Dowell v. Oklahoma City Board of Education Petition for Rehearing with Suggestion for Rehearing En Banc

    No. 12-96

IN THE

uprmte (Emtrt of the 1 hutch States

S h e l b y  C o u n t y , A l a b a m a ,
Petitioner,

E r i c  H . H o l d e r , J r . A t t o r n e y  G e n e r a l , e t  a l .,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF IN OPPOSITION 
FOR RESPONDENTS-INTERVENORS

Debo P. Adegbile 
Acting Director Counsel 

Elise C. Boddie 
Ryan P. Haygood 
Dale E. Ho
NAACP Legal Defense 

& Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2200
Counsel for Earl Cunningham, 

Harry Jones, Albert Jones, 
Ernest Montgomery, 
Anthony Vines and 
William Walker

Jon M. Greenbaum 
Counsel of Record 

Robert A. Kengle 
Marcia Johnson-Bianco 
Mark A. Posner 
Lawyers’ Committee for Civil 

Rights Under Law 
1401 New York Avenue, NW,

Suite 400
Washington, DC 20005 
(202) 662-8325
jgreenbaum@lawyerscommittee.org
John M. Nonna
Patton Boggs LLP
1185 Avenue of the Americas,

30th Floor 
New York, NY 10036 
(646) 557-5172
Counsel for Bobby Lee Harris

0Counsel continued on inside cover)

mailto:jgreenbaum@lawyerscommittee.org


Laughlin McDonald 
Nancy G. Abudu 
American Civil Liberties 

Union Foundation 
230 Peachtree Street, NW,

Suite 1440
Atlanta, GA 30303-1227 
(404) 523-2721
Steven R. Shapiro 
American Civil Liberties 

Union Foundation 
125 Broad Street 
New York, NY 10004 
(212) 549-2500
David I. Schoen 
2800 Zelda Road, Suite 100-6 
Montgomery, AL 36106 
(334) 395-6611
Counsel for Bobby Pierson, 

Willie Goldsmith, Sr., Mary 
Paxton-Lee, Kenneth Dukes, 
and The Alabama State 
Conference of the National 
Association for the 
Advancement of Colored 
People, Inc.

Kim Keenan 
Victor L. Goode 
NAACP
4805 Mt. Hope Drive 
Baltimore, MD 21215-3297 
(410) 580-5120
Counsel for The Alabama 

State Conference of the 
National Association for 
the Advancement of Colored 
People, Inc.



COUNTER-QUESTION PRESENTED

Whether Congress properly exercised its 
enforcement powers under the Fourteenth and 
Fifteenth Amendments when it reauthorized Section 
5 and Section 4(b) of the Voting Rights Act in 2006 
based upon the record of ongoing discrimination in 
the covered jurisdictions.

1



CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6, none of the 
Respondents-Intervenors in this case has a parent 
corporation or issues any stock. The Alabama State 
Conference of the National Association of Colored 
People is an affiliate of the national NAACP.

n



TABLE OF CONTENTS

COUNTER-QUESTION PRESENTED.......................i

CORPORATE DISCLOSURE STATEMENT............ ii

TABLE OF AUTHORITIES....................................... iv

REASONS FOR DENYING THE WRIT..................... 1

I. The Court of Appeals and District Court
Applied a Standard of Review That Followed 
This Court’s Precedents.................................... 3

II. The Court of Appeals and District Court
Directly Answered the Questions Set Forth in 
Nw. Austin..........................................................6

III. The Court of Appeals Correctly Rejected
Shelby County’s Attempts to Arbitrarily 
Define Away Relevant Evidence.....................21

IV. Post-Enactment Evidence Corroborates the
Court of Appeals...............................................26

V. The Constitutionality of the 2006 Amend­
ments is Not Properly Before the Court.........30

VI. The Question Presented is Incorrect..............32

CONCLUSION............................................................35

iii



TABLE OF AUTHORITIES

CASES

Allen v. State Bd. of Elections,
393 U.S. 544 (1969)................................................23

Bd. of Trustees of Univ. of Ala. v. Garrett,
531 U.S. 356 (2001).....................................  5, 11, 33

City of Boerne v. Flores, 521 U.S. 507 (1997)....passim
City of Rome v. United States,

446 U.S. 156 (1980).........................................passim
Crawford v. Marion County Election Bd.,

553 U.S. 181 (2008)................................................... 2
Eldred u. Ashcroft, 537 U.S. 186 (2003)................... 24
Florida v. United States, no. l:ll-cv-01428,

2012 U.S. Dist. LEXIS 115647
(D.D.C. August 16, 2012)........................................27

Georgia u. Ashcroft, 539 U.S. 461 (2003)................. 31
Georgia v. United States,

411 U.S. 526 (1973)...................................  18, 20, 23
Gomillion u. Lightfoot, 364 U.S. 339 (1960)...........  34
Hunter v. Underwood, 471 U.S. 222 (1985)............  33
Janis v. Nelson, 2009 U.S. Dist. LEXIS 121086 

(D. S.D. Dec. 30, 2009)..............................................3
Jeffers v. Clinton,

740 F.Supp. 585 (E.D. Ark. 1990).........................  13
Kimel u. Fla. Bd. of Regents, 528 U.S. 62 (2000)....  19
Lopez u. Monterey County,

525 U.S. 266 (1999)...................................  18, 19, 33
Louisiana v. United States, 380 U.S. 145 (1965)....  34

IV



LULAC v. Perry, 548 U.S. 399 (2006).........  19, 29, 33
Nev. Dep't. of Human Res. v. Hibbs,

538 U.S. 721 (2003)...........................................  5, 20
Nw. Austin Mun. Util. Dist. No. One v. Holder,

557 U.S. 193 (2009)........................................ passim
Nw. Austin Mun. Util. Dist. No. One v. Mukasey,

573 F.Supp.2d 221 (D.D.C. 2008)............................ 9
Reno v. Bossier Parish School Board,

528 U.S. 320 (2000).................................................31
Rogers v. Lodge, 458 U.S. 613 (1982)....................... 33
Shelby County v. Holder,

811 F.Supp. 2d 424 (2011)....................................... 2
Singleton v. Wulff, 428 U.S. 106 (1976)..................  30
Smith v. Allwright, 321 U.S. 649 (1944)................. 34
South Carolina v. Katzenbach,

383 U.S. 301 (1966)........................................ passim
Spietsma u. Mercury Marine, 537 U.S. 51 (2002).... 30
Tennessee u. Lane, 541 U.S. 509 (2004)..............  5, 20
Texas v. Holder, no. l:12-cv-00128,

2012 U.S. Dist. LEXIS 127119 (D.D.C.).............. 28
Texas u. United States, no. l:ll-cv-1303,

2012 U.S. Dist. LEXIS 121685 (D.D.C.)........ 28, 29
Turner Broadcasting System, Inc. v. F.C.C.,

520 U.S. 180 (1997)............................................... 24
United States Dept, of Labor v. Triplett,

494 U.S. 715 (1990)............................................... 24
Washington State Grange v. Washington State 

Republican Party, 552 U.S. 442 (2008)..................2

v



White v. Regester, 412 U.S. 755 (1973)............... 33, 34
Youakim u. Miller, 425 U.S. 231 (1976)................... 30

CONSTITUTION & STATUTES

U.S. Const, amend. XIV......................................passim
U.S. Const, amend. XV.......................................passim
Voting Rights Act, 42 U.S.C. § 1973 et seq.......passim

42 U.S.C. § 1973a......................................................15
42 U.S.C. § 1973aa................................................... 22
42 U.S.C. § 1973a(c)................................................. 16
42 U.S.C. § 1973b(a)................................................. 15
42 U.S.C. 1973b(b)...........................................passim
42 U.S.C. 1973c................................................passim

120 Stat. 577, sec. 2(b)................................................ 12
120 Stat. 577, sec. 2(b)(4)&(5)....................................13
120 Stat. 577, sec. 2(b)(6)...........................................31

ADMINISTRATIVE & LEGISLATIVE  
MATERIALS

152 Cong. Rec. H5143-5207 
(daily ed. July 13, 2006)..........................................27

152 Cong. Rec. S8012
(daily ed. July 20, 2006)..........................................27

H.R. Rep. No. 109-478........................................passim
Renewing the Temporary Provisions of the 

Voting Rights Act: Legislative Options After 
LULAC u. Perry. Hearing Before the Subcomm. 
on the Constitution, Civil Rights and Property

vi



Rights of the S. Comm, on the Judiciary,
109th Cong. (2006)............................................  7, 14

