 1110, 1111 (D. Alaska 2003). 
The state has no jurisdiction or authority to govern 
municipal elections, yet under the VRA, the sins of 
the municipality are visited upon the state. Similarly, 
a jurisdiction is unable to qualify for a bailout if the 
Attorney General certifies the jurisdiction for federal 
observers, 42 U.S.C. §§ 1973b(a)(l)(C), 1973f, a decision 
that is unreviewable, United States v. State of Louisi­
ana, 265 F. Supp. 703, 715 (E.D. La. 1966), aff’d, 386

3 42 U.S.C. § 1973b(a)(5) provides, in part:
The court shall retain jurisdiction of any action pur­
suant to this subsection for ten years after judgment 
and shall reopen the action upon motion of the Attor­
ney General or any aggrieved person alleging that 
conduct has occurred which, had that conduct oc­
curred during the ten-year periods referred to in this 
subsection, would have precluded the issuance of a 
declaratory judgment under this subsection.



16

U.S. 270 (1967). Section 5 thus provides that a juris­
diction could remain under the exhaustive, unrelent­
ing scrutiny of a federal agency for an indefinite 
period, based on an unwarranted and unreviewable 
decision by that same agency.

As a result, the bailout does not function as an 
escape valve for states caught up by the inaccuracies 
of the coverage formula. Rather, it operates to create 
a caste system among the states, distinguishing those 
who have been once tainted by the reach of § 5—who 
must maintain a record of perfection for twenty years 
to escape—from the rest, who may enact legislation 
that covered states cannot, like voter identification 
laws, and whose occasional misdeeds do not immedi­
ately relegate them to endless federal micromanage­
ment of their elections.

Indeed, many non-covered states could not pass 
the bailout’s purity test—for example, Hawaii, see 
Arakaki u. Hawaii, 314 F.3d 1091, 1095-97 (9th Cir. 
2002) (finding trustee qualification violated § 2 of 
VRA); Massachusetts, see Black Political Task Force 
v. Galvin, 300 F. Supp. 2d 291, 315-16 (D. Mass. 2004) 
(finding redistricting plan diluted voting power of 
African-Americans in violation of VRA); Montana, see 
United States v. Blaine County, Montana, 363 F.3d 
897, 909 (9th Cir. 2004) (finding county’s at-large 
voting system violated VRA); New York, see, e.g., 
United States v. Village of Port Chester, 704 
F. Supp. 2d 411, 446-47 (S.D.N.Y. 2010) (finding 
village’s method of electing Board of Trustees violated 
VRA); Ohio, see United States v. City of Euclid,



17

580 F. Supp. 2d 584, 586 (N.D. Ohio 2008) (finding 
city council elections violated § 2 of VBA); Pennsylva­
nia, see United States v. Berks County, Pennsylvania, 
277 F. Supp. 2d 570, 577-82 (E.D. Pa. 2003) (finding 
county’s election practices violated § 2 of VRA); 
Wisconsin, see Baldus v. Members of Wis. Gov’t Ac­
countability Bd., 2012 WL 983685, *12-16 (E.D. Wis. 
Mar. 22, 2012) (finding redistricting plan violated 
VRA by “cracking” Latino community into two Latino 
influence districts); and Wyoming, see Large v. 
Fremont County, Wyoming, 709 F. Supp. 2d 1176, 
1231 (D. Wyo. 2010) (finding at-large system of elect­
ing county commissioners diluted Native American 
voting strength in violation of VRA).

Nor does Alaska pass the test. But nothing in the 
Constitution or the language of the precedents justi­
fying earlier incarnations of the VRA suggests that 
perfection is the appropriate standard for determin­
ing whether a state should be subject to the extraor­
dinary federal intrusion that § 5 represents. See Nw. 
Austin, 557 U.S. at 229 (Thomas, J., concurring in 
part and dissenting in part) (“Perfect compliance with 
the Fifteenth Amendment’s substantive command is 
not now—nor has it ever been—the yardstick for 
determining whether Congress has the power to 
employ broad prophylactic legislation to enforce that 
Amendment.”). To the contrary, the key inquiry is 
whether a jurisdiction’s record reflects a problem of 
such magnitude—of such “exceptional conditions,” 
South Carolina v. Katzenbach, 383 U.S. 301, 334 
(1966)—that it cannot be dealt with through case-by­
case litigation. Shelby County, 679 F.3d at 863-64.



18

Alaska’s record on voting discrimination is not excep­
tional. Had Congress actually considered evidence 
specific to Alaska, it simply could not rationally have 
concluded in 2006 that case-by-case litigation is 
inadequate for a jurisdiction without a single success­
ful § 2 lawsuit and only one DOJ objection to a pre­
clearance submission in thirty years.4

Preclearance was initially imagined as a tempo­
rary measure, a five-year infringement on state 
sovereignty justified by the outrageous attempts of 
some southern jurisdictions to resist enforcement 
of the mandate of the Fifteenth Amendment. 
Katzenbach, 383 U.S. at 309-14. Its reauthorization 
in 2006 for another twenty-five years, however, 
reflects not outrage at ongoing voting discrimination 
but a Congress unable or unwilling to re-evaluate the 
appropriateness of an entrenched bureaucracy of 
federal oversight, controlling the smallest details of 
election procedures in what now amounts to effective­
ly a random selection of states and jurisdictions. The 
decision to renew the coverage formula for another 
twenty-five years was beyond Congress’s authority 
and violated the Constitution.

--------------- « ---------------

Although the state of Alaska was sued under the language 
assistance provisions of the VRA in 2007, the case settled, see 
Nick et al. v. Bethel, No. 3:07-cv-0098-TMB (D. Alaska), and this 
single lawsuit only emphasizes the reality that any alleged 
problems of voting discrimination in Alaska can be handled 
through case-by-case litigation.



19

CONCLUSION
The petition for writ of certiorari should be 

granted.

Respectfully submitted,
Margaret Paton-W alsh 

Counsel o f Record 
Joanne M. Grace 
Ruth Botstein 
State of Alaska 
1301 W. 4th Avenue, Suite 200 
Anchorage, AK 99501 
(907) 269-6612
margaret.paton-walsh@alaska.gov
Counsel for Amicus 

State of Alaska

mailto:margaret.paton-walsh@alaska.gov