S. Rep. No. 109-295 (2006).......................................27
S. Rep. No. 417 (1982)...............................................  15
Section 5 Objection Letter from Grace Chung Becker, 

Acting Assistant Attorney General, to Dan Head, 
Esq., August 25, 2008............................................ 8

Understanding the Benefits and Costs of Section 5 
Pre-Clearance: Hearing Before the S. Comm, on 
the Judiciary, 109th Cong. 90 (2006).................... 7

Voting Rights Act: Evidence of Continued Need: 
Hearing Before the Subcomm. on the Constitution, 
of the H. Comm, on the Judiciary, 109th Cong. 
(2006)................................................................ 14, 21

Voting Rights Act: Section 5 of the Act -  History, 
Scope, and Purpose: Hearing Before the Subcomm. 
on the Constitution, of the H. Comm, on the 
Judiciary, 109th Cong. (2005)................. 7, 8, 10, 21

OTHER AUTHORITIES

Blacksher, et al., Voting Rights In Alabama:
1982-2006, 17 SO. CAL. REV. L.AW & SOC. JUST. 
249, (2008).............................................................. 10

vii



Respondents-Intervenors Earl Cunning­
ham, Harry Jones, Albert Jones, Ernest 
Montgomery, Anthony Vines, William Walker, Bobby 
Pierson, Willie Goldsmith, Sr., Mary Paxton-Lee, 
Kenneth Dukes, Alabama State Conference of the 
National Association for the Advancement of Colored 
People, and Bobby Lee Harris respectfully submit 
this Brief in Opposition to the Petition for Certiorari 
filed in this case.

REASONS FOR DENYING THE WRIT

After giving due consideration to this Court’s 
decision in Nw. Austin Mun. Util. Dist. No. One v. 
Holder, 557 U.S. 193 (2009) (“Nw. Austin”), the Court 
of Appeals for the District of Columbia Circuit 
correctly upheld the constitutionality of the 2006 
reauthorization of Section 5 and Section 4(b) of the 
Voting Rights Act of 1965 against Shelby County’s 
facial challenge. 42 U.S.C. 1973c; 42 U.S.C. 
1973b(b). Review by this Court is not required.

Shelby County’s primary argument for 
granting certiorari is insubstantial. The decisions 
below by the Court of Appeals and the District Court 
follow — and do not conflict with -  this Court’s 
previous decisions. The Court of Appeals, like the 
District Court, upheld Section 5 and Section 4(b) 
based upon the rationale and clear dictates of Nw. 
Austin. The decision of the Court of Appeals -- 
written by Judge Tatel and joined by Judge Griffith - 
- carefully and scrupulously considered whether 
Section 5’s ‘“current burdens’” are ‘“justified by 
current needs,”’ and whether Section 4(b)’s 
“‘disparate geographic coverage is sufficiently related 
to the problem that it targets.’” App. at 14a-15a; 679

1



F.3d 848, 858-59 (D.C. Cir. 2012) (quoting Nw. 
Austin, 557 U.S. at 203). Likewise, the District 
Court’s detailed and tightly reasoned opinion fully 
weighed the lengthy record upon which the Court of 
Appeals subsequently relied, applied the same legal 
standards, and arrived at the same conclusions. 
App. at 111a; Shelby County v. Holder, 811 F.Supp. 
2d 424 (2011).

No other jurisprudential concerns weigh 
heavily in favor of granting certiorari. If certiorari is 
denied the facial constitutionality of Section 5 in the 
District of Columbia Circuit will be settled with no 
further need for this Court’s review. Facial 
challenges being generally disfavored,1 as-applied 
challenges would remain available if certiorari is 
denied. Should a federal court in another circuit 
reach a different conclusion on the facial question 
(assuming that anything other than as-applied 
challenges can be raised in a Section 5 enforcement 
action), then a grant of certiorari at that time to 
resolve the circuit split would be consistent with this 
Court’s jurisprudence.2

1 See Crawford v. Marion County Election Bd., 553 U.S. 181, 
200 (2008); Washington State Grange v. Washington State 
Republican Party, 552 U.S. 442, 450-51 (2008).
2 There is no split among the lower courts on the questions 
presented here. Only one other court, the United States District 
Court for the District of South Dakota, has confronted the 
question of Section 5’s constitutionality since the 2006 
re authorization. In that case, the State of South Dakota 
challenged the constitutionality of the 2006 reauthorization of 
Section 5, relying on the same arguments made in this case; the 
district court rejected the state’s argument that Section 5 
preclearance and the Section 4(b) coverage provision are now

2



I. The Court of Appeals and District Court 
Applied a Standard of Review That 
Followed This Court’s Precedents

The Court of Appeals began its analysis with 
an extended consideration of the appropriate 
standard of review. The court noted that the 
disagreement which Nw. Austin had left unresolved 
-  whether the constitutionality of the 2006 
reauthorization should be analyzed via “congruence 
and proportionality,” as set out in City of Boerne v. 
Flores, 521 U.S. 507 (1997), or via the “any rational 
means” standard discussed in South Carolina v. 
Katzenbach, 383 U.S. 301, 324 (1966) -  had 
continued, with Shelby County arguing for the 
former and the Attorney General advocating for the 
latter.

The Court of Appeals concluded that Nw. 
Austin sent “a powerful signal that congruence and 
proportionality is the appropriate standard of 
review.” App. at 16a.3 The court then considered in 
detail how this standard should be applied, looking 
to this Court’s prior decisions applying “congruence 
and proportionality,” and this Court’s decisions in

outdated. See Janis v. Nelson, 2009 U.S. Dist. LEXIS 121086 at 
*26-30 (D. S.D. Dec. 30, 2009).
3 Judge Tatel’s opinion observed that the two questions posed 
by this Court in Nw. Austin define an inquiry that seems 
analogous to the City of Boerne “congruence and 
proportionality” inquiry. By applying this standard, which is 
“arguably more rigorous” than what is generally described as 
the ‘“rationality”’ standard employed in South Carolina v. 
Katzenbach, App. at 16a, the ruling of the Court of Appeals 
should stand regardless of whether City of Boerne or 
Katzenbach controls.

3



Katzenbach and City of Rome v. United States, 446 
U.S. 156 (1980), upholding the constitutionality of 
Section 5. As the Court of Appeals noted, City of 
Boerne itself “relied quite heavily on Katzenbach for 
the proposition that section 5, as originally enacted 
and thrice extended, was a model of congruent and 
proportional legislation.” App. at 16a. The District 
Court similarly conducted its comprehensive review 
of the record employing a “congruence and 
proportionality” analysis. App. at 161a-162a.

Shelby County asserts that the Court of 
Appeals “deferred to Congress in ways alien to the 
Boerne line of decisions,” Petition at 23, and that this 
“infected every aspect of [the court’s] analysis.” Id. at 
24. Yet, the County nowhere identifies precisely how 
or where the Court of Appeals introduced such 
“alien” deference. This Court in fact has emphasized, 
as the Court of Appeals recognized, that the 
deference about which Shelby County complains is a 
core constitutional principle: “when Congress acts 
pursuant to its enforcement authority under the 
Reconstruction Amendments, its judgments about 
‘what legislation is needed . . . are entitled to much 
deference.’” App. at 21a (quoting Boerne, 521 U.S. at 
535) (ellipses in original). This is uniquely the case 
when Congress legislates with respect to racial 
discrimination in voting. As the Court explained in 
Nw. Austin, “the Fifteenth Amendment empowers 
‘Congress,’ not the Court, to determine in the first 
instance what legislation is needed to enforce it.” 
557 U.S. at 205.

This Court’s “Boerne line of decisions” 
repeatedly has identified the Voting Rights Act as a 
model of congruence and proportionality, and

4



consistently has cited with approval to this Court’s 
decisions upholding the constitutionality of Section 5. 
See, e.g., Boerne, 521 U.S. at 531-33 (contrasting 
Section 5 favorably to the Religious Freedom and 
Restoration Act, and noting that “[jjudicial deference, 
in most cases, is based not on the state of the 
legislative record Congress compiles but ‘on due 
regard for the decision of the body constitutionally 
appointed to decide’”) (quoting Oregon v. Mitchell, 
400 U.S. 112, 207 (1970) (op. of Harlan, J.)); Bd. of 
Trustees of Univ. of Ala. u. Garrett, 531 U.S. 356, 373 
(2001) (comparing Section 5 favorably to Title I of the 
Americans With Disabilities Act, and observing that 
Section 5 “was ‘appropriate’ legislation to enforce the 
Fifteenth Amendment’s protection against racial 
discrimination in voting.”) (citing Katenzbach, 383 
U.S. at 308); Nev. Dep’t. of Human Res., v. Hibbs, 538 
U.S. 721, 736 (2003) (observing that, when Congress 
enacts legislation designed to combat forms of 
discrimination that trigger a heightened level of 
scrutiny, such as gender- or race-based 
discrimination, it is “easier for Congress to show a 
pattern of state constitutional violations” to justify 
remedial legislation) (citing, inter alia, Katzenbach, 
383 U.S. at 308-313); Tennessee v. Lane, 541 U.S. 
509, 520, n.4 (2004) (describing cases upholding 
various provisions of the Voting Rights Act). All of 
these decisions suggest that some degree of judicial 
deference is appropriate where, as here, Congress 
enacts legislation designed to protect the express 
Constitutional prohibition on racial discrimination in 
voting.

5



II. The Court of Appeals and District Court
Directly Answered the Questions Set
Forth in Nw. Austin

Both the Court of Appeals and the District 
Court directly and explicitly employed the analytic 
framework set forth by this Court in Nw. Austin, 
centering their reviews on the “two principal 
inquiries”: whether the ‘“current burdens’” imposed 
by Section 5 “are ‘justified by current needs,’” and 
whether Section 5’s “‘disparate geographic coverage 
is sufficiently related to the problem it targets.”’ App. 
at 14a-15a (quoting Nw. Austin, 557 U.S. at 203); 
App. at 114a, 280a (same).

1. This Court recognized in Nw. Austin 
that “Congress amassed a sizable record in support of 
its decision to extend the preclearance requirements, 
a record the [Nw. Austin] District Court determined 
‘document[ed] contemporary racial discrimination in 
covered states.’” 557 U.S. at 205. The Court of 
Appeals independently “thoroughly scrutinize [d] the 
record” and found that “overt racial discrimination 
persists in covered jurisdictions.” App. at 48a. The 
District Court's own “assessment of all the evidence 
in the legislative record” similarly concluded that 
“[ajlthough some scholars voiced concern during the 
2006 reauthorization hearings that ‘the Act has been 
so effective it will be hard to produce enough 
evidence of intentional discrimination by the states so 
as to justify the extraordinary preclearance remedy 
for another 25 years’ . . . Congress succeeded in doing 
just that.” App. at 196a-97a (internal citations 
omitted) (emphasis in original).

The record before Congress included: (1) 626 
DOJ objections from 1982 to 2004 to voting changes

6



that would have the purpose or effect of 
discriminating against minorities; (2) “more 
information requests” from DOJ regarding Section 5 
submissions which resulted in the withdrawal or 
modification of over 800 potentially discriminatory 
voting changes; (3) 653 successful lawsuits under 
Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, 
between 1982 and 2005 providing relief from 
discriminatory practices in at least 825 covered 
counties; (4) tens of thousands of federal observers 
dispatched to monitor elections in covered 
jurisdictions; (5) 105 successful Section 5
enforcement actions brought against covered 
jurisdictions between 1982 and 2004; (6) 25
preclearance denials by the District Court for the 
District of Columbia between 1982 and 2004; (7) 
examples of “overt hostility to black voting power by 
those who control the electoral process”; (8) evidence 
that Section 5 has a strong deterrent effect; and (9) 
that Section 2 is not an adequate remedy for racial 
discrimination in voting in the covered jurisdictions. 
App. at 24a, 29a-46a. 4

4 For example, the State of Alabama’s record since the 
extension of Section 5 in 1982 showed that the Attorney 
General objected to 46 Section 5 submissions from Alabama, 
including seven from the state itself and 39 from local 
jurisdictions. Renewing the Temporary Provisions of the Voting 
Rights Act: Legislative Options After LULAC v. Perry: Hearing 
Before the Subcomm. on the Constitution, Civil Rights and 
Property Rights of the S. Comm, on the Judiciary, 109th Cong. 
371 (2006) (“Legislative Options Senate Hearing”);
Understanding the Benefits and Costs of Section 5 Pre- 
Clearance: Hearing Before the S. Comm, on the Judiciary, 
109th Cong. 90 (2006). Many of the objections were based upon 
evidence of purposeful discrimination. 1 Voting Rights Act: 
Section 5 of the Act — History, Scope, and Purpose: Hearing

7



Within that record the Court of Appeals noted 
“numerous examples of modern instances of racial 
discrimination in voting” relied upon by Congress in 
amending and extending the Act in 2006. Id. at 29a 
(internal quotation marks omitted). In addition to 
these “flagrant” examples, the Court of Appeals 
reviewed “several categories of evidence in the record 
[that] support Congress’s conclusion that intentional 
racial discrimination in voting remains so serious 
and widespread in covered jurisdictions that section 
5 preclearance is still needed.” Id. at 31a. The 
District Court similarly concluded after reviewing 
the record of Section 5 objections that the “House 
Committee on the Judiciary had good reason to 
conclude in 2006 that Section 5 was still fulfilling its 
intended function of preventing covered jurisdictions 
from implementing voting changes ‘intentionally 
developed to keep minority voters and candidates 
from succeeding in the political process.’” App. at 
220a (quoting H.R. Rep. No. 109-478, at 36 (2006)).

The substantial evidence of intentional racial 
discrimination in the record is particularly 
significant. Between 1980 and 2004, the Attorney 
General issued at least 423 objections based in whole

Before the Subcomm. on the Constitution, of the H. Comm, on 
the Judiciary, 109th Cong. 264, 267, 275, 321, 350, 415, 435 
(2005); Legislative Options Senate Hearing, at 383-84. And on 
August 25, 2008, the Attorney General objected to annexations 
and a redistricting plan for the City of Calera in Shelby County, 
Alabama, because the city failed to show the absence of a 
discriminatory purpose or effect. Section 5 Objection Letter 
from Grace Chung Becker, Acting Assistant Attorney General, 
to Dan Head, Esq., August 25, 2008. Available at 
http://www.justice.gov/crt/about/vot/sec_5/pdfs/l_082508.pdf 
(last visited Sep. 20, 2012).

8

http://www.justice.gov/crt/about/vot/sec_5/pdfs/l_082508.pdf


or in part on discriminatory purpose. App. at 33a. 
As recently as the 1990s, 43 percent of all objections 
were based on intent alone, while another 31 percent 
were based on a combination of intent and effect. 
Nw. Austin Mun. Util. Dist. No. One v. Mukasey, 573 
F.Supp.2d 221, 252 (D. D.C. 2008). Congress found 
that “such objections did not encompass minor 
inadvertent changes. The changes sought by covered 
jurisdictions were calculated decisions to keep 
minority voters from fully participating in the 
political process.” H.R. Rep. No. 109-478, at 21.

Shelby County argues that Section 5 is no 
longer needed because there has been an increase in 
the number of minority elected officials and because 
(according to the County) minority voter registration 
and turnout are approaching parity with the white 
population. Petition at 27. These gains are 
important, but they are the very things that will be 
at risk if the Section 5 remedy is ended prematurely. 
H.R. Rep. No. 109-478, at 56. Furthermore, as the 
courts below noted, these gains have not been 
uniform, nor have they been independent of Section 5 
and other federal remedies.

Congress found that gains by minority 
candidates remain uneven, both geographically and 
by level of office. H.R. Rep. No. 109-478, at 33-34. 
The Court of Appeals noted the congressional 
findings that no African American candidates had 
been elected to statewide office in Mississippi, 
Louisiana or South Carolina. App. at 23a; see also 
App. at 204a-205a. The District Court similarly 
noted the extent to which the election of African- 
American and Latino candidates lagged their 
respective shares of the voting age population in the

9



covered states. App. at 204a-205a. The House 
committee report noted that African Americans 
accounted for only 21 percent of state legislators in 
six southern states where the black population 
averaged 35 percent — Alabama, Georgia, Louisiana, 
Mississippi, South Carolina, and North Carolina. 
H.R. Rep. No. 109-478, at 33. The House committee 
report further found that the number of Latinos and 
Asian Americans elected to office nationwide “has 
failed to keep pace with [the] population growth” of 
those two communities. Id.

Moreover, minority electoral success largely 
has been a function of the creation of majority - 
minority election districts. For example, Congress 
found that as of 2000, only 8 percent of African 
American Congressmen were elected from majority- 
white districts, and that no Native Americans or 
Hispanics “have been elected to office from a majority 
white [Congressional] district.”5 H.R. Rep. No. 109-

5 Alabama well illustrates this pattern. As of 2005 no African 
Americans held statewide office in Alabama. Two incumbent 
African American state Supreme Court justices, who initially 
had been appointed, were defeated by white opponents in 2000. 
Every African American member of the Alabama Legislature 
was elected from a single member district with an effective 
black voter majority. 2 Voting Rights Act: Section 5 of the Act — 
History, Scope, and Purpose: Hearing Before the Subcomm. on 
the Constitution, of the H. Comm, on the Judiciary, 109th Cong, 
at 3199 (2005) (statement of James U. Blacksher). See also 
Blacksher, et al., Voting Rights In Alabama: 1982-2006, 17 SO. 
CAL. REV. L. & SOC. JUST. 249, 249 (2008) (“voting remains 
largely racially polarized, and black candidates rarely are 
elected in majority-white districts”). And most of the majority 
black districts had to be ordered by federal courts. Id. at 260 et 
seq.

10



478, at 34, citing Protecting Minority Voters: The 
Voting Rights Act at Work 1982-2005, The National 
Commission on the Voting Rights Act, February 
2006, at 38, 43-46.

With respect to voter registration and turnout, 
the Court of Appeals noted the congressional findings 
showing “continued registration and turnout 
disparities” in South Carolina, and in particular in 
Virginia. App. at 23a. The District Court found that 
the disparities in voter registration and turnout were 
“comparable to the disparity the City of Rome Court 
called ‘significant.’” App. at 202a-203a (citations 
omitted). The District Court further noted that 
disparities affecting Hispanic voter registration were 
“more severe” than Congress had credited due to the 
double-counting of white Hispanics. Id. at 202-203a.

In sum, the Court of Appeals concluded that: 
“After thoroughly scrutinizing the record and given 
that overt racial discrimination persists in covered 
jurisdictions notwithstanding decades of section 5 
preclearance, we, like the district court, are satisfied 
that Congress’s judgment deserves judicial 
deference.” App. at 48a. The District Court 
concluded that “Congress satisfied its burden in 2006 
of identifying a continuing ‘history and pattern of 
unconstitutional . . . discrimination by the States’ . .
. which was sufficient to justify the reauthorization of 
Section 5 as remedial, prophylactic enforcement 
legislation.” App. at 270a, (quoting Garrett, 531 U.S. 
at 368). The District Court further noted that “the 
evidence of unconstitutional voting discrimination in 
the 2006 legislative record far exceeds the evidence of 
unconstitutional discrimination found sufficient to 
uphold the challenged legislation in Hibbs and Lane.”

11



Id. at 260a. See also 120 Stat. 577, sec. 2(b) 
(Congress’ summary of the findings and evidence 
upon which it relied in extending and amending the 
preclearance requirement). These conclusions were 
entirely in keeping with City of Rome, where this 
Court upheld the 1975 reauthorization of Section 5 
based upon largely the same categories of evidence.6

2. With respect to the Section 4(b) 
coverage provisions, the Court of Appeals and 
District Court correctly found that voting 
discrimination remains concentrated in the Section 5 
covered jurisdictions, based upon an intensive review 
of the legislative record.

Shelby County’s argument that the Section 2 
data relied upon by Congress “fails to show a 
meaningful difference between covered and 
noncovered jurisdictions,” Petition at 32-33, is 
contradicted by the Court of Appeals’ findings. The 
“most concrete evidence comparing covered and 
noncovered jurisdictions,” App. at 49a, came from 
studies of vote dilution litigation brought under 
Section 2 of the Voting Rights Act, including a study 
of published Section 2 decisions entered into the

6 The House committee report concluded that during the 1982- 
2006 period, “voting changes devised by covered jurisdictions 
resemble those techniques and methods used in 1965, 1970, 
1975, and 1982 including: enacting discriminatory redistricting 
plans; switching offices from elected to appointed positions; 
relocating polling places; enacting discriminatory annexations 
and deannexations; setting numbered posts; and changing 
elections from single member districts to at large voting and 
implementing majority vote requirements.” H.R. Rep. No. 109- 
478, at 36.

12



legislative record (the “Katz study”). These data 
showed a significant difference between covered and 
non-covered jurisdictions. Among the 114 published 
decisions resulting in outcomes favorable to minority 
plaintiffs, 64 originated in covered jurisdictions, 
while only 50 originated in non-covered jurisdictions. 
Id. Thus, while the covered jurisdictions contain less 
than 25 percent of the country’s population, they 
accounted for 56 percent of successful reported 
Section 2 litigation since 1982. Id. The pattern 
shown in the published decisions was corroborated by 
a summary of unpublished Section 2 decisions 
predating the 2006 reauthorization, which showed 
“even more pronounced” differences between the 
covered and non-covered jurisdictions. Id. at 51a- 
52a7 Moreover, because Section 5 “deters or blocks 
many discriminatory voting laws before they can 
ever take effect and become the target of section 2 
litigation,” the Court of Appeals observed that “if 
discrimination was evenly distributed throughout the 
nation, we would expect to see fewer successful

7 Since 1982, there have been at least 686 unpublished 
successful Section 2 cases, amounting to a total of some 800 
published and unpublished cases with favorable outcomes for 
minority voters. Of these, approximately 81 percent were 
brought against Section 5 covered jurisdictions. App. 51a. Of 
the eight states with the highest number of successful Section 2 
cases per million residents, all but one was covered in whole or 
in part. The only exception was Arkansas. While it was not 
covered by Section 4(b), in 1990 Arkansas was bailed-in to 
Section 5 coverage by a court order. See Jeffers v. Clinton, 740 
F.Supp. 585, 601-02 (E.D. Ark. 1990). Congress concluded that 
the need for Section 5 was evident from “the continued filing of 
section 2 cases that originated in covered jurisdictions,” many of 
which resulted in findings of intentional discrimination. 120 
Stat. 577, sec. 2(b)(4)&(5).

13



section 2 cases in covered jurisdictions than in non- 
covered jurisdictions. . . . Yet we see substantially 
more.” Id. at 55a.8

The District Court likewise examined the 
pattern of reported Section 2 decisions and found 
that “the fact that more than 56% of the successful 
Section 2 suits since 1982 have been filed in covered 
jurisdictions -  even though those jurisdictions 
contain only 39.2% of the country's African-American 
population, 31.8% of the Latino population, 25% of 
the Native American population, and less than 25% 
of the overall population -  suggests that 
unconstitutional discrimination remains more 
prevalent in covered than in non-covered 
jurisdictions.” App. at 288a. The District Court 
further noted that “the disproportionate number of 
successful Section 2 suits in covered jurisdictions is 
all the more remarkable considering that Section 5 
blocks and deters discrimination in covered 
jurisdictions, and, consequently, one would expect to 
see fewer Section 2 cases there.” Id. (internal 
quotation marks omitted).

In Alabama alone, during this period there were 12 
successful reported Section 2 cases and a total of 192 successful 
Section 2 cases, reported and unreported. 1 Voting Rights Act: 
Evidence of Continued Need: Hearing Before the Subcomm. on 
the Constitution, of the H. Comm, on the Judiciary, 109th Cong, 
at 251 tbl. 5 (2006). As further appears from the legislative 
history, decisions since 1982 have found numerous and ongoing 
examples of intentional discrimination in Alabama at the state 
and local levels. Senate Hearing, Legislative Options Senate 
Hearing, at 372.

14



The Court of Appeals emphasized that, in 
examining Section 5’s geographic coverage, the entire 
coverage scheme must be considered, which includes 
not only the Section 4(b) coverage formula, but also 
the bailout provisions of Section 4 and the bail-in 
provisions of Section 3, 42 U.S.C. § 1973a. “[W]e
look not just at the section 4(b) formula, but at the 
statute as a whole, including its provisions for bail-in 
and bailout.” App. at 61a. The bailout and bail-in 
provisions of Section 5 address the theoretical 
possibilities of over and under inclusiveness and help 
“ensure Congress’ means are proportionate to [its] 
ends.”9 Boerne, 521 U.S. at 533. Bailout plays an 
“important role in ensuring that section 5 covers only 
those jurisdictions with the worst records of racial 
discrimination in voting,” App. at 62a, by providing 
those jurisdictions with “a clean record on voting 
rights” the means for terminating coverage. Id. at 
63a. Thus, bailout “helps ‘ensure Congress’ means 
are proportionate to [its] ends,”’ id. at 62a (quoting 
Boerne, 521 U.S. at 533), and “that section 5 is

9 In 1982, Congress altered the bailout formula so that 
jurisdictions down to the county level could bail out 
independently. One of the main purposes of the new bailout 
provision was to provide local jurisdictions with an incentive to 
change their voting practices by eliminating structural and 
other barriers to minority political participation. To be eligible 
for bailout, a jurisdiction must show that it has not used a 
discriminatory test or device within the preceding ten years, 
has fully complied with the Voting Rights Act, and has engaged 
in constructive efforts to facilitate equal access to the electoral 
process. 42 U.S.C. § 1973b(a); S. Rep. No. 417, at 43-62 (1982). 
Nw. Austin further liberalized bailout by holding that “all 
political subdivisions,” and not only those that conduct voter 
registration, are entitled to seek exemption from Section 5. Nw. 
Austin, 557 U.S. at 211.

15



‘sufficiently related to the problem it targets,’” id. at 
64a (quoting Nw. Austin, 557 U.S. at 203).10 Bail-in 
under Section 3(c) continues to address the 
theoretical underinclusiveness of the coverage 
formula. App. at 65a.11

Although Judge Williams’ dissent differed 
with the majority’s conclusions concerning the 
Section 4(b) coverage provisions, he did not dispute 
that successful reported Section 2 cases were 
disproportionately concentrated in the covered 
jurisdictions, which was the principal factor upon 
which the majority relied. Instead, Judge Williams’ 
dissent would have placed greater emphasis on a 
state-by-state comparison, and would not have 
credited other evidence that the majority found 
corroborated the Katz study. The Katz study showed 
a clear disproportion of successful, reported Section 2 
decisions in the covered jurisdictions as a whole, 
whereas Judge Williams’ dissent broke the data into 
state-by-state figures; even those disaggregated data,

10 As of May 9, 2012, as a result of the liberalized bailout 
system, 136 jurisdictions had bailed out after demonstrating 
that they no longer discriminated in voting. App. 62a. The 
jurisdictions included 30 counties, 79 towns and cities, 21 school 
boards, and six utility or sanitary districts. In addition, the 
Attorney General is actively considering more than 100 
additional jurisdictions for bailout. Id. at App. 61a-63a.

11 Pursuant to 42 U.S.C. § 1973a(c), a court that has found a 
violation of the Fourteenth or Fifteenth Amendment may retain 
jurisdiction for an appropriate period of time and subject a 
jurisdiction to the preclearance requirements of Section 5. Two 
non-covered states, Arkansas and New Mexico, were subjected 
to partial preclearance under the bail-in provision, as well as 
jurisdictions in California, Florida, Nebraska, New Mexico, 
South Dakota, and the city of Chattanooga. App. 61a-62a.

16



however, showed that four of the five top states 
(using his methodology) are covered by Section 5. 
App. at 91a-92a.

Judge Williams’ dissent would not have 
credited, on the “covered jurisdictions” side of the 
discrimination ledger, the 626 objections interposed 
by the Attorney General from 1982 to 2006, as well 
as other evidence of ongoing discrimination in the 
covered states identified by Congress. Judge 
Williams’ conclusion that Section 5 objections do not 
represent probative evidence of discriminatory 
conduct, id. at 94a, is inconsistent with this Court’s 
holding in Rome, where the Court upheld the 1975 
reauthorization of Section 5 specifically by crediting 
Congress’ conclusion that the Attorney General’s 
objections do constitute significant evidence of 
ongoing discrimination. 446 U.S. at 181 (“’The recent 
objections entered by the Attorney General . . .  to 
Section 5 submissions clearly bespeak the continuing 
need for this preclearance mechanism.’”) (ellipses in 
original).12 Furthermore, while Judge Williams 
declined to consider the substantial information 
relating to unpublished Section 2 decisions, his 
dissent fails to show that the majority erred by 
treating this evidence as corroborating the Katz 
study, while still “approach [ing] this data with 
caution.”13 App. at 54a.

12 For example, Judge Williams’ analysis ranks Georgia as the 
21st state in Section 2 cases, however, as the majority discussed, 
there is a wealth of other information showing that voting 
discrimination remains a substantial problem in that state. 
App. at 58a-59a.
13 Shelby County’s complaint about post-enactment evidence 
concerns the McCrary declaration submitted by the United

17



3. The decision of the Court of Appeals was 
entirely consistent with other decisions by this Court, 
and Shelby County’s claim that the “decision below 
cannot be squared with any of the Court’s decisions,” 
Petition at 29, is patently incorrect. While Shelby 
County acknowledges that this Court “has twice 
upheld” the constitutionality of Section 5 in South 
Carolina v. Katzenbach, supra, and City of Rome v. 
United States, supra, Petition at 3, its Petition fails 
to cite either Lopez v. Monterey County, 525 U.S. 266, 
282 (1999), which upheld the constitutionality of 
Section 5 as reauthorized in 1982,14 or Georgia v. 
United States, 411 U.S. 526, 535 (1973), in which this 
Court upheld the constitutionality of Section 5 as 
reauthorized in 1970 ( “for the reasons stated at 
length in South Carolina v. Katzenbach . . .  we 
reaffirm that the Act is a permissible exercise of 
congressional power under § 2 of the Fifteenth 
Amendment.”).

States, which corroborated the evidence from the Katz study of 
published Section 2 decisions, by compiling data — largely in the 
reauthorization congressional record, App. at 54a [679 F3d at 
878] -  which addressed unpublished Section 2 decisions. It 
follows, therefore, that this evidence is not post-enactment 
evidence as such, since it dealt with litigation that both 
occurred before the 2006 reauthorization and generally was 
before Congress. Accordingly, the limited sense in this evidence 
might be labeled as “post-enactment” provides no basis upon 
which to exclude it.
14 In Lopez this Court rejected a claim by the State of 
California that Ҥ 5 could not withstand constitutional scrutiny 
if it were interpreted to apply to voting measures enacted by 
States that have not been designated as historical wrongdoers 
in the voting rights sphere.” Id.

18



Lopez in particular undercuts Shelby County’s 
attempts to limit the scope of Section 5 to intentional 
discrimination, reaffirming the holding in City of 
Rome that “[legislation which deters or remedies 
constitutional violations can fall within the sweep of 
Congress' enforcement power even if in the process it 
prohibits conduct which is not itself unconstitutional 
and intrudes into legislative spheres of autonomy 
previously reserved to the States.” 525 U.S. at 282- 
83. The Court, reaffirming its ruling in Katzenbach, 
further held “once a jurisdiction has been designated, 
the Act may guard against both discriminatory 
animus and the potentially harmful effect of neutral 
laws in that jurisdiction.” Id. at 283. Cf. Kimel v. 
Fla. Bd. of Regents, 528 U.S. 62, 81 (2000) 
(“Congress’ power ‘to enforce’ the [Fourteenth] 
Amendment includes the authority both to remedy 
and to deter violation of rights guaranteed 
thereunder by prohibiting a somewhat broader swath 
of conduct, including that which is not itself 
forbidden by the Amendment’s text.”).

In addition, one month before the extension of 
Section 5 in 2006, this Court decided LULAC v. 
Perry, 548 U.S. 399 (2006) (finding that a Texas 
congressional redistricting plan violated Section 2 of 
the Voting Rights Act), in which all eight justices 
who addressed the issue agreed that states have a 
“compelling state interest” in complying with the 
Section 5 preclearance requirement. Id. at 475 n.12, 
485 n.2, 518.

4. Shelby County contends that “Section 2 is 
now the ‘appropriate’ prophylactic remedy for any 
pattern of discrimination documented by Congress in 
2006.” Petition at 29. But as Congress concluded in

19



extending Section 5 in 2006, the “failure to 
reauthorize the temporary provisions, given the 
record established, would leave minority citizens 
with the inadequate remedy of a Section 2 action.” 
H.R. Rep. No. 109-478, at 57. This conclusion was 
entirely consistent with this Court’s prior decisions,15 
and was based upon extensive contemporary 
evidence that reliance upon Section 2 litigation 
would place the burden of proof on the victims of 
discrimination rather than its perpetrators and 
impose a heavy financial burden on minority 
plaintiffs, and that Section 2 litigation is heavily 
work-intensive, cannot prevent enactment of 
discriminatory voting measures, and allows 
discriminatorily-elected officials to remain in office

15 In Katzenbach, the Court stressed that “Congress had found 
that case-by-case litigation was inadequate to combat 
widespread and persistent discrimination in voting, because of 
the inordinate amount of time and energy required to overcome 
the obstructionist tactics invariably encountered in these 
lawsuits.” 383 U.S. at 328; see also id. at 313-15 (explaining 
why case-by-case litigation had “proved ineffective”). City of 
Rome also found that: “Case-by-case adjudication had proved 
too ponderous a method to remedy voting discrimination.” 446 
U.S. at 174. Accord, Boerne, 521 U.S. at 526 (Section 5 was 
“deemed necessary given the ineffectiveness of the existing 
voting rights laws, and the slow, costly character of case-by-case 
litigation”); Georgia v. United States, 411 U.S. at 538 n.9 (“ [t]he 
very effect of § 5 was to shift the burden of proof with respect to 
racial discrimination in voting”). The Court relied on similar 
findings in Tennessee v. Lane, 541 U.S. at 511, to sustain the 
constitutionality of a challenged statute: “Faced with
considerable evidence of the shortcomings of previous legislative 
responses, Congress was justified in concluding that this 
‘difficult and intractable problejm]’ warranted ‘added 
prophylactic measures in response”’ (alteration in original) 
(quoting Hibbs, 538 U.S. at 737).

20



for years until litigation is concluded. App. at 45a- 
46a. See, e.g., 1 Voting Rights Act: Section 5 of the 
Act -  History, Scope, and Purpose: Hearing Before 
the Subcomm. on the Constitution, of the H. Comm, 
on the Judiciary, 109th Cong. 92, 97, 101 (2005) 
(testimony of Nina Perales); id. at 79, 83-84 
(testimony of Anita Earls); 1 Voting Rights Act: 
Evidence of Continued Need: Hearing Before the 
Subcomm. on the Constitution, of the H. Comm, on 
the Judiciary, 109th Cong. 97 (2006) (testimony of 
Joe Rogers). A Federal Judicial Center study, for 
example, found that voting cases required nearly four 
times more work than the average district court case 
and ranked as the fifth most work-intensive of the 63 
types of cases analyzed. App. at 45a.

III. The Court of Appeals Correctly Rejected
Shelby County’s Attempts to Arbitrarily
Define Away Relevant Evidence

The Court of Appeals considered and correctly 
rejected Shelby County’s efforts to exclude evidence 
plainly relevant to Nw. Austin’s “two principal 
inquiries.” The County’s arguments in this regard 
are inconsistent with the Supreme Court’s directives 
in Nw. Austin, and are contrary to the Supreme 
Court’s holding in Katzenbach that, “[i]n identifying 
past evils, Congress obviously may avail itself of 
information from any probative source.” 383 U.S. at 
330.

1. With respect to identifying the “current 
needs” for the Section 5 remedy, Shelby County 
sought to prevent a genuine review of the current 
record by insisting that only “evidence . . .  of the sort 
present at the time of Katzenbach,” App. at 25a, is

21



relevant, and by “urg[ing the D.C. Circuit to 
disregard much of the evidence Congress considered,” 
id. at 26a, which showed that covered jurisdictions 
have engaged in repeated acts of intentional vote 
dilution.

The Court of Appeals correctly rejected Shelby 
County’s argument that, in 2006, the court (and thus 
Congress) could only take into account the most 
prevalent form of discrimination that existed in 1965, 
i.e., interference with the right to register and cast 
ballots. To accept this argument necessarily would 
turn the “current needs” inquiry on its head by 
arbitrarily excluding from consideration other 
current forms of voting discrimination. Indeed, the 
circa-1965 discrimination affecting voter registration 
and ballot access largely has been outlawed by the 
Voting Rights Act, which prohibits use of the 
discriminatory tests and devices that many covered 
jurisdictions relied upon prior to the Act’s adoption. 
42 U.S.C. § 1973aa. Shelby County thus seeks to 
cloak its desired foreordained conclusion in the garb 
of a decision rule. Shelby County’s related argument 
-  that only evidence of widespread “gamesmanship” 
(i.e., the evasion of judicial injunctions by the 
adoption of new discriminatory provisions) can 
justify reauthorization of Section 5 — is no less 
tendentious, as it would require evidence of conduct 
that “section 5 preclearance makes . . . virtually 
impossible.” App. at 25a.

Similarly, Shelby County demanded that the 
Court of Appeals ignore repeated instances of 
intentional and unconstitutional minority vote 
dilution because, according to the County, such 
discrimination is prohibited only by the Fourteenth

22



Amendment, and Section 5 is solely a Fifteenth 
Amendment remedy. However, “Congress expressly 
invoked its authority under both the Fourteenth and 
Fifteenth Amendments” in reauthorizing Section 5, 
which was well within its province to do when 
confronted with a record of unconstitutional schemes 
to dilute minority voting strength. Id. at 27a. 
Shelby County’s argument to the contrary is squarely 
contradicted by this Court’s ruling in City of Rome, 
which sustained the 1975 reauthorization of Section 
5 based on Congress’ finding that “’[a]s registration 
and voting of minority citizens increase Q, other 
measures may be resorted to which would dilute 
increasing minority voting strength.’” Id. at 28a 
(quoting Rome, 446 U.S. at 181). As this Court 
explained in its very first decision construing Section 
5, Allen v. State Bd. of Elections, 393 U.S. 544, 569 
(1969), “[t]he right to vote can be affected by a 
dilution of voting power as well as by an absolute 
prohibition on casting a ballot.” This Court has never 
held that, in reauthorizing Section 5, Congress may 
not rely on evidence of unconstitutional schemes to 
dilute minority voting power;, nor has this Court 
held that vote dilution is not a type of voting 
discrimination addressed by Section 5. See also 
Georgia v. United States, 411 U.S. at 534 
(redistricting plans “have the potential for diluting 
the value of the Negro vote and are within the 
definitional terms of § 5”).

Shelby County further argues that Congress 
findings concerning the deterrent effect of Section 5 
must be disregarded. At the outset, it would seem 
nonsensical to ignore evidence that remedial 
legislation has operated to deter unconstitutional 
conduct in considering whether that legislation was

23



properly reauthorized, and, indeed, Shelby County 
does not appear to go that far. Instead, Shelby 
County repeats Judge Williams’ dissenting view that 
Section 5’s deterrent effect is speculative and cannot 
serve as a perpetual justification. Petition at 27-28. 
However, Congress cited specific evidence supporting 
its conclusion as to Section 5’s important deterrent 
effect. App. 42-43aa, 55a. Congress described 
preclearance as a “vital prophylactic tool,” and that 
“the existence of Section 5 deterred covered 
jurisdictions from even attempting to enact 
discriminatory voting changes.” H.R. Rep. No. 109- 
478, at 21. Congress found that “[a]s important as 
the number of objections that have been interposed 
to protect minority voters against discriminatory 
changes is the number of voting changes that have 
never gone forward as a result of Section 5.” Id. at 
24. Congress concluded based on the abundant 
evidence before it that Section 5 had a deterrent 
effect, a finding the Court of Appeals declined to 
“second guess.” App. at 44a.16 Cf. Northwest Austin, 
557 U.S. at 205 (noting that the District Court in 
that case also found that “the record ‘demonstratfed] 
that section 5 prevents discriminatory voting 
changes’ by ‘quietly but effectively deterring 
discriminatory changes.’”). Moreover, Section 5’s

16 See Eldred v. Ashcroft, 537 U.S. 186, 208 (2003) (courts “are 
not at liberty to second-guess congressional determinations and 
policy judgments”); Turner Broadcasting System, Inc. v. F.C.C., 
520 U.S. 180, 195 (1997) (“courts must accord substantial 
deference to the predictive judgments of Congress”); United 
States Dept, of Labor v. Triplett, 494 U.S. 715, 721 (1990) 
(noting “the heavy presumption of constitutionality to which a 
‘carefully considered decision of a coequal and representative 
branch of Government’ is entitled”).

24



deterrent effect was just one of many categories of 
evidence that Congress relied upon, so this in no 
sense resembles the “worst case” situation -  where 
deterrence is claimed as the sole reason for 
reauthorizing Section 5 -  about which Judge 
Williams’ dissent expressed concern.

2. The Court of Appeals also correctly 
rejected Shelby County’s efforts to exclude evidence 
relevant to determining whether Section 5’s 
geographic coverage remains sufficiently well 
targeted.

Shelby County complains that the coverage 
formula “rel[ies] on ‘decades-old data.” App. at 56a. 
But as the Court of Appeals observed, the issue 
presented is not whether the initial coverage 
determinations were correct; instead, “[t]he question 
[is] whether [the coverage formula], together with 
bail-in and bailout, continues to identify [for 
coverage] the jurisdictions with the worst problems,” 
id. at 57a, which necessarily involves a review of 
current data. As discussed above, a review of the 
current data demonstrates the continued fit between 
Section 5 coverage and contemporary voting 
discrimination in the United States.

The Court of Appeals also correctly rejected 
Shelby County’s argument that evidence of vote 
dilution is irrelevant to the geographic coverage 
question. Shelby County contends that there is a 
statutory bar to considering evidence of vote dilution 
in evaluating the statute’s geographic coverage 
because the Section 4(b) coverage formula relies on 
factors related to ballot access. But, as the Court of 
Appeals explained, this contention “rests on a 
misunderstanding of the coverage formula.’ Id. at

25



56a. Congress relied on ballot access factors to make 
the initial coverage determinations not because that 
was “all it sought to target, but because [these 
factors] served as accurate proxies for pernicious 
racial discrimination in voting.” Id. at 57a.

IV. Post-Enactment Evidence Corroborates
the Court of Appeals

This Court is not foreclosed from considering 
post-enactment evidence that bears directly upon the 
constitutionality of congressional legislation. The 
Court of Appeals appropriately recognized that a 
court may consider relevant and probative “post­
enactment evidence.” App. at 54a (citing Tennessee 
v. Lane, 541 U.S.at 524-25 nn. 6-9 & 13).

Shelby County appears to be of two minds on 
this issue. On one hand, it asserts that its challenge 
“is based on the 2006 legislative record and no other 
evidence is constitutionally cognizable.” Petition at 
22. On the other hand, the County repeatedly relies 
in its Petition upon post-enactment evidence, 
referring to Section 5 objections and litigation 
regarding photo identification requirements in South 
Carolina and Texas, and litigation regarding changes 
to Florida’s early voting law; the County claims that 
this post-enactment evidence shows improper 
enforcement of Section 5 by the Attorney General.17

1' Shelby County also faults Congress for not conducting 
hearings or proposing bills following the decision in Nw. 
Austin. Petition at 21. But Congress conducted extensive 
hearings in 2005 and 2006 to consider the need for continuation 
of Section 5. It held 21 hearings, heard from more than 90 
witnesses, and compiled a massive record of more than 15,000 
pages of evidence, including testimony on the burdens of 
Section 5. See H.R. Rep. No. 109-478, at 5 (2006); S. Rep. No.

26



Since Shelby County filed its Petition, however, the 
District Court for the District of Columbia has issued 
rulings in the Texas and Florida cases, as well as in 
another Section 5 declaratory judgment action 
brought by Texas, that put Shelby County’s 
arguments in a rather different light.

Shelby County claims that Florida was “forced 
into preclearance litigation” to prove that reducing 
early voting is not discriminatory, when other states 
“have no early voting at all.” Petition at 20. On 
August 16, 2012, however, the three-judge court in 
Florida v. United States denied Section 5 
preclearance to Florida’s early voting changes, 
finding that they would likely result in retrogression 
within Florida’s five covered counties. Florida v. 
United States, no. l:ll-cv-01428, 2012 U.S. Dist. 
LEXIS 115647 (D.D.C. August 16, 2012). Contrary 
to Shelby County’s claim that the Department of 
Justice somehow forced Florida to file suit, the State 
in fact withdrew its early voting changes from 
administrative review and filed suit before the 
Attorney General had rendered a decision. Id. at 
*18. Moreover, following the denial of preclearance 
by the district court, the Attorney General precleared 
new non-retrogressive early voting hours for the five

109-295, at 2-4 (2006). At the conclusion of its deliberations 
Congress, by a vote of 390 to 33 in the House and by a 
unanimous vote in the Senate, 90 to 0, amended and extended 
Section 5 for an additional 25 years. 152 Cong. Rec. S8012 
(daily ed. July 20, 2006); 152 Cong. Rec. H5143-5207 (daily ed. 
July 13, 2006). Given its careful consideration of the continue 
need for Section 5, Congress cannot be faulted for not 
conducting additional subsequent hearings.

27



covered counties, thus completely refuting Shelby 
County’s suggestion of Department of Justice 
intransigence. ECF docket no. 161.

On August 30, 2012, the three-judge court in 
Texas v. Holder, no. l:12-cv-00128, 2012 U.S. Dist. 
LEXIS 127119 (D.D.C.), denied Section 5
preclearance on retrogression grounds to a 
requirement that voters present certain limited 
forms of government-issued photo identification in 
order to cast a ballot at the polls, which the Texas 
legislature had added to the state’s existing voter 
identification law.18 The three-judge court’s 
unanimous decision refutes Shelby County’s 
suggestion that the Attorney General’s earlier 
decision denying administrative Section 5 
preclearance was an abuse of discretion.

Two days earlier, on August 28, 2012, the 
three-judge court in Texas v. United States, no. 1:11- 
cv-1303, 2012 U.S. Dist. LEXIS 121685 (D.D.C.), 
denied Section 5 preclearance to three statewide 
redistricting plans. The court found that the

18 Although it did not make conclusions as to discriminatory 
purpose in light of its retrogression determination, the court 
noted that: “Ignoring warnings that SB 14, as written, would 
disenfranchise minorities and the poor, the legislature tabled or 
defeated amendments that would have; waived all fees for 
indigent persons who needed the underlying documents to 
obtain an EIC [Election Identification Certificate]; reimbursed 
impoverished Texans for ElC-related travel costs; expanded the 
range of identifications acceptable under SB 14 by allowing 
voters to present student or Medicare ID cards at the polls; 
required [Department of Public Safety] offices to remain open in 
the evening and on weekends; and allowed indigent persons to 
cast provisional ballots without photo ID.” 2012 U.S. Dist. 
LEXIS at *96-97 (record citations omitted).

28



congressional redistricting plan both had a 
retrogressive effect, id. at *53, and a racially 
discriminatory purpose. Id. at *71.19 The state 
senate plan was denied preclearance because the 
court found that it was motivated in part by a 
racially discriminatory purpose. Id. at *92. And the 
court denied preclearance to the state house plan on 
retrogression grounds, id. at *94; in addition, while it 
did not make a “purpose” determination on this plan, 
the court noted that, “at a minimum, the full record 
strongly suggests that the retrogressive effect we 
have found may not have been accidental.” Id. at 
*131. Texas did not make an administrative Section 
5 submission of any of these plans before it filed suit. 
Id. at *5.

19 The court found retrogression in several districts including 
District 23, an earlier version of which this Court found to 
violate Section 2 of the Voting Rights Act in 2006: “West
Texas’s CD 23 has a complicated history under the VRA. In 
2006, the Supreme Court held that CD 23, as then constituted, 
violated section 2. See LULAC v. Perry, 548 U.S. 399, 425-42 
(2006). In response, the U.S. District Court for the Eastern 
District of Texas redrew its boundaries in 2006 to be an 
‘opportunity district,’ or one in which Hispanic voters would 
have an opportunity to elect their preferred candidates, as 
required by section 2. We now find that the Hispanic voters in 
CD 23 turned that opportunity into a demonstrated ability to 
elect, but that the 2010 redistricting took that ability away.” 
2012 U.S. Dist. LEXIS 121685 at *55 (record citations omitted).

29



V. The Constitutionality of the 2006
Amendments is Not Properly Before the
Court

The constitutionality of Congress’ 2006 
amendments to the Section 5 preclearance standards 
is not properly presented for review by this Court.

In the Court of Appeals, “Shelby County 
neither challenge[d] the constitutionality of the 2006 
amendments or even argue [d] that they increase 
section 5's burdens.” App. at 66a. See also id. at 76a 
(“Shelby did not argue that either of these 
amendments is unconstitutional”) (Williams, J., 
dissenting). The Court of Appeals properly declined 
to consider these issues since they were “entirely 
unbriefed, and as we have repeatedly made clear, 
‘appellate courts do not sit as self-directed boards of 
legal inquiry and research, but essentially as arbiters 
of legal questions presented and argued by the 
parties before them.’” Id. at 66a-67a (quoting 
Carducci u. Regan, 714 F.2d 171, 177 (D.C. Cir. 
1983)). Since Shelby County neither challenged in 
the lower courts the constitutionality of the 2006 
amendments, nor argued that they increase Section 
5's burdens, the County has waived any such 
arguments.20

20 See Youakim v. Miller, 425 U.S. 231, 234 (1976) (“Ordinarily, 
this Court does not decide questions not raised or resolved in 
the lower court.”); Singleton v. Wulff, 428 U.S. 106, 120 (1976) 
(“It is the general rule, of course, that a federal appellate court 
does not consider an issue not pressed upon below.”); Spietsma 
v. Mercury Marine, 537 U.S. 51, 56 n.4 (2002) (deeming 
argument as to application of federal maritime law waived 
because it was not raised below).

30



In addition, as the Court of Appeals correctly 
observed, the 2006 amendments “are implicated only 
in a subset of cases,” id. at 67a, and thus are best 
addressed in the context of a preclearance dispute 
that substantively presents the question of the 
amendments’ nature and scope. Accordingly, since 
the instant case presents no such preclearance 
dispute, this is an independent reason for not 
addressing the 2006 amendments in this litigation.21

Shelby County contends, in its Statement of 
the Case, that the 2006 amendments “increased the 
already significant federalism burden preclearance 
imposes of covered jurisdictions.” Petition at 10. 
Nonetheless, the County’s Petition does not appear to 
assert that the constitutionality of the 2006 
reauthorization is affected by the 2006 amendments 
to the Section 5 preclearance standards. The 
Petition does not assert that the D.C. Circuit erred 
when it concluded that these amendments may not 
properly be considered in this case. Nor does Shelby

21 For these reasons, the majority did not address, on the 
merits, Judge Williams’ assertion that the amendments have 
created new burdens on covered jurisdictions. Judge Williams’ 
dissent incorrectly describes the history of Section 5 and is 
contrary to Congress’ findings, as the amendments, in fact, 
merely restored the longstanding interpretations and 
applications of Section 5 which had been abrogated by Georgia 
v. Ashcroft, 539 U.S. 461 (2003), and Reno v. Bossier Parish 
School Board, 528 U.S. 320 (2000) (Bossier II). As Congress 
stated: “The effectiveness of the Voting Rights Act of 1965 has 
been significantly weakened by the United States Supreme 
Court decisions in Reno v. Bossier Parish II and Georgia u. 
Ashcroft, which have misconstrued Congress’ original intent in 
enacting the Voting Rights Act of 1965 and narrowed the 
protections afforded by section 5 of such Act.” 120 Stat. 577, 
sec. 2(b)(6); H.R. Rep. No. 109-478, at 2 (2006).

31



County ask this Court to review either of the 
alternative legal determinations made by the D.C. 
Circuit in this regard -  that Shelby County’s failure 
to brief the “preclearance amendments” issue below 
precluded consideration of this issue, and that Shelby 
County’s facial challenge fails to present the 
requisite concrete circumstances in which the 
judiciary may appropriately consider the nature and 
scope of the amendments.

For these reasons, any grant of certiorari in 
this appeal should preclude consideration of a facial 
challenge to the 2006 amendments.

VI. The Question Presented is Incorrect

Finally, should certiorari be granted, the 
correct question before the Court would be whether 
Congress acted within its authority under both the 
Fourteenth and Fifteenth Amendments when it 
reauthorized Section 5 and Section 4(b) in 2006. 
Thus, if certiorari is granted, the Court should reject 
Shelby County’s proposed “question presented” 
because it ignores the explicit congressional 
invocation of enforcement authority under the 
Fourteenth Amendment. Intervenors have 
submitted the correct “question presented” for 
consideration by the Court.

As discussed above, Congress specifically 
relied upon its enforcement authority under both the 
Fourteenth and Fifteenth Amendments when it 
reauthorized Section 5 in 2006. H.R. Rep. No. 109- 
478, at 90 (“[T]he Committee finds the authority for 
this legislation under amend. XIV, § 5 and amend. 
XV, § 2); id. at 53 n. 136 (stating that the 
reauthorization is based on both Amendments).

32



Congress’ Fourteenth Amendment authority, 
therefore, would be integral to the question before 
the Court.

Shelby County has provided no substantial 
reason to disregard Congress’ stated reliance upon 
both the Fourteenth and Fifteenth Amendments. 
Shelby County does not -  and could not -  contend 
that the Fourteenth Amendment fails to reach racial 
discrimination in voting, nor does Shelby County 
identify any limitation in that Amendment’s 
enforcement clause that would preclude Congress 
from enacting remedial legislation to prevent and 
deter such discrimination. It is well established that 
the Equal Protection Clause of the Fourteenth 
Amendment prohibits racial discrimination in voting 
by state and local governments. E.g., Hunter v. 
Underwood, 471 U.S. 222 (1985); Rogers u. Lodge, 
458 U.S. 613 (1982); White v. Regester, 412 U.S. 755 
(1973). See also LULAC v. Perry, 548 U.S. at 440 
(Texas’ congressional redistricting plan “bears the 
mark of intentional discrimination that could give 
rise to an equal protection violation.”). And the 
enforcement clauses of the Fourteenth and Fifteenth 
Amendments grant Congress “parallel power,” 
Boerne, 521 U.S. at 518, and, in fact, use “virtually 
identical” language. Garrett, 531 U.S. at 373. 
Accordingly, it was entirely proper for Congress to 
rely on both Amendments when it acted to 
reauthorize Section 5 and Section 4(b) in 2006.

Shelby County observes that this Court’s prior 
decisions upholding the constitutionality of Section 5 
relied exclusively on the Fifteenth Amendment. 
Petition at 26 (citing Katzenbach, 383 U.S. at 308-10; 
Rome, 446 U.S. at 180-82). See also Lopez v.

33



Monterey County, 525 U.S. at 283-84. While true, 
this also says very little since these cases included no 
discussion of the Fourteenth Amendment, and thus 
included no ruling on whether Congress may rely on 
both Amendments in enacting remedies for racial 
discrimination in voting. Instead, it merely seems 
that the Supreme Court’s past focus on the Fifteenth 
Amendment was a function of jurisprudential 
historical development, and carried no substantive 
significance.22

22 In 1966, when the Court in Katzenbach first addressed the 
constitutionality of the Voting Rights Act, constitutional rulings 
regarding discrimination in voting generally relied on the 
Fifteenth Amendment. E.g., Louisiana v. United States, 380 
U.S. 145, 153 (1965); Gomillion v. Lightfoot, 364 U.S. 339, 346 
(1960); Smith v. Allwright, 321 U.S. 649, 666 (1944). However, 
beginning in the 1970s, the Supreme Court built upon its one- 
person, one-vote rulings under the Fourteenth Amendment to 
hold that a different form of vote dilution -  one that denies 
minority voters the opportunity to elect candidates of choice -  
also violates the Fourteenth Amendment. See White v. 
Regester, supra. Thus, constitutional law as applied to 
discrimination in voting has progressed to including the 
prohibitions in both the Fourteenth and Fifteenth Amendments.

34



CONCLUSION

The petition for a writ of certiorari should be 
denied.

Respectfully Submitted,

Jon M. Greenbaum 
Counsel of Record 

Robert A. Kengle 
Marcia Johnson-Bianco 
Mark A. Posner 
Lawyers’ Committee for 

Civil Rights Under Law 
1401 New York Avenue, 

NW, Suite 400 
Washington, DC 20005 
(202) 662-8325 

jgreenbaum@lawyerscomm 
ittee.org

John M. Nonna 
Patton Boggs LLP 
1185 Avenue of the 

Americas, 30th Floor 
New York, NY 10036 
(646) 557-5172
Counsel for Bobby Lee 

Harris

35



Debo P. Adegbile 
Acting Director Counsel 
Elise C. Boddie 
Ryan P. Haygood 
Dale E. Ho
NAACP Legal Defense 

& Educational Fund, 
Inc.

99 Hudson Street,
16th Floor

New York, NY 10013 
(212) 965-2200
Counsel for Earl 

Cunningham, Harry 
Jones, Albert Jones, 
Ernest Montgomery, 
Anthony Vines and 
William Walker

Kim Keenan 
Victor L. Goode 
NAACP
4805 Mt. Hope Drive 
Baltimore, MD 21215- 

3297
(410) 580-5120
Counsel for The 

Alabama State 
Conference of the 
National Association 
for the Advancement 
of Colored People, Inc.

Laughlin McDonald 
Nancy G. Abudu 
American Civil 

Liberties Union 
Foundation 

230 Peachtree Street, 
NW, Suite 1440 

Atlanta, GA 30303-1227 
(404) 523-2721

Steven R. Shapiro 
American Civil 

Liberties Union 
Foundation 

125 Broad Street 
New York, NY 10004 
(212) 549-2500

David I. Schoen 
2800 Zelda Road, Suite 

100-6
Montgomery, AL 36106 
(334) 395-6611
Counsel for Bobby 

Pierson, Willie 
Goldsmith, Sr., Mary 
Paxton-Lee, Kenneth 
Dukes, and The 
Alabama State 
Conference of the 
National Association 
for the Advancement 
of Colored People, Inc.

Dated: September 24, 2012

36



